DEPARTMENT OF REVENUE SIMPSON v. CARREIRA III (2021)

The Department of Revenue (the Department) on behalf of the mother challenges the Administrative Law Judge's (ALJ) denial of retroactive child support. The ALJ concluded that because the mother did not provide evidence at the hearing, he did not have evidence of the child's needs or the father's contributions during the retroactive period. We agree with the Department that competent, substantial evidence was presented at the hearing to support awarding retroactive child support.

In exchange for receiving public assistance, the mother agreed to pursue child support from the father with the Department's assistance. After receiving information about the parties’ incomes, the Department entered a proposed administrative support order. The father timely objected, and the case was referred to the Division of Administrative Hearings for a hearing.

For reasons unknown, the mother did not attend the hearing even though her request to appear by phone was granted. The father and a representative from the Department were present and testified. The father testified that he and the mother had lived together until six months prior to the hearing. During that six months, he provided diapers and wipes for the child in the amount of $480. The father was not working. He applied for disability, but no decision had been rendered at the time of the hearing. He knew he would not qualify for supplemental security income because he had more than $2,000 in his account. His grandfather paid his bills because he was not working. The representative testified that the mother was receiving assistance from the Department and Social Security disability. At the conclusion of the hearing, the ALJ imputed minimum wage to the father. Based on the father's imputed income and the mother's Social Security disability income, the ALJ awarded the mother $243 per month in child support. He stated that he was not going to award retroactive child support because the mother failed to present evidence concerning the child's needs and the amount of assistance the father provided.

We review the denial of an award of retroactive child support for abuse of discretion. Johnson v. Johnson, 297 So. 3d 700, 704 (Fla. 1st DCA 2020). A trial court abuses its discretion when it denies retroactive child support where there is a demonstrated need for the child support and the parent has the ability to pay the retroactive support. Id.

The evidence provided by the Department's representative concerning the mother's income combined with the father's testimony about what he contributed to the child's support during the six-month retroactive period demonstrated that the child had a need for support. The father's testimony also established that he had the ability to pay the retroactive support. Because there was competent, substantial evidence before the ALJ to support the finding that the child was in need of support and the father had the ability to pay the child support, the ALJ abused his discretion by failing to award retroactive child support. Accordingly, we reverse and remand for the ALJ to enter an award of retroactive support in accordance with the evidence.

REVERSED and REMANDED.

Per Curiam.

Ray, C.J., and Roberts and Winokur, JJ., concur.