Paul W. Nusbaum, Jr. v. Marsha R. Nusbaum et al., No. 0480, September Term 2018.
Opinion by Wells, J.
FAMILY LAW – CHILD SUPPORT – ALIMONY – ARREARAGES –
ALLOCATION OF SUPPORT PAYMENTS – SEPARATION OF POWERS
Paul Nusbaum is subject to an Earnings Withholdings Order by the Carroll County Office
of Child Support Enforcement (“OCSE”) for child support and alimony payments to his
former wife. OCSE prioritizes each payment first toward current child support obligations,
then toward current alimony obligations, and finally toward arrearages of both. Mr.
Nusbaum asked the circuit court to order OCSE to reallocate his past alimony payments
toward child support, and to credit his future payments entirely toward current child
support and child support arrears before any alimony. OCSE’s allocation of payments
finds support in both Maryland and federal law. Accordingly, separation of powers
precludes the court from interfering with OCSE’s allocation structure, which is a lawful
exercise of its administrative authority and discretion.
Circuit Court for Carroll County
Case No. 06-C 03-039838
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 0480
September Term, 2018
_____________________________________
PAUL W. NUSBAUM, JR.
v.
MARSHA R. NUSBAUM, ET AL.
_____________________________________
Nazarian,
Wells,
Adkins, Sally D.
(Senior Judge, Specially Assigned)
JJ.
_____________________________________
Opinion by Wells, J.
_____________________________________
Filed: December 20, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-12-20
15:47-05:00
Suzanne C. Johnson, Clerk
Appellant, Paul Nusbaum, asked the Circuit Court for Carroll County to order the
Carroll County Office of the Maryland Child Support Administration to reallocate the
money he had previously paid for child support and alimony solely to his child support
account. After a hearing on the issue, the circuit court ruled that Mr. Nusbaum was
judicially estopped from the requested reallocation because Mr. Nusbaum had previously
claimed part of the money as “alimony paid” and taken an income tax deduction.
Consequently, the court ruled that he could not re-characterize those payments exclusively
as child support.
Mr. Nusbaum took a timely appeal and presents two questions for our review:
1. Did the circuit court err in declaring that Mr. Nusbaum was judicially estopped
from claiming that the amounts he claimed as alimony on his tax returns should
be reallocated toward his child support arrears with the [Carroll County Office
of Child Support Enforcement (OCSE)]?
2. Did the Circuit Court err in not reaching a decision as to whether the allocation
of support funds paid to a former spouse should be first paid to current child
support and child support arrears, prior to any payment of funds toward spousal
support?
We hold that although the circuit court erred in its application of judicial estoppel
to prevent the reallocation, the circuit court could not have legally ordered the reallocation
in any event. We, therefore, affirm the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
When they divorced in 2005, the Circuit Court for Carroll County ordered Paul
Nusbaum to pay his former wife, Marsha Nusbaum, $3,250.00 per month in non-
modifiable alimony. Mr. Nusbaum was also ordered to pay Ms. Nusbaum $1,422.00 per
month in child support for the benefit of their four children. At Ms. Nusbaum’s request,
Mr. Nusbaum was required to pay both sums via an Earnings Withholding Order through
the Carroll County Office of Child Support Enforcement (“OCSE”), the local branch of the
Maryland Child Support Administration (“MCSA”), the state agency charged with
collecting child and spousal support.
Around 2008, Mr. Nusbaum moved to Georgia. The OCSE duly registered the
Earnings Withholding Order in Georgia, obligating Georgia to collect Mr. Nusbaum’s
alimony and child support payments and forward them to Maryland.
It is important to note that during this time, although Mr. Nusbaum’s wages were
garnished, he did not pay the full monthly amount of either child support or alimony
because what he earned could not fully satisfy either obligation. Consequently, by 2010,
when Mr. Nusbaum asked the court to modify his monthly child support payment, he owed
$36,264.60 in unpaid child support and $117,127.22 in unpaid alimony. Nevertheless,
because of the emancipation of two of the Nusbaums’ children, the court reduced his child
support payment to $941.00 per month from January 2010 through August 2010, at
$835.00 per month for September 2010, and established the child support payment at
$929.00 per month starting in October 2010.
2
Sometime in early 2016, Mr. Nusbaum noticed that Georgia allocated his monthly
payments differently from Maryland. Whereas Maryland declared his child support arrears
were $80,905.25, Georgia said his child support arrears were approximately $30,000.00.
Mr. Nusbaum discovered that this was because Georgia allocated a higher percentage of
his monthly payment to child support, rather than alimony. Maryland did almost the
opposite, allocating 70% of his payments to alimony and 30% to child support. Armed
with this information, Mr. Nusbaum returned to Maryland.
On April 16, 2016, Mr. Nusbaum filed a motion asking the circuit court to order
OCSE to do an audit and establish his arrears for both alimony and child support. Mr.
Nusbaum also requested the court to modify his on-going child support payment because
another of the Nusbaums’ children had emancipated.1 At a hearing before a Magistrate,
Mr. Nusbaum argued that the circuit court should order OCSE to perform an audit to
determine exactly how much he had paid for both obligations. After the audit, he wanted
OCSE to credit all the money he paid be put toward his child support obligation until that
obligation was satisfied. Only then, so Mr. Nusbaum argued, should any excess amount
be credited against his alimony obligation. Ms. Nusbaum opposed the reallocation request.
The Magistrate, in a written set of findings, reduced Mr. Nusbaum’s on-going
monthly child support obligation to $481.00 per month, plus $120.25 toward his arrears,
due to the emancipation of one of the children. More importantly, the Magistrate
determined that the circuit court did not have the authority to: (1) order OCSE to perform
1
This left the Nusbaums with one minor child subject to a child support order.
3
an audit, nor, (2) order OCSE to reallocate Mr. Nusbaum’s prior total payments to exhaust
his child support obligation before satisfying his alimony obligation. “Your Magistrate
reviewed the statutes cited by the parties, testimony presented, Plaintiff’s Exhibit 3, and
[case cited], and finds that there is no authority given to this Court to alter the Audit in the
manner requested by [Mr. Nusbaum].” Surprisingly however, the Magistrate
recommended “that upon entry of this Order, that child support current and arrearage
payments should be given priority over the alimony obligation, as it is in the best interests
of the parties’ minor child.” OCSE filed Exceptions to the Magistrate’s recommendations.
At the Exceptions hearing, the attorneys for OCSE2 and Mr. Nusbaum set forth their
positions. Mr. Nusbaum wanted all past payments to Ms. Nusbaum reallocated to satisfy
his child support obligation first, rather than be apportioned between alimony and child
support, as OCSE had done. Additionally, he wanted any future payments apportioned to
first satisfy child support, then child support arrears, and alimony last. In Mr. Nusbaum’s
view, it was in the children’s best interests to prioritize the allocation of payments in this
way.
Ms. Nusbaum and OCSE disagreed. The attorney for OCSE noted that Mr.
Nusbaum desired the reallocation because Georgia was “coming after” him for not making
full payments to either child support or alimony. More importantly, OCSE’s counsel
explained that under current procedures, child support and spousal support are given equal
priority, as the payments are for the benefit of the children and the former spouse.
2
In Carroll County, an attorney in the Office of the State’s Attorney acts as counsel
for the OCSE.
4
Additionally, counsel for OCSE explained that it would be too onerous for them to have to
manually adjust each monthly payment and apportion it solely to child support.
Seven days after the hearing, in an oral ruling, the judge “grudgingly” found that
the Magistrate erred. The judge, essentially, agreed with Mr. Nusbaum and ordered OCSE
to perform an audit and “allocate and prioritize all payments first and foremost to the child
support obligation as well as any child support arrears.” “Any other remaining payments…
shall then be credited towards [Mr. Nusbaum’s] alimony obligation and any outstanding
arrearage.”
Ms. Nusbaum immediately filed a motion to alter or amend the court’s order.
Simultaneously, OCSE filed a motion to reconsider. Ms. Nusbaum argued that there was
no evidence presented at the hearing to suggest that the ordered reallocation was in the
children’s best interests, as Mr. Nusbaum claimed. Additionally, both Ms. Nusbaum and
OCSE argued that the circuit court should reverse itself because the reallocation was
contrary to “Maryland [l]aw and federal and state regulations regarding child support.”
OCSE specifically argued that the court’s order placed OCSE in direct violation of federal
law, since they were obligated pursuant to federal statutes and the state’s “distribution
matrix” to collect spousal and child support without prioritizing one over the other. Mr.
Nusbaum opposed altering the court’s order in any way.
The court held a hearing on Ms. Nusbaum’s motion to alter or amend judgment and
OCSE’s motion to reconsider, after which the court took the matter under advisement.
Later, the court issued an “Opinion and Order” which was a legal analysis of the arguments
advanced at the motions hearing. For reasons not entirely clear, the court re-evaluated Ms.
5
Nusbaum’s request for counsel. The record is ambiguous as to whether the court denied
her request or found it to be moot. In any event, the record is clear that Ms. Nusbaum was
represented by counsel at the motions hearing. The court also revisited its in-court ruling
denying Ms. Nusbaum’s request to allow expert testimony at the hearing. The court
determined that it properly excluded expert testimony.
In its analysis of what the court termed “Motion 2,” the reallocation issue, the judge
admitted that at the end of the Exceptions hearing he was “uncomfortable” ordering OCSE
to perform an audit and reallocate Mr. Nusbaum’s payments giving priority to satisfying
his child support obligation. The judge recalled that he found OCSE’s allocation method,
giving equal priority to spousal and child support, to be “inconsistent with the best interests
of the child standard.” Based on his reasoning at that time, the judge concluded that Mr.
Nusbaum could not be “estopped” from getting what he wanted. Now, the judge noted that
at prior hearings on Mr. Nusbaum’s requests to modify child support, Mr. Nusbaum
provided his income tax returns. The judge found that on those tax returns, Mr. Nusbaum
“claimed a deduction from taxable income, the amount of alimony deemed ‘paid’ by
[OCSE].”
In other words, he benefited from an income deduction based upon the very
method of alimony payment allocation he now seeks to challenge. Indeed,
he secured prior reductions of child support based upon his stated income at
the time – which had been adjusted based upon a deduction for alimony paid.
If he truly felt that all payments should have been applied to child support
first as he now contends, then it is wholly inconsistent to take a corresponding
deduction for alimony paid in prior tax returns. In short, it appears to the
Court that Mr. Nusbaum is trying to “have his cake and eat it too.”
6
After reviewing the holdings of several cases, the judge concluded that Mr. Nusbaum was
judicially estopped from seeking to reallocate past and future child support payments and
have them take priority over his alimony obligation.
Significantly, the judge did not answer the question of whether the court had the
authority to order OCSE to reallocate payments in the manner that Mr. Nusbaum requested.
Rather, the judge concluded that as Mr. Nusbaum was estopped from making the request,
this threshold question would “have to await another day.”
STANDARD OF REVEIW
We review the circuit court’s decision using an abuse of discretion standard. “In
general, the denial of a motion to alter or amend a judgment is reviewed by appellate courts
for abuse of discretion.” RRC Northeast, LLC v. BAA Maryland, Inc., 413 Md. 638, 673
(2010) (citing Wilson–X v. Dep’t of Human Res.,
403 Md. 667, 674–75 (2008)). “The
relevance of an asserted legal error, of substantive law, procedural requirements, or fact-
finding unsupported by substantial evidence, lies in whether there has been such an abuse.”
Wilson–X,
403 Md. at 676.
Nevertheless, a “court's discretion is always tempered by the requirement that the
court correctly apply the law applicable to the case.” Arrington v. State, 411 Md. 524, 552
(2009); see In re Adoption/Guardianship No. T97036005,
358 Md. 1, 24–25 (2000) (abuse
of discretion where trial judge’s decision with respect to discretionary matter “was based
on an error of law”); Guidash v. Tome,
211 Md. App. 725, 735 (2013) (abuse of discretion
occurs when court “makes a decision based on an incorrect legal premise”); Brockington
7
v. Grimstead, 176 Md. App. 327, 359 (2007) (“an exercise of discretion based upon an
error of law is an abuse of discretion”).
DISCUSSION
I. Estoppel Theories
A. Judicial Estoppel
Mr. Nusbaum first asks us to consider whether the circuit court properly determined
that he was judicially estopped from requesting OCSE to reallocate his child support and
alimony payments. He argues that judicial estoppel is inapplicable, as none of the elements
of judicial estoppel apply in his circumstances. OCSE seemingly admits that judicial
estoppel is inapplicable and argues that the allied doctrine of equitable estoppel should
deny Mr. Nusbaum relief.
The circuit court expressly based its ruling on the doctrine of judicial estoppel, and
it is there that we begin our analysis. Judicial estoppel is derived from the doctrine of
estoppel by admission in English jurisprudence. In Eagan v. Calhoun, 347 Md. 72 (1997),
the Court of Appeals noted that, “Maryland has long recognized the doctrine of estoppel
by admission, derived from the rule laid down by the English Court of Exchequer . . . that
‘[a] man shall not be allowed to blow hot and cold, to claim at one time and deny at
another.’”
Id. at 88 (citation omitted). Indeed, this Court explained in Gordon v. Posner,
142 Md. App. 399, 424, cert. denied,
369 Md. 180 (2002), that “[j]udicial estoppel, also
known as the ‘doctrine against inconsistent positions,’ and ‘estoppel by admission,’
prevents ‘a party who successfully pursued a position in a prior legal proceeding from
8
asserting a contrary position in a later proceeding.’” Roane v. Washington Co. Hosp., 137
Md. App. 582, 592, cert. denied,
364 Md. 463 (2001). Judicial estoppel, therefore,
“precludes a party from taking a position in a subsequent action inconsistent with a position
taken by him or her in a previous action.” Dashiell v. Meeks,
396 Md. 149, 170 (2006).
Three circumstances must exist before judicial estoppel will be used to foreclose a
party’s claim:
(1) one of the parties takes a position that is inconsistent with a position it
took in previous litigation, (2) the previous inconsistent position was
accepted by a court, and (3) the party who is maintaining the inconsistent
positions must have intentionally misled the court in order to gain an unfair
advantage.
Bank of New York Mellon v. Georg, 456 Md. 616, 625 (2017) (quoting Dashiell,
396 Md.
at 170 (citation omitted)); Blentlinger, LLC v. Cleanwater Linganore, Inc.,
456 Md. 272,
297 (2017).
We have noted that judicial estoppel performs two important functions. First, the
doctrine “rests upon the principle that a litigant should not be permitted to lead a court to
find a fact one way and then contend in another judicial proceeding that the same fact
should be found otherwise.” Gordon, 142 Md. App. at 425 (internal quotations and
citations omitted). Judicial estoppel ensures “the ‘integrity of the judicial process by
‘prohibiting parties from deliberately changing positions according to the exigencies of the
moment [.]’” New Hampshire v. Maine,
532 U.S. 742, (2001) (citation omitted); see also
Dashiell,
396 Md. at 171 (explaining the doctrine is used “to protect the integrity of the
9
judicial system from one party who is attempting to gain an unfair advantage over another
party by manipulating the court system.”). The Court of Appeals has explained that
[i]f parties in court were permitted to assume inconsistent positions in the
trial of their causes, the usefulness of courts of justice would in most cases
be paralyzed; the coercive process of the law, available only between those
who consented to its exercise, could be set at naught by all.... It may
accordingly be laid down as a broad proposition that one who, without
mistake induced by the opposite party, has taken a particular position
deliberately in the course of litigation, must act consistently with it; one
cannot play fast and loose.
WinMark Ltd. P’ship v. Miles and Stockbridge, 345 Md. 614, 620 (1997) (internal
quotations and citations omitted). The Supreme Court cautioned, however, that it was “not
establish[ing] inflexible prerequisites or an exhaustive formula for determining the
applicability of judicial estoppel.” New Hampshire,
532 U.S. at 751. To the contrary, it
observed that “[a]dditional considerations may inform the doctrine's application in specific
factual contexts.”
Id. Therefore, the chief goal of judicial estoppel is to preserve the
integrity of the judicial process by precluding a litigant from taking one position in a legal
proceeding and taking a contrary position in another legal proceeding. See Civil Procedure
Intent and the Application of Judicial Estoppel: Equitable Shield or Judicial Heartbreak?,
Dodd, Brian A., 22 AMJTA 481, Fall, 1998.
A subsidiary function that judicial estoppel performs is to protect the party seeking
the estoppel. The Court of Appeals has recognized that in addition to protecting the judicial
system, judicial estoppel seeks to preserve “‘the relationship between the parties to the
prior litigation.’” WinMark Ltd. P’ship, 345 Md. at 623 (citation omitted).
10
B. Equitable Estoppel
Equitable estoppel, on the other hand, has been defined as the
effect of the voluntary conduct of a party whereby he is absolutely precluded
both at law and in equity, from asserting rights which might perhaps have
otherwise existed, either of property, of contract, or of remedy, as against
another person, who has in good faith relied upon such conduct, and has been
led thereby to change his position for the worse and who on his part acquires
some corresponding right, either of property, of contract, or of remedy.
3 J. Pomeroy, Equity Jurisprudence, § 804 (5th ed. 1941), quoted in Leonard v. Sav-A-Stop
Services, 289 Md. 204, 211 (1981). In Knill v. Knill,
306 Md. 527 (1986), the Court of
Appeals noted that the doctrine “is comprised of three basic elements, ‘voluntary conduct’
or representation, reliance, and detriment.”
Id. at 535.
In Creveling v. Government Employees Insurance Co., 376 Md. 72 (2003), the Court
of Appeals held that a putative class’s equitable estoppel claim was not satisfied. The
appellant alleged that an insurance company’s representations “likely” led putative class
members to not retain documentation required for reimbursement.
Id. at 101. The Court
found that because appellants did not provide any evidence, “any prejudice or detrimental
reliance suffered by the putative class is purely speculative.”
Id. at 103. Further, it said
“any prejudice is dubious because even if claimants lost their medical bills or treatment
records, they likely could reconstitute those records by contacting the medical providers.”
Id.
11
C. The Difference Between Judicial and Equitable Estoppel
We have previously described the difference between judicial estoppel and
equitable estoppel. “[T]he former focuses on the connection between litigants and the
judicial system, and the latter focuses on the relationship between the parties.” United
Book Press, Inc. v. Maryland Composition Co., 141 Md. App. 460, 471-472 (2001).
Interestingly, “Maryland courts frequently have addressed both concerns under the unified
label of judicial estoppel.” Gordon,
142 Md. App. at 426. “Indeed, both aspects of judicial
estoppel are expressed consistently in judicial summaries of the doctrine. ‘[A] party will
not be permitted to occupy inconsistent positions or to take a position in regard to a matter
which is directly contrary to, or inconsistent with, one previously assumed by him, at least
where he had, or was chargeable with, full knowledge of the facts and another will be
prejudiced by his action.’” Stone v. Stone,
230 Md. 248, 253 (1962) (quoting 19 AM. JUR.
Estoppel § 50); see also Roane v. Washington County Hospital,
137 Md. App. 582, 592
(2001) (“The gravamen of a judicial estoppel claim is one party's inconsistency prejudicing
his or her opponent's case.”).
D. Neither Judicial nor Equitable Estoppel is Applicable Here
In this case, the circuit court specifically found that judicial estoppel precluded Mr.
Nusbaum from requesting reallocation of his support payments. The circuit court found
that because Mr. Nusbaum claimed part of those payments as alimony on his federal and
state tax returns and lowered his taxable income, he could not now change positions and
request that the same payments be deemed child support. Further, when the court initially
12
calculated child support, the full amount of alimony—$3,250.00—was treated as income
to Ms. Nusbaum and a loss of income to Mr. Nusbaum, resulting in a lower amount of child
support for Mr. Nusbaum. Thus, in the circuit court’s view, where Mr. Nusbaum had
previously benefitted from claiming part of his payments as alimony, he was judicially
estopped from re-casting all of it as child support.
We conclude that although Mr. Nusbaum claimed part of his payments to Ms.
Nusbaum as alimony on his income tax returns, that is not the same thing as taking an
inconsistent position in different litigation, the first element of the doctrine of judicial
estoppel. In each Maryland case where judicial estoppel was invoked, regardless whether
the doctrine applied or not, the salient fact is that one party took opposing factual positions
in different lawsuits.
For example, in Eagan, two children, through their guardian, asserted a wrongful
death action against their father for killing their mother. 347 Md. 72 (1997). The Court of
Appeals held that the father was judicially estopped from asserting parent-child immunity.
Id. at 88. The father asserted that he had not abandoned the parental relationship with the
children.
Id. at 81. The Court held that his plea of guilty to voluntary manslaughter in the
related criminal case was sufficient to prevent him from denying that he intentionally killed
the children’s mother.
Id. at 88. Similarly, in Gordon, in a dispute between siblings over
their mother’s estate, we held that the brother was not judicially estopped from asserting
how payments of estate taxes were made in that lawsuit even though he made a different
assertion in another case.
142 Md. App. at 428-429. And, in Matthews v. Underwood-
Gary,
133 Md. App. 570, 578-580 (2000), the appellee claimed in a motor tort action in
13
one county that she needed a bone fusion, yet claimed the same surgery was unnecessary
in a different lawsuit in a neighboring county. We held that she was judicially estopped
from asserting opposing factual positions. Id.
In this case, while Mr. Nusbaum claimed a deduction for “alimony paid” on his
income tax filings for several years, he did not do so in a different legal proceeding. First,
submission of an income tax return is not a legal proceeding. More pertinent, the fact that
the circuit court received Mr. Nusbaum’s income tax returns at prior modification of child
support hearings, does not alter the fact that those hearings all took place within this same
case, not a different one. As we have observed, payment of child support is an ongoing
obligation which is always subject to the circuit court’s modification. Prince Geo. Co.
Office of Child Support Enforcement ex rel. Polly v. Brown, 236 Md. App. 626, 634 (2018)
(“[T]he non-custodial parent remains ‘under a continuing obligation to provide for the
support of his children until such time as the order [i]s modified.’”); Newkirk v. Newkirk,
73 Md. App. 588, 596–97 (1988). We conclude that Mr. Nusbaum seemingly has taken
contrasting positions in the same child support action. Consequently, we cannot find that
the first element of judicial estoppel has been met.
For similar reasons, we find that the second element of judicial estoppel cannot be
satisfied. Although Mr. Nusbaum claimed part of his overall payments to Ms. Nusbaum
as alimony on his income taxes, that fact was not “a position accepted by the court.” It is
understood that when the circuit court calculated the Child Support Guidelines, both Mr.
and Ms. Nusbaum used the alimony payment to determine their adjusted monthly income.
In other words, on the Guidelines worksheet the alimony payment is credited as income to
14
Ms. Nusbaum and credited against Mr. Nusbaum’s income. The use of the alimony
payment in a Child Support Guidelines calculation is not a court-acknowledged assertion
made during litigation in a different case. When the circuit court received Mr. Nusbaum’s
income tax returns into evidence at previous child support modification hearings, it did so
at different phases of the same case. In the application of judicial estoppel, to take “a
position accepted by the court,” means something akin to the father’s guilty plea to
voluntary manslaughter in Eagan. Once the father admitted his guilt in the criminal case,
he was judicially estopped from asserting a different position in his children’s wrongful
death action against him. 347 Md. at 88. Here, as noted, Mr. Nusbaum is taking contrasting
positions in the same ongoing litigation.
It is a closer call whether Mr. Nusbaum intentionally misled the court “to gain an
unfair advantage,” the third element of judicial estoppel. Ms. Nusbaum and OCSE argue
that Mr. Nusbaum seeks reallocation of all his payments as child support to make it more
difficult for Ms. Nusbaum to collect on her alimony payments. OCSE noted at the hearing
on the motions to alter, amend, or modify, that once Mr. Nusbaum’s child support
obligation is satisfied, OCSE must step away from collecting the alimony payments. Ms.
Nusbaum will have to use her own resources to haul her former husband into court to
collect on the unpaid alimony, which totaled well over $400,000.00 at the last hearing.
While arguably this is the case, we shall hold that because the court could not establish the
first two prongs of judicial estoppel, the court erred in its application of the doctrine on
these facts.
15
We have previously noted that the doctrines of judicial estoppel and equitable
estoppel intertwine. In Gordon we noted “a significant relationship” between judicial
estoppel’s concern for judicial integrity and equitable estoppel’s concern for prejudice to
one party in litigation. 142 Md. App. at 426. We looked to New Hampshire v. Maine,
532
U.S. 742 (2001) for guidance to determine when a claim may be barred by judicial or
equitable estoppel.
Id. We recognized that both doctrines were concerned with judicial
integrity and prejudice.
Id. Quoting New Hampshire, we noted that “[a] third consideration
is whether the party seeking to assert an inconsistent position would derive an unfair
advantage or impose an unfair detriment on the opposing party if not estopped.” 143 Md.
App. at 426-427 (quoting New Hampshire,
532 U.S. at 751).
We turn our attention to the latter’s application to the facts of this case. As stated,
equitable estoppel exists when there is 1) voluntary conduct or representation, 2) reliance,
and 3) detriment. Knill, 306 Md. at 535.
OCSE asserts that Mr. Nusbaum’s acceptance of its allocation of his payments
toward alimony, and for purposes of reducing his taxable income, amounts to the first
element of voluntary conduct. OCSE also asserts that Ms. Nusbaum relied on Mr.
Nusbaum’s voluntary acceptance of its allocation by accepting the increase in her income
and the corresponding reduction in child support received due to the alimony she received.
Finally, OCSE says reallocation would harm Ms. Nusbaum because she could not recover
the additional amount of child support she would have been awarded before the alimony
allocation reduced Mr. Nusbaum’s income, and that she will likely pay more taxes on any
alimony she receives in the future, since she will likely return to the workforce.
16
Mr. Nusbaum counters that Ms. Nusbaum did not rely on a voluntary representation
he made, since his acceptance of the allocation was something that OCSE forced on him.
He further contends that the detriment claimed by Ms. Nusbaum relates only to funds she
will not receive if the payments are reallocated, rather than to any money she lost by virtue
of her reliance on the allocation in effect.
We conclude that Ms. Nusbaum falls short on the detriment factor, due to our
inability to definitively say whether her reliance on the allocation of alimony “led [her] to
change [her] position for the worse.” Steele v. Diamond Farm Homes Corp., 464 Md. 364,
381 (2019). Whether Ms. Nusbaum will ultimately “net” less under the current allocation
structure, or as a result of the reallocation requested by Mr. Nusbaum, is too speculative an
issue to satisfy the detriment requirement. Such an equation would necessarily account for
the amount her taxable income increased due to alimony received, the amount of money
she forfeited in child support by accepting alimony, whether she returns to the workforce
and the corresponding effect on her tax bracket and whether she receives the owed alimony
payments in the future, and so on. Given that some of these events have not yet come to
pass, it would be impossible to prove at this time whether it would have been to Ms.
Nusbaum’s detriment to rely on the current allocation structure if it were revised. This
does not mean we do not recognize the serious inconveniences that would befall Ms.
Nusbaum, as well as the additional risks she would face were payments to be reallocated.
But these speculative events are not conclusive enough for us to satisfy the detriment factor
as it exists in the doctrine of equitable estoppel.
17
With detrimental reliance not satisfied, we do not reach the issue of whether Mr.
Nusbaum’s acceptance of the allocation was voluntary conduct. Instead, we proceed to an
analysis of MCSA and OCSE’s separation of powers argument.
II. Separation of Powers
OCSE argues that separation of powers prevents us from dictating to the executive
branch how to apply support payments. OCSE further contends that the MCSA’s
bureaucratic process makes allocating support in a manner other than current support first,
and support arrearages second, impossible. Mr. Nusbaum counters that OCSE’s separation
of powers argument disregards the importance of checks and balances, and that separation
of powers does not prevent a court from exercising its power “to review and correct actions
by an administrative agency which are arbitrary, illegal, and capricious or unreasonable,”
citing Criminal Injuries Compensation Bd. v. Gould, 273 Md. 286, 500-01 (1975). As
further support of this point, Mr. Nusbaum contends that the best interests of the child
control, and that OCSE’s allocation method does not favor the child’s bests interests.
Separation of powers issues are jurisdictional; consequently they may be considered
on appeal even if not raised below. Montgomery County Office of Child Support
Enforcement ex rel. Cohen v. Cohen, 238 Md. App. 315, 333–34 (2018) (hereafter
“Cohen”).
For the reasons that follow, we find that we should nevertheless sustain the
judgment of the circuit court due to the separation of powers doctrine.
18
A. Separation of powers precludes the Court from interfering with the
executive agency’s lawful administrative authority and discretion
Under the separation of powers doctrine, the courts may not interfere with OCSE’s
allocation method if it is lawful. Article VIII of the Maryland Declaration of Rights
provides:
That the Legislative, Executive and Judicial powers of Government ought to
be forever separate and distinct from each other; and no person exercising
the functions of one of said Departments shall assume or discharge the duties
of any other.
Md. Const., Decl. of Rts., art. VIII.
In Department of Natural Resources v. Linchester Sand & Gravel Corp., our Court
of Appeals specifically addressed the constraints of judicial review of executive agency
functions:
[T]he judiciary has an undeniable constitutionally-inherent power to review,
within limits, the decisions of these administrative agencies. This power of
review . . . cannot be a substitution of the court's judgment for that of the
agency. In those instances where an administrative agency is acting in a
manner which may be considered legislative in nature (quasi-legislative), the
judiciary’s scope of review of that particular action is limited to assessing
whether the agency was acting within its legal boundaries . . .
[F]urthermore, when an agency is acting in a fact-finding capacity (quasi-judicial) the courts review the appealed conclusions by determining whether
the contested decision was rendered in an illegal, arbitrary, capricious,
oppressive or fraudulent manner.
274 Md. 211, 223–24 (1975). We find the guidance on judicial review of an executive
agency’s quasi-legislative functions most relevant to the court’s ability to review and
potentially OCSE’s method of allocation of payments.
19
In Cohen, cited by OCSE, we articulated that the judicial branch cannot stand in the
way of the executive branch in carrying out a mandatory statutory duty. 238 Md. App. 315
(2018). Mr. Cohen, the noncustodial parent, had to pay Ms. Cohen, his ex-wife and mother
of his two children, $800 per month in child support.
Id. at 320. By June 30, 2014, two
years after the divorce order, Mr. Cohen owed $8,000 in child support arrears.
Id. After
changing venues, the Circuit Court for Montgomery County ordered Mr. Cohen to pay
$200 additional dollars per month exclusively for child support arrears, and an Earnings
Withholding Order.
Id.
Two years later, the Montgomery County Office of Child Support Enforcement
(“MCOOCSE”) filed a motion to modify child support because one of the two children had
reached the age of adulthood. Cohen, 238 Md. App. at 321. After lowering the child
support obligation monthly by consent, the court addressed Mr. Cohen’s accumulating
arrears of child support.
Id. By now, Mr. Cohen owed $21,733.22 in child support arrears.
Id. Mr. Cohen’s current support was lowered but the amount exclusively for arrears was
increased by $109 (now $309/month).
Id. After applying one lump sum of support totaling
$3,000, Mr. Cohen applied for a passport.
Id. The United States Department of State
denied the passport request because of the support arrears.
Id. Mr. Cohen petitioned the
circuit court to release the hold on his passport.
Id. He asserted that, because he was not
paying for his travel which required a passport, the intent of the passport hold law was not
to deny him a passport.
Id. at 322. Instead, the intent of the passport hold law was to deny
those who possessed funds to travel the opportunity to do so until they paid their child
support arrears.
Id. One of the reasons the MCOOCSE opposed the petition is that the
20
Maryland Child Support Enforcement officials had a statutory duty not to release the
passport hold since Mr. Cohen did not meet the exigency exception. Id. The circuit court
disagreed and ordered the passport released.
Id. at 323.
We reversed the circuit court’s order because we determined that the MCOOCSE
had an affirmative duty to deny access to the passport, regardless of who was paying for
Cohen’s travel. Cohen, 238 Md. App. at 340-41. Maryland’s regulations create an
affirmative duty for this state’s Administration to inform the federal government of child
support obligors in arrears. Id.; COMAR 07.07.17.02(A). The circuit court, we held, had
no authority to order the MCOOCSE to release a passport that MCOOCSE was statutorily
required to hold.
Id. Essentially, it was not the proper role of the judiciary under separation
of powers to order an executive branch agency to act contrary to its statutory mandate.
Id.
OCSE also cites Harvey v. Marshall as an example of where the Court of Appeals
expressly chose not to dictate to the MCSA how to apply support payments. There, Harvey,
who originally was the noncustodial parent, had become the custodial parent. 389 Md.
243, 249 (2005). Harvey rarely paid child support as the noncustodial parent and the
MCSA sought to continue to enforce the child support arrears even though Harvey was the
custodial parent.
Id. at 250. The Court of Appeals ultimately held that it was not “arbitrary
and capricious” for MCSA to refuse to change the way it applied support payments based
on how its computers are programmed to apply the payments.
Id. at 314. The opinion
empathizes with the MCSA, recognizing that because it must process payments from many
obligors, changing coding in a few instances is infeasible.
Id. Harvey supports the
proposition once more that the court may not order an executive agency to change a lawful
21
process it implements in carrying out a statutory duty, particularly where making such a
change would be unreasonably difficult or impossible.
Gould, cited by Mr. Nusbaum to counter OCSE’s separation of powers argument,
provides nothing contrary to these principles. There, the Court of Appeals affirmed the
circuit court’s right to judicial review of a decision made by the Criminal Injuries
Compensation Board, in a “proceeding ‘before an agency in which the legal rights, duties,
or privileges of specific parties are required by law or constitutional right to be determined
after an agency hearing.’” 273 Md. At 493–94. The Court also reaffirmed its position that
“the Legislature cannot divest the courts of the inherent power they possess to review and
correct actions by an administrative agency which are arbitrary, illegal, capricious or
unreasonable.” Although the “illegal, capricious, or unreasonable” standard appears to
apply more specifically to review of an administrative agency’s quasi-judicial functions,
Dep’t of Natural Resources, 274 Md. at 223–24, it nonetheless does not contradict the point
that the judiciary should not interfere with an executive agency’s lawful exercise of its
discretion.
We conclude that so long as an executive agency’s method of carrying out a
statutory mandate is lawful, we are precluded from ordering the agency to restructure that
method. The question that necessarily follows is whether OCSE’s method of allocation is
lawful.
22
B. OCSE’s Allocation of Support Payments is Legally Correct Under Both
Federal and Maryland State Law
Mr. Nusbaum argues that, consistent with state and federal laws, his payments
should be paid first to current child support, then to child support arrearages, followed by
current alimony, and then finally to alimony arrearages. Conversely, Ms. Nusbaum, joined
by OCSE, maintain that current child and spousal support are to be paid first, concurrently,
followed by any arrearages owed (both child and spousal, or simply “family support”).
Both parties base their respective arguments on, namely, federal family support statutes,
tax, and bankruptcy laws, albeit with divergent conclusions. The circuit court never
addressed these issues because of the estoppel issues discussed earlier. We address them
here for the first time.
We hold OCSE’s allocation of support payments, first to current child support,
second to current alimony support, and third to arrearages of both alimony and child
support, to be legally correct. First, Maryland family support laws are guided by federal
law. The applicable federal law prioritizes current support obligations over arrearages and
establishes that spousal and child support obligations are given equal priority. Federal law
also indicates equal prioritization of child and spousal support. Maryland law accordingly
prioritizes current support payments before arrearages, and recognizes, in related contexts,
that both child and spousal support obligation are forms of “intra-familial support” of equal
importance. Therefore, OCSE’s method of allocating payments to all (child and spousal)
current obligations, before any arrearages, is legally correct.
23
1. Maryland’s allocation method is consistent with federal law
Maryland receives direction over child and spousal support from federal law. Title
IV-D of the Social Security Act, 42 U.S.C. §§ 651 et seq. (1998) conditions state receipt
of federal funding upon the state’s passage of these provisions. As such, each state is
required to “establish and operate a unit . . . for the collection and disbursement of payments
under support orders [.]”
Id. at § 654(a)(1); see § 654(a)(2)(A). In response, Maryland
created the Child Support Administration section of the Department of Human Resources
to carry out the state’s coordination of family support enforcement. See Maryland Code
Annotated, (1984, Repl. Vol. 2107), Family Law Article (“F.L.”) § 10-106. Federal law
further mandates that each state disbursement unit establish procedures “for receipt of
payments from parents, employers, and other States, and for disbursements to custodial
parents and other obligees, the State agency, and agencies of other States,”
42 U.S.C. §
654(b)(1), in order to “ensure prompt disbursement of the custodial parent’s share of any
payment [.]”
Id. at (b)(2). Maryland implemented such measures in Maryland Code,
Family Law Article, Title 10, Subtitle 1, Part I.
Additional guidance for such procedures implemented by states can be found in
Title 45 of the Code of Federal Regulations (“CFR”), which covers public welfare
regulations. Therein, Subtitle B, Chapter III, concerns the Office of Child Support
Enforcement and the standards for program operations. Part 302 requires that, in all state
plans, any support amounts collected and distributed in a IV-D case
shall be treated first as payment on the required support obligation for the
month in which the support was collected and if any amounts are collected
24
which are in excess of such amount, these excess amounts shall be treated as
amounts which represent payment on the required support obligation for
previous months.
45 CFR § 302.51(a)(1) (emphasis supplied).
If a state agency collects a support amount that “represents payment on the required
support obligation for future months, the amount shall be applied to such future months.”
Id. at (b). However, a state plan may not allocate any support amount to future support
obligations “unless amounts have been collected which fully satisfy the support obligation
under section 403(a)(8) of the Act for the current month and all past months.” Id.
2. Federal allocation methods are part of an established statutory scheme in
Maryland
The Maryland Code Family Law Article has further adopted federal law pursuant
to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“Act”).
Then-President Bill Clinton signed the Act into law with the purpose of promoting, among
other things, “tough personal responsibility and child support enforcement measures.”
Statement by the President, William J. Clinton, The White House (August. 22, 1996)
(https://bit.ly/3726A0S). The Act required all states to adopt the 1993 Uniform Interstate
Family Support Act (“UIFSA”) Model Act and the 1996 amendments adopted by the
National Conference of Commissioners on Uniform State Laws. UIFSA was founded upon
four main principles, including, “[the] determination of one controlling order when
multiple support orders exist; [the] determination of the state with prospective jurisdiction
over the support obligation (known as Continuing Exclusive Jurisdiction, or CEJ); [and
25
the] simplification of support obligations[.]”3 Charles J. Muskin, Uniform Interstate
Family Support Act, MARYLAND BAR JOURNAL, 35 Md. B.J. 54 (January/February 2002).
Effective January 1, 1997, Maryland codified the UIFSA in Maryland Code, Family Law
Article, Title 10, entitled the Maryland Uniform Interstate Family Support Act
(“MUIFSA”).4
Part II of the enforcement subtitle establishes the MCSA and states its duties. The
“Child Support Administration” is a component of “the Department of Human Services.”
F.L § 10-106.5 The relevant Duties of the MCSA are to: “coordinate a statewide program
for support enforcement”, “cooperate with other states in establishing and enforcing child
support obligations”, and “collect and disburse support payments through the State
disbursement unit established under 10-108.7 of this subtitle.” F.L §§ 10-108(a)(1); 10-
108(a)(7); 10-108(a)(8).6 Section 10-108.7 “establish[es] a State disbursement unit for
collection and disbursement of support payments” when, relevant here, “an employer is
required to send payments to a support enforcement agency.” Section 10-114 outlines the
3
The fourth major principle of UIFSA, although of little import to this case, is the
enactment of relaxed evidentiary rules. Charles J. Muskin, Uniform Interstate Family
Support Act, MARYLAND BAR JOURNAL, 35 Md. B.J. 54 (January/February 2002).
4
These statutes have been codified into Title 7, Subtitle 7 of the Code of Maryland
Regulations. See COMAR 07.07.01 et seq.
5
In 2017, the General Assembly renamed the Department of Human Resources, the
Department of Human Services. Otherwise, there has been no substantive change to this
section since 2005. 2017 Maryland Laws Ch. 205.
6
In 2007, the General Assembly changed the references to other statutes in this
section, however substantively the section did not change. 2007 Maryland Law Ch. 8.
26
duties of the Secretary of Human Resources as it relates to support enforcement. One of
those duties is to “adopt rules and regulations for the collection of support.” Id. Given
the oversight of the Department of Human Services, its Secretary, and civil servants at the
Department and in the Administration, the General Assembly mandates the Administration
“promote and serve the best interests of the child in carrying out their child support
responsibilities.” FL § 10-118.
Mr. Nusbaum is subject to an Earnings Withholding Order. Part III of MUIFSA
instructs us regarding earnings withholdings for child and spousal support. An “earnings
withholding order” is “an order in a format prescribed by federal law issued by a tribunal
to an employer requiring the employer to deduct support payments from the earnings of an
obligor.” F.L. § 10-120. A Tribunal is, “a court . . . authorized to establish, enforce, or
modify support orders or to determine parentage of a child.” FL § 10-301(dd).7 Support
subject to earnings withholding is: “(1) child support; (2) spousal support; (3)
nondifferentiated child and spousal support; and (4) any medical support ordered by the
court.” FL § 10-120(d)(1)-(4). Under Section 10-121(a), the Earnings Withholding Order
is “immediate and continuing” on all earnings of the obligor. The Article further specifies
how much must be withheld from obligors for both current support and arrearages:
(a) The amount of the earnings withholding shall:
(1) be enough to pay the support and any arrearage included in the
payments required by the support order; and
7
In 2015, the General Assembly added “of a child” to . . . “or to determine parentage
of a child” 2015 Maryland Laws Ch. 308. The legislature has also made some stylistic
changes to this section. Otherwise, no substantive changes have been made.
27
(2) include any arrearage accrued since the support order.
…
(b)(1)(i) When arrearages under subsection (a)(2) of this section are part of
an earnings withholding order or earnings withholding notice, the total
arrearage withheld shall be in one lump-sum payment or apportioned over a
period of time.
F.L. § 10-122.
Additionally, when the parent or spouse is out of state and more than 30 days in
arrears on their support obligation, the Administration “shall . . . send to the appropriate
[out of] state agency or [out of state] court a request for earnings withholding and any
information and fees required by that state to process the request.” F.L. § 10-137.
Maryland’s calculation of child support is structured in Family Law Article Title
12. Subtitle I describes the nuances of assessing child support and Subtitle II provides the
guidelines to calculate child support. One of the rules for assessing child support regarding
modifications is that courts are generally prohibited from “retroactively modifying a child
support award prior to the date of the filing of the motion for modification.” F.L. § 12-
104(b). The first section of the child support guidelines defines key terms. Relevant to our
analysis is “adjusted actual income,” defined as “actual income minus (1) preexisting
reasonable child support obligations actually paid; and (2) except as provided in F.L. § 12-
204(a)(2) of this subtitle, alimony or maintenance obligations actually paid.” In turn, F.L.
§ 12-204(a)(2) says that alimony is determined first, and then actual income is determined
for the appropriate level of child support by deducting the alimony amount from actual
income.
28
Maryland Code, Family Law Article, Title 10 has been codified into Title 7, Subtitle
7 of the Code of Maryland Regulations. See COMAR 07.07.01 et seq. A few separate
points from the Code itself are worth mentioning. The Code explains that the distribution
of support is governed primarily by the Social Security Act and its regulations. COMAR
07.07.07.02(B)(1). Chapter 1, containing definitions relating to Child Support
Enforcement, defines “support” as “child support or spousal support,” COMAR
07.07.01.02(B)(30), and “current support” as “the amount of monetary support owed, on
behalf of a child, spouse, or former spouse, on a regular interval as specified by a court.”
COMAR 07.07.01.02(B)(6).
Chapter 19 is relevant as it provides the framework for administrative earnings
withholding, COMAR 07.07.19.01, and comes into effect when the MCSA is the
intermediary for providing collection and disbursement of child support or when the
obligor requests that the MCSA do the work. COMAR 07.07.19.03(A). Here, support is
defined as, “(1) Child Support; (2) Spousal Support if included in an order for child
support; (3) Nondifferentiated child and spousal support; and (4) Any medical support
ordered by a court” including some medical expenses not relevant here. COMAR
07.07.19.02(B)(4). The Code also implies a more specific prioritization of support
obligations than that provided in F.L. § 10-122, explaining the “total amount withheld shall
be sufficient to pay:
(1) Any current support obligation as specified in the support order;
(2) Any amount specified in the support order to be applied toward arrearages
existing at the time the court issued the support order; and
29
(3) Any amount to be determined by the Administration to be applied toward
the arrearage accumulated after the issuance of the support order.”
COMAR 07.07.19.04. Maryland therefore prioritizes both current child and spousal
obligations before arrearages of both child and spousal support.
3. Federal regulations require prioritization of current support obligations
over arrearages
45 CFR § 302.51(a)(1) requires that OCSE prioritize collection of current support
payments before arrearages. Recall this regulation requires that, in all state plans, any
support amounts collected and distributed in a IV-D case
shall be treated first as payment on the required support obligation for the
month in which the support was collected and if any amounts are collected
which are in excess of such amount, these excess amounts shall be treated as
amounts which represent payment on the required support obligation for
previous months.
45 CFR § 302.51(a)(1).
As noted, Maryland created an Office of Child Support Enforcement in each county
to carry out the state’s coordination of family support enforcement in order to receive
federal funding under Title IV-D of the Social Security Act. Thus, these federal allocation
requirements apply to the OCSE in Carroll County. And as they suggest, OCSE interprets
and applies them in the MCSA’s policy manual where it codes each type of support to
30
automatically prioritize funds when payments are supplied: first to current child and
second to spousal support, then third to support arrearages. 8
Federal law is clear that support payments are allocated toward current obligations
before past due obligations. The question that follows is that which is the greatest point of
contention between the parties: whether Maryland law is correct in allocating payments
toward current spousal support before child support arrearages.
4. Applicable federal law does not distinguish between child and spousal
support in determining the allocation of payments
The legislative history surrounding the federal Office of Child Support
Enforcement’s requirements for state plans, as well as the text of the provisions themselves,
indicates that federal law also does not distinguish between child and spousal support in
prioritization of payments. In 1981, Congress amended Title IV-D to authorize child
support agencies to also collect alimony. Pub. L. 97-35 § 2332 (Aug. 13, 1981);
Pub. L.
97-248 § 171(a)(1) (Sept. 3, 1982). The United States Department of Health and Human
8
Unsurprisingly, other state support programs enacted pursuant to the Office of
Child Support Enforcement requirements similarly recognize this prioritization of current
obligations over arrearages. See, e.g., Matter of Marriage of Gayer, 326 Or. 436, 445 n.9
(1998) (citing
45 CFR § 302.51) (“The Oregon Administrative Rules track the federal
requirement that child support payments be applied first to current monthly child support
obligations and then, as to any excess, to arrearages.”); Hornbeck v. Caplinger,
227 W.Va.
611, 617 (2011) (citing
45 C.F.R. § 302.51) (Explaining that under West Virginia’s Bureau
for Child Support Enforcement’s allocation model, “pursuant to federal requirement,
current support is paid first; money in excess of current support is next applied to principal
in arrears.”); 921 KY. ADMIN. REGS. 1:420 § 3 (Oct. 2019) (“If the obligor’s current support
obligations subject to income withholding are satisfied for the current month, the cabinet
shall allocate a remaining income withholding amount among the obligor’s ordered arrears
obligations.”).
31
Services (“HHS”) implemented these amendments through a final rule titled “Child
Support Enforcements Program—Collection of Support for Certain Adults.” 47 Fed. Reg.
57277-01 (Dec. 23, 1982). The rule effectively put child support and spousal support in
parity:
We are implementing the statutory requirements by adding or deleting
language in the existing regulations to extend collection and enforcement
provisions to include spousal support. To the extent possible, we are simply
deleting the word “child” wherever it appears before the word “support” to
indicate that the regulatory provision applies to any support collected or
enforced. However, in certain circumstances, this approach is not possible
and alternative language is used for clarity.
Id. at 57278-79. HHS required that all alimony payments be made through the state support
enforcement agency and “in accordance with the requirements of 45 C.F.R. § 302.51.” Id.
at 57278. The rule also listed “302.51 Distribution of child support collections” as one
section where such changes were “necessary . . . to include spousal support in the State
plan requirements addressed in each section.” Id. at 57279. Accordingly, § 302.51, now
“Distribution of support collections,” contains no mention of the word “child” or “spousal”
before its many references to “support.” In the absence of “alternative language . . . used
for clarity,” the use of “support” on its own should therefore “indicate that the regulatory
provision applies to any support collected or enforced.”
47 Fed. Reg. 57278-79. Thus, the
requirement that current support obligations are to be paid before arrearages under §
32
302.51(a)(1) supports the prioritization of both current child and spousal obligations before
arrearages of either.9
5. Federal tax law does not preempt the support allocation scheme
Mr. Nusbaum emphasizes federal tax law as the foundation of his argument that all
child support is to be paid off before allocating any funds to alimony. Section 71 of the
Internal Revenue Code provides a distinction between alimony/maintenance payments and
child support.10 26 U.S.C.A. § 71 (b) – (c) (2017, repealed 2019). Mr. Nusbaum points to
some U
United States Tax Court cases demonstrating this distinction. For example, in Blyth
v. Commissioner, 21 T.C. 275 (1953), the father’s payments to the mother were less than
the full amount of support owed in the previous tax year. The court held the funds paid
were to be considered child support up to the designated amount owed for the year, and
only the excess of that amount could be deducted as alimony.
Id. at 279. Similarly, in
Proctor v. Commissioner,
129 T.C. 92 (2007), a divorce decree required the non-custodial
9
Prioritization of current child and spousal support obligations before arrearages
finds further support in other state support agencies’ allocations structures. For example,
The Oklahoma Department of Human Services Child Support Services (CSS) allocates and
distributes support collections in its Title IV-D cases pursuant to 42 U.S.C. § 657 and 45
C.F.R. §§§ 302.32, 302.51 and 302.52, OKLA. ADMIN. CODE § 340:25-5-351(a). Payments
are first “prorated to the current child support, cash medical support, and spousal support,”
and second, “prorated to the monthly plan on past support . . .” Id. at §(c)(2).
10
As of February 14, 2019, 26 USCA § 71 was repealed and replaced by proposed
legislation. H.R. 1244, 116th Cong. (2019). However, its repeal does not affect our
decision, as Section 71 was the law during the parties’ marriage, divorce, and domestic
support proceedings. As such, we shall be guided by its application to the facts of this case.
33
father to pay the mother $2,687 for their children’s uninsured medical expenses and $5,313
for alimony in 2002. Id. at 94–95. The father paid only $6,074 and deducted the entire
sum as alimony on his taxes. Id. The court held that pursuant to § 71(c)(3), $2,687 of the
$6,074 was to be treated as child support, and only the remaining $3,387 should have been
deducted as alimony. Id. at 95–96.
While these cases do support the proposition that alimony cannot be deducted from
income when the obligor has not paid his full child support obligations for the year, we do
not find them dispositive in this case. Mr. Nusbaum did not bring this suit to challenge the
imposition of a tax penalty based on a claim that he incorrectly deducted as alimony funds
that were otherwise allocated by the State as child support. In Blyth and Proctor, the Court
was not deciding upon the prioritization of funds involving arrearages from years preceding
the relevant tax year. And the respondent in both cases was the Commissioner of Internal
Revenue; the former spouse was not a party to either suit, and so no challenge was brought
as to the actual distribution of the payments. Mr. Nusbaum’s tax filings were raised only
to show he had previously relied on the State’s allocation of his payments toward alimony
before satisfying all child support arrearages in order to reduce his taxable income.
While any change to the current allocation of Mr. Nusbaum’s payments would have
tax implications, the matter before us is not a tax issue. Not only is this not the relief sought
by either party, but it simply does not withstand reason that we might rely solely on tax
code to determine that a state agency has incorrectly structured its family support
program—a program enacted pursuant to separate federal law that does not specify an
allocation method that reflects the prioritization in the tax code. If Mr. Nusbaum seeks a
34
reallocation of his past payments for tax purposes, the U.S. Tax Court is the appropriate
forum.
We also do not find the tax code should supersede the prioritization implied by the
public welfare regulations, since the distinction made in the tax code is similarly absent in
other areas of federal code. One such area is the United States Bankruptcy Code, which
treats child and spousal support equally in the context of creditor priority. 11 U.S.C.A. §
507 (2019). Federal law indicates that “unsecured claims for domestic support obligations”
have the highest priority11 in the settlement of bankruptcy claims, whether they “are owed
to or recoverable by a spouse, former spouse, or child of the debtor, or such child’s parent,
legal guardian, or responsible relative . . . on the condition that funds received . . . shall be
applied and distributed in accordance with applicable nonbankruptcy law.”
Id. at §
507(a)(1)(A) (emphasis supplied).
6. Maryland law suggests equal prioritization of child and spousal support
Consistent with the federal Child Support Enforcement Program, Maryland law
defines “support” as both child and spousal support. MUIFSA, under Family Law Article,
Title 10, as well as Title 7, Subtitle 7 of the Code of Maryland Regulations, consistently
include both child and spousal support in their definitions of “support.” FL § 10-120(d)(1)-
11
Prior to the 2010 amendments, domestic support was seventh in priority to other
unsecured claims. 11 U.S.C.A. § 507 (2005, amended 2010). However, this does not
defeat our position that this area of federal code does not indicate that either child or spousal
support obligations should be prioritized above the other.
35
(4); COMAR 07.07.01.02(B)(6); COMAR 07.07.01.02(B)(30); COMAR
07.07.19.02(B)(4).
Maryland courts have yet to hear a case challenging whether spousal support is on
par with child support as a higher priority than any arrearages. However, OCSE directs us
to a series of cases recognizing areas of Maryland law where spousal and child support are
considered together because of their similar nature. These cases focus primarily on Title
III, Section 38 of the Maryland Constitution, which exempts both obligors of past due
alimony and obligors of past due child support from Maryland’s prohibition on
imprisonment for reason of debt. MD. CONST. art. III, § 38 (2001)).
For instance, in Goldberg v. Miller, the Court of Appeals held the circuit court did
not have the authority to classify guardian ad litem fees as child support, because there was
a lack of statutory support for making such a classification, and “the General Assembly is
the guiding authority for matters of child support in Maryland.” 371 Md. 591, 612 (2002).
In its analysis, the court acknowledged that child support was “the highest and most
protected status an obligation can hold under the Maryland law.”
Id. at 611. The State
cites specifically to a corresponding footnote where the court stated, “Under Maryland law,
alimony receives the same protections as child support,” explaining Section 38’s permitting
imprisonment of both child support and alimony obligors.
Id. at 611 n.9 (citing MD.
CONST. art. III, § 38 (2001)).
Relating specifically to the Maryland Family Law Article, OCSE cites Kelly v.
MCOOCSE, 227 Md. App. 106 (2016). There, this Court held an obligor’s bank accounts
36
could be garnished for past due child support pursuant to FL § 10–108.3(b)(1).12 Id. at
113–14. The obligor challenged the line of cases used to support that garnishment was
permissible due to child support’s nature as a duty, rather than a debt (for which
garnishment of certain assets is exempted), on the grounds that the cited cases dealt with
unpaid alimony. Id. at 113, n.4. We explained:
The distinction [between alimony and child support] is not significant. All
three cases, although specifically pertaining to alimony, framed their
analyses in terms of “intra-familial support,” see Pope v. Pope, 283 Md. 531,
536 (1978) (“[T]he underlying obligation is for intra-familial support....”);
United States v. Williams, 279 Md. 673, 678 (1977) (same); Blum v. Blum,
295 Md. 135, 142 (1983) (describing the obligation to provide contractual
alimony as a duty to provide intra-familial support). We conclude their
holdings are equally applicable to claims for child support.
Id.
Standing alone, these cases support, but admittedly do not prove, the Maryland
legislature’s intent for current child and spousal support to be prioritized above all
arrearages in the allocation of payments. However, taken together with the relevant parts
of the Family Law Article and Code of Maryland Regulations described above, they
demonstrate, at a minimum, that OCSE’s interpretation of Maryland law to assign equal
12
The provision reads “(b)(1) If an obligor identified in a report submitted under §
10-108.2 of this subtitle or in a report made to the Federal Parent Locator Service under 42
U.S.C. § 666(a)(17) is $500 or more in arrears of a child support obligation and has not
paid child support for more than 60 days, the Administration may institute an action to
attach and seize the amount of the arrearage in one or more of the accounts of the obligor
with a financial institution to satisfy the amount of arrearage owed by the obligor.” FL §
10–108.3(b)(1)
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importance to child and spousal support obligations is a reasonable interpretation, and not
in apparent contravention of the law.
Given that (1) relevant federal law mandates prioritization of current “support”
obligations over arrearages, (2) contains no requirement that all types of child support
payments be prioritized above all types of spousal support payments, (3) but indicates
spousal support is to be viewed as equally important to child support, and (4) Maryland
law makes no distinction between child and spousal support in defining “support”
obligations, we find that OCSE’s allocation of payments first to current child support, then
to current spousal support, and finally to child and spousal support arrearages, is not
unlawful.
C. The Child’s Best Interest Standard Does Not Mandate Restructuring
OCSE’s Allocation Method to Prioritize Child Support Arrearages Before
Current Alimony Support Obligations
The child’s best interest standard does not make unlawful, or even unreasonable,
OCSE’s current allocation method. Mr. Nusbaum first points to Ross v. Hoffman, 280 Md.
172 (1977) citing the case’s holding that the best interest of the child is supreme, to
encourage us to hold that, if the statute, rules, and policies are ambiguous, then we should
fall back on Ross’ guidance to do what is best for the child first. Ross is a custody case in
which the Court of Appeals upheld the trial court’s finding that the “best of interest” of a
child was served by keeping the child in the care of a third-party guardian instead of the
parent themselves.
Id. at 193. Karen Ross, the appellant in that case, hired a babysitter
when she had a baby at 21. Id at 181. Over time, the babysitter became so much of a
primary caregiver that the child developed an emotional bond with the babysitter and not
38
with the biological mother. Id. at 181–82. The court held it would be in the child’s best
interest to remain in the care of the babysitter.
Id. at 192-93.
Mr. Nusbaum also refers to Goldberger v. Goldberger for the assertion that we have
found, in at least one instance, that even though a father chooses not to support his children
for religious reasons, the children’s best interests may require him to provide support. In
Goldberger, an orthodox Jewish family had a father who studied Jewish law all day but
did not earn income of his own. 96 Md. App. 313, 322-23 (1993). We found that he could
earn income but chose not to,
id. at 323, and so we remanded to the circuit court to
determine how much support he should pay to the mother.
Id. at 328-29.
While we agree with Mr. Nusbaum that relevant Maryland laws and policies
emphasize a child’s best interests, that standard does not dictate that support payments be
allocated to child support arrears before current spousal support obligations. In Ross and
Goldberger, the courts set out to determine what was most beneficial to the children,
intentionally setting aside the parents’ personal interests having no bearing on the
children’s well-being. But spousal support does not fit into that category. In the same vein
that Maryland and federal law promote an overarching goal of intra-familial support, we
recognize that support of the custodial spouse is often necessary for the children’s well-
being. The two are not mutually exclusive. Child support will not guarantee the best
outcome for a child if his or her custodial parent does not have the means to take care of
him- or herself.
It is worth restating that should Mr. Nusbaum’s payments be allocated as he
requests, Ms. Nusbaum will lose a critical means of enforcement for spousal support owed
39
to her once Mr. Nusbaum satisfies his child support obligations. According to 45 C.F.R. §
302.31(a)(2), a state child support agency can
[S]ecur[e] support for a spouse or former spouse who is living with the child
or children, but only if a support obligation has been established for that
spouse and the child support obligation is being enforced under the title IV–
D State plan.
45 C.F.R. § 302.31(a)(2). As OCSE points out, this means that once child support is no
longer owed, its agency cannot be used to enforce a remaining spousal support obligation.
We see less how Mr. Nusbaum’s requested reallocation will benefit the Nusbaums’ grown
children, and more how it could harm Ms. Nusbaum.
We conclude that the payment of spousal support is as important an interest to the
welfare of a couple’s children as is the payment of child support. Maryland and federal
support statutes oblige us to consider both equally. Thus, the child’s best interest standard
does not overcome the support OCSE’s allocation structure finds in relevant state and
federal law. Because this allocation structure is lawful, the judiciary is precluded by
separation of powers from interfering with its operation. Accordingly, we sustain the
judgment of the circuit court.
JUDGMENT OF THE CIRCUIT COURT
FOR CARROLL COUNTY AFFIRMED.
APPELLANT TO PAY COSTS.
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