Department of Revenue v. Marcovitch
Department of Revenue v. Marcovitch
Opinion of the Court
The first issue raised by this appeal concerns the effect of a failure to serve a supplemental petition for modification of child support on the Department of Revenue. Additionally, there is a claim that the final hearing was improperly noticed.
By order entered on July 31, 1998, the circuit court for Seminole County adjudicated a child support obligation owed by Carlos Marcovitch. The court order was entered pursuant to a motion to establish child support filed by the appellant State of Florida, Department of Revenue on behalf of the mother, Elaqiqia Bonaldy-Sosa. On April 1, 1999, Marcovitch filed a supplemental petition for modification of child support claiming he was currently unemployed due to medical reasons. The child support guidelines worksheet, which was filed at the same time as this supplemental petition, indicates that a copy was mailed to the mother on or about March 31, 1999. The only respondent named in the supplemental petition was the mother.- A final hearing was held on May 3, 1999. The court minutes indicate that the mother was not present. Marcovitch addressed the
On October 5, 1999, the Department of Revenue, on behalf of the mother, filed a motion for rehearing. The Department argued that the “attorney of record” in this action was the Law Office of Hernán Castro, P.A.
On appeal, the Department notes that this was a Title IY-D case and, as such, the modification proceeding should have been directed to a hearing officer as required by Rule 12.491(d), Family Law Rules of Procedure. Additionally, since the notice of hearing was mailed to the mother on April 21, 1999, indicating a May 3, 1999 hearing, this would have been less than the required 30 days. Rule 1.440(c), Florida Rules of Civil Procedure. Here, strict compliance with Rule 1.440 was required and failure to give the 30 days notice, along with failure to serve the attorney (Florida Rule of Civil Procedure 1.080(b)), is reversible error. Department of Revenue v. Freeman, 762 So.2d 580 (Fla. 5th DCA 2000)(In post-dissolution proceeding, DOR was not given notice with regard to Freeman’s actions and did not have opportunity to be heard). See also Regalado v. Regalado, 743 So.2d 625 (Fla. 2d DCA 1999); Bennett v. Ward, 667 So.2d 378 (Fla. 1st DCA 1995); Lauxmont Farms, Inc. v. Flavin, 514 So.2d 1133 (Fla. 5th DCA 1987).
Accordingly, we reverse the order denying the motion for rehearing and the order abating child support and remand for further proceedings with proper notice.
REVERSED AND REMANDED.
. Hernán Castro was a program attorney with the Department of Revenue Child Support Enforcement Division.
Reference
- Full Case Name
- DEPARTMENT OF REVENUE, etc. v. Carlos MARCOVITCH
- Cited By
- 2 cases
- Status
- Published