Nusbaum v. Nusbaum

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