RAYMOND FELICIANO v. DEPT. OF REVENUE, CHILD SUPPORT ENFORCEMENT and…

       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         RAYMOND FELICIANO
                             Appellant,

                                    v.

DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT, and
           STEFFANIE DANIELLE CACCIATORE
                      Appellees.

                             No. 4D19-3431

                           [October 28, 2020]

   Administrative appeal from the State of Florida, Department of
Revenue, Child Support Program; L.T. Case Nos. CSE 2001422511 and
50190700845CA.

   Scott J. Edwards of Scott J. Edwards, P.A., Boca Raton, for appellant.

   Ashley Moody, Attorney General, and Toni C. Bernstein, Senior
Assistant Attorney General, Tallahassee, for appellee Department of
Revenue.

FORST, J.

   Appellant Raymond Feliciano appeals from a final administrative
support order entered by the Florida Department of Revenue Child
Support Program (“the Department”).           Appellant asserts that the
Department erred in calculating his child support obligation amount
without considering his ability to pay, and that the Department improperly
considered child care costs without competent, substantial evidence in
support. The Department responds that Appellant failed to preserve either
issue by failing to request an administrative hearing. Because we agree
that Appellant has failed to preserve both arguments, we therefore affirm
without prejudice, as explained below.

   After the mother of Appellant’s child sought child support from
Appellant, the Department requested financial information from both
parents to calculate a proper obligation amount. Based on the information
provided, the Department prepared a Proposed Administrative Paternity
and Support Order (“Proposed Order”). The Proposed Order notified
Appellant that if he did not agree with the findings contained within, he
could either contact the Department or request an administrative hearing.
The Proposed Order further informed Appellant that if he did not take any
action, the Department would issue a final order requiring him to pay
$856.20 in total monthly child support. 1

   Despite the notice, Appellant did not contact the Department or request
a hearing. The Department therefore entered a Final Administrative
Paternity and Support Order, requiring Appellant to pay $856.20 in total
monthly child support. It is from this order that Appellant now seeks our
review.

    The findings of a final administrative support order under section
409.2563, Florida Statutes, may not be challenged on appeal following the
failure of an appellant to fully participate in the proceedings below. See
Standard v. State, Dep’t of Revenue, Child Support Enf’t Program, 249 So.
3d 798, 798 (Fla. 1st DCA 2018) (holding that the appellant had not
preserved any issue for review following his failure to provide financial
information or to request an administrative hearing below); Salters v. Dep’t
of Revenue, Child Support Enf’t Program ex rel. Mobley, 32 So. 3d 777, 777–
78 (Fla. 2d DCA 2010) (stating the same). However, notwithstanding an
appellant’s failure to participate in the proceedings, the improper
calculation of a child support obligation amount pursuant to the child
support guidelines is fundamental error that may be raised at any time.
See Gillislee v. Fla. Dep’t of Revenue, 150 So. 3d 294, 294–95 (Fla. 1st DCA
2014) (holding that the failure to properly calculate retroactive support
payments constituted fundamental error); see also Gaut v. Dep’t of
Revenue, Child Support Enf’t Program, 220 So. 3d 552, 553 (Fla. 2d DCA
2017) (reversing based on the improper calculation of retroactive child
support despite the appellant’s failure to “participate in the proceedings”).

   Here, although Appellant provided his financial information, he did not
request an administrative hearing and therefore failed to fully participate
in the proceedings below. See Standard, 249 So. 3d at 798. Moreover,
Appellant raises claims on appeal that are unrelated to the Department’s
calculation of the statutory child support obligation amount, which does
not implicate fundamental error. 2 See Gillislee, 150 So. 3d at 294–95.

1 This calculation was based on $713.50 per month in current support—a steep
amount attributable in large part to the $975.00 monthly child care costs for the
infant child—and $142.70 per month in retroactive support.

2To the extent Appellant argues the Department failed to consider his support
obligation for his two other minor children resulting in an improper calculation

                                       2
Accordingly, we need not reach the merits of Appellant’s claims and hold
that Appellant has failed to properly preserve his arguments for appeal.

   We note that the lack of a hearing and the resulting absence of a
transcript provides this Court with little basis to conclude that the
Department’s final order is not supported by the evidence. See Applegate
v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979).
Appellant’s arguments on appeal are arguments that should have been
presented and analyzed at a hearing. “By waiving his right to a hearing,
[Appellant] waived his ability to challenge the sufficiency of the evidence
to support the Department’s determination of his child support
obligations.” O’Steen v. State Dep’t of Revenue Child Support Program, 299
So. 3d 510, 511 (Fla. 3d DCA 2020). Thus, Appellant “cannot complain
for the first time on appeal that the [Department] utilized the statutorily
permissible methodology to calculate his current child support obligation.”
Gaut, 220 So. 3d at 553.

   However, the Department’s 2019 Final Administrative Paternity and
Support Order is not necessarily the “end of the road” for Appellant. As
we noted in Brookshire v. Department of Revenue, Child Support
Enforcement, 288 So. 3d 709 (Fla. 4th DCA 2020), Appellant “may seek a
modification of the final administrative support order as set forth in
section 409.2563(12), Florida Statutes, or he may seek a superseding
order in the circuit court pursuant to section 409.2563(10)(c), Florida
Statutes.” Id. at 710. We therefore affirm without prejudice for Appellant
to seek relief as outlined in section 409.2563, Florida Statutes (2019).

   Affirmed.

CIKLIN and KUNTZ, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




of his child support obligation, Appellant’s financial information did not state
whether such support was pursuant to a court order. The Department thus had
no way of knowing whether the amount constituted a deduction from Appellant’s
gross income under section 61.30(3)(f), Florida Statutes, or a deviation for a
Smith/Speed credit under section 61.30(11)(a)11., Florida Statutes.

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