STATE OF FLORIDA, DEPARTMENT OF REVENUE, ON BEHALF OF ADAM ATHERLEY, BY AND THROUGH NILSA R. AVERHOFF, AS CUSTODIAN AND NEXT FRIEND, APPELLANTS,
v.
CORDELL J. ATHERLEY, APPELLEE
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The State of Florida and a mother appealed an administrative cost award in a Title IV-D child support paternity case. The court held that administrative costs in such cases can only be assessed against a nonprevailing obligor (the father), not the obligee (mother), and struck the portion of the order imposing costs on the mother.
Administrative costs in Title IV-D cases can only be assessed against a nonprevailing obligor (the father), not against an obligee (the mother). The portion of the order imposing administrative costs on the mother was struck as erroneous.
[1] In Title IV-D cases, statutory administrative costs shall be assessed only against the nonprevailing obligor.
[2] Administrative costs in Title IV-D cases may only be assessed against a nonprevailing obligor after a determination of their ability to pay.
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Join FLexlaw to unlock all legal intelligence“In Title IV-D cases, any costs, including filing fees, recording fees, mediation costs, service of process fees, and other expenses incurred by the clerk of the circuit court, shall be assessed only against the nonprevailing obligor after the court makes a determination of the nonprevailing obligor's ability to pay such costs and fees.”
The governing statute that clearly limits cost assessment to the nonprevailing obligor only.
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Join FLexlaw to unlock all legal intelligenceThe State filed a paternity action on behalf of Nilsa R. Averhoff against Cordell J. Atherley under Florida's Title IV-D child support enforcement pro…
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COPE, Judge.
The State of Florida, Department of Revenue, and Nilsa R. Averhoff appeal an award of administrative costs in a paternity proceeding.
In 1994 the state child support enforcement agency filed a paternity action on behalf of the mother, appellant Nilsa R. Averhoff.1 This was a Title IV-D case. See § 409.2557, Fla.Stat. (1993); Thaysen v. Thaysen, 583 So. 2d 663, 665-66 (Fla.1991); 42 U.S.C. §§ 651-69; Fla.R.Civ.P. 1.491. Paternity was not disputed and a child support order was entered.
Because the appellant mother’s income was significantly greater than that of the appellee father, Cordell J. Atherley, the support enforcement hearing officer ordered that statutory administrative costs, see § 409.2554(11), Fla.Stat. (Supp.1994), be paid fifty percent by the mother and fifty percent by the father. The agency and the mother filed a motion before the circuit judge to vacate the assessment of administrative costs against the mother. See Fla.R.Civ.P. 1.491(f). The court denied the motion and this appeal follows.
The applicable statute provides in part: In Title IV-D cases, any costs, including filing fees, recording fees, mediation costs, service of process fees, and other expenses incurred by the clerk of the circuit court, shall be assessed only against the nonpre-vailing obligor after the court makes a determination of the nonprevailing obligor’s ability to pay such costs and fees.
§ 409.2567, Fla.Stat. (Supp.1994) (emphasis added); see also § 742.045, Fla.Stat. (1993). The statute is clear that administrative costs can be assessed only against a nonprevailing obligor, not an obligee. § 409.2567, Fla.Stat. (Supp.1994); see Department of Health & Rehabilitative Servs, v. Coyle, 624 So. 2d 400, 401 (Fla. 5th DCA 1993). The obligor in this case is the father. See § 409.2554(6), Fla. Stat. (Supp.1994). The court erred by awarding costs against the obligee mother. The agency and the mother do not seek, however, to increase the assessment of administrative costs against the father. Under the statute, administrative costs are to be assessed against a nonprevailing obligor upon a determination of the nonprevailing obligor’s ability to pay. Id. § 409.2567. The agency and the mother concede in essence that the father does not have the ability to pay an amount in excess of the amount already ordered, or that the cost of further proceedings would exceed the benefit to be derived. Consequently, we simply strike that part of the order which imposes an obligation on the part of the appellant mother to pay administrative costs.
Affirmed as modified.
. The complaint was drafted and verified by the mother in June, 1994, when the Department of Health and Rehabilitative Services was Florida’s Title IV-D child support enforcement agency. See §§ 409.2554(1), 409.2557, Fla.Stat. (1993). Effective July 1, 1994, the child support enforcement program was transferred to the Department of Revenue. Ch. 94-124, § 1, Laws of Fla.; §§ 409.2554(1), 409.2557, Fla.Stat. (Supp.1994). Accordingly, in this proceeding the Department of Revenue has been substituted for the Department of Health and Rehabilitative Services. Ch. 94-124, § 1(3), Laws of Fla.
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Alvarez v. Fla. Dep't OF Revenue, 744 So. 2d 1192 (Fla. 3d DCA 1999)…l be assessed only against the nonprevailing obligor after the court makes a determination of the nonprevailing obligor’s ability to pay such costs and fees. § 409.2567, Fla. Stat. (1999) [emphasis supplied]. See Department of Revenue v. Atherley, 659 So. 2d 469 (Fla. 3d DCA 1995).1 Affirmed. . There is no claim that the Department of Revenue is liable for fees under section 57.105(1), Florida Statutes (1999). See § 61.16(1), Fla. Stat. (1999).…
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Fla. Dep't OF Revenue v. Barranco, 673 So. 2d 923 (Fla. 2d DCA 1996)…f the fees in determining the right to an award. §§ 409.2567 and 409.2554(11), Fla.Stat. (Supp.1994). Ability to pay the fees is the only relevant consideration for an award of attorney’s fees under Title IV-D. See Department of Revenue v. Atherley, 659 So. 2d 469 (Fla. 3d DCA 1995) (administrative costs are to be assessed against a nonprevail-ing obligor upon a determination of the non-prevailing obligor’s ability to pay). By considering the reasonableness of the attorney’s fees in denying an award, the tri…
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Fla. Dep't OF Revenue v. James, 159 So. 3d 973 (Fla. 3d DCA 2015)…ez v. Fla. Dep’t of Revenue, 744 So. 2d 1192 (Fla. 3d DCA 1999) (holding the trial court properly denied an obligor’s request for attorney’s fees against an obligee under a statute containing similar language); see also Dep’t of Revenue v. Atherley, 659 So. 2d 469, 470 (Fla. 3d DCA 1995) (holding administrative costs can be assessed only against a nonprevailing obligor, not an ob-ligee, under a statute containing similar language).2 In this case, the Mother was the obli-gee — “the person to whom payments are…
Authorities Cited
- Thaysen v. Thaysen, 583 So. 2d 663 (Fla. 1991)
- Dep't OF Health & Rehabilitative Servs. v. Coyle, 624 So. 2d 400 (Fla. 5th DCA 1993)