Field notes on the establishment of administrative child support.

• Author: Meale, Robert E.

The reader does not get far into Tolstoy's Anna Karenina before encountering the famous line: "Happy families are all alike; every unhappy family is unhappy in its own way." Likewise, the reader does not get far into administrative child support cases (1) before encountering the thought that Tolstoy's quote might serve as a coda for the disharmony present, not so much in the families, but in some of the opinions.

Child support can be established or modified (2) in circuit court, where the parents themselves can litigate the issue, or the Department of Revenue (DOR) can litigate on behalf of a parent. If there is no circuit court order of support, (3) DOR can issue a final administrative support order (FASO) if no hearing is requested on a proposed FASO. (4) If a hearing is requested by the father (5) or DOR on behalf of the mother, (6) an administrative law judge (ALJ) of the Division of Administrative Hearings (DOAH) can conduct a hearing and issue a FASO or a final order denying the proposed FASO. (7) Once rendered by DOR, a FASO is enforceable like a circuit court support order, (8) although contempt requires a circuit court order adopting the FASO. (9)

As Florida's Title IV-D agency, DOR is authorized to establish paternity and child support and modify, enforce, and collect child support. (10) Title IV-D refers to Title IV, Part D of the federal Social Security Act. (11) Section 409.2563(1)(f) defines a Title IV-D case as one in which DOR is providing "child support services" (12) within the scope of Title IV-D, whose coverage provisions are broad. (13)

A parent seeking Title IV-D services is not required to have received public assistance, although, among parents receiving public assistance, participation in establishing child support may be a condition to continuing to receive public assistance. (14)

A parent seeking Title IV-D services is not required to be the custodial parent or provide the primary residence of the child. In 2008, the legislature replaced these terms with terms differentiating between the parents based on which parent was seeking support: The parent seeking support is the "person from whom support is not being sought," and the other parent is "the parent from whom support is being sought." (15) Since 2008, nothing in F.S. [section] [section] 409.2551-409.25995 has prevented DOR from bringing a child support proceeding on behalf of a parent with whom the child does not primarily reside. (16)

If the parents do not have a court-approved parenting plan assigning the child to each parent for a specific percentage of nights, the guideline (17) amount for DOR's client is the same, regardless of whether her share of the nights is 80 percent, 50 percent, or 40 percent. (18) In DOR ex rel. Sherman v. Daly, 74 So. 3d 165 (Fla. 1st DCA 2011), the parents had agreed at the hearing that the mother had the child 60 percent of the nights and the father had the child 40 percent of the nights, and the ALJ calculated the child support accordingly, even though the parents' agreed-upon practice had never been incorporated into a court-approved parenting plan. In a holding equally applicable to judicial proceedings, (19) the court reversed the FASO and directed the ALJ to apply the guidelines without adjustment for the parents' timesharing arrangement. A recent case effectively extends Sherman to retroactive child support. DOR v. McLeod, 96 So. 3d 443 (Fla. 1st DCA 2012), addresses DOR's ability to provide Title IV-D services. Without the involvement of DOR, the parents had obtained a child support order, which the mother had twice enforced by contempt. After trying once, unsuccessfully, to have a court modify the order, the father enlisted the help of DOR in his next effort. The circuit judge ruled that DOR lacked standing to represent the father in a proceeding to reduce the child support because neither parent nor the child had received public assistance, and lowering child support would necessarily harm the child. On appeal, the court, invoking "tipsy coachman," affirmed the trial court without adopting its reasoning, although the appellate opinion's reasoning is somewhat obscure, even after the issuance of a substitute opinion. (21)

Perhaps more important than its...