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IN THE CIRCUIT COURT OF THE TENTH JUDICIAL CIRCUIT,

IN AND FOR HIGHLANDS COUNTY, FLORIDA

FRIDAY - 27 JULY 2012

FILE NO. NS 11-007475 CASE NO. 28-2001 DR 000821FILE NO. NS 08-002624 Case No. 01-0000821-FC (Kellie Motil)

FILE NO. ESP-390 Case No. 01-0000821-F1 (Laura Chaney)

KELLIE J. MOTIL andTHE FLORIDA DEPARTMENTOF REVENUE,

Petitioners,

vs.

JACK R. AGUERO, II,

Respondent._____________________________/

KELLIE MOTIL'S MOTION for JUDICIAL NOTICE

The Petitioner, Kellie J. Motil ("Kellie"), moves the Court, pursuant to Florida Statutes

90.202(6) and 90.203, to take judicial notice of 1) the Final Order of15 February 2002 (See

Exhibit A attached), 2) the Income Deduction Order filed 2 June 2005 (See Exhibit B

attached). Both of these orders require Jack R. Aguero, II (Jack) to pay ongoing child

support in the amount of$56.21 per weekfor his son, Cameron Aguero; 3) that there is no

order terminating or suspending Jack's ongoing child support for Cameron; 4) the "Memo

of Court Hearing" dated 18 June 2008 which gave custody of the boys back to Kellie (See

Exhibit C attached); 5) the Letter dated 6 January 2009 (See Exhibit D attached) from the

"Legal Department" of the Department of Children and Families (the "DoR") located at 3282 US

Hwy 27 South in Sebring (the DoR's Office); and 6) the "Recommended Order Terminating

Post-Placement Supervision, Jurisdiction Retained" filed 29 January 2009.

The valid, permanent and operative order for Jack to pay current support of $56.21 per

week1 has been in effect from February 2002 through, at least, April 2011. This is a period of

over nine (9) years. The DoR, wrongly, contends that there was no order for support from

January 2008 to April 2011--over three (3) years! The biggest MISTAKE made by the DoR

1 See Exhibit A, page 3 under "SCHEDULE 'A'"


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(which is the sole basis of the DoR's defense) is this false statement made in its Written Closing

Arguments Following June 28, 2012 Hearing on page 2, at paragraph 3.b., emphasis added:

Prior to this Court's July 27, 2011 order, Mr. Aguero had not been under

an order to pay ongoing support for years.

The DoR is, wrongly, saying that there was no order in existence to modify in 2011. Yet,

the DoR filed a motion to modify a child support order in April 2011. This is absurd. If there is

no child support order, then the DoR must establish one, not modify a non-existent order.

This whole matter is absurd because the DoR made it that way and the DoR refuses to fix it.

A redirection of support payments doesn't modify the underlying support order.2

The temporary, administrative Re-Direct Order only affected the giving of support to

Kellie. It did not alter Jack's obligation to pay ongoing support of $56.21 per week. The Re-

Direct Order was a temporary, administrative order that did not have any jurisdiction to alter the

collecting of support from Jack and it did not retain any jurisdiction.

The Final Order of 2002 was a permanent, operative order that retained jurisdiction until

Cameron reaches the age of majority, is emancipated, or until further order of a court of

competent jurisdiction. There is no motion to terminate and no order to terminate Jack's ongoing

obligation to pay support for Cameron at $56.21 per week.

No one has ever raised any due process objections to these two orders. The order for

Jack to pay current support was never terminated. It was never suspended. It was

never modified until 28 July 2011 pursuant to the DoR's filing of a motion for modification on

21 April 2011. This motion did not reflect Kellie's request to the DoR to enforce the two valid

orders mentioned above. Kellie is still seeking to ENFORCE these two valid orders for child

support (both current & arrears).

The DoR completely misconstrues due process in this matter. Jack was present at the

hearing in February 2002. No one has raised any due process issues regarding those orders.

However, Kellie has raised due process objections to the DoR's violations of her due process

rights. She was not given notice of any hearing on the DoR's motion to re-direct collected

2 http://blog.sdsfamilylaw.com/when-a-parent-is-incarcerated-child-support-still-matters/, August 20, 2011

2
http://blog.sdsfamilylaw.com/when-a-parent-is-incarcerated-child-support-still-matters/http://blog.sdsfamilylaw.com/when-a-parent-is-incarcerated-child-support-still-matters/


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child support from her to someone else. No one has ever filed a motion to terminate, nor a

motion to suspend Jack's obligation to pay ongoing child support!

If these two orders are not valid as to taking ongoing support from Jack, then Kellie is

wrong.

If these two orders are valid as to taking ongoing support from Jack, then the DoR is

wrong, and the DoR needs to reconcile Jack's child support account and apply the amounts to

current and arrears properly according to these two valid orders.

The amount in controversy is over $11,000.00! Grand theft is only $300.00.

Because the 22 February 2008 administrative Re-Direct Order violated Kellie's due-

process rights (no notice to her and no opportunity to be heard) and because the DoR never

enforced it (no current support was given to Laurashe didn't even have the boys when the Re-

Direct Order was made), it should be voided nunc pro tunc and the two orders from 2002 and2005 should be enforced, accordingly.

The DoR made the following statement, in its Argument, on page 3, at paragraph 4.a :

[T]he Department of Revenue did not take any action to re-establishthe support obligation.

This statement is, at best, misleading. At worst, it is an attempt to mislead the Court into

believing a falsehood, to wit: that Jack's support obligation had not been established. Jack's

support obligation DID NOT NEED TO BE re-established, because IT WAS NEVER

TERMINATED, NOR WAS IT SUSPENDED!!! The DoR kept collecting current support of

$56.21 per week from Jackandkept sending it to Kellie from January 2008 to April 2009

before Laura signed the papers saying she wanted nothing from Jack for the four (4) weeks she

had the boys in her home. The DoR collected current support, but failed to apply it as

current in the DoR's accounting records. After Laura signed the paper in April 2009 the DoR

kept sending the same support payments to Kellie until January 2010.

The DoR NEVER actually enforced the Re-Direct Order by 1) temporarily suspending

payments of support to Kellie; and by 2) re-directing those suspended payments to Kellie's

sister, Laura. Laura only received a few arrears payments of $12 each.

Contrarily, the DoR's own records show that, IN FACT: 1) payments to Kellie did not

cease until January 2010; and 2) No current support payments were re-directed to Laura. Laura

did not even have the boys when the Re-Direct Order hearing was held.

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The presumption that the DoR performed its duty is overcome by the facts shown in

the record. The DoR said, Prior to this Court's July 27 2011 order, Mr. Aguero had not been

under an order to pay ongoing support for years. If, as the DoR claims, Cameron's child support

was terminated, where is the motion to terminate? The DoR, erroneously, believes that

Cameron's RIGHT to support can be taken away by the State or by Cameron's Aunt Laura.

Neither the DoR nor Laura had any jurisdiction to deny all support to Cameron. This cannot be

allowed, because it is against public policy. The DoR's job is to ENFORCE child support, not to

ERASE it.

The DoR contends that Kellie's claim (that she notified the DoR that she had her boys

back) is "unsubstantiated" because she "did not provide documentation to prove that the minor

child [Cameron] returned to her home." Contrary to the DoR's contention, the record shows that

the DoR was fully aware that both boys had returned to Kellie in June 2008. The DoR's "LegalDepartment" sent a letter dated 6 January 2009 (See Exhibit D attached) to Magistrate Sheryl

Snodgrass regarding a "proposed Order" from a hearing on 31 December 2008. That "proposed

Order" was filed as the "Recommended Order Terminating Post-Placement Supervision,

Jurisdiction Retained" on 29 January 2009 (See Exhibit E attached). That order was signed by

Magistrate Sheryl Snodgrass and it says several important things regarding the DoR's knowledge

of the fact that Kellie had regained custody of her two boys, Blake and Cameron:

1. The children were adjudicated dependent February 27, 2008 and placed in the

temporary custody of ... the maternal grandparents,/under protective supervisionof the Department.

2. On June 18, 2008, the children returned to the custody of the mother....

3. Post-placement supervision has continued for six months as required by FloridaStatute Section 39.701(1)(b).

4. There is no longer a need for continued supervision of the children in this home...

5. Protective Services Supervision by the Department shall be terminated. Legal

custody of the above-named children shall remain with Kellie Motil, the mother.

This "recommended" order was signed by the Magistrate the "proposed" order was

signed by the Circuit Judge, Ernest M. Jones, Jr. A copy of the signed orders was provided to

"DCF Legal (Ramos)." This order shows that the DoR maintained "supervision" over both boys

from January 2008 to January 2009.

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The situation was not under Kellie's control. The DoR took the boys from Kellie. The

DoR supervised the boys. The DoR did not suspend payments to Kellie. The DoR did not send

current support for either boy to their Aunt Laura. The DoR did not apply any collected support

to "current from January 2008 onward. The DoR did not "enforce" child support as it should

have. This "presumption" is overcome by the facts shown on the face of the record.

Kellie had her boys back in June 2008. She was, still, collecting the same support for

Cameron. She never stopped getting support for Blake. All was right with the world, until

January 2010 when here support payments for Cameron stopped without notice.

The DoR contends, wrongly, that this Court is "not the proper forum." It is axiomatic that

all courts have inherent power to enforce their own orders, especially with permanent child

support orders that, expressly, retain jurisdiction. The 2002 order says, on page 2 at paragraph 7:

"The Court retains full and complete jurisdiction of this cause of action and the parties."The DoR adds insult to injury because the DoR is attempting to blame Kellie for its own

inaction. As quoted above, the DoR said it did not take any action to re-establish the support

obligation. At the July hearing, the DoR attorney said: Normally they would have just

redirected it back to you.3 The Officer said, ... at that point [when the boys went back to Kellie

in June 2008] there should have been an order redirecting it back to you.4 [Emphasis

added.] I do not know why the department did not file something to reopen your account,

said the Officer.5[Emphasis added.]

Kellie did not go to the DoR and request that they re-direct her support payments. She

did go to the DoR and told them she had her boys back. Her affidavit attests to this fact and her

affidavits have not been controverted.

WHY does the DoR REFUSE to recognize valid, operative and enforceable child support

orders issued by this Court??? The DoR (not Kellie and not Jack) requested the temporary Re-

Direct Order. The DoR failed to enforce the Re-Direct Order. The DoR failed to apply collected

support first to current support and then to arrears. The DoR failed to terminate the Re-Direct

Order. The DoR wrongly applied current support to arrears. The DoR never filed a motion to re-

direct Blake's child support. The DoR failed to correct its actions and omissions upon Kellie's

multiple requests to do so. The DoR asked the Court for a modification of a child support

3 July Transcript at page 7, lines 18-19.4 July Transcript at page 9, lines 16-17.5 July Transcript at page 8, lines 15-17.

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order, not Kellie and not Jack. The DoR continues to make mistakes and continues to refuse to

correct them.

The boys' Aunt Laura had them at her home for only four (4) weeks. She was only

entitled to current support for those four weeks. She got no support for Blake. She only got

$72 (arrears) for Cameron. When Laura waived her claim to any support from Jack in April

2009, she only waived her right to the current support she should have gotten ($56.21 x 4 =

$224.84 minus the $71.84 she received = $153.00). Laura did not, and had no right to, contract

away Cameron's operative court-ordered support from Jack.

WHEREFORE, the Petitioner, Kellie J. Motil, moves the Court to take judicial notice of

the Final Order of15 February 2002, and the Income Deduction Order2 June 2005. Both of

these orders require Jack R. Aguero, II (Jack) to pay ongoing child support in the amount

of $56.21 per week for his son, Cameron Aguero, and Kellie moves the Court to take judicialnotice that there is no order terminating or suspending Jack's ongoing child support for Cameron.

Kellie, further, moves the Court to take judicial notice of the papers attached hereto which show

that the DoR supervised Kellie and her two boys from January 2008 to January 2009, thus the

DoR knew the boys were with Kellie and the DoR sent support payments to Kellie, continuously

from December 2007 to January 2010, pursuant to her uncontroverted affidavits and the records

of the DoR.

RESPECTFULLY SUBMITTED by: KELLIE J. MOTIL, Petitioner, self-represented3318 BOLIDE STREETSEBRING, FL 33872-3201

______________________________ Telephone: (863) 385-5600

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing document was sent via U.S. Mail tothe persons listed below on the 27 th day of July 2012 :

MELEY LORREN, ASA Telephone: (863) 519-4744OFFICE OF THE STATE ATTORNEY Email: [email protected] SUPPORT ENFORCEMENT DIV.215 NORTH FLORA AVENUEBARTOW FL 33830-3731

JACK R. AGUERO II4925 20TH ST EASTBRADENTON FL 34203-3712

Certified by: Kellie J. Motil _______________________________

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mailto:[email protected]:[email protected]

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01 821 Motion Jud Notice 3