         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-4604
                 _____________________________

FLORIDA DEPARTMENT OF
REVENUE, on behalf of SHARON
WIND,
                                  CORRECTED PAGES: pg 5
    Appellant,                    CORRECTION IS UNDERLINED IN
                                  RED
                                  MAILED: August 13, 2018
    v.                            BY: KMS

MARK COCHRAN,

    Appellee.
                 _____________________________


On appeal from the Division of Administrative Hearings.
Robert Kilbride, Administrative Law Judge.


                        August 10, 2018


WETHERELL, J.

     The Department of Revenue, on behalf of Sharon Wind (the
mother), appeals the Final Administrative Paternity and Support
Order (FAPSO) establishing Mark Cochran’s (the father’s) initial
child support obligation for the parties’ then-one-year-old
daughter, H.R.W. (the child). The Department argues that the
administrative law judge (ALJ) erred in the FAPSO by giving the
father a Smith 1/Speed 2 credit for his prospective support of a then-
unborn child when calculating his support obligation for the child
in this case. For the reasons that follow, we agree and reverse.

                               Facts

     After a DNA test showed that there was a 99.999999999%
probability of the father’s paternity of the child, the Department
served the father with a proposed order establishing his paternity
and his child support obligation for the child. See §§ 409.256,
409.2563, Fla. Stat. (2017). The father timely notified the
Department that he disagreed with the proposed support
obligation, and the case was referred to the Division of
Administrative Hearings. The case was assigned to an ALJ and a
hearing was held on September 28, 2017.

     At the hearing, the mother and father testified about their
incomes, expenses, and the daycare costs for the child. The father
also testified that he and his then-girlfriend (now fiancée) were
expecting the birth of a child in November 2017, and in response
to questions from the ALJ, 3 the father testified about the
girlfriend’s income and expenses. Based on this testimony—which
the ALJ found “credible” and “certain”—the ALJ included a
Smith/Speed credit for the father in the child support guidelines
worksheet attached to the FAPSO. The ALJ explained in the
FAPSO that “the Smith Speed credit [was] conditioned on the
upcoming birth and [the father]’s support of his new biological
child” and that “[t]he Smith Speed award and calculation reflects



    1  Dep’t of Revenue ex rel. Marshall v. Smith, 716 So. 2d 333
(Fla. 2d DCA 1998).
    2Speed v. Dep’t of Revenue ex rel. Nelson, 749 So. 2d 510 (Fla.
2d DCA 1999).
    3   During his questioning of the father, the ALJ cryptically
stated, “I am not going to commit to what I will be doing with the
information, but it is something we need to do if we have [other]
children involved.”

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the reality of the upcoming and imminent birth of another child,
and will avoid the need for additional modification proceedings.”

     The father’s current support obligation would have been $683
per month without the Smith/Speed credit. However, with the
credit, the FAPSO set the father’s support obligation at $573 per
month, plus an additional $52 per month for retroactive support, 4
for a total of $625 per month, effective November 1, 2017. 5

    The Department timely appealed the FAPSO to this court.

                             Analysis

     On appeal, the Department argues that it was error for the
ALJ to consider the father’s then-unborn child when calculating
his support obligation for the child in this case. This argument
was not raised below, and as a general rule, we will not consider
an argument that is raised for the first time on appeal. See Sunset
Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005)
(quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985)); Williams
v. Williams, 152 So. 3d 702, 704 (Fla. 1st DCA 2014); Goodson v.
Dep’t of Bus. & Prof. Reg., 978 So. 2d 195, 196 (Fla. 1st DCA 2008).
However, in this case, there was no reason for the Department to


    4   The Department did not challenge the calculation of the
retroactive support, which was based on guideline worksheets that
did not include a Smith/Speed credit. The father did not file a
cross-appeal challenging the FAPSO, but he argued in his answer
brief that the retroactive support should only go back to May 2017,
when he received the results of the DNA test, rather than August
2016, when the child was born. This argument is procedurally
barred and will not be considered. See Dep’t of Revenue v. Osagie,
229 So. 3d 1289 (Fla. 1st DCA 2017) (striking answer brief to the
extent it sought affirmative relief because the appellee had not
filed a cross-appeal).
    5 Although not raised by the Department, we note that the
ALJ failed to explain why the reduced child support obligation
commenced on November 1 when the ALJ found that the child was
not due to be born until November 30.

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raise this issue at the hearing because (1) the father did not
request a Smith/Speed credit for his then-unborn child at any point
in the proceedings, and (2) the ALJ took the case under advisement
at the conclusion of the hearing without informing the parties of
his intent to award such a credit. Then, after the credit appeared
for the first time in the FAPSO, 6 the Department did not have the
opportunity to raise the issue with the ALJ because “a motion for
rehearing is not authorized in the context of the administrative
establishment of child support obligations under section 409.2563,
Florida Statutes.” Dep’t of Revenue v. Vanamburg, 174 So. 3d 640,
642 (Fla. 1st DCA 2015). Accordingly, in these circumstances,
appellate review is not precluded by the Department’s failure to
raise the issue below.

    The issue of whether a Smith/Speed credit can be awarded for
a parent’s prospective support of an unborn child presents a pure
question of law that we review de novo. See Dep’t of Revenue v.
Price, 182 So. 3d 782, 782 (Fla. 1st DCA 2015) (“We review the trial
court’s application of the statute to the undisputed facts de novo.”).

     The Smith/Speed credit is an equitable adjustment to the
obligor’s child support obligation to account for the obligor’s
support of other biological children. See Dep’t of Revenue ex rel.
Shirer v. Shirer, 197 So. 3d 1260, 1262 n.2 (Fla. 2d DCA 2016)
(“Smith credit refers to credit for the support of other children born
prior to the children for which the support order is being sought.”).
The credit is calculated based upon (1) the amount of support that
the obligor would have to pay for the other child(ren) under the
guidelines if he and the other child(ren)’s mother divorced; 7 (2) a

    6  The FAPSO was issued by the ALJ three days after the
hearing, on October 1, 2017.
    7   Cases applying the Smith/Speed credit typically involve
additional children that were born in a marriage and is based upon
the premise that public policy does not support requiring a party
to get divorced in order to deviate from the guideline award. See,
e.g., Speed, 749 So. 2d at 511; Smith, 716 So. 2d at 335. Likewise,
as here, a party should not be required to get married and then
divorced in order to be given an equitable deviation for his or her
support of another child. See Dep’t of Revenue ex rel. Gilmore v.
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pre-existing support obligation; or (3) the amount that would be
reasonably expended for the other child(ren)’s support. See Speed,
749 So. 2d at 510–11; Smith, 716 So. 2d at 334–35; Flanagan v.
Flanagan, 673 So. 2d 894 (Fla. 2d DCA 1996).

     The Smith/Speed credit is not a deduction from the obligor’s
gross income because section 61.30(3)(f), Florida Statutes, only
allows for a deduction of “[c]ourt-ordered support for other children
which is actually paid.” Instead, the credit is an equitable
adjustment under section 61.30(11)(a)11., Florida Statutes, which
allows the trial court (or, here, the ALJ) to make “[a]ny other
adjustment [to the guideline support amount] that is needed to
achieve an equitable result.” See Ogando v. Munoz, 962 So. 2d 957,
959–60 (Fla. 3d DCA 2007) (“Although the Father is not entitled
to a deduction from gross income for the support he provides to his
other three children, section 61.30(11)(a)(11), Florida Statutes,
(2006), allows a court to ‘adjust the minimum child support award,
or either or both parents’ share of the minimum child support
award . . . to achieve an equitable result.’”); Henderson v.
Henderson, 905 So. 2d 901, 904 n.2 ((Fla. 2d DCA 2005) (“While
the obligation to support children not subject to any prior support
action is not an allowable deduction from gross income, in some
circumstances it is a matter that can be considered as grounds for
a deviation under other provisions of section 61.30.”); Joye v. Jones,
789 So. 2d 508, 509 (Fla. 1st DCA 2001) (explaining that trial
courts are vested with “wide discretion . . . to take into account a
parent’s obligation of support to other children, in the
determination of what is a proper child-support award for the
minor child who is the subject of the support action”).

     The ALJ did not cite, nor has our research located, a single
case involving an award of a Smith/Speed credit for an unborn
child. The absence of such authority is not surprising because it is
well-established that the child support obligation does not
commence until the birth of the child. See Dep’t of Revenue ex rel.


Johnson, Case No. 1D17-4036 (Fla. 1st DCA Aug. 10, 2018)
(finding no abuse of discretion in ALJ’s award of a Smith/Speed
credit for consistent and regular support payments for non-marital
children).

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Smith v. Selles, 47 So. 3d 916, 921 (Fla. 1st DCA 2010) (quoting
Morris v. Swanson, 940 So. 2d 1256, 1257 (Fla. 1st DCA 2006)
(“Support is a dual obligation owed by both biological parents to
their child from the moment of the child’s birth.”) (emphasis
added); Horn v. Dep’t of Revenue ex rel. Abel, 752 So. 2d 687, 688
(Fla. 3d DCA 2000) (“Under common law, a child was entitled to
support retroactive to the date of birth.”); Ellis v. Humana of Fla.,
Inc., 569 So. 2d 827, 828 (Fla. 5th DCA 1990) (“And while the
[parent] had no direct obligation of child support before the birth
of the child, this inchoate obligation created at fertilization springs
forth into full life upon the birth of the newborn child.”).

     The award of a Smith/Speed credit for an unborn child also
raises practical problems. Although the ALJ found in the FAPSO
that there was “no evidence or argument presented to suggest that
this imminent birth [of the father’s then-unborn child] was not
credible or certain,” there is never a guarantee of a healthy
pregnancy or delivery. If the unborn child was not born, the father
would have received a windfall to the detriment of the child at
issue in this case and the mother would be forced to file a
modification petition to increase the award to what it should have
been had the Smith/Speed credit not been awarded.

                            Conclusion

     For the reasons stated above, the ALJ erred in giving the
father a Smith/Speed credit for his prospective support of a then-
unborn child when calculating the father’s initial support
obligation for the child in this case. Accordingly, we reverse the
FAPSO and remand for entry of a new order consistent with this
opinion.

    REVERSED and REMANDED with instructions.

ROBERTS and OSTERHAUS, JJ., concur.




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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


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

Mark Cochran, pro se, Appellee.




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