Dillon v. Miller

Friedman, J. This appeal concerns Appellant Ricardo Dillon’s failure to pay child support to Appellee Lynita Miller, for their daughter S. The Circuit Court for Anne Arundel County, based on the Report and Recommendations of a family law Magistrate, found that Dillon was voluntarily impoverished and imputed income to him at a level consistent with him earning the federal minimum wage. Dillon raises two challenges to the circuit court’s ruling. Dillon argues that the circuit court erred: (1) when it accepted facts found by the Magistrate; and (2) when it found that he was voluntarily impoverished and imputed minimum wage income to him. For the reasons explained below, we affirm the circuit court.

BACKGROUND Ricardo Dillon and Lynita Miller are the parents of now 6-year-old S. Dillon and Miller were never married and never resided in the same household. S. has lived exclusively with Miller since birth. ³¹³ Miller, through the Anne Arundel County Office of Child Support Enforcement, filed a Complaint for Support. A Magistrate in the Circuit Court for Anne Arundel County held a hearing. After taking testimony from both Dillon and Miller, the Magistrate recommended that Dillon pay child support to Miller in the amount of $535 per month.

Dillon then filed timely exceptions to the Report and Recommendations of the Magistrate. The Circuit Court for Anne Arundel County granted Dillon’s exceptions and remanded the case to the Magistrate to make further factual findings. Specifically, the circuit court directed the Magistrate to allow Dillon to cross-examine Miller, and also permitted the Magistrate to receive additional testimony from both parties at his discretion. The Magistrate conducted the second hearing in June 2016.

Both Dillon and Miller testified and were subject to cross-examination. Importantly, Dillon testified at this second hearing that he had completed high school in Jamaica, that he had worked in construction in Jamaica, and that he had no mental or physical limitations that prevented him from working. He also testified that he was not permitted to work in the United States because of his immigration status and, therefore, found it difficult to obtain consistent work. He testified, though, that he “[tries] to get work when [he] can.” He testified, somewhat unclearly, that he could not return to Jamaica to work because it may affect his immigration status and visa application.

Finally, he testified that he is married to another woman in the United States, that in addition to S.—who Dillon has with Miller—he also has three other children from three different women, and that his wife and family members help support him and his three other children. The Magistrate, in his Report and Recommendations, made the following findings of fact: (1) Miller is employed full-time and earns an annual salary of $47,000—or $3,917 per month. She incurs daycare expenses of about $135 per week. Her portion of the health insurance for S. provided by her employer is $379.90 per month. ³¹⁴ (2) Dillon is a citizen of Jamaica “who has been in and out of the United States.” Dillon claims that he is not permitted to work in the United States because he does not have a green card, a social security number, or work authorization. 1 Dillon states that if he works without authorization he may be deported and not permitted to return to the United States.

(3) Dillon is married to a United States citizen, with whom he has a young child, so that he could remain in the United States. Dillon’s wife filed an application in April 2014, which was still pending in June 2016, “for him to remain in [the United States] and be able to work here.” The only evidence provided by Dillon of his immigration status was a courtesy copy of an immigration form. 2 (4) Dillon is currently supported by his wife and other family members. (5) Dillon also pays child support, under a court order in Montgomery County in the amount of $253 per month, to the mother of another child born in 2011. 3 The Magistrate also specifically found that Dillon’s testimony that “he had no income at all from income earning sources” was not credible. Based on these findings of fact, the Magis ³¹⁵ trate recommended a finding that Dillon was voluntarily impoverished and imputed income to him for calculation of his child support obligation commensurate with him earning the federal minimum wage.

The Magistrate also decided that extraordinary circumstances existed, under Maryland Rule 9-208(h)(2), 4 to justify the entry of an immediate order for child support backdated to October 1, 2015. The circuit court agreed with the Magistrate that extraordinary circumstances existed to justify the entry of an immediate order. The circuit court, therefore, entered its Order— ratifying and affirming the facts found by the Magistrate, and granting Miller’s Complaint for Support in the amount of $528 per month 5 —on the same day that the Magistrate released his Report and Recommendations. This time, Dillon did not file exceptions to the Magistrate’s Report and Recommendations.

Dillon, however, noted a timely appeal to this Court. ANALYSIS On appeal, Dillon makes two challenges, based on the Report and Recommendations of the Magistrate, to the circuit court’s ruling. First, Dillon argues that the circuit court erred when it accepted facts found by the Magistrate regarding the amount that he should pay for child support and regarding the ³¹⁶ amount that Miller paid for medical insurance. Second, Dillon argues that the circuit court erred when it found that he was voluntarily impoverished and imputed income to him.

We will address each of Dillon’s contentions in turn. I. Factual challenges As previously noted, although Dillon filed exceptions to the Magistrate’s first Report and Recommendations, he failed to file exceptions to the Magistrate’s second Report and Recommendations. The effect of Dillon’s failure to file exceptions this time is fatal to his challenges to the facts found by the Magistrate that were accepted by the circuit court. Maryland Rule 9-208 governs proceedings before a Magistrate (and any claims that there were errors in such proceedings).

The entry of the immediate order by the Magistrate presents a distinct procedural situation. The Rules normally provide a litigant who is dissatisfied with the Magistrate’s recommendations 10 days within which to file exceptions after the issuance of the Magistrate’s Report and Recommendations. See Md. Rule 9—208(f) (“Within ten days after recommendations are placed on the record ... a party may file exceptions with the clerk.”). The circuit court cannot enter an order based on the Magistrate’s Report and Recommendations until the time for filing exceptions has passed, and if exceptions are filed on time, until the exceptions are ruled on by the circuit court.

Md. Rule 9-208(h)(l)(A) (“[T]he court shall not direct the entry of an order or judgment based upon the magistrate’s recommendations until the expiration of the time for filing exceptions, and, if exceptions are timely filed, until the court rules on the exceptions.”). When, however, the Magistrate finds that extraordinary circumstances exist to justify the entry of an immediate order, as the Magistrate did in this case, the circuit court may enter an order before the time for filing exceptions has passed. See Md. Rule 9-208(h)(2) (“If a magistrate finds that extraordinary circumstances exist and recommends that an order be entered immediately, the court shall review the file and any ³¹⁷ exhibits and the magistrate’s findings and recommendations and shall afford the parties an opportunity for oral argument. The court may accept, reject, or modify the magistrate’s recommendations and issue an immediate order.”).

When this happens, a litigant can then file exceptions, which the circuit court would have to consider, after the entry of the order from the circuit court. See id. (“An order entered under this subsection remains subject to a later determination by the court on exceptions.”). Although filing exceptions after the entry of the order by the circuit court is procedurally anomalous, this is precisely what a litigant who is dissatisfied with the Magistrate’s recommendations should do under the Rules when the circuit court enters an immediate order.

The consequences of the failure to file exceptions are different depending on the nature of the appeal. Rule 9—208(f) specifies that “[a]ny matter not specifically set forth in the exceptions is waived unless the court finds that justice requires otherwise.” Rule 9-208(f). This Court has previously held that “if [an] appellant’s sole basis for appeal was that the [Magistrate’s] factual findings, such as they are, were clearly erroneous, her failure to file exceptions [is] fatal to such an argument.” Miller v. Bosley, 113 Md.App. 381, 393 , 688 A.2d 45 (1997) (“In short, in all eases lacking timely exceptions, any claim that the [Magistrate’s] findings of fact were clearly erroneous is waived.”). If, however, the basis of appeal is that the circuit court erred in its disposition of the case based upon the facts found by the Magistrate, this Court, while still bound by the findings of fact, may review the circuit court’s application of those facts in reaching its decision.

Id. (allowing the appeal to proceed where it assigned “error to the trial judge in the exercise of his independent judgment as to the propriety of his disposition of the case” from the facts contained in the Magistrate’s Recommendations). Here, Dillon argues that the circuit court erred when it accepted facts found by the Magistrate regarding the amount he should pay for child support and regarding the amount that Miller paid for medical insurance. These are factual chai- ³¹⁸ lenges.

The circuit court entered its order—based on the facts found by the Magistrate and based on the Magistrate’s finding of extraordinary circumstances to justify an immediate order—before the time for filing exceptions had passed. Dillon failed to file exceptions to the Magistrate’s second Report and Recommendations as required under the Rules. As a result, he cannot challenge these facts. 6 Thus, we affirm the circuit court’s decisions regarding child support and medical insurance.

II

Voluntary impoverishment and imputed income Next, Dillon argues that the trial court erred when it concluded, based on the facts found by the Magistrate, that he was voluntarily impoverished and imputed income to him at a level consistent with his earning the federal minimum wage. Specifically, Dillon contends that, while he occasionally works in construction, his immigration status—his lack of a green card or work authorization—prevents him from finding consistent work. He testified, somewhat unclearly, that he could not return to Jamaica to work because it may affect his immigration status and visa application. Therefore, Dillon argues that he is not voluntarily impoverished, rather that he is merely underemployed and should not have had income imputed to him.

We disagree. “Title 12 of the Family Law [ (“FL”) ] Article of the Maryland Code sets forth a comprehensive scheme with regard to parental child support” that considers the income of