Harvey v. Marshall

• Decision Date: 07 September 2004
• Docket Number: No. 0532,0532
• Citation: 857 A.2d 529,158 Md. App. 355
• Parties: Derek T. HARVEY v. Robin Laverne MARSHALL, et al.
• Court: Court of Special Appeals of Maryland

857 A.2d 529

158 Md. App. 355

Derek T. HARVEY v. Robin Laverne MARSHALL, et al.

No. 0532, Sept. Term, 2003.

Court of Special Appeals of Maryland.

September 7, 2004.

Daniel L. Hatcher (Legal Aid Bureau, Inc. on the brief), Baltimore, for Appellant.

Joseph B. Spillman (J. Joseph Curran, Jr., Atty. Gen. on the brief), Baltimore, for Appellee.

Panel: DAVIS, ADKINS, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

ADKINS, J.

In this case, we decline to hold that the familiar "best interest of the child" standard overrides traditional rules of statutory construction in interpreting three inter-related statutes governing child support. Derek T. Harvey, appellant, was obligated to pay child support for his four children, as a result of 1986 and 1989 consent paternity decrees that included support awards, and other child support enforcement efforts undertaken by the Baltimore City Office of Child Support Enforcement (BCOCSE) and the Maryland Child Support Enforcement Administration (Administration), appellees.¹ Harvey accrued the child support arrearage² while his children were in the care of their respective mothers.

Harvey reunited with his children in 1996, and secured a court order transferring custody of them, with an effective date of October 1, 1996. Because child support enforcement actions brought by BCOCSE included arrears that accrued before 1996, Harvey filed a Motion to Set Aside Child Support (Motion) in 2002, naming the BCOCSE and the Administration as third-party defendants. After a hearing on the Motion and opposition by appellees, the Circuit Court for Baltimore City issued a Memorandum Opinion and Order denying the Motion. Harvey filed this timely appeal.

He presents the following questions for our review:

I. Did the trial court err in concluding it does not have discretion to set aside Harvey's child support arrearage, pursuant to Md.Code (1974, 1999 Repl.Vol., 2003 Cum.Supp.), section 5-1038(b) of the Family Law Article (FL)?

II. Did the trial court err in failing to apply the best interest of the child standard in determining whether Harvey's child support arrearage should be set aside pursuant to FL section 5-1038(b)?

III. Did the "Administration" and BCOCSE fail to properly exercise their discretion to forgive State-owed child support arrearage?

IV. Did the Administration fail to properly develop criteria, procedures and regulations to carry out its authority to forgive Harvey's State-owed child support arrearages pursuant to FL section 10-112?

Answering no to the first three questions, and declining to reach the fourth, we affirm the circuit court.

FACTS AND LEGAL PROCEEDINGS

Harvey's three younger children-Dereka, Robin, and Derek, Jr.-came to live with Harvey in the fall of 1996, when their mother was no longer able to care for them. Later that same year, Harvey's eldest daughter, Keawoni, came to live with him because her mother died. Eventually, Harvey also provided a home for Kelly Williams, Keawoni's half sister, due to the death of her mother and the inability of her grandparents to care for her.

Shortly after they arrived, Harvey notified BCOCSE in person that his children were now in his custody. Harvey asked the agency to stop collecting child support and to forgive the arrearage.

Despite additional appearances at the BCOCSE office, at which Harvey allegedly requested modification of the child support order and the arrearage account, and received assurances "on several occasions that the situation would be resolved," BCOCSE continued to charge Harvey for current support and to demand payment of the mounting arrears. BCOCSE reported the arrearage to credit reporting agencies and intercepted Harvey's tax refunds.

In the spring of 2001, Harvey, with the help of counsel from the Legal Aid Bureau, was able to have the current support obligations diverted to pay down the arrearage. Harvey's subsequent requests to BCOCSE to forgive the arrearage were unsuccessful. Harvey then turned to the Administration itself for relief.

In a June 2, 2001 letter, Harvey's counsel advised the Administration that Harvey's arrearage totaled approximately $32,000 in the two cases, with all but $1,600 owed to the State. Counsel asserted that $57 was being taken from Harvey's weekly wages under an earnings withholding order (EWO), and that this money would be better spent to support the five children who were living with Harvey.

Administration Executive Director Teresa Kaiser responded by letter dated July 6, 2001. She advised that the Administration would consider Harvey's request to abate the state-owed arrears upon receipt of additional information and court orders establishing Harvey's custody, including the length each child had resided in the Harvey household. Harvey supplied the requested information and obtained a November 20 custody order for his four children, retroactive to October 1, 1996.

The Administration then audited Harvey's account. It adjusted the account as a result of the custody order to reflect only the $5,421.26 in arrearage that existed before October 1, 1996, the date on which Harvey assumed custody. After reviewing the case, Kaiser was persuaded by Harvey's argument that his duties as custodial parent warranted "arrearage abatement... so that he could focus on supporting his family." In a March 6, 2002 memorandum, she proposed to Dwayne Brown, BCOCSE Project Director, that the following actions be taken in this case:

1. Collect $1.00 per year on the arrears of $5,421.26;

2. Suspend the interception of State and Federal Income Taxes and other enforcement measures except for the Maryland Lottery until:

(a) all the children are emancipated;

(b) the non-custodial parent begins to pay child support; or

(c) the arrears are paid completely by interceptions received through the Maryland Lottery Office.

3. Enter a narrative into the Case Action Logs stating why enforcement in this case was suspended; and

4. Refund State and Federal Taxes that were intercepted.

Kaiser asked Brown to "contact me to confirm these arrangements or to discuss other satisfactory arrangements."

BCOCSE, however, rejected the Administration proposal. Brown explained what happened:

Once this memorandum was done, ... my supervisor, Mr. Drummond discussed this at one of our bi-weekly meetings, basically stating that we didn't agree with this proposal because ... our computer systems are not set up to read anything like this, which means that if you have $5,000.00 on the system, we don't really have much of a way to monitor these cases to make sure his taxes are intercepted or not you know turned into the credit agency. We have a lot of automated systems that are in place[.]

The Administration took no further action.

Harvey remarried in 2002, adding his wife and her son to his household. He earns $10.96 per hour as a landscaper for the City of Baltimore. He reports that he has not been able to buy a house because he cannot obtain financing as a result of the continued reporting of the arrearage to credit agencies. In addition, he asserts that "[t]he continued child support collection is harming [his] ability to pay and save for college expenses." He has one daughter in college and the rest "hope to go" someday. Harvey moved to set aside the arrearage on May 18, 2002, arguing that Md.Code (1984, 1999 Repl.Vol., 2003 Cum.Supp.), section 5-1038(b) of the Family Law Code (FL) gives the court discretionary authority to modify or set aside child support arrears when doing so is in the best interest of the children or when special circumstances exist.

I.

The Trial Court Did Not Err In Declining To Abate Or Modify Harvey's Support Payments Retroactively To A Date Prior To Harvey's Motion To Set Aside Child Support

A. The Court Had No Discretion To Retroactively Extinguish The Order

Harvey argues that trial court "erred in concluding it did not have discretion to set aside Harvey's child support orders pursuant to FL section 5-1038(b)." This section, part of the Paternity Proceedings Subtitle, is titled "Finality of orders; alteration" and provides:

Except for a declaration of paternity, the court may modify or set aside any order or part of an order under this subtitle as the court considers just and proper in light of the circumstances and in the best interests of the child.

The Administration and BCOCSE respond that the circuit court was correct in holding that it did not have authority to modify a child support order relating to a period before the filing of the motion to modify, because it is explicitly prohibited from doing so by FL section 12-104. This section, which applies to all child support actions, including paternity cases, provides:

(a) Prerequisites. — The court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.

(b) Retroactivity of modification. — The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification. (Emphasis added.)

We hold that the trial court did not err, because we agree with appellees that FL section 12-104, limiting the time when a court can modify a support order, prohibited retroactive modification to an effective date preceding Harvey's motion.³ We reach this conclusion by applying traditional rules of statutory construction, including consideration of legislative history.

Judge Hollander recently summarized these rules:

The seminal tenet of statutory construction compels us to ascertain and effectuate the legislative intent.... The statutory text is our starting point. Generally, we give the words of the statute their "ordinary and common meaning within the context in which they are used." ... To achieve that objective, we must incorporate "the overall purpose of the statute into its interpretation." When the statutory language is "clear on its face and in its context, then we do not ordinarily need

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