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Crawford v. Department of Revenue and Tanisha Charmia Watson

Florida Court of Appeals, First District

May 16, 2017

SENCOA DAMAIR CRAWFORD, Appellant,
v.
DEPARTMENT OF REVENUE and TANISHA CHARMIA WATSON, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Circuit Court for Duval County. Elizabeth A. Senterfitt, Judge.

          Neil L. Weinreb, Jacksonville, for Appellant.

          Pamela Jo Bondi, Attorney General, and Carrie R. McNair, Assistant Attorney General, Child Support Enforcement, Tallahassee, for Appellees.

          WOLF, J.

         Appellant challenges an order entered by the circuit court that adopted a hearing officer's recommended order finding appellant in contempt for failure to pay child support and ordering his immediate incarceration until he paid a $500 purge. Appellant raises several arguments, two of which merit discussion. He argues (1) there was not competent, substantial evidence to support the finding that appellant had the present ability to pay the $500 purge; and (2) the hearing officer erred when she ordered appellant's immediate arrest without the authority to do so. The Department of Revenue (the Department) correctly concedes error. Thus, we reverse.

         Facts

         In September 2014, the circuit court entered an order finding that appellant was the legal parent of two minor children. The court ordered appellant to pay $511 a month in child support, plus $3, 066 in retroactive child support.

         In January 2016, the Department filed a motion for contempt for failure to pay child support and a notice of hearing. Hearing officer Athiel Jones conducted a hearing on March 30, 2016, during which the Department alleged that appellant had not paid much in child support since the original support order was entered, except for several $500 payments as a purge in prior contempt proceedings. Appellant's last payment was a partial purge payment on July 14, 2015, and he still owed $10, 964 in child support.

         Appellant testified that he did not have a job, but he wished to pay his child support. Appellant was unable to find employment and had applied to 30 different jobs with no success. He did not have a driver's license at the time of the hearing, and that had impaired his ability to find employment. However, appellant had gotten three or four days' work through a temporary agency at $9.30 an hour, and he was expecting to continue getting some work from the agency over the next couple of months. He requested that an income deduction order be sent to the temporary agency. He stated he had not turned down any work. A financial affidavit showed appellant had no assets or money other than $15 cash, and appellant further testified that he survived by receiving shelter and food from his girlfriend.

         After stating that she had reviewed appellant's payment history, the hearing officer found appellant in contempt and ordered that he be immediately incarcerated with a $500 purge. Counsel for appellant objected and asked what competent, substantial evidence the hearing officer thought established that appellant had the present ability to pay the purge amount. The Department's counsel argued that "it's the payment history." The hearing officer explained that "I do find he has an ability to pay. He has an ability to earn income." Appellant's counsel objected that was not the correct legal standard. Counsel also objected that the hearing officer lacked the legal authority to order that someone be incarcerated. The hearing officer responded, "Thank you for bringing that to my attention, " but did not rescind her order that appellant be incarcerated. Appellant was arrested.

         On April 5, 2016, a hearing officer reduced the purge amount, and appellant paid the reduced purge and was released on that date.

         On April 6, 2016, the hearing officer issued a written order on the March 30, 2016, hearing recommending that the circuit court find appellant in contempt. Specifically, the hearing officer noted that appellant testified that he had no physical disabilities that prevented him from working, that he had done some work for a temporary agency, and that he had previously paid two purges of $500 but had never made a regular child support payment. A circuit court judge adopted the recommended order on April 11, 2016. After appellant filed his notice of appeal, the Clerk of Court determined that appellant was indigent based on his financial affidavit.

         I. Present ...


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