Dept of Revenue v Nesbitt

Dept of Revenue v Nesbitt (4th Dist Florida State Ct Appls, Feb 6 20081, no 11th Circuit action) is a case challenging passport denial for child support arrearage under 42 USC 652(k), enacted as part of the Personal Responsibility and Work Opportunity Act 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 payments to two different mothers, the Florida Department Of Revenue (DOR) notified the federal government to restrict Nesbitt’s passport pursuant to state and federal 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, Dept of Revenue argued that the circuit court did not have jurisdiction to order Nesbitt’s requested relief because the funds owed exceeded $5,000, citing 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, ordered Dept of Revenue to lift and release the passport restrictions, and 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 Dept of Revenue appealed to the Florida State Fourth District Court of Appeal arguing that the trial court did not have the authority to lift federally mandated restrictions on Nesbitt’s passport because the record reflects that Nesbitt’s combined delinquency in the consolidated appeals was $37,313, which exceeded the $2,500 threshold established by federal law.

Decision

The Florida Appeals Court reversed on a split decision, agreeing with DOR: "Similarly [citing In re James K. Walker], 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]2 is unconstitutional."

Opinion

Judge J. Hazouri writing the opinion, Judge J. Klein concurring "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.

Dissent

Judge J. Farmer, dissenting, opined: "I would affirm the purpose and intent of the provision but require only that it be recast. In my opinion, it would be permissible for the trial judge to order the Florida DOR to decertify its previous certification to HHS, instead requiring DOR to certify to the federal agency that even though the payor is still in arrears, he has secured employment in Europe enabling him to comply with his duty of support and that his passport should simply be restricted to allow the travel to Europe for that limited purpose only, so long as he complies with a payment schedule fixed by the Florida court."