Davis v. Department of Revenue

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
HERLEY DAVIS, )
)
Appellant, )
)
v. ) Case No. 2D16-1658
)
DEPARTMENT OF REVENUE )
O/B/O MELISSA ANN BARTELL, )
)
Appellee. )
)
Opinion filed July 14, 2017.
Appeal from the Department of Revenue.
Herley Davis, pro se.
Pamela Jo Bondi, Attorney General, and
Toni C. Bernstein, Senior Assistant
Attorney General, Tallahassee,
for Appellee Department of Revenue
No appearance for Appellee Melissa Ann
Bartell.
PER CURIAM.
Herley Davis appeals a final administrative paternity and support order
entered by the Department of Revenue, Child Support Enforcement Program. We have
jurisdiction. See § 120.68, Fla. Stat. (2016); Fla. R. App. P. 9.030(b)(1)(C), .110(a)(2).
In its answer brief, the Department concludes with a concession of error regarding its
method of calculating Mr. Davis's income for purposes of his child support obligation. It
is unclear from our review of the limited record what that error would have been given
the information the Department had before it and Mr. Davis's failure to participate at any
point in the proceedings below. Thus, we decline to accept the Department's
concession. Cf. Hinckley v. Dep't of Revenue, ex rel. K.A.C.H., 927 So. 2d 73, 74 (Fla.
2d DCA 2006) (recognizing the Department's concession of error but dismissing on
other grounds); Gonzalez v. Dep't of Health, 124 So. 3d 449, 450 (Fla. 1st DCA 2013)
("A confession of error . . . is not binding upon an appellate court, and it is the practice
of Florida appellate courts not to accept erroneous concessions . . . ." (first alteration in
original) (quoting Perry v. State, 808 So. 2d 268, 268 (Fla. 1st DCA 2002))). As Mr.
Davis never challenged the Department's method of calculating his child support
obligation, he failed to preserve that issue for our review. See Duggan v. Dep't of
Revenue, ex rel. Huff, 197 So. 3d 631, 632 (Fla. 1st DCA 2016) (holding that, in appeal
of final administrative support order, the appellant "waived and failed to preserve most
of his appellate arguments after ignoring the process offered below"); Macias v. Dep't of
Revenue, ex rel. Garcia, 16 So. 3d 985, 986 (Fla. 3d DCA 2009) (holding that a father
could not "seek modification of a Final Administrative Support Order on appeal by
presenting facts that were not initially presented to the administrative law judge").
Accordingly, we affirm.
Affirmed.
KELLY, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur.
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