                 NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                        MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT



KERRY EDSON HARRIS,                 )
                                    )
           Appellant,               )
                                    )
v.                                  )                 Case No. 2D14-4855
                                    )
DEPARTMENT OF REVENUE o/b/o         )
VANDA INSIXIENGMAY,                 )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed May 6, 2016.

Appeal from the Department of Revenue.

Frederick L. Pollack of Hunter Law, P.A.,
Tampa, for Appellant.

Pamela Jo Bondi, Attorney General, and
Toni C. Bernstein, Senior Assistant
Attorney General, Tallahassee, for
Appellee.



KHOUZAM, Judge.

             Kerry Edson Harris, the father, appeals the final administrative support

order entered after a hearing. See § 409.2563, Fla. Stat. (2014).1 We reverse.



             1
              We have jurisdiction under Florida Rule of Appellate Procedure
9.030(b)(1)(C).
              The father and Vanda Insixiengmay have two children. The father has five

other children, three of whom are from a prior marriage. In May 2014, the Department

of Revenue mailed Harris a notice advising him that DOR was initiating administrative

action to establish child support for the two children he had with Ms. Insixiengmay.

              DOR later sent the father a proposed administrative support order setting

a support obligation for the two children. The father, pro se, objected to the proposed

order and DOR referred the matter to the Department of Administrative Hearings.

DOAH set the matter for a hearing and mailed the father a notice of hearing. The notice

set a date and time for a hearing but was silent as to any time constraints on the

hearing.

              The father then obtained counsel who filed a motion for continuance, and

the hearing was rescheduled. The father's counsel also filed a motion to deviate from

the child support guidelines, which, in pertinent part, sought a credit for his three

children from a prior marriage pursuant to Florida Department of Revenue ex rel.

Marshall v. Smith, 716 So. 2d 333 (Fla. 2d DCA 1998), and Speed v. Florida

Department of Revenue ex rel. Nelson, 749 So. 2d 510 (Fla. 2d DCA 1999), because

the children spent nearly half of their overnights with the father and he provided actual

support for them in addition to court-ordered child support. In support of his motion, the

father attached a copy of the Final Judgment of Dissolution which included a copy of the

parenting plan. The parenting plan showed that the three children spent approximately

43% of their overnight stays with Harris. Harris' motion was also supported by his

financial affidavit and a proffered support guidelines worksheet that estimated what the

father's obligation would be if the children did not have any overnights with him.




                                            -2-
              The hearing was held before an administrative law judge. Despite the fact

that neither the initial notice nor the order rescheduling the hearing set any time

limitations on the hearing, the ALJ enforced a forty-five minute time limit on the hearing.

Two issues were addressed during the hearing. First, the parties litigated a dispute

concerning how the father's income was to be calculated. Following a ruling on the first

issue, the ALJ stated the following to DOR's counsel: "We're moving on. You're the one

who needs to conclude this hearing in the next fifteen minutes, and we have other

issues that have been raised by the respondent, and I'm not going to not allow him to

pursue them."

              Despite this statement, the ALJ moved on to address the father's motion

for a deviation from the guidelines. In ruling on the father's request for a credit pursuant

to Smith and Speed, the ALJ opined, for the first time, that she would not be able to

grant such a credit without the guidelines worksheet from the father's divorce which

resulted in the court-ordered support for these children. The following exchange then

took place between the ALJ and the father's counsel:

                            Mr. Pollack: Given our limited time, Your
              Honor, I—I certainly have no problem if the court wants to
              take it under advisement and allow us to submit that in
              writing or—
                            ALJ: No.
                            Mr. Pollack:—continue it to provide the—
                            ALJ: No sir. The—the hearing had been
              continued once, and you were instructed to come here with
              any evidence you wanted, and I understand what your
              argument is, but there is no way for me to fairly quantify the
              impact of time-sharing to the extent that resulted in a
              lowered court ordered child support.
                            It's a very interesting concept, and I've given it
              some thought, but I don't have the evidence to take it into
              account so I'm not going to.




                                            -3-
The father's counsel objected, arguing that the time provided for the hearing was

insufficient and that he was not able to address the individual evidence he provided in

support of his motion. DOR also objected to the time constraints placed on the hearing

because it was not afforded an opportunity to question the father's employer with regard

to the reduction in the father's income.

              Following the hearing, the ALJ entered a final administrative support

order. The order denied Harris' request for a credit under Smith and Speed, reasoning

that in order "[t]o quantify the downward adjustment, [Harris] would have to offer the

guidelines worksheet used to establish his $200 per month support obligation, so that

the calculation could have been recreated without the 43% time-sharing adjustment

factor[.]" Harris timely appealed.

              On appeal, Harris argues that the ALJ abused its discretion in limiting the

hearing to forty-five minutes and denying his motion for a continuance. He further

argues that the ALJ erred in finding that a copy of the support guidelines from his prior

divorce was required in order to obtain a credit under Smith and Speed. We agree.

              Article I, section 9 of the Florida Constitution provides: "No person shall be

deprived of life, liberty or property without due process of law." Generally, due process

is satisfied by notice and an opportunity to be heard. Ryan v. Ryan, 277 So. 2d 266,

274 (Fla. 1973). "[T]he opportunity to be heard must be 'at a meaningful time and in a

meaningful manner.' " Keys Citizens for Responsible Gov't, Inc. v. Fla. Keys Aqueduct

Auth., 795 So. 2d 940, 948 (Fla. 2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 333

(1976)). This court reviews "whether a party was denied the opportunity to be heard for

abuse of discretion." Dep't of Children & Families v. T.S., 154 So. 3d 1223, 1226 (Fla.




                                           -4-
4th DCA 2015) (citing C.K. v. Dep't of Children & Family Servs., 88 So. 3d 975, 977

(Fla. 2d DCA 2012)).

              Trial courts enjoy broad discretion in ruling on motions for continuance.

Neal v. Swaby, 975 So. 2d 431, 433 (Fla. 2d DCA 2007). "The same discretion is

vested in the ALJ." Milanick v. Osborne, 6 So. 3d 729, 730 (Fla. 5th DCA 2009) (citing

Fla. Admin. Code R. 28-106.210). "However, the exercise of that discretion is not

absolute." Neal, 975 So. 2d at 433. A reviewing court should consider the following

factors when evaluating whether a trial court has abused its discretion in ruling on a

motion for continuance:

              1) whether the movant suffers injustice from the denial of the
              motion; 2) whether the underlying cause for the motion was
              unforeseen by the movant and whether the motion is based
              on dilatory tactics; and 3) whether prejudice and injustice will
              befall the opposing party if the motion is granted.

Id. at 433 (quoting Baron v. Baron, 941 So. 2d 1235-36 (Fla. 2d DCA 2006)).

              We sympathize with the ALJ's efforts to expediently resolve this case, but

on the record before this court, Harris was denied due process by the arbitrary time

constraint and refusal to grant a continuance. DOR would not have suffered injustice or

prejudice from continuing the hearing, Harris had no prior notice that there would be a

forty-five minute limitation on the hearing, and the motion was not based on dilatory

tactics. In fact, DOR also objected to the time limitations placed on the hearing. We

recognize that the hearing had been continued once before, but a single continuance

granted because a party has recently obtained counsel does not, by itself, justify the

denial of a second continuance under these circumstances. Further, the ALJ erred by

denying Harris' request for a credit under Smith and Speed without considering the

evidence submitted in support. There are multiple calculations that may be utilized to


                                            -5-
determine the amount of such a credit. See Smith, 716 So. 2d at 334-35. Even though

one of those avenues was foreclosed this should not have been the end of the

analysis.2 Because the father was not afforded due process, on remand, the ALJ shall

fully consider his request for a credit under Smith and Speed.

             Accordingly, we reverse the administrative support order insofar as it

denied Harris' request for a credit under Smith and Speed and remand to the ALJ to

hold an additional hearing for reconsideration of the matter.

             Affirmed in part, reversed in part, and remanded.



LaROSE, and CRENSHAW, JJ., Concur.




             2
                We express no opinion as to whether the ALJ ultimately reached the
correct result. To do so would require this court to evaluate the credibility of the
evidence submitted in support of the father's motion. After considering the father's
evidence the ALJ may very well reach the same ultimate conclusion that the father is
not entitled to the credit he seeks.


                                           -6-
