                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

FLORIDA DEPARTMENT OF                  NOT FINAL UNTIL TIME EXPIRES TO
REVENUE,                               FILE MOTION FOR REHEARING AND
                                       DISPOSITION THEREOF IF FILED
      Petitioner,
                                       CASE NO. 1D15-5135
v.

JOHN GARRISON SEELEY and
SARAH ANN GILBRIDE,

      Respondents.

___________________________/

Opinion filed March 11, 2016.

Petition to Review Non-Final Agency Action – Original Jurisdiction.

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

No appearance for Respondents.




PER CURIAM.

      This is a petition to review a non-final order rendered by an Administrative Law

Judge (ALJ) requiring the Department of Revenue (DOR) to begin downward

modification proceedings with respect to respondent John Garrison Seeley’s child
support payments. We have jurisdiction pursuant to § 120.68(1), Florida Statutes,

Florida Rules of Appellate Procedure 9.030(b)(1)(C) and 9.100(c)(3). Because the ALJ

improperly reserved jurisdiction below, we grant the petition.

                                             I.

         Mr. Seeley requested that DOR conduct a review of his child support payments

in accordance with § 409.2564(11)(a), Florida Statutes. DOR conducted the review and

denied Mr. Seeley’s request. Mr. Seeley then requested an administrative hearing.

         The ALJ held a hearing and found that Mr. Seeley was entitled to a downward

modification of his child support payments. The ALJ ordered DOR to begin

modification proceedings, but reserved jurisdiction over the case. DOR then petitioned

this Court to review the ALJ’s order.

                                            II.

         DOR contends that it cannot comply with the ALJ’s order to begin downward

modification proceedings because the ALJ has reserved jurisdiction over the case. We

agree.

         Section 120.569(2)(a), Florida Statutes, states in pertinent part, “The referring

agency shall take no further action with respect to a proceeding under s. 120.57(1),

except as a party litigant, as long as the division has jurisdiction over the proceeding

under s. 120.57(1).” As such, DOR cannot begin downward modification proceedings

while the ALJ retains jurisdiction because doing so would be improper pursuant to §


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120.659(2)(a).

      We have previously held:

      When DOR determines no modification proceedings are justified, the
      only issue for the ALJ to decide is whether that determination is correct.
      Thus, an ALJ must conduct an evidentiary hearing and make findings as
      to whether it is appropriate to affirm DOR’s determination, or whether
      the obligor-parent is entitled to modification. If the latter, the ALJ should
      instruct DOR to commence modification proceedings based on the ALJ’s
      factual and legal findings.

Dep’t of Revenue v. Johnson, 177 So. 3d 697, 699 (Fla. 1st DCA 2015).

      In the instant case, the ALJ’s reservation of jurisdiction places the parties in

“judicial limbo” because DOR cannot move forward with the downward modification

proceedings. Id.

                                          III.

      In part it appears that the ALJ’s decision to reserve jurisdiction was to ensure

that any proposed downward modification order from DOR will be retroactive to the

time Mr. Seeley initially requested relief. Although we have held that an ALJ may

retroactively modify an existing administrative child support order, we have not

provided an exception allowing an ALJ to reserve jurisdiction in an administrative

child support modification case while allowing DOR to institute downward

modification proceedings. See Dep’t of Revenue v. Wolf, 164 So. 3d 101 (Fla. 1st

DCA 2015).

                                          IV.


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      Therefore, we GRANT the petition and REVERSE and REMAND to the ALJ

for further proceedings consistent with this opinion.

WETHERELL, RAY, and WINOKUR, JJ., CONCUR.




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