NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
KERRY EDSON HARRIS, )
)
Appellant, )
)
v. ) Case No. 2D14-4855
)
DEPARTMENT OF REVENUE o/b/o )
VANDA INSIXIENGMAY, )
)
Appellee. )
___________________________________ )
Opinion filed May 6, 2016.
Appeal from the Department of Revenue.
Frederick L. Pollack of Hunter Law, P.A.,
Tampa, for Appellant.
Pamela Jo Bondi, Attorney General, and
Toni C. Bernstein, Senior Assistant
Attorney General, Tallahassee, for
Appellee.
KHOUZAM, Judge.
Kerry Edson Harris, the father, appeals the final administrative support
order entered after a hearing. See § 409.2563, Fla. Stat. (2014).1 We reverse.
1
We have jurisdiction under Florida Rule of Appellate Procedure
9.030(b)(1)(C).
The father and Vanda Insixiengmay have two children. The father has five
other children, three of whom are from a prior marriage. In May 2014, the Department
of Revenue mailed Harris a notice advising him that DOR was initiating administrative
action to establish child support for the two children he had with Ms. Insixiengmay.
DOR later sent the father a proposed administrative support order setting
a support obligation for the two children. The father, pro se, objected to the proposed
order and DOR referred the matter to the Department of Administrative Hearings.
DOAH set the matter for a hearing and mailed the father a notice of hearing. The notice
set a date and time for a hearing but was silent as to any time constraints on the
hearing.
The father then obtained counsel who filed a motion for continuance, and
the hearing was rescheduled. The father's counsel also filed a motion to deviate from
the child support guidelines, which, in pertinent part, sought a credit for his three
children from a prior marriage pursuant to Florida Department of Revenue ex rel.
Marshall v. Smith, 716 So. 2d 333 (Fla. 2d DCA 1998), and Speed v. Florida
Department of Revenue ex rel. Nelson, 749 So. 2d 510 (Fla. 2d DCA 1999), because
the children spent nearly half of their overnights with the father and he provided actual
support for them in addition to court-ordered child support. In support of his motion, the
father attached a copy of the Final Judgment of Dissolution which included a copy of the
parenting plan. The parenting plan showed that the three children spent approximately
43% of their overnight stays with Harris. Harris' motion was also supported by his
financial affidavit and a proffered support guidelines worksheet that estimated what the
father's obligation would be if the children did not have any overnights with him.
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The hearing was held before an administrative law judge. Despite the fact
that neither the initial notice nor the order rescheduling the hearing set any time
limitations on the hearing, the ALJ enforced a forty-five minute time limit on the hearing.
Two issues were addressed during the hearing. First, the parties litigated a dispute
concerning how the father's income was to be calculated. Following a ruling on the first
issue, the ALJ stated the following to DOR's counsel: "We're moving on. You're the one
who needs to conclude this hearing in the next fifteen minutes, and we have other
issues that have been raised by the respondent, and I'm not going to not allow him to
pursue them."
Despite this statement, the ALJ moved on to address the father's motion
for a deviation from the guidelines. In ruling on the father's request for a credit pursuant
to Smith and Speed, the ALJ opined, for the first time, that she would not be able to
grant such a credit without the guidelines worksheet from the father's divorce which
resulted in the court-ordered support for these children. The following exchange then
took place between the ALJ and the father's counsel:
Mr. Pollack: Given our limited time, Your
Honor, I—I certainly have no problem if the court wants to
take it under advisement and allow us to submit that in
writing or—
ALJ: No.
Mr. Pollack:—continue it to provide the—
ALJ: No sir. The—the hearing had been
continued once, and you were instructed to come here with
any evidence you wanted, and I understand what your
argument is, but there is no way for me to fairly quantify the
impact of time-sharing to the extent that resulted in a
lowered court ordered child support.
It's a very interesting concept, and I've given it
some thought, but I don't have the evidence to take it into
account so I'm not going to.
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The father's counsel objected, arguing that the time provided for the hearing was
insufficient and that he was not able to address the individual evidence he provided in
support of his motion. DOR also objected to the time constraints placed on the hearing
because it was not afforded an opportunity to question the father's employer with regard
to the reduction in the father's income.
Following the hearing, the ALJ entered a final administrative support
order. The order denied Harris' request for a credit under Smith and Speed, reasoning
that in order "[t]o quantify the downward adjustment, [Harris] would have to offer the
guidelines worksheet used to establish his $200 per month support obligation, so that
the calculation could have been recreated without the 43% time-sharing adjustment
factor[.]" Harris timely appealed.
On appeal, Harris argues that the ALJ abused its discretion in limiting the
hearing to forty-five minutes and denying his motion for a continuance. He further
argues that the ALJ erred in finding that a copy of the support guidelines from his prior
divorce was required in order to obtain a credit under Smith and Speed. We agree.
Article I, section 9 of the Florida Constitution provides: "No person shall be
deprived of life, liberty or property without due process of law." Generally, due process
is satisfied by notice and an opportunity to be heard. Ryan v. Ryan, 277 So. 2d 266,
274 (Fla. 1973). "[T]he opportunity to be heard must be 'at a meaningful time and in a
meaningful manner.' " Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct
Auth., 795 So. 2d 940, 948 (Fla. 2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 333
(1976)). This court reviews "whether a party was denied the opportunity to be heard for
abuse of discretion." Dep't of Children & Families v. T.S., 154 So. 3d 1223, 1226 (Fla.
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4th DCA 2015) (citing C.K. v. Dep't of Children & Family Servs., 88 So. 3d 975, 977
(Fla. 2d DCA 2012)).
Trial courts enjoy broad discretion in ruling on motions for continuance.
Neal v. Swaby, 975 So. 2d 431, 433 (Fla. 2d DCA 2007). "The same discretion is
vested in the ALJ." Milanick v. Osborne, 6 So. 3d 729, 730 (Fla. 5th DCA 2009) (citing
Fla. Admin. Code R. 28-106.210). "However, the exercise of that discretion is not
absolute." Neal, 975 So. 2d at 433. A reviewing court should consider the following
factors when evaluating whether a trial court has abused its discretion in ruling on a
motion for continuance:
1) whether the movant suffers injustice from the denial of the
motion; 2) whether the underlying cause for the motion was
unforeseen by the movant and whether the motion is based
on dilatory tactics; and 3) whether prejudice and injustice will
befall the opposing party if the motion is granted.
Id. at 433 (quoting Baron v. Baron, 941 So. 2d 1235-36 (Fla. 2d DCA 2006)).
We sympathize with the ALJ's efforts to expediently resolve this case, but
on the record before this court, Harris was denied due process by the arbitrary time
constraint and refusal to grant a continuance. DOR would not have suffered injustice or
prejudice from continuing the hearing, Harris had no prior notice that there would be a
forty-five minute limitation on the hearing, and the motion was not based on dilatory
tactics. In fact, DOR also objected to the time limitations placed on the hearing. We
recognize that the hearing had been continued once before, but a single continuance
granted because a party has recently obtained counsel does not, by itself, justify the
denial of a second continuance under these circumstances. Further, the ALJ erred by
denying Harris' request for a credit under Smith and Speed without considering the
evidence submitted in support. There are multiple calculations that may be utilized to
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determine the amount of such a credit. See Smith, 716 So. 2d at 334-35. Even though
one of those avenues was foreclosed this should not have been the end of the
analysis.2 Because the father was not afforded due process, on remand, the ALJ shall
fully consider his request for a credit under Smith and Speed.
Accordingly, we reverse the administrative support order insofar as it
denied Harris' request for a credit under Smith and Speed and remand to the ALJ to
hold an additional hearing for reconsideration of the matter.
Affirmed in part, reversed in part, and remanded.
LaROSE, and CRENSHAW, JJ., Concur.
2
We express no opinion as to whether the ALJ ultimately reached the
correct result. To do so would require this court to evaluate the credibility of the
evidence submitted in support of the father's motion. After considering the father's
evidence the ALJ may very well reach the same ultimate conclusion that the father is
not entitled to the credit he seeks.
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