Montgomery Cnty. Office of Child Support Enforcement Ex Rel. Cohen v. Cohen

Panel: Berger, Reed, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ. Zarnoch, J. This case arises out of appellee Andrew Cohen's ("Mr. Cohen") failure to pay child support to his ex-wife Jessica Cohen ("Ms. Cohen"), which prompted the Montgomery County Office of Child Support Enforcement ("the agency" or "MCOCSE") to block Mr. Cohen's ability to obtain a passport. The decision of the Circuit Court for Montgomery County to order MCOCSE to remove its hold on Mr. Cohen's passport application and to retain court control of the passport raises concerns involving the separation of powers between Maryland's judicial and executive branches, as well as a state court's authority to encroach on the duties of the United States Secretary of State. On appeal to this Court, MCOCSE asks that we review one issue, which we have reworded slightly: Whether the circuit court erred when it ordered MCOCSE to release a block against Mr. Cohen's passport, despite state and federal laws that clearly mandated MCOCSE's action and the Secretary of State's denial of his passport for his failure to pay child support.

For the reasons we explain below, we reverse the decision of the circuit court and remand for further proceedings so that Mr. Cohen's passport may be transferred to the Secretary of State. BACKGROUND & PROCEDURAL HISTORY Mr. Cohen had two children with Ms. Cohen -- a daughter, born in 1996, and a son, born in 2007. The Circuit Court for Howard County entered a judgment of absolute divorce in August of 2012, and Ms. Cohen was awarded primary physical custody of the children. The court ordered Mr. Cohen to pay directly to Ms. Cohen $800.00 per month as support for the parties' children pursuant to an agreement between the parties, beginning on October 15, 2012.

On December 16, 2013, the Circuit Court for Howard County granted a motion filed by Ms. Cohen for a change of venue to the Circuit Court for Montgomery County. 1 Once the case was transferred, Ms. Cohen filed a petition for contempt against Mr. Cohen for his failure to pay child support in accordance with the prior order, and moved for sole legal custody. The circuit court denied Ms. Cohen's request to hold Mr. Cohen in contempt, but awarded Ms. Cohen sole legal custody of the children, ordered that Mr. Cohen's access to the children would be subject to Ms. Cohen's consent, entered a judgment in favor of Ms. Cohen in the amount of $8,000.00 in unpaid child support as of June 30, 2014, and ordered that all future payments must be submitted to MCOCSE. Regarding the $8,000 arrearage, which had accumulated since October of 2012, the court ordered Mr. Cohen to pay a minimum of $200.00 per month, in addition to his principal child support payment, until the total arrearage was paid in full. Further, the court entered an Earnings Withholding Order to be served on Mr. Cohen's then employer "or any future employer" to ensure timely child support payments in the future.

On March 4, 2016, MCOCSE filed a motion on Mr. Cohen's behalf, seeking a modification of his monthly child support obligation, because he was no longer required to pay child support for his adult daughter. On June 10, 2016, the court modified the child support order by consent and lowered Mr. Cohen's monthly support obligation to $436.00 per month, effective as of March 1, 2016, to reflect his obligation only for the parties' son. Regarding Mr. Cohen's overdue support for both children, which had increased to a total of $21,733.22 as of June 6, 2016, the circuit court ordered him to pay an additional $109.00 per month towards the arrearage for a total monthly obligation of $545.00 to begin on July 1, 2016. After the circuit court lowered Mr. Cohen's monthly support obligation, he did not pay any support until November 21, 2016, when he made a lump sum payment of $3,000.00. 2 In May of 2017, Mr. Cohen applied for a passport in order to travel to Greece for a ten-day vacation with his girlfriend and her family.

The Department of State, who oversees the issuance of passports, denied his application because it had received certification from MCOCSE that his child support arrears were more than $2,500.00. 3 On May 24, 2017, Mr. Cohen filed "Defendant's Petition for MCOCSE Release of Passport Hold" with the circuit court. Specifically, Cohen requested that the circuit court do the following: 1. Order [MCOCSE] to release the hold on the Defendant's ability to obtain a passport for the sole purpose of allowing his planned trip in August to Greece; 2. Order that by August 31, Defendant will submit his passport to the Court for holding until his arrearages are paid or pending further Court Order ....

The primary reason asserted by Mr. Cohen to have the block removed was that his girlfriend's father, Leonard Sloan ("Mr. Sloan"), was paying for Mr. Cohen's travel expenses. He argued that the trip was planned without his knowledge of his ineligibility for a passport, and that he would continue working for his current employer upon his return. Further, Mr. Cohen claimed in his petition that "since the Consent Order [of June 10, 2016] was entered, Defendant has paid his child support on time and in full, pursuant to the agreement." Attached to the petition was an affidavit of Mr. Sloan, who affirmed that it was his "clear intention to pay for the family, and specifically for Andrew Cohen's meals, excursions and other miscellaneous expenses associated with the trip." Mr. Sloan added that he had "taken similar family trips in the past with [his] family (to Puerto Rico, Italy, the Outer Banks, etc.), and [had] paid all costs involved." MCOCSE opposed the petition, noting first that Mr. Cohen's claim that he had paid his child support on time and in full since the date of the last consent order was not accurate. As MCOCSE pointed out, Mr. Cohen had not made any payments at all between April 22, 2016 and November 21, 2016, when he finally made a $3,000 payment 4 -- $2,564.00 of which was applied to his burgeoning arrearage.

Further, MCOCSE noted in its opposition that Mr. Cohen's reason for obtaining a passport was not a serious one, such as a family emergency overseas or an employment opportunity for which the statutory/administrative scheme provides narrow exceptions. 5 MCOCSE averred, therefore, that Mr. Cohen's situation -- having failed to pay more than $21,000.00 in child support but wanting to travel with his girlfriend's family merely for leisure -- illustrated the very purpose for the passport denial provisions. The circuit court held a hearing on June 21, 2017 and permitted Mr. Cohen to participate by telephone because he resided in Florida at that time. MCOCSE asserted at the hearing that, following the child support order in 2012, Mr. Cohen had not made any payments for nearly three years. His first support payments began only after the court ordered that Mr. Cohen's wages be garnished.

Even after the reduction in his minimum monthly child support payment, Mr. Cohen failed to make any payments from April to November of 2016. Following that gap, he made a lump sum payment of $3,000 from an inheritance and then stopped making payments again until the end of January 2017, when MCOCSE imposed another wage withholding order on his most recent employer. By the time of the June 21, 2017 hearing, Mr. Cohen owed $21,377.13 in overdue child support, and the only periods during which Mr. Cohen made timely, consistent payments were the result of the agency obtaining wage withholding orders. At the end of the hearing, however, the circuit court granted Mr. Cohen's petition.

The court ordered MCOCSE to "release the Passport Hold" immediately, and for Mr. Cohen to surrender his passport to the circuit court by August 31, 2017, providing that the circuit court "shall hold [Mr. Cohen's] passport until the full balance of arrears is paid or until further Order of Court." The day after the hearing, MCOCSE filed a motion to alter or amend the judgment and a motion to stay, which the circuit court denied. MCOCSE then filed a motion to stay the case pending appeal to this Court, and the circuit court denied the motion in an order on July 20, 2017. MCOCSE, therefore, released the hold on Mr. Cohen's passport the same day. Following Mr. Cohen's vacation, he turned over his passport to the circuit court, where we assume it remains today.

MCOCSE timely appealed to this Court, and Mr. Cohen did not file an appellee's brief. We provide further details regarding the hearing below on the petition. DISCUSSION I. Standard of Review We review the circuit court's construction of statutes de novo for legal correctness. See Md.-Nat'l Capital Park & Planning Comm'n v. Anderson , 395 Md. 172 , 181, 909 A.2d 694 (2006) (citing Moore v. State , 388 Md. 446 , 452, 879 A.2d 1111 (2005) ).

"Where the order involves an interpretation and application of Maryland statutory and case law, we must determine whether the lower court's conclusions are 'legally correct' under a de novo standard of review." Baltimore Cty., Md. v. Aecom Servs., Inc. , 200 Md. App. 380 , 397, 28 A.3d 11 (2011) (quoting Powell v. Breslin , 195 Md. App. 340 , 6 A.3d 360 (2010), cert. granted , 418 Md. 190 , 13 A.3d 798 (2011) ). Similarly, when "the issue surrounding the [circuit court's] order ... involves an interpretation and application of Maryland as well as federal statutory and case law," we determine, upon appellate review, whether the circuit court's decision was legally correct. Dep't of Pub. Safety & Corr.

Servs. v. Doe , 439 Md. 201 , 219, 94 A.3d 791 (2014) (citing Nesbit v. Gov't Emps. Ins. Co. , 382 Md. 65 , 72, 854 A.2d 879 (2004) ). Although the circuit court discussed the policy underlying Maryland and federal statutes requiring the denial of passports to applicants with child support arrears exceeding $2,500, the court did not directly construe any of these statutes at the hearing or provide a memorandum opinion.

In our view, the plain language of the pertinent Maryland and federal statutes and regulations governing the denial of passports for a substantial child support arrearage dictate a different result here.

II

The Circuit Court Erred By Ordering MCOCSE to "Release the Hold" on Mr. Cohen's Passport. The circuit court gave the following ruling at the hearing on the petition: Okay. Well, I mean, I can see both sides of it, and I guess from the policy view, the policy view of the child support enforcement agency would say well, I guess what Mr. Sloan should do is give him the money that would pay for the trip and say use this towards your child support. So, you know, it would have cost, I don't know, $5,000, $10,000 for you to go to Greece.

But let's use that $5,000 or $10,000. You'll miss this trip, but you'll pay off half of your child support obligation. And that's certainly one way that it could have been done. [ ... ] But that didn't happen. * * * But on the other hand, Mr. Cohen is belatedly up to date on the ... modified child support order. I mean, this is the current child support order.

He's complying with the current child support order. As long as he's paying the $550 a month, that's really what he's obligated to do. And yes, the arrearage is going to stay there and it's going to go down slowly. And he has a choice, I guess, as to how to pay it down, whether it takes ten years or he could do it in ten minutes if he had the $20,000.

But it also sounds like he has other obligations. And I know they're not directly related, but if he's helping his older daughter and helping his son with private school and all the rest of it, he's not just some deadbeat dad who disappeared to Florida and hasn't been heard from since. Now, I agree, if he had just disappeared and the arrearage was $20,000 and counting and he wasn't paying anything, then obviously he shouldn't have a passport. But under all these circumstances, I am going to grant the motion.

Thereafter, Mr. Cohen's attorney inquired, "I'd ask that the Court I guess retain jurisdiction in case there's wording that needs to be changed. But I believe this [draft order] should be sufficient." The court agreed to "look into it ... with the State Department," presumably regarding the language necessary to have the hold removed, and concluded the hearing. A. Child Support Enforcement Regulatory Law & the Framework of Maryland's Passport Denial and Revocation Program Enacted August 14, 1935, and amended August 22, 1996, federal legislation appropriates funds to the states "[f]or the purpose of enforcing the support obligations owed by noncustodial parents to their children and the spouse (or former spouse) with whom such children are living ...." See 42 U.S.C. § 651 . Section 652 of Title 42 sets forth the authority of the United States Secretary of Health and Human Services ("HHS") over state child support enforcement programs.

See 42 U.S.C. § 652 (a)(3). Furthermore, 42 U.S.C. § 654 requires that each state plan must "provide that the state will ... enforce any support obligation established with respect to ... a child with respect to whom the State provides services under the plan; or ... the custodial parent of such a child." See 42 U.S.C. § 654 (4)(B). Each state plan must "provide for the establishment or designation of a single and separate organizational unit, which meets such staffing and organizational requirements as the Secretary may by regulation prescribe, within the State to administer the plan." 42 U.S.C. § 654 (3). The statute includes specific standards that each state child and spousal support plan must meet and certain enforcement procedures that it must include.

Under § 654(31), state plans must incorporate the following procedure: A State plan for child and spousal support must ... provide[ ] that the State agency will have in effect a procedure for certifying to the Secretary [of HHS], for purposes of the procedure under section 652(k) of this title, determinations that individuals owe arrearages of child support in an amount exceeding $2,500 .... 42 U.S.C. § 654 (31). The Secretary of State is vested with the authority to grant and issue passports, see 22 U.S.C. 211a, and to cancel passports that are erroneously obtained. See 8 U.S.C. § 1504 . Subsection 652(k), therefore, provides the following process: (1) If the Secretary [of HHS] receives a certification by a State agency in accordance with the requirements of section 654(31) of this title that an individual owes arrearages of child support in an amount exceeding $2,500, the Secretary shall transmit such certification to the Secretary of State for action (with respect to denial, revocation, or limitation of passports) pursuant to paragraph (2).

(2) The Secretary of State shall, upon certification by the Secretary transmitted under paragraph (1), refuse to issue a passport to such individual, and may revoke, restrict, or limit a passport issued previously to such individual. 42 U.S.C. § 652 (k). Similarly, the corresponding federal regulation provides: The Department [of State] may not issue a passport ... in any case in which the Department determines or is informed by competent authority that: * * * (2) The applicant has been certified by the Secretary of Health and Human Services as notified by a state agency under 42 U.S.C. § 652 (k) to be in arrears of child support in an amount exceeding $2,500. 22 C.F.R. § 51.60 (a). Additionally, 42 U.S.C. § 666 provides that "each State must have in effect laws requiring the use of" certain procedures "to increase the effectiveness of the program." See 42 U.S.C. § 666 (a). For instance, § 666(a) provides that states must implement procedures for withholding income from a noncustodial parent, see (a)(1)(A); a noncustodial parent's state income tax refund to the custodial parent, see (a)(3)(A)-(B); placing liens on real and personal property owned by a noncustodial parent for the amount of overdue child support, see (a)(4) and "withhold[ing] or suspend[ing], or ... restrict[ing] the use of driver's licenses, professional and occupational licenses, and recreational and sporting licenses of individuals owing overdue support." 42 U.S.C. § 666 (a)(16).

Consistent with the requirements of § 654(3), the General Assembly of Maryland enacted what is now § 10-106 of the Family Law Article ("FL") of the Maryland Code (1984, 2012 Repl. Vol.), providing for the creation of the Child Support Administration ("the Administration") within Maryland's Department of Human Services. 6 Pursuant to FL § 10-107, the Administration has the "authority, duties, and functions under any law of this State subject to the authority of the Secretary of Human Services under any law of this State." Under FL § 10-114(a), "the Secretary of Human Services shall ... adopt rules and regulations for the collection of support" as well as "standards for ... intergovernmental cooperation, and other management operations that are necessary to proper and efficient collection of support." Further, FL § 10-114(a)(3) states that "[t]he Secretary of Human Services shall ... delegate any responsibility for support enforcement to a local department," if a local agency asks for that responsibility and it is capable of carrying out the duty to collect support. The Code of Maryland Regulations ("COMAR") 07.07.17.01 et seq . sets forth Maryland's requirements for the "Passport Denial and Revocation Program" ("Passport Denial Program"). See COMAR 07.07.17.01 to 07.07.17.06.

The purpose of the Passport Denial Program is to provide "procedures of the [Administration] for identifying and reporting certain delinquent obligors of child support to the federal Office of Child Support Enforcement (OCSE) [within the Department of HHS] for the denial, revocation, or limitation of the obligor's passport." COMAR 07.07.17.01(A). COMAR 07.07.17.01 provides, expressly, that "an obligor with support obligations over $2,500 is subject to denial, revocation, or limitation of the obligor's passport." COMAR 07.07.17.02(A) states that "[t]he Administration shall certify to OCSE an obligor whose support obligation arrearage exceeds $2,500." 7 (Emphasis added). Simply put, Maryland law requires MCOCSE -- the "local department" delegated the authority to enforce Maryland's child support laws within Montgomery County 8 -- to certify to the Secretary of HHS any parent "whose support arrearage exceeds $2,500." Id. As we discussed above, pursuant to 42 U.S.C. § 652 (k), once a state agency notifies the Secretary of HHS that an obligor "owes arrearages of child support in an amount exceeding $2,500, the Secretary shall transmit such certification to the Secretary of State," and "[t]he Secretary of State shall ... refuse to issue a passport to such individual." See 42 U.S.C. § 652 (k)(1)-(2) (Emphasis added).

To be an effective enforcement mechanism, therefore, the Passport Denial Program relies on cooperation between state and federal agencies to abide by the procedures outlined in complementary state and federal statutes and regulations. The obligor is not left without a path to remedy the restriction of his or her passport, however. "[A]t least 30 days before certification," the enforcement agency "shall send written notice of the certification to the obligor at the obligor's last known address." See COMAR 07.07.17.02(B). The notice must inform the obligor that his or her passport will be denied by the United States Department of State and that the obligor has an "opportunity to contest the accuracy of the arrears," as well as describe the "[p]rocedures for requesting an investigation." See COMAR 07.07.17.02(C).

If the obligor files a timely request for investigation, the Administration must review the case and prepare a written summary of its conclusion. COMAR 07.07.17.04(A). If the Administration concludes that the obligor owes an arrearage exceeding $2,500, it must notify the obligor that he or she must "pay the arrears in full" to prevent his or her passport from being denied or revoked. COMAR 07.07.17.04(C). 9 Finally, COMAR 07.07.17.05 provides an additional administrative remedy for an obligor, who has failed to pay his or her arrearage in full.

The obligor may appeal the decision "[w]ithin 30 days of receipt of the [Department of State's] notice" to the obligor that his or her passport has been denied. See COMAR 07.07.17.05. If the obligor chooses to appeal, he or she may do so "only on the claim that": (1) the arrearage at issue "does not exist"; (2) the arrearage never exceeded the $2,500 threshold"; or (3) "[a] passport is required for employment purposes and neither the obligor nor the obligor's employer is able to pay the arrears in full." 10 See COMAR 07.07.17.05(C). B. MCOCSE's Argument on Appeal is Not Moot Because the Circuit Court has Retained Possession of Mr. Cohen's Passport and Could Issue an Order Granting Mr. Cohen the Use of His Passport Again.

Before we reach the merits of the circuit court's decision, we address the issue of mootness and whether a justiciable controversy remains for us to decide, even though Mr. Cohen has already obtained his passport, vacationed in Greece, and surrendered the passport to the circuit court. We, generally, do not decide moot questions. See Att'y Gen. v. Anne Arundel Cnty. School Bus Contractors Ass'n, Inc. , 286 Md. 324 , 327, 407 A.2d 749 (1979).

"A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide." Id. (Citations omitted). In some instances, however, we may address the merits of an issue when it "implicates a matter of important public policy and is likely to recur but evade review." Suter v. Stuckey , 402 Md. 211 , 220, 935 A.2d 731 (2007) (Citations omitted). This is particularly so where the matter involves "a relationship between government and its citizens, or a duty of government ...." See Lloyd v. Supervisors of Elections , 206 Md. 36 , 43, 111 A.2d 379 (1954).

The relief that MCOCSE seeks on appeal is that we reverse the circuit court's order and direct the removal of the passport from its control. As we explain below, we hold that the circuit court erred by ordering MCOCSE to "release the Passport Hold for [Mr. Cohen] immediately" and by retaining control over the passport "until the full balance of arrears is paid or until further Order of Court." 11 The circuit court's retention of Mr. Cohen's passport and control over its future release in violation of the federal and state statutory schemes creates an ongoing controversy. 12 Section 652(k) requires the Secretary of State to deny an obligor's passport if the obligor has been certified as having an arrearage exceeding $2,500, but merely provides the Secretary discretion to revoke an obligor's passport for the same reason, if the passport was previously issued prior to the certification. See 42 U.S.C. § 652 (k)(2) (Emphasis added) (providing that the Secretary " shall ... refuse to issue a passport to such individual, and may revoke, restrict, or limit a passport issued previously"). At this stage, the passport was "previously issued" to Mr. Cohen, and therefore, the Secretary of State will have the discretion to revoke the passport once MCOCSE re-certifies Mr. Cohen to the federal executive branch.

This shift in focus of the presently applicable federal statute does not make the case moot. This case, therefore, presents an "existing controversy" because the circuit court's retention of the passport interferes with the Secretary of State's discretion under 42 U.S.C. § 652 (k). 13 Even if the issue of whether the circuit court should have ordered MCOCSE to reverse its certification of Mr. Cohen to the Department of HHS passport was moot, the issue would fall within the public policy exception described in Suter , 402 Md. at 220 , 935 A.2d 731 . The circuit court's decision infringed on the child support enforcement duties of MCOCSE, and the potential exists for the circuit court to release the passport to Mr. Cohen again. Mr. Sloan's affidavit stated that he frequently pays for international vacations for his family; therefore, if Mr. Cohen files another petition seeking the use of his passport, the circuit court could find that Mr. Cohen has made a recent effort to pay towards his arrearage and decide to release the passport to him for the same reasons that it issued its order in this case.

Accordingly, to remedy the ongoing contravention of the statutory/administrative process caused by the circuit court's retention of the passport, we address the merits of the case. C. The Circuit Court Did Not Have Authority to Order MCOCSE to Release the Hold on Mr. Cohen's Passport. In reaching its conclusion, the circuit court suggested that the primary purpose of the passport denial statute was to prevent delinquent noncustodial parents from spending money on international travel that could go to their unsupported children instead. During MCOCSE's argument, the court responded, "I think the point of the law is you don't want people to use what money they have to go travel or -- of course this is just one thing." The court added, "So [the passport denial statute] is just a way, I guess, of encouraging people not to, you know, take expensive trips when they should be using that money for child support, right?

But I guess what [Mr. Cohen] is saying is it's not his money." The circuit court concluded that the agency's argument was that "Mr. Sloan should ... give [Mr. Cohen] the money that would pay for the trip and say use this towards your child support." Because the most recent child support order reduced the amount that Mr. Cohen was required to pay towards the overdue child support per month, and he had made a lump sum payment of $3,000 since the order, the court reasoned that Mr. Cohen was "belatedly up to date." The court explained, "He's complying with the