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First DCA clarifies that Department of Revenue lawyers represent Department, not parent, in child support actions.  [Added 7/19/10]

    Father was obligated to make child support payments to the Department of Revenue because his former wife ("Mother") was receiving public assistance.  In 2007 the Department, through its lawyers, filed a contempt proceeding against Father.  The action was dismissed at Mother's request.  In 2008 the Department filed a petition to recalculate Father's future support obligations as a result of a significant reduction in Father's income.  Mother then "asked the court to prohibit the department from representing the father, based upon a conflict of interest, because the department had previously filed the action against the father on her behalf."  Without an evidentiary hearing, the court "granted the mother’s motion and prohibited the department from representing him, finding that the father was in arrears in paying child support and it would be inequitable to allow the department to represent him against the mother, and that the department’s efforts should be directed at enforcement of the existing support order.  The court directed the father to retain private counsel or proceed pro se."  Seeking to quash the order, the Department petitioned the First DCA for a writ of certiorari.

    The appellate court granted the petition.  "The court may have concluded that the department’s action seeking downward modification was inequitable because the previous action seeking child support for the mother from the father created a conflict of interest.  According to state statutes and rules, however, the department’s counsel represents the department and does not represent either parent, so there is no conflict."  In a footnote, the court cited Fla. Stat. sec. 409.2564(5); Fla.Stat. sec. 409.2567(2); Fla.Fam.Law R.P. 12.040(c)(2); Fla.Stat. sec. 90.502(5).  Additionally, the court noted that its conclusion was consistent with that reached in other states:  "In other jurisdictions where this issue was raised, the courts have concluded that there is no conflict of interest, because the attorney represents the agency rather than the parent and thus can take a position that benefits one parent in one action involving child support and a position that benefits the other parent in a later action."  (Citations omitted.)  Florida Dept. of Revenue v. Collingwood, __ So.3d ___ (Fla. 1st DCA, No. 1D09-5305, 7/7/2010).

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