Stokes v. Dep't of Revenue

275 So. 3d 713
CourtDistrict Court of Appeal of Florida
DecidedJune 7, 2019
DocketCase No. 5D17-4002
StatusPublished

This text of 275 So. 3d 713 (Stokes v. Dep't of Revenue) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stokes v. Dep't of Revenue, 275 So. 3d 713 (Fla. Ct. App. 2019).

Opinion

COHEN, J.

*714David Anthony Stokes, Sr. appeals a final administrative paternity and support order entered by the Florida Department of Revenue ("DOR" or "the department") on behalf of Lorie Elayne Loy. He raises two issues on appeal: DOR's failure to transfer the administrative paternity and child support proceeding to the circuit court, and DOR's miscalculations of his child support and retroactive child support obligations. We reverse the order to the extent that it determines Stokes's child support obligations.

On November 3, 2016, DOR sent Stokes a notice of administrative proceeding to establish paternity and an order to appear for genetic testing. Pursuant to sections 409.256 and 409.2563, Florida Statutes (2017), the notice provided the methods to opt-out of DOR's administrative process to pursue the establishment of paternity and/or support in the circuit court. See § 409.256(4)(a) 12., Fla. Stat. (requiring party to file paternity or support action in circuit court and serve the department within twenty days after receipt of the initial notice); § 409.2563(4)(m) 3., Fla. Stat. (requiring party to request in writing that the department proceed in circuit court to determine support obligations or that party intends to address issues concerning parental rights or timesharing within twenty days after receipt of the initial notice); § 409.2563(4)(m) 4., Fla. Stat. (requiring party who opts-out pursuant to section 409.2563(4)(m) 3. to waive service of process within ten days after receipt of the department's petition). In response to DOR's notice, Stokes did not request that DOR transfer the matter, nor did he file a circuit court action. Instead, he contested the order for genetic testing and requested an informal review pursuant to section 409.256(5).

On December 13, 2016, DOR served Stokes with a second notice of the administrative paternity proceeding and genetic testing order. The notice contained the same opt-out provisions as the prior notice. Stokes did not respond, but he appeared for genetic testing, the results of which indicated that he was the child's biological father.1

On March 1, 2017, DOR sent Stokes a notice of proceeding to establish administrative support order. The notice also provided the same opt-out methods to move the proceeding to the circuit court. On March 27, 2017, Stokes requested that the matter be "handled judicially and not administratively" pursuant to section 409.2563(4)(m) 3. Although untimely, DOR filed a petition to establish paternity, support, and other relief in the Hillsborough County Circuit Court. Upon filing the petition, DOR sent Stokes a notice of commencement of action and a request for waiver of service of process pursuant to section 409.2563(4)(m) 4. Stokes did not return the waiver, and DOR voluntarily dismissed the circuit court action.

DOR proceeded with its administrative child support action. It sent Stokes a proposed final administrative order indicating that Stokes's net monthly income was $ 5488.45. Stokes contested the proposed order and requested an administrative hearing on the matter, alleging that he was unemployed and received only $ 1474.20 in monthly unemployment compensation. He also filed a separate paternity action in the *715circuit court. Stokes served DOR with copies of his petition and a signed, notarized financial affidavit.

Pursuant to his request for a hearing, DOR transferred Stokes's administrative case to the Division of Administrative Hearings ("DOAH"). However, Stokes withdrew his request, and the administrative law judge relinquished jurisdiction to DOR. DOR rendered its final administrative paternity and support order, finding that Stokes was the child's biological father and ordering him to pay $ 1319.43 per month in child support as well as thirty-seven months of retroactive support, totaling $ 48,818.91. Stokes timely appealed.2

First, Stokes argues that DOR should have terminated the administrative proceeding and transferred the matter to the circuit court. We find that Stokes failed to comply with the opt-out provisions in sections 409.256 and 409.2563.

After receipt of DOR's initial notice and subsequent notice, Stokes did not request to transfer the paternity action, nor did he timely file his own circuit court case. Instead, he requested an informal review of the genetic testing order pursuant to section 409.256(5). Thus, DOR did not err by continuing with the administrative proceeding to establish Stokes's paternity.

Stokes also failed to opt-out of the administrative child support proceeding. Although Stokes requested to move the action to circuit court pursuant to section 409.2563(4)(m) 3., he failed to waive service of process within ten days after receipt of the department's petition. See § 409.2563(4)(m) 4., Fla. Stat. Likewise, Stokes did not timely opt-out of the child support proceeding pursuant to section 409.256(4)(a) 12. because he failed to file his circuit court action and serve DOR with a copy of his petition within twenty days after receiving DOR's initial notice; instead, he waited approximately seven months. Thus, DOR properly continued with the administrative support proceeding because Stokes failed to timely opt-out and no order of support had been entered in Stokes's circuit court action. See Dep't of Rev. v. Graczyk, 206 So. 3d 157, 161 (Fla. 1st DCA 2016) (" Section 409.2563 confers concurrent jurisdiction on DOR/DOAH to establish child support obligations when there is no court order of support.").

Second, Stokes contends that the child support and retroactive support obligations in the final administrative order are unsupported because DOR failed to consider his financial affidavit, which indicated that he was unemployed and receiving only unemployment compensation.

This Court reviews a final administrative order establishing a child support obligation in accordance with section 120.68, Florida Statutes (2017). See § 409.2563(10)(a), Fla. Stat. "The standard of review of an administrative agency's adjudicative findings is whether those findings are supported by substantial competent record evidence." Cain v. Unemplmt. App. Comm'n, 876 So. 2d 592, 593 (Fla. 5th DCA 2004) (citations omitted).

In an administrative proceeding, child support is calculated according to the procedures in section 409.2563(5). Under that section, if a parent fails to provide DOR with a financial affidavit, DOR may proceed to calculate child support using sufficiently reliable information available from any source. § 409.2563(5)(a), Fla. Stat. A support order cannot stand if it is based on an inaccurate determination of a party's current income. Id. § 120.68(10) ; see *716Finch v. Dep't of Rev. ex rel. John-Jules

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Related

Cain v. Unemployment Appeals Com'n
876 So. 2d 592 (District Court of Appeal of Florida, 2004)
Nerney v. Nerney
752 So. 2d 706 (District Court of Appeal of Florida, 2000)
Finch v. Department of Revenue
65 So. 3d 1150 (District Court of Appeal of Florida, 2011)
Department of Revenue and Mark Cole etc. v. Laura Beth Graczyk
206 So. 3d 157 (District Court of Appeal of Florida, 2016)

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Bluebook (online)
275 So. 3d 713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stokes-v-dept-of-revenue-fladistctapp-2019.