IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
EVERALD GEORGE NOT FINAL UNTIL TIME EXPIRES TO
JOHNSON, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D15-5809
v.
STATE, DEPARTMENT OF
REVENUE, CHILD SUPPORT
ENFORCEMENT PROGRAM
EX REL. ANNMARIE
JOHNSON,
Appellee.
_____________________________/
Opinion filed October 7, 2016.
An appeal from the Department of Revenue.
Ann Coffin, Director of the Child Support Enforcement Program of the
Department of Revenue, Authorized Representative.
Opal P. Lee of FloJam Legal, P.A., Plantation, for Appellant.
Pamela Jo Bondi, Attorney General and Toni C. Bernstein, Assistant Attorney
General, for Appellee.
OSTERHAUS, J.
Everald George Johnson challenges the validity of the Department of
Revenue’s (DOR’s) final administrative child support order on the basis that DOR’s
proceeding should have terminated after he served DOR with a copy of a filed circuit
court petition addressing support obligations. We agree and reverse.
I.
On August 13, 2015, Mr. Johnson received notice from DOR that a
proceeding to establish administrative support had been initiated against him. On
September 1, 2015, Mr. Johnson filed a petition for dissolution of marriage in circuit
court that sought a determination regarding child support, and mailed a copy of the
petition to DOR. His cover letter informed DOR that his circuit court case included
child custody, timesharing, and child support issues. And it specifically asked DOR
to close the administrative proceeding. DOR received the letter and petition on
September 4, 2015, but moved forward anyway with its administrative case and
entered a final support order against Mr. Johnson a couple of months later.
II.
This case turns on a question of law and whether service of a copy of a circuit
court petition is accomplished at the time it is mailed for purposes of § 409.2563,
Florida Statutes, even if it is not physically received by DOR until after the 20-day
period for service has run. Everyone agrees in this case that Mr. Johnson’s 20-day
period for serving a copy of a circuit court petition started on August 13, 2015, upon
receipt of DOR’s Notice of Proceeding. Everyone also agrees that nineteen days
later, on September 1st, Mr. Johnson mailed DOR a copy of the petition he had filed
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in circuit court in Broward County. Mr. Johnson argues that timely mailing the
petition on the 19th day satisfied his service requirement. But DOR’s asserts Mr.
Johnson’s letter was two days late because DOR received it on the 22nd day after
Mr. Johnson received notice of the administrative support proceeding.
The law requires that DOR halt an administrative support proceeding if the
parent from whom support is sought files a petition to have the matter heard in circuit
court and “serves [DOR] with a copy of the petition within 20 days after being served
notice [of the administrative support proceeding].” § 409.2563(4)(n), Fla. Stat.
DOR’s Notice of Proceeding quoted this very same standard. It said its
administrative proceeding against Mr. Johnson would end if he files a civil action to
determine support obligations in circuit court “within 20 days after you were served
with this notice . . . and serve us with a copy of the petition.”
Section 409.2563, defines the term “filed” for purposes of the statute, but does
not detail how to “serve” DOR with a copy of the petition. Instead, a handful of
procedure and administrative rules establish what Mr. Johnson had to do to complete
service of a copy of his circuit court petition on DOR. See Fla. Fam. L.R.P. 12.070
& 12.080; Fla. R. Civ. P. 1.070 & 1.080; Fla. R. Jud. Admin. 2.516. Contrary to
DOR’s argument, the rules do not require personal service as if Mr. Johnson were
formally serving an initial pleading on a party defendant in the circuit court case.
DOR was not a party to the circuit court case. And, in this case, the notice to DOR
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contemplated by § 409.2563(4)(n) is governed by Rule of Judicial Administration
2.516, which addresses how almost “every other document,” except an initial
pleading, must be served. Rule 2.516 states that service is generally to be
accomplished by e-mail, but that if a party is not represented by an attorney and has
not designated an e-mail address for service, then a document can be served by other
means. Fla. R. Jud. Admin. 2.516(b)(1)(C). One way to serve a document by other
means is “by mailing it to the party.” Fla. R. Jud. Admin. 2.516(b)(2). The Rule adds
that “[s]ervice by mail is complete upon mailing.” Id. (emphasis added).
Here, DOR’s notice did not provide an e-mail address for service of Mr.
Johnson’s petition, nor provide the name of an attorney. Instead, the notice required
Mr. Johnson to serve DOR at a physical mailing address: “If you file a petition, you
must serve us at: [an office address in Tallahassee].” In this case, Mr. Johnson
complied with the service requirement in § 409.2563(4)(n), by mailing a copy of his
petition to DOR on the 19th day. At that point, according to § 409.2563(4)(n) and
DOR’s notice, the administrative support proceeding should have ended. DOR
should not have moved forward with its administrative case after being served with
a copy of Mr. Johnson’s petition, or entered the final order.
III.
Accordingly, we REVERSE with directions for DOR to VACATE the final
administrative support order.
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WOLF and LEWIS, JJ., CONCUR.
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