Maine Dep't of Health and Human Services v. Dube

STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
DOCKET NO. AP-21-001

MAINE DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
DIVISION OF SUPPORT
ENFORCEMENT AND RECOVERY,
Petitioner

and
DECISION AND ORDER
KRISTIN DUBE,
Party-in-Interest

v.

JONATHAN N. HA YES,
Respondent

INTRODUCTION
Before the court is the appeal brought by the Petitioner (DHHS/DSER,
hereafter referred to as the Division), from the Decision After Hearing dated
December 23, 2020 issued by an Administrative Hearing Officer. This appeal is
brought pursuant to 5 M.R.S. §§ 11001-11002 (Maine Administrative Procedure
Act) and M.R.Civ. P. 80C. 1 The issue before the court is strictly a question of law.
The Division contends that the Administrative Hearing Officer committed an error
of law in his interpretation and application of 19-A M.R.S. § 2001 (5)(E).

1
The Division is subrogated to the rights ofthe custodial parent, i.e., Kristin Dube. See 19-A M.R.S. §§ 2103 and
2351(1)

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PROCEDURAL AND FACTUAL BACKGROUND
The facts are not in dispute. Respondent, Jonathan Hayes, is subject three
separate child support obligations. The first in time is a Maine District Court divorce
judgment dated April 7, 2011 that required him to pay the sum of $240.00/week
towards the support of his first five children. 2 The second order, and the one at issue
in this case, is an administrative child support order dated July 27, 2016 that required
Mr. Hayes to pay $115/week effective June 17, 2016 and then $107/week effective
August 19, 2016, for the support of his sixth child. The third order was issued by
the State of Maryland (Carroll County) on July 17, 2020 and required Mr. Hayes to
pay $322/month for the support of his seventh child.
After the third order was issued by the State of Maryland, Mr. Hayes sought
to modify or amend the administrative support order (Order# 2) dated July 27, 2016.
See 19-A M.R.S. §§ 2009 and 2304(8). An administrative hearing was held on
August 26, 2020 and the Hearing Officer (Diebold) issued a Decision After Hearing
on September 11, 2020. In that Decision, the Hearing Officer addressed the
definition of the term "gross income" as found in 19-A M.R.S. § 2001(5)(E):
Gross income of an obligor does not include the amount of a
preexisting spousal support obligation to a former spouse who is not the
parent of the child for whom support is being determined, a preexisting
child support obligation pursuant to comi or administrative order, or an
appropriate amount of preexisting child support being voluntarily paid
by a paiiy who has a legal obligation to suppmi that child.
(emphasis added).
Hearing Officer Diebold interpreted the phrase "a preexisting child support
obligation to mean all other child support obligations which existed prior to this
Decision After Hearing issued on the date signed below." (R. at 28). Later, the
Hearing Officer amplified on this point by stating:

2
It is the court's understanding that two of those children have now reached the age of 18.

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There is little sense that some orders are excluded from
determination of gross income but others are not, nor is this
interpretation compelled by a reading of § 2001 (5)(E). The
language of§ 2001 (5)(E) is drawing a distinction, for calculation
purposes, between the order under review, and all other existing
orders. (R. at 29).

In essence, the Hearing Officer was saying that the term "preexisting "means
any order "existing" at the time any modification or amendment to an order is issued.
As a result of this reading of§ 2001 (5)(E), the Hearing Officer adjusted Mr. Hayes 's
gross income by a total of $16,344, which included the sum of $3,864 from the
January 17, 2020 order from Maryland (Order# 3) as well as the sum of $12,480
from the April 7, 2011 Divorce Judgment (Order# 1).
The Division appealed the Decision After Hearing to a second Hearing Officer
(Richard Thacheray). He held an administrative pre-hearing on November 9, 2020
and in a Decision After Hearing dated December 23, 2020, affirmed the prior
decision. (R. at 13 ). The Hearing Officer also concluded that "... there is no
meaningful distinction and no difference between the concept of a 'preexisting
order' and an 'existing order' in the context of the present appeal." (R. at 8). Like
the previous hearing officer (Diebold), Hearing Officer Thacheray construed
Section 2001 (5)(E) in such a manner that an obligor parent's child
support is calculated by subtracting from gross annual income the
combined amount of all other child support obligations preexisting at
the time a judge or hearing officer is asked to order the establishment
or modification of another child support obligation. (R. at 13 ).

As noted above, the second hearing officer determined that orders are
"preexisting" if they were in existence prior to a court or an administrative hearing
officer ruling on a request to establish or modify a child support order.
The central question is what did the Legislature intend by its use of the phrase
"preexisting child support obligation?" Preexisting to what? Preexisting to the court

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or administrative order that established the child support obligation in the first place?
That is essentially the interpretation advocated for by the Division. Or "preexisting"
in the sense that it is in effect prior to the court or administrative hearing officer
ruling on any request to establish or modify a child support obligation? This is the
position taken by the two hearing officers in this matter.
The Division has argued that the view adopted by the hearing officers renders
the word "preexisting" mere surplusage. Moreover, the Division contends that the
interpretation adopted by the hearing officers results in support obligations being
deducted from gross income in multiple and duplicative ways. See Respondent's
Briefat 6-7.
For their part, the hearing officers in their Decisions After Hearing point out
that the language "preexisting child support obligation pursuant to court or
administrative order" is not, by its terms, limited to the original order establishing
the child support obligation. Furthermore, the legislative history of this language is
not particularly helpful in resolving this issue.
The court can appreciate both the position advanced by the Division and the
one adopted by the hearing officers. In researching this question, however, the court
did uncover several decisions from other jurisdictions that have addressed, in one
form or another, the meaning and application of "preexisting" child support
obligations. All of the rulings the court has found support the interpretation adopted
by the hearing officers in this matter.
For example, in In re Marriage of Hannum, 796 P.2d 57 (Colo. App. 1990),
the father sought to have an adjustment made to the support order for the children of
his first marriage based on a subsequent suppmi order for the children of his second
marriage. The trial court refused, holding that such a "set-off' did not apply to
"later-born children." Id. at 58. The appeals court reversed, noting that under
Colorado law, "adjusted gross income means gross income less preexisting child

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support obligations ...." The court held that the statute made no reference to the
bi11h order of any children, "[a]nd the term 'preexisting,' ... clearly modifies the
word ' obligations, ' and does not . . . modify only the term 'child."' Id at 58-59.
Similarly, in Fuhrman v. Fuhrman, l 996 Ohio App. LEXIS 4094 (Ohio App.
1996), the com1 construed the phrase "preexisting child suppm1 obligation" to
include a second and subsequent support order because it "existed earlier or before
the motion for modification filed in the instant case." Id at *6. The com1 observed
that it believed this interpretation was fairer and more equitable because it avoids
the situation where the "children of a first marriage will always profit at the expense
of the children of any succeeding marriages or relationships." Id. at *9.
The same reasoning was employed in In re Marriage of Nepote, 1999
Kan.App. Unpub. LEXIS 89, *11 (Kan. App. 1999), where the court held that "a
parent should receive an adjustment to or a deduction from their net income for
preexisting child support obligations in other cases regardless of the order in which
the support obligations arose." See also Lacy v. Arvin, 140 Md. App. 412, 780 A.2d
1180 (2001) ("When such a court order predates the point in time at which child
support is being calculated for another child, and the monies directed to be paid have
actually been paid, it meets the criteria spelled out in that statute and must be
subtracted from the parent's actual income in calculating his adjusted actual
income."). Id at 424.
This interpretation of the phrase "preexisting child suppo11 obligation" finds
support in 19-A M.R.S. § 2002, which provides that the provisions of chapter 63 ,
including the definitions of what is and what is not "gross income," apply "to a com1
action or administrative proceeding in which a child support order is issued or
modified under ... this Title ...."

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Based on the authority cited above, the cou1i finds that the interpretation of
the phrase "preexisting child support obligation" adopted by the Hearing Officer is
correct.
The entry is:
The Division's Petition for Judicial Review is DENIED, and the Decision
After Hearing dated December 23, 2020 is AFFIRMED.

The clerk is directed to enter this Order on the docket for this case by
incorporating it by reference. M.R. Civ. P. 79(a).

Date: July 1, 2021

-..,,nron "" the docket 1 lz. fu1t
I I

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Date Filed: 1/21/21 Kennebec Docket No.AP-21-01
County F
J. Stokes
Action: SOC

Maine Department of
Health & Human Services vs Jonathan Hayes, et al.

Plaintiff's Attorney Defendant's Attorney

Benjamin Dyer, MG Jonathan Hayes
6 State House Station 9 Sugartree Road
Augusta, ME 04333 Saint David, ME 04773

Date of Entry

01/25/21 Petition for Review of Final Agency Action, filed (1/21/21). s/Dyer, MG

02/09/21 The Department of Health and Human Services' certified record filed. s/Dyer MG

02/11/21 Certified Record, filed (2/9/21). s/Dyer, MG

02/11/21 Notice & Briefing Schedule, issued
Copy to parties/counsel

03/23/21 Brief of Petitioner, filed (3/19/21). s/Dyer. Esq.

07/02/21 DECISION AND ORDER, Stokes, J. (7/1/21)
The Division's Petition for Judicial Review is DENIED, and the Decision After Hearing
dated December 23, 2020 is AFFIRMED.
Copy to parties/counsel and repositories

07/02/21 Case closed

Page 1 AP-21-01