Dept of Revenue v Nesbitt
Encyclopedia
Dept of Revenue v Nesbitt (4th Dist Florida State Ct Appls, Feb 6 2008 http://www.4dca.org/Feb2008/02-06-08/4D06-4322.op.pdf, no 11th Circuit action) was a legal case in the state of Florida
, United States of America challenging passport denial for child support arrearage under 42 USC 652(k), as part of the Personal Responsibility and Work Opportunity Act
enacted in 1996.
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to two different mothers, the Florida Department of Revenue (DOR) notified the Federal Government to restrict Nesbitt’s passport
pursuant to Federal law and Florida state law. Thereafter Nesbitt filed motions to determine arrearages, payment thereon, and to set aside writs of bodily attachment
.
At the hearings on these motions, Nesbitt requested that his passport restrictions be released to allow him to accept a job in France
as a basketball
player pursuant to a contract for a fixed term. In response,the Department of Revenue argued that the Circuit Court
did not have jurisdiction to order Nesbitt’s requested relief because Nesbitt owed child support payments exceeding $5,000. In support of this argument, the Department of Revenue cited Section 409.2564, Florida Statutes (2006), Section 51.70 of Title 22 of the Code of Federal Regulations
, and 42 USC 652(k). The trial court
granted Nesbitt’s motions, established the amount of his arrearages and ordered the Department of Revenue to release Nesbitt's passport restrictions. The trial court further ordered Nesbitt to maintain a checking account in the United States and forward a specific amount monthly to the State of Florida Disbursement Unit.
The Department of Revenue appealed to the Florida State Fourth District Court of Appeal
, arguing that the trial court lacked the authority to lift federally mandated restrictions on Nesbitt’s passport because Nesbitt’s combined arrearages in the consolidated appeals was $37,313, which exceeding the $2,500 threshold established by Federal law.
], in the instant case, the trial court had no authority to order DOR to lift and release the restrictions on Nesbitt’s passport." Further the Court noted that "Nesbitt does not contest the DOR’s determination that his child support arrearages exceeded $5,000. Nesbitt does not assert, and the trial court did not conclude, that [Fla. Stat.] section 409.2564(10) [2006]http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0409/Sec2564.HTM is unconstitutional."
: "the appropriate state agency, in this case DOR, must deem the payment arrangements acceptable, and then certify that determination to the Department of Health and Human Services. Because DOR has not deemed the arrangements created by the trial court to be acceptable, this language is inapposite," citing In re James K. Walker
.
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
, United States of America challenging passport denial for child support arrearage under 42 USC 652(k), as part of the Personal Responsibility and Work Opportunity Act
Personal Responsibility and Work Opportunity Act
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 is a United States federal law considered to be a fundamental shift in both the method and goal of federal cash assistance to the poor. The bill added a workforce development component to welfare legislation, encouraging...
enacted in 1996.
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Facts of the Case
After a Florida trial court determined that Nesbitt was delinquent in all of his child support paymentsChild support
In family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
to two different mothers, the Florida Department of Revenue (DOR) notified the Federal Government to restrict Nesbitt’s passport
Passport
A passport is a document, issued by a national government, which certifies, for the purpose of international travel, the identity and nationality of its holder. The elements of identity are name, date of birth, sex, and place of birth....
pursuant to Federal law and Florida state law. Thereafter Nesbitt filed motions to determine arrearages, payment thereon, and to set aside writs of bodily attachment
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
.
At the hearings on these motions, Nesbitt requested that his passport restrictions be released to allow him to accept a job in France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
as a basketball
Basketball
Basketball is a team sport in which two teams of five players try to score points by throwing or "shooting" a ball through the top of a basketball hoop while following a set of rules...
player pursuant to a contract for a fixed term. In response,the Department of Revenue argued that the Circuit Court
Circuit court
Circuit court is the name of court systems in several common law jurisdictions.-History:King Henry II instituted the custom of having judges ride around the countryside each year to hear appeals, rather than forcing everyone to bring their appeals to London...
did not have jurisdiction to order Nesbitt’s requested relief because Nesbitt owed child support payments exceeding $5,000. In support of this argument, the Department of Revenue cited Section 409.2564, Florida Statutes (2006), Section 51.70 of Title 22 of the Code of Federal Regulations
Code of Federal Regulations
The Code of Federal Regulations is the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government of the United States.The CFR is published by the Office of the Federal Register, an agency...
, and 42 USC 652(k). The trial court
Trial court
A trial court or court of first instance is a court in which trials take place. Such courts are said to have original jurisdiction.- In the United States :...
granted Nesbitt’s motions, established the amount of his arrearages and ordered the Department of Revenue to release Nesbitt's passport restrictions. The trial court further ordered Nesbitt to maintain a checking account in the United States and forward a specific amount monthly to the State of Florida Disbursement Unit.
The Department of Revenue appealed to the Florida State Fourth District Court of Appeal
Florida Fourth District Court of Appeal
The Florida Fourth District Court of Appeal is headquartered in West Palm Beach, Florida. Its twelve judges have jurisdiction over cases arising in Palm Beach County, Broward County, St. Lucie County, Martin County, Indian River County, and Okeechobee County....
, arguing that the trial court lacked the authority to lift federally mandated restrictions on Nesbitt’s passport because Nesbitt’s combined arrearages in the consolidated appeals was $37,313, which exceeding the $2,500 threshold established by Federal law.
Decision
The Florida Fourth District Court of Appeal reversed the trial court's ruling on a split decision, siding with the DOR: "Similarly [citing In re James K. WalkerIn re James K. Walker
In re James K. Walker is a case challenging the denial of passport issuance due to child support arrears under 42 USC 652, enacted in 1996 as part of the Personal Responsibility and Work Opportunity Act....
], in the instant case, the trial court had no authority to order DOR to lift and release the restrictions on Nesbitt’s passport." Further the Court noted that "Nesbitt does not contest the DOR’s determination that his child support arrearages exceeded $5,000. Nesbitt does not assert, and the trial court did not conclude, that [Fla. Stat.] section 409.2564(10) [2006]http://www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0409/Sec2564.HTM is unconstitutional."
Opinion
Judge J. Hazouri wrote the court's opinion with Judge J. Klein issuing a concurring opinionConcurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
: "the appropriate state agency, in this case DOR, must deem the payment arrangements acceptable, and then certify that determination to the Department of Health and Human Services. Because DOR has not deemed the arrangements created by the trial court to be acceptable, this language is inapposite," citing In re James K. Walker
In re James K. Walker
In re James K. Walker is a case challenging the denial of passport issuance due to child support arrears under 42 USC 652, enacted in 1996 as part of the Personal Responsibility and Work Opportunity Act....
.