HERLEY DAVIS, APPELLANT,
v.
DEPARTMENT OF REVENUE O/B/O MELISSA ANN BARTELL, APPELLEE
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Herley Davis appeals a final administrative child support order from the Department of Revenue. The Department conceded error in its income calculation method, but the appellate court declined to accept the concession because Davis failed to participate in the proceedings below and did not preserve the issue for appeal.
The court affirmed the Department's order, declining to accept the Department's concession of error because Davis failed to participate in the proceedings below and never challenged the income calculation method, thereby failing to preserve the issue for appellate review.
[1] An appellate court is not bound by an agency's concession of error and may decline to accept it.
[2] A party must challenge an agency's method of calculating child support during the administrative proceedings to preserve the issue for appellate review.
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Join FLexlaw to unlock all legal intelligence“A confession of error... is not binding upon an appellate court, and it is the practice of Florida appellate courts not to accept erroneous concessions.”
Establishes the principle that the Department's concession of error cannot compel reversal on appeal.
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Join FLexlaw to unlock all legal intelligenceThe Department of Revenue, Child Support Enforcement Program, entered a final paternity and support order against Herley Davis. Davis did not particip…
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Herley Davis appeals a final administrative paternity and support order entered by the Department of Revenue, Child Support Enforcement Program. We have jurisdiction. See § 120.68, Fla. Stat. (2016); Fla. R. App. P. 9.030(b)(1)(C), .110(a)(2). In *791its answer brief, the Department concludes with a concession of error regarding its method of calculating Mr. Davis’s income for purposes of his child support obligation. It is unclear from our review of the limited record what that error would have been given the information, the Department had before it and Mr. Davis’s failure to participate at any point in the proceedings below. Thus, we decline to accept the Department’s concession. Cf. Hinckley v. Dep’t of Revenue, ex rel. K.A.C.H., 927 So.2d 73, 74 (Fla. 2d DCA 2006) (recognizing the Department’s concession of error but dismissing on other grounds); Gonzalez v. Dep’t of Health, 124 So.3d 449, 450 (Fla. 1st DCA 2013) (“A confession of error... is not binding upon an appellate court, and it is the practice of Florida appellate courts not to accept erroneous concessions ....” (first alteration in original) (quoting Perry v. State, 808 So.2d 268, 268 (Fla. 1st DCA 2002))). As Mr. Davis never challenged the Department’s method of calculating his child support obligation, he failed to preserve that issue for our review. See Duggan v. Dep’t of Revenue, ex rel. Huff, 197 So.3d 631, 632 (Fla. 1st DCA 2016) (holding that, in appeal of final administrative support order, the appellant “waived and failed to preserve most of his appellate arguments after ignoring the process offered below”); Macias v. Dep’t of Revenue, ex rel. Garcia, 16 So.3d 985, 986 (Fla. 3d DCA 2009) (holding that a father could not “seek modification of a Final Administrative Support Order on appeal by presenting facts that were not initially presented to the administrative law judge”), Accordingly, we affirm.
Affirmed.
KELLY, LUCAS, and ROTHSTEIN-YOUAKIM, JJ.,' Concur.
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Citator
Cited By
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Dep't of Revenue v. Calixto Manuel Lopez, 252 So. 3d 823 (Fla. 1st DCA 2018)
Authorities Cited
- Perry v. State, 808 So. 2d 268 (Fla. 1st DCA 2002)
- MacIas v. Dep't OF Revenue, 16 So. 3d 985 (Fla. 3d DCA 2009)
- Hinckley v. Dep't OF Revenue, 927 So. 2d 73 (Fla. 2d DCA 2006)
- Gonzalez v. Dep't OF Health, 124 So. 3d 449 (Fla. 1st DCA 2013)
- Epps v. State, 197 So. 3d 631 (Fla. 2d DCA 2016)
- Duggan v. State, 197 So. 3d 631 (Fla. 1st DCA 2016)