Damon v. Robles

Damon v. Robles, No. 2196, September Term, 2017. Opinion by Graeff, J. FAMILY LAW — CHILD SUPPORT — INCARCERATED OBLIGORS Md. Code § 12-401.1 of the Family Law Article changed the procedure by which an obligor could eliminate child support obligations while incarcerated. Rather than requiring the obligor to file a motion to modify child support, the statute creates a presumption of inability to pay and automatically prevents arrearages of child support from accruing during incarceration under certain circumstances. Because the statute is procedural and remedial, it may apply retroactively unless it impairs vested or substantive rights.

In ruling on Mr. Robles’ 2017 motion to reduce arrearages he owed to reflect his incarceration, the circuit court properly determined that there was a vested right in arrears that had accrued prior to October 1, 2012, when FL § 12-104.1 was enacted, and the right to these payments could not be taken away. The right to child support, however, is not vested until the due date of each payment. Because FL § 12-104.1 automatically prevented Mr. Robles’ payment obligations from accruing, FL § 12-104.1 applied retroactively as of October 1, 2012, and the court did not err in ruling that Mr. Robles’ arrears should be adjusted accordingly. Circuit Court for Baltimore County 03-C-05-013450 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2196 September Term, 2017 ______________________________________ RENEE DENICE DAMON v. EDWIN RAFAEL ROBLES ______________________________________ Graeff, Beachley, Kenney, James A., III (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Graeff, J. ______________________________________ Filed: April 2, 2020 *Daniel A. Friedman, J., did not participate Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document in the Court’s decision to report this opinion is authentic. pursuant to Md. Rule 8-605.1.

Suzanne Johnson 2020-04-02 13:46-04:00 Suzanne C. Johnson, Clerk Renee Denice Damon, appellant, appeals from an order issued by the Circuit Court for Baltimore County granting, in part, the motion filed by Edwin Robles, appellee, to modify his child support arrearage based on a 2012 change in the law that prevents child support arrearages from accruing when a parent is incarcerated. The court ordered the Office of Child Support Enforcement (“OCSE”) to reduce the child support arrears that had accrued from October 1, 2012, the effective date of Md. Code (2012 Repl. Vol.), § 12-104.1 of the Family Law Article (“FL”), through August 2014, when Mr. Robles was released from prison. On appeal, Ms. Damon presents one question for this Court’s review, which we have rephrased slightly, as follows: Did the circuit court incorrectly interpret FL § 12-104.1(b) when it retroactively applied the law to past due child support arrearages?

For the reasons set forth below, we shall affirm the judgment of the circuit court, with an amendment to the amount of credit in arrears. FACTS AND PROCEEDINGS Ms. Damon and Mr. Robles are the parents of a daughter (“N”), who recently turned 18 years old. The parties were never married. On March 16, 2006, Mr. Robles was ordered to pay $430 per month in child support, plus $40 per month toward arrears.

Payments were to be made to the Maryland Child Support Account and forwarded to Ms. Damon. Four years later, in March 2010, Mr. Robles was incarcerated. He remained in the custody of the Federal Bureau of Prisons until August 2014. FL § 12-104.1, which provides that arrearages of child support may not accrue during an obligor’s incarceration under certain circumstances, went into effect on October 1, 2012, 23 months before Mr. Robles’ release.

On April 30, 2014, a few months prior to his release, Mr. Robles filed a motion to modify child support, alleging that his incarceration amounted to a change in circumstances. By consent order dated February 20, 2015, Mr. Robles’ child support obligation was reduced to $338 per month, by wage lien through the OCSE, retroactive to April 30, 2014. On May 19, 2017, Mr. Robles again moved to modify child support. He alleged that he had been incarcerated for 56 months, could not afford to pay his child support during that time, and his “arrears were accumulated because of [his] incarceration.” Ms. Damon filed an answer, asking the court to deny the motion.

She did not dispute that Mr. Robles had been incarcerated, but she alleged that he made a decision to return to his criminal lifestyle. On August 8, 2017, Mr. Robles, now represented by counsel, filed a first amended motion to modify child support and “Petition for Accounting.” He alleged that he owed $21,693 in child support arrears as of July 2017, that most of that amount accrued during his incarceration, that he was unable to file a motion to modify during his incarceration, and, because of the arrears balance, he was unable to “obtain credit, licenses, and otherwise manage his life.” He asked the court to order the OCSE to perform an accounting to determine the total amount of arrears that had accrued during the period of his incarceration and to reduce the arrearages to “reflect the [i]ncarceration.” -2- Ms. Damon answered the amended motion and again asked the court to deny the requested relief. On October 5, 2017, a hearing was held before a family law magistrate. The magistrate granted Mr. Robles a postponement to allow OCSE to perform an audit.1 On November 1, 2017, the OCSE completed its audit.

The audit reflected that Mr. Robles accrued $22,852 in child support arrears from March 2010 until August 2014. On November 28, 2017, the parties appeared for a modification hearing before a judge. Mr. Robles’ attorney argued that, since the enactment of FL § 12-104.1 in 2012, it had been the practice of the local child support enforcement agencies to “automatically stop” accrual of arrearages for obligors who became incarcerated. Because Mr. Robles already was incarcerated when the law took effect, however, his case “wasn’t caught,” and his child support arrears continued to accrue.

The court asked if the law applied “retroactively to arrearage figures that accrued before the change in the law?” Counsel replied that, although his “first position” was that the court should set aside all of Mr. Robles’ arrears accrued during his incarceration, he recognized that the law may only apply prospectively, and therefore, his alternative request was that the court set aside the arrears that accrued from October 1, 2012, 1 On the hearing sheet, the magistrate directed that, upon completion of an audit, the matter should not be set for a magistrate hearing because it was the understanding of the family law magistrates that the relief requested, which the magistrate characterized as a “suspension of [child support] retroactively prior to the filing,” was not permitted by law. -3- forward. He calculated the latter amount to be $9,890 by multiplying 23 months by $430 per month.2 Ms. Damon argued that the language and history of FL § 12-104.1 made clear that the statute applied only to persons who became incarcerated after October 1, 2012. She asserted that, because Mr. Robles already was incarcerated when the law took effect, it did not apply to him.3 The court stated at the end of the hearing that, although Mr. Robles’ motion was captioned as a motion to modify child support, it actually was a motion for an order changing the arrearages. On December 5, 2017, the court issued an order granting, in part, and denying, in part, Mr. Robles’ motion.

It noted that Mr. Robles was incarcerated from March 2010 until August 2014, and it ruled that the child support arrears that accrued while Mr. Robles was incarcerated after October 1, 2012, should be set aside. Thus, the court ordered the OCSE to adjust the $23,154 arrearage figure and reduce it by the amount calculated by counsel, $9,890. This appeal followed. 2 The correct amount is $9,522 (19 months, October 2012 to April 2017, at $430 per month, plus 4 months, May to August 2014, at $338 per month). 3 Ms. Damon did not argue below, or on appeal, that Mr. Robles’ 2017 motion was barred by res judicata because it raised claims that could have been raised, but were not, in the 2014 Motion to Modify Child Support. Accordingly, we will not address this issue.

See Huffman v. Pursue, Ltd., 420 U.S. 592 , 607 n.19 (1975) (Appellants did not plead res judicata in the court below, and therefore, it was not available to them on appeal.); Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court.”). -4- DISCUSSION Ms. Damon, a self-represented litigant, contends that the circuit court erroneously reduced a portion of appellee’s child support arrearage for a period of time in which he was incarcerated. She asserts that there is no indication that the General Assembly intended that the law be applied retroactively. Before addressing appellant’s specific claim, we will briefly discuss the law regarding the calculation of child support as it relates to an incarcerated parent. I. Legislative Background To maintain eligibility for federal funding relative to paternity and child support, Title IV-D of the Social Security Act, 42 U.S.C. § 651 , et seq. obligates States to have certain laws in effect.

As pertinent here, since 1986, federal law has required states to enact: (9) Procedures which require that any payment or installment of support under any child support order, whether ordered through the State judicial system or through the expedited processes required by paragraph (2), is (on and after the date it is due)– (A) a judgment by operation of law, with the full force, effect, and attributes of a judgment of the State, including the ability to be enforced, (B) entitled as a judgment to full faith and credit in such State and in any other State, and (C) not subject to retroactive modification by such State or by any other State; except that such procedures may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or -5- through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor. 42 U.S.C. § 666 (a)(9) (emphasis added). See Harvey v Marshall, 389 Md. 243, 265 (2005). In 1988, to comply with that federal law, the General Assembly enacted FL § 12- 104, which provides that a court “may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance[,]” but it “may not retroactively modify a child support award prior to the date of the filing of the motion for modification.” See Harvey, 389 Md. at 266–67 (“The Maryland Legislature understood clearly that significant federal funds were in jeopardy if it did not enact legislation intended to effectuate the child support mechanisms located in and defined by 42 U.S.C. § 666 (a)(9),” particularly the prohibition on retroactive modification of child support orders.). The term “modify” includes a reduction, alteration, or elimination of child support arrearages.

Id. at 268 . States have taken different approaches to modification of child support due to a parent’s incarceration. For example, some states have taken the position that a parent’s reduction in income caused by incarceration may constitute a change in circumstances for purposes of modification of child support. See, e.g., Clark v. Clark, 902 N.E.2d 813, 817 (Ind. 2009).

Other states, by contrast, take the position that, because this change of circumstances was due to the parent’s illegal conduct, loss of income due to incarceration does not constitute a material change in circumstances that provides grounds to modify the parent’s child support obligation. See, e.g., Staffon v. Staffon, 587 S.E.2d 630 , 632 -6- (Ga. 2003). Maryland historically has taken the first position, holding that “a prisoner’s incarceration may constitute a material change of circumstance if the effect on the prisoner’s ability to pay child support is sufficiently reduced due to incarceration.” Wheeler v. State, 160 Md. App. 363, 374 (2004) (quoting Wills v. Jones, 340 Md. 480, 483 (1995)). In 2009, the Maryland General Assembly established a task force to, inter alia, analyze “hurdles to reintegration of adult and juvenile offenders into the community.” See 2009 Md. Laws, Chs. 625 & 626.

In 2011, the Task Force on Prisoner Reentry recommended that the General Assembly pass legislation to temporarily but automatically suspend child support obligations upon incarceration for non-custodial parents sentenced to 12 or more consecutive months of imprisonment. The obligor may not be on work release and must have insufficient finances to make child support payments. . . . Current policy allows for inmates to apply for a suspension of their child support order upon incarceration. However, the vast majority of obligors are not aware of this option and consequently wind up accruing large sums of arrearages during their sentence, arrearages that they will never be able to repay.

Task Force on Prisoner Reentry, Final Report on Prisoner Reentry 10 (2011). In 2012, the General Assembly enacted FL § 12-104.1, which provides, in pertinent part, as follows: (b) A child support payment is not past due and arrearages may not accrue during any period when