Harvey v. Marshall

Citation389 Md. 243,884 A.2d 1171
Decision Date14 October 2005
Docket NumberNo. 109,109
PartiesDerek T. HARVEY v. Robin Laverne MARSHALL, et al.
CourtCourt of Appeals of Maryland

Daniel L. Hatcher (University of Baltimore School of Law, Civil Advocacy Clinic; Hannah Lieberman of the Legal Aid Bureau, Inc., Baltimore), on brief, for Petitioner.

Beth Mellen Harrison, Francis D. Murnaghan, Jr., Appellate Advocacy Fellow, Baltimore, brief of Petitioner Amicus Curiae, the Public Justice Center.

Joseph B. Spillman, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD, Baltimore), on brief, for Respondents.



This case arises from attempts by Derek T. Harvey, a father who reunited with four of his children, to have a Maryland court extinguish, or, in the alternative, direct the Child Support Enforcement Administration ("CSEA") to forgive, child support arrearages he owes that accumulated before he obtained custody of the children. In resolving this case, we are called upon to examine whether a court may eliminate completely child support arrearages in light of the statutory prohibition on the retrospective modification of child support orders. We also must determine whether the CSEA is bound to apply the familiar "best interests of the child" standard in deciding, pursuant to its statutory discretion, whether to forgive child support arrearages, and whether the agency's refusal to exercise that discretion in the father's favor, because of financial and administrative considerations affecting the State's child welfare program, was "arbitrary or capricious."


Derek T. Harvey obtained physical custody of his three youngest children, Dereka, Robin, and Derek, Jr., when they came to live with him in Baltimore City in the fall of 1996 after their mother became unable to care properly for them. Later that year, Harvey's eldest daughter, Keawoni, came to live with him due to the death of her mother and the subsequent inability of her grandparents to care for her. At the same time, Harvey also opened his household to Keawoni's half-sister, Kelly Williams.

Harvey's child support obligations arose from consent paternity decrees issued by the Circuit Court for Baltimore City in 1986 and 1989 establishing Harvey as the biological father of the pertinent children.1 Prior to Harvey gaining custody of the children, Robin Laverne Marshall, the mother of Dereka, Robin, and Derek, Jr., applied for welfare assistance because she was not receiving the child support Harvey was ordered to pay. As a condition of receiving welfare assistance, Ms. Marshall was required to initiate child support proceedings and assign the children's support rights to the State.2 Rita Williams, the mother of Keawoni, also assigned her child support rights to the State as a condition of receiving welfare assistance. During the period the children were in the custody of their mothers, Harvey accumulated significant child support arrearages as the result of his nonpayment of the court-ordered child support.

Soon after the children joined his household, Harvey, on several occasions, informed officials at the Baltimore City Office of Child Support Enforcement ("BCOCSE") that the children were now in his physical custody. At all times relevant to these proceedings, BCOCSE was operated by MAXIMUS, Inc. ("MAXIMUS"), a private corporation under contract with the CSEA.3 Harvey hoped that by notifying BCOCSE of this change in custody, he might persuade BCOCSE to close his child support cases and forgive his accumulated arrearages. Harvey's informal attempts, however, met with no success. After one meeting with a case manager in July 2000 at the offices of BCOCSE, in which Harvey once again explained the changed circumstances with regard to his children, he allegedly was informed by the case manager "that the situation would be taken care of." Despite this assurance, BCOCSE continued to enforce Harvey's child support obligations, charging him for his current support, reporting his alleged arrearages to credit reporting agencies, and intercepting several of his tax refund checks.

Also in July 2000, Harvey approached the Baltimore City office of the Legal Aid Bureau, Inc. ("Legal Aid") seeking assistance with regard to his attempts to reduce or eliminate his child support obligations and arrearages. In the spring of 2001, with the assistance of Legal Aid, Harvey was successful in diverting his then-ongoing child support obligation toward his arrearages. Harvey, however, continued to encounter difficulties from BCOCSE in achieving forgiveness of his arrearages.

Frustrated with BCOCSE, Harvey switched his focus to the CSEA, BCOCSE's parent agency. In a 4 June 2001 letter, Legal Aid made a formal request to the CSEA for "forgiveness or abatement" of Harvey's arrearages and current support obligations. The letter advised the CSEA that, as of May 2001, Harvey owed approximately $32,000 in two cases, of which all but $1600 was owed to the State. Legal Aid argued that, although the funds sought by BCOCSE would be used to reimburse the State for past welfare support of the affected children, the current and future best interests of Harvey's children would be served by allowing Harvey to apply current and future income, including $57 subtracted from his paycheck each week, to the future support and upbringing of his children now in his custody.

In a 6 July 2001 letter, Teresa L. Kaiser, executive director of the CSEA, informed Legal Aid that the CSEA would consider exercising its statutory discretion to eliminate or reduce Harvey's child support arrearages owed to the State. The letter, however, stated that, in order to do so, Harvey would need to provide BCOCSE with evidence confirming the length of his physical custody of the children. In response, Harvey provided documentation, including school records and documents relating to an investigation of Ms. Marshall for fraudulent receipt of welfare benefits, establishing that the children had lived with him since 1996. Harvey also procured and delivered to BCOCSE a court order, issued 20 November 2001 by the Circuit Court for Baltimore City, granting him legal custody of the four children, and made retrospectively effective as of 1 October 1996. The order also terminated Harvey's ongoing child support obligations and eliminated any arrearages accruing after 1 October 1996.

In a memorandum, dated 6 March 2002, to Dwayne Brown, project director of BCOCSE, Ms. Kaiser acknowledged receipt of the 20 November 2001 court order and proposed that BCOCSE take the following actions with regards to the enforcement of the arrearages owed by Harvey:

1. Collect $1.00 per year on the arrears of $5,421.264;
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.

Ms. Kaiser also instructed Mr. Brown in this memorandum that he would "need to write a letter to the Legal Aid Bureau, Inc. with a summary of the actions outlined above [and that he should] contact [Kaiser] to confirm these arrangements or to discuss other satisfactory arrangements." BCOCSE, however, objected to Ms. Kaiser's proposal, and neither the CSEA nor BCOCSE took any further action on Harvey's requests.5

Meeting no success in his initiatives with BCOCSE or the CSEA, Harvey filed in the Circuit Court for Baltimore City on 17 May 2002 a Motion to Set-Aside Child Support.6 By this time, Harvey had remarried, adding his new wife and her son to his household. In his motion, Harvey asked the court to set aside his child support arrearages under the authority of Md. Code (1974, 2004 Repl. Vol.),7 § 5-1038(b) of the Family Law Article,8 which he argued permits a court to modify or set aside a child support order if the court finds that such an action is "just and proper in light of the circumstances and in the best interests of the child." Harvey also asked the court, in the alternative, to find that the CSEA declined improperly to forgive his arrearages under § 10-112, which grants discretion to the CSEA to settle past child support arrearages for less than the full amount.

At a merits hearing on the motion held on 25 October 2002, Rachelle Langdon, a manager for BCOCSE, testified that, in regard to the proposal by Ms. Kaiser,

... I believe my supervisor, Mr. Drummond discussed this at one of our bi-weekly meetings, basically stating that we didn't agree with this proposal because: (1) 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[.]

Ms. Langdon also testified that BCOCSE did not want to take the action proposed by Ms. Kaiser because to do so "would potentially harm the numbers that show the local enforcement office's collection rate."

At the hearing, Harvey testified that he supported his children and extended household on wages of $10.96 an hour as a landscaper for the City of Baltimore. Harvey claimed that the existence of unpaid child support obligations affected adversely his credit rating, prevented him from purchasing or financing a home, and undermined his ability to pay and save for his children's education. All of these consequences of continued enforcement, Harvey argued, acted as a detriment to the best interests of his children and thus provided a justification for the complete...

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