Kwasnik v. Maine Dep't of Health & Human Servs.

• Decision Date: 19 March 2012
• Docket Number: CIVIL ACTION DOCKET NO: AP-11-01
• Parties: MAREK A. KWASNIK, Petitioner, v. MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES and BANK OF AMERICA Respondents
• Court: Maine Supreme Court

MAREK A. KWASNIK, Petitioner,

v.MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES and BANK OF AMERICA Respondents

CIVIL ACTION DOCKET NO: AP-11-01

STATE OF MAINE CUMBERLAND SUPERIOR COURT

DATED: March 19, 2012

RULE 80C DECISION AND ORDER

Before the court is a Rule 80C petition filed by Marek A. Kwasnik seeking review of the Maine Department of Health and Human Services enforcement of a New Jersey child support order by and through an Order to Withhold and Deliver, issued to Bank of America. Also before the court are the Maine Department of Health and Human Services motions to drop or dismiss claims against Bank of America as a party and to exclude the additional evidence submitted by the petitioner.

Background

Marek A. Kwasnik (the "Petitioner") is subject to a child support order, issued by the Superior Court of New Jersey on April 10, 2002, requiring him to pay $228.00 per week to Ewa Hagar (formerly Ewa Skwarczynska) to support their child Robert Kwas. (R. D-2.) The Supreme Judicial Court of Maine has held that this order is entitled to full faith and credit and is enforceable by the Maine Department of Health and Human Services ("DHHS"). Kwasnik v. DHHS, 2006 ME 27, ¶ 1, 893 A.2d 610 (per curiam), cert. denied, 549 U.S. 955 (2006).

DHHS had previously issued a "notice of debt," on June 16, 2001, stating that unpaid child support had accrued in the amount of $2,978.00 and was increasing weekly. (R. D-3.) As of January 18, 2011, the Petitioner owed $93,405.01. (R. D-4.) On December 3, 2010, DHHS issued an Order to Withhold and Deliver to Bank of America, pursuant to 19-A M.R.S. § 2358. (R. D-1.) That order directed Bank of America to immediately withhold all property up to the amount of the total debt, other than earnings, and send that property to DHHS within 30 days. (R. D-1, 3-4.) Bank of America complied with the order by withholding the contents of the petitioner's bank account and the contents of his safe deposit box, including a CD, a third-person's will, and an antique silver coin. (R. C-2, C-3; Transcript at 5, 11; Resp. Br. 3 n.3.) Bank of America then notified the Petitioner of the seizure on December 13, 2010. (R. C-3.)

The Petitioner requested an administrative hearing on the Order to Withhold and Deliver, stating that his reasons for appeal were that the seizure of his safe-deposit box and bank account violated the Fourth Amendment. (R. HO-2.) A hearing was held in Portland, Maine on January 19, 2011¹ in front of Hearing Officer Miranda Benedict. (R. B at 1). The Petitioner appeared on his own behalf and Support Enforcement Agency Tracy Vierra appeared on behalf of DHHS. (R. Batl). Ewa Hagar also appeared on her own behalf via telephone. (R. B at 1-2.) Hearing Officer Benedict issued a Decision After Hearing on February 17, 2011, stating that her review is limited to the issues listed in chapter 12, section 7(H) of the Maine Child Support Enforcement Manual and that, because DHHS followed the procedure for executing an order to withhold and deliver, its actions were lawful. (R. A at 3.) The decision specifically noted that it made no judgment as to the validity of 19-A M.R.S. § 2358.

The contents of the safe-deposit box were not delivered or disclosed to DHHS until after the January 19, 2011 administrative hearing. (Pet. Br. 3-4, 37; Resp. Br. 3, n.3; R. B 5.) DHHS then returned to the Petitioner the CD and the will but retained possession of the antique coin. (Resp. Br. 3, n.3.)

The Petitioner filed this petition for review ("Petition") on March 18,2011. On the bases of the Fourth Amendment and Due Process Clause to the United States Constitution and Article I, sections 5 and 6-A of the Maine Constitution, he seeks review of DHHS's denial of (1) his request that DHHS "abandon its policy(ies) - in child support enforcement actions" by returning the antique coin seized² and (2) his request that DHHS abandon its policy of issuing liens against safe-deposit boxes of persons owing child support without probable cause. (Pet. ¶¶ 4-6.) Petitioner also seeks review of the constitutionality of "pertaining statutory scheme as currently expressed in Title 19-A M.R.S. §§ 2203, 2357, etc.," an injunction "against the department [sic] unconstitutional policies of overextended unconstitutional control," and an order directing DHHS to return the antique coin. (Pet. ¶ 7.)

On June 13, 2011, DHHS filed a brief in response to the Petition and motions to drop Bank of America as a party and to exclude additional evidence submitted by the Petitioner with his brief. The Petitioner filed his reply and opposition to the motions on July 5, 2011. Oral argument was held on the appeal and pending motions on November 30, 2011.

Discussion

I. Motion to Drop Bank of America as a Party

DHHS has moved to drop Bank of America from this action pursuant to M.R. Civ. P. 21 or, alternatively, to dismiss any pending claim against Bank of America pursuant to M.R. Civ. P. 12(b)(6). It argues that there is no cause of action asserted against Bank of America and because this action was brought pursuant to M.R. Civ. P. 80C, there is no relief available against Bank of America. The Petitioner argues that Bank of America is a necessary party because final relief cannot be granted without joinder of both parties and that for collateral estoppel and judicial economy purposes both parties should be parties to a single action.

The Petitioner does not state why complete relief cannot be granted without Bank of America as a party and because the Petitioner does not assert any independent claims against Bank of America, the court determines that the parties-have been misjoined and dismisses the petition as against Bank of America.

II. Additional Evidence

DHHS also moves to exclude the additional evidence submitted by the Petitioner along with his brief in support of the Petition. M.R. Civ. P. 80C requires the agency to file a complete record of the proceedings under review and further permits a petitioner to require the court to take additional evidence, provided that the petitioner file a motion to that effect within ten days of the agency filing the record. M.R. Civ. P. 80C(e)-(f). A failure to make this motion constitutes a waiver of any right to take additional evidence so that the petitioner is bound by the record before the agency, even if the issue on appeal was not within the agency's jurisdiction. Mathieu v. Comm'r of Human Servs, 562 A.2d 686, 689 (Me. 1989). The court may order thetaking of additional evidence if it finds that additional evidence is needed to review the petition. 5 M.R.S. § 11006(1)(B).

The Petitioner did not present the evidence attached in his Appendix to the agency at the time of the hearing despite being given the opportunity to present additional evidence. (R. B at 9.) The Petitioner has not moved this court to take additional evidence as required by the Maine Rules of Civil Procedure. Furthermore, the court finds that the additional evidence offered by the defendant pertains to the validity of the New Jersey support order and to other arguments that were not raised by the petitioner before the agency. Nothing in the Appendix is related to the constitutional arguments made by the Petitioner.³ Therefore, this evidence is not necessary for the court to review the Petition and DHHS's motion to exclude the additional evidence is granted.

III. M.R. Civ. P. 80C:

a. Standard of Review

The court's power to review a decision of a state agency is confined to an examination of "whether the [agency] correctly applied the law and whether its fact findings are supported by any competent evidence." McPherson Timberlands, Inc. v. Unemployment Ins. Comm'n, 1998 ME 177, 6, 714 A.2d 818. The court may only reverse or modify an administrative agency's decision if it is

1) In violation of constitutional or statutory provisions;

2) In excess of the statutory authority of the agency;

3) Made upon unlawful procedure;

4) Affected by bias or error of law;

5) Unsupported by substantial evidence on the whole record; or

6) Arbitrary or capricious or characterized by abuse of discretion.

5 M.R.S. §§ 11007(4)(C) (2010).

Additionally, the court cannot substitute its judgment for that of the agency on questions of fact; that is, findings of fact must be affirmed unless clearly erroneous. 5 M.R.S. § 11007(3) (2011); Green v. Comm'r of the Dep't of Mental Health, Mental Retardation & Substance Abuse Servs., 2001 ME 86, ¶ 9, 776 A.2d 612. "[U]nless the record before the [agency] compels a contrary result," the court will uphold the agency decision. McPherson, 1998 ME 177, ¶ 6, 714 A.2d 818.

In an appeal from a DHHS order to withhold and deliver, issued pursuant to 19-A M.R.S. § 2358, the hearing officer may only consider four issues: (1) whether the applicable requirements of 19-A M.R.S. § 2358 have been met; (2) whether the debt set forth in the order is correct; (3) whether the parent is receiving public assistance for the benefit of any children; and (4) whether the property is exempt from attachment. 10-144 C.M.R. ch. 351 § 12.7(H) (2008) (DHHS Child Support Enforcement Manual chapter 12, § 7(H)). All objections to the administrative proceeding must be raised before the agency in order to preserve those issues for appeal, even when those issues implicate constitutional questions. New England Whitewater Ctr., Inc. v. Dep't of Inland Fisheries & Wildlife, 550 A.2d 56, 58 (Me. 1988).

b. Constitutionality of the Order to Withhold and Deliver

The court understands the Petition to ask the court to determine the constitutionality of DHHS's actions taken pursuant to 19-A M.R.S. §§ 2357 and 2358,⁴ to enjoin DHHS fromfurther enforcing the child support obligation against the Petitioner,⁵ and, if the statutory scheme is found to be unconstitutional, to order the return of the property held by DHHS. (Pet. ¶ 7.) The Petitioner did properly raise the constitutional question at the administrative hearing, preserving the issue for appeal. (R. B at 8.) The court notes that...