Fiore v. Dep't of Health and Human Servs.

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.. . . .. .,: . STATE OF MAINE CUMBERLAND, ss. .. , . .. . , \ .. , . :. . . , < '. , .: ' . , , SLTPERIOR COURT CIVIL ACTION MICHAEL L. FIORE Petitioner ORDER ON 80C APPEAL v. DEPARTMENT OF HEALTH AND HUMAN SERVICES DONALD L. GARBRECHT LAW LIBRARY Respondent Before the court is Petitioner Michael L. Fiore's ("Petitioner") appeal pursuant to M.R. Civ. P. 80C of the Department of Health and Human Services ("Department") Hearing Officer Tamra Longanecker, Esq.'s ("Hearing Officer") decision that the Department did not meet its burden of proof on the amount of child support arrears owed by Petitioner without conclusively deciding the amount of arrears owed, and the Chef Administrative Hearing Officer's decision to dismiss the case as moot once the Department withdrew its notice of debt. BACKGROUND On December 28, 1994 the California Superior Court issued a divorce judgment under which Ms. Fiore was awarded custody of their two minor chldren, Heather Fiore (born November 25, 1988) and Joseph Fiore (born November 5, 1990) and Petitioner was ordered to pay $600 per month child support as well as one-half of all medical and dental expenses for the children not covered by insurance in addition to one-half of all child care and day care expenses. On October 28, 1997 the California Superior Court issued an order determining that Petitioner owed Ms. Fiore unpaid child support arrears through September 30,1997, including interest, in the amount of $28,726.00. In 2000 Petitioner moved to Maine. Ms. Fiore still resides in California. In February 2005, the California Department of Child Support Services ("DCSS") transmitted a request to the Department for registration and enforcement of the California chld support order pursuant to the Uniform Interstate Family Support Act (UIFSA).' This transmittal stated that, as of February 9, 2005 Petitioner owed child support arrears totaling $80,670.84. In a letter dated March 8, 2005, the Department served a notice of debt on Petitioner notifying h m that, as of March 8, 2005, he owed $81,197.72 in child support arrears. This letter also notified Petitioner of his right to dispute the notice of debt. Specifically, it stated that if he wanted an administrative hearing to dispute the arrears amount, he needed to fill out a hearing request form and return it to the Department within 30 days. Part 7.e of the notice of debt stated that if the Department did not receive a hearing request form from Petitioner w i h n 30 days, he would lose h s right to a hearing. Petitioner claims he called the support enforcement officer assigned to h s case shortly after receipt of h s notice of debt to request a hearing. There is no dispute, however, that Petitioner did not fill out and return a hearing request form within 30 days of receipt of the notice of debt. Nevertheless, over the Department's objections, the Office of Administrative Hearings granted Petitioner's request for a hearing on the notice of debt. The hearing commenced on August 17, 2005 and reconvened on September 8, 2005 without Ms. Fiore present. There is no dispute that Ms. Fiore was not notified of the administrative proceedings, received no copy of the notice of debt, the hearing notice, or any other documents related to the administrative proceedings until after the first day of the hearing. At no point - I - - - - - - 19-A M.R.S.A. §§ 3151 - 3254. prior to the Hearing Officer's decision was Ms. Fiore notified that child support arrears was an issue or that she had a right to appear. At the hearing, the Department introduced evidence of the California court's determination of arrears and the method by which DCSS determined the current level of arrears owed by Petitioner. Petitioner presented evidence showing that he had received notices from DCSS stating that as of April 1, 2002 he owed $44,826.54 in arrears, as of September 11, 2002 $63,587.00, as of September 8, 2004 $67,081.00 and as of January 21, 2005 he owed $69,168.80. He claimed that these numbers were inconsistent with each other and with the amount stated in the Department's notice of debt and therefore all these determinations of arrears were unreliable. On October 17, 2005 the Hearing Officer issued a final agency decision finding the Department failed to meet its burden of proof on the accuracy of the arrears total. The decision was without prejudice to the Department's ability to issue subsequent notices of debt and did not determine the correct arrearages. Following the Hearing Officer's decision, Petitioner wrote to the Office of Administrative Hearings on November 3, 2005 requesting reversal of the decision. Specifically, Petitioner asked that the decision be amended to determine the arrears owed by Petitioner and to make clear that h s decision was with prejudice. On November 14, 2004, the Chef Administrative Hearing Officer wrote a letter to both parties, presenting three options. Those options were, affirming the decision, reversing the decision and reopening the record to allow the Department and Ms. Fiore to present additional evidence on the issue of the apparent discrepancies in arrears, or vacating the decision and starting the administrative proceeding process from scratch. After considering the positions of Petitioner and the Department, the Chief Administrative Hearing Officer decided, over the objection of Petitioner, to reopen the record for the purpose of allowing Ms. Fiore to present evidence. Before t h s could be done, however, the Department, at the behest of DCCS, withdrew its notice of debt because a court action to determine the amount of arrears had been filed in California Superior Court. The Chef Administrative Hearing Officer subsequently dismissed the administrative proceedings as moot. Petitioner timely filed an appeal o the f Hearing Officer's decision pursuant to M.R. Civ. P. 80C. DISCUSSION At oral argument, the parties notified that Court that, subsequent to the filing of briefs, a settlement was reached in connection with the pending California Superior Court case in whch the amount of arrears owed by Petitioner was established. The parties agreed to the following stipulation: Parties stipulate that the order of the San Bernardino Superior Court on July 20, 2006 reflects the agreement of the parties and the final order of that court on the amount of child support arrears owed by Michael Fiore to Carol Fiore. That order is subject to subsequent amendment by the California courts. A copy of the San Bernardino Superior Court's order is attached to t h s order. The California court's order renders Petitioner's appeal moot. Therefore the entry is: Plaintiff's 80C appeal is DISMISSED WITH PREJUDICE. Dated: October )2/ ,2006. Justice, Superior court i ATToRNer OR PAHNT ~ O V T A T ~ O R N E(YN m . sf WI kicd&tn.& / TELEPHONE -MAIL NO. f L-626 .rnumncr sno 8 0 6 ' ~ ~ ~ ) 1 m COURT USEONLY h ~ l (7334~ ) a& - YC> Y 9 FAX NO ~ ~ p t m n ~ r ) : ADDRESS (OpCOneU F~LEL, .JCc;,A ;~ii~OF CALIFORNIA, COUNT( OF l a 5 5 CIVIC DRIVE MAILING AODRFSS 14455 CIVIC DRIVE CIWANO ZIP COW. VICTORVILLE. CA 92392 BRANCHN A M ~ VlCfORVlLLE DISTRICT SAN ~ E ; I N A R ~COUNTY ~N~ Superior C O U ~ ~ SAN BERNAROINO STREKT =MESS. PETITIONERIPLAJNTIFF Q- . k& - . jUL 2 0 2006 ".CLO~' R ESPONDENr/DEFENCJANT OTHER PARENT. STIPULATION AND ORDER WAIVING UNASSIGNED ARREARS (Governmental) a'NUMBERs: ~ D 0 ! b 14\ A InsWuctions: T h ~ s form i to be filled out if the party to whom support rs owed wishss to grve up the nght to pastdue suowrt tnar is s owed to him or her. If erther party has any ouestions about the possible consequences of this waiver, he or she should ask an attorney If either party has any queslons about the case o the tnformation on this form, he or she should ask the Family Law Fac~lrtatorr tne r O local child support agency PARTIES 1. The party waving past s u p p ~ d is Wpetitionerlplaintiff [ tespondenVdefendant 1 pgrent other g o t h e r (spec&').' 2. The parry ordered to pay support IS , 1petitionerlplaintiff @ respondentidefendant 0other parent other lspecify): 3. The party ordered to pay support and the party waiving past support are the parties t this agreement. o RIGHT TO AN A I T O R N N 4. The parties understand thew right to be represented by an attorney, at their expense. in connection wftr these proceedings NO TlME LIMIT FOR COLLECTION 5. The parties understand that the amounts owed for Non-Aid arrears (past-due child suppoR ordered to be paid personally to the parry waiving suppofl) m a i n owed until paid There is no time l~rnit the collectron of past-due support. for CONTINUING COLLECTION EFFORTS 6. All methods to collect or enforce the amounts post due may be used until the past due support i paid in full. includ~ng not limited s but to, wage assignments, levy on assets, tax refund interception,&ense suspension, property liens. and contempt. The parties understand tnat a waiver of support will stop ail collection efforts'zf-tha-supportwarved. RIGHT TO DETERMINATION OF DISPUTED PAST SUPPORT 7 If the amount of past-due support is unknown or uncemin, the parties understand that they have the right to have !he local chid support agency review and audrt the amount due. rncluding all amounts ordered, all payments, and all credits. The paft~es also understand that ~f they are not satisfied with the agency's audit, they have the r ~ l lto have a court hesnng to determine the amount due. t ~ o r m D D ~ O ~ ~ U ~ Vusc A frw O P I &awlCOLI~OI Callbrrua 01 FL-626 ~(NWS J W ~ 1, mw] STiPULATlON AND ORDER WAIVING UNASSIGNED ARREARS governmental) . kp SoIu Pwr; 1 of C h t ~ LyW C . 4933, ~ I S k h 1795 RESPONDENTIDEFENDANT: CTHER PARENT: s&& - &, k I CONSEQUENCES OF WAIVING PAST SUPPORT 8. The parlies understand that once the party waiving past support gives up his or her right to past-due support, he or she can never request payment of the amount given up or zsk the local child suppoR agency or court to reinstate the amount given up, UNLESS he or she has ~pecifi~ally retained the right to do so as part of item 16 he parties understand that the party waiving past support cannot give up the right to collect Atd arrears (past-due child support that belongs to the county in exchange for receipt of public assistance benefits), nor can he or she give up the right to future child support The parties understand that t h i s stipulation does not affect th6 current child support order. If there i e current child support s order, that order still remains in full force and effect. 9. 10. The parties have had sufficient time to read and think about this stipulation and to discuss it with any and all advisors, counselon, and/or attorneys of their choosing. 11. The party waiving pasf support h'as not been promised anything by the party ordered to pay support, the local child support agency, the court. oranyone else, to induce him or her to give up amounts owed to him or her, except as speofically set forth in writng in thts stipulation. 12. The party waiving past support has not been threatened In any way (physically,emahonally, or otherw~se) the D a m omcred to by pay support, the local cnlld support agency. the mu% or anyone else. w force hrm or her to give up support amounts. 73. The party waiving past support has thought about and decided that it i in his or her best interest and tne best ntersr of hrs or her s children to give up this support arrearage. AMOUNT OF PASTDUE SUPPORT a a. UON-AID ARREARS (these are the amounts owed personaIIy to the party waivrng past suppod befbre this watver becomes effecbve): 32.e (1) Princioal Child Support: $ intere,st * iQ,P b5 ' ( Spousal/Family Support: $ (3) @ Other (speab): $ ~ 3 j ~ ,s 7 ' ~ 01Attachment 14a. b 7131 1 G through q,.w,~ r &.c;2?,3tss TOTAL thmugh (~O,Z\~S E (2) (4) Time Period through 3 I 3 l J~ i . 0 AID ARREARS (these are the amounts assignsd and owed to e public agency and cannot be waped by the petfies): D!& Principal 0Child support: (2) 0 Spousal/Family Support: ( I j Interest $ $ through S f through Time Period through (4) TOTAL: $ $. See Attachment 14b. c. a The parhes agree that the amounts in items 14a and 14b wil[ be considered a final determinabon by the court o the amount f of past-duo support. WARNING: tf the box at item I 4 c is checked you may be prohibited from any future challenge regarding the amount af past-due support indicated at items 146 and 14b. d. 0 The parlies agree that t i e amounts stated above represent tne amount of pest-due suppori indicmd by the local child supper; agency records- However, in agreeing lo this waiver oi non-aid arrears. the oarties have not reached an agrenment reyarding the accuracy of the amount of pzst-due supporl as stated RGZB (hew January 1. ~004) STIPULATION AND ORDER WAIVING UNASSIGNED ARREARS (Governmental) Page 2 of c C & L I PETlTlONERlPLAlNTlCF RESFONDENTIDEFENDANT. OTHER PARENT &.-&& ', M&% CAS* ?+UMBER P'Q;'~ I WAIVER OF PAST-DUE SUPPORT 15. In consideration of the payment by the parry ordered to pay suppoti of the sums set iorth below, and the perionnance of any ofher conditior: stated below. the parties agree as follows (check and complete either a of b. but not both, and add other app/icable provrsrons), a. 0Upon payment by pany ordered to pay support of the sum of $ to m e loca! child suo~ort agency on or befow , the Non-Aid arr5ars set forth in paragraph 14a above shall oe doomed pa~d full. in (dare): b. Lx , tne (date): (3) Child Support: 1 SpousaVFamily Support: 0 e r (specify): I TOTAL; (4) Interest Time Period f $ as of (date): $ 5 as of (date): S $ as of (date): $ a (I) parent ordered to pay support shall owe the following slims for non-aid support. $ Principal D! ? l! (2) to the losal chrld support agency on or before Upon payment by party ordered to pay support of the sum of $ . other (spew@). c. See Attachment 15 for additional provisions. CONDITIONS OF WAIVER 16. This waiver of pastdue suppart ISconditioned on the party ordered to pay support agreements s e t forth in this document. If the omsed to pay suppo* fails to perform any condition. men this waiver is NULL and VOID and of no force or effect uhaisoever. However, if box 14c is checked, the setting of support arrears in items 14a and 14b will continue to be valid as the court's . determinationofthe amount of support arrearage. Specific conditions of this waiver are as follows: a. b. Additlonai mndiions of this waiver (optional) (i.e., /um~-sum payment, timely payment of current support etc.): 1 Attachment 16 for addihonal conditions of waiver. See Each party must initial or sign all additional pages. 17. This stipulation and order does not modify or affect the duty of the party ordered to pay current support that accrues, or any support arrears that may accumulate, aher the date set f o N rn item 14. 18. Each party understands that the local child support agency does not represent him or her In this matter. Neither party has been given legal advice from local child support agency,or any of its aiiomeys, or the family lawrfacilitator. In regard lo this siipulation 19. Thb form contains the entire understanding and agreement of the partjes. and there have been no verbal or other written pmmlses or conditions by anyone, except as stated in thts form. Dan (NPEOR -KT ~ ~ - 8 IN-5 Jeniary I 1001) 2 ISICNATVREOF P M T Y WANING PkSl SUPPORT] NAME) STIPULATION AND ORDER WAlVlNG UNASSIGNED ARREARS (Governmental) Page 3 of c I am the ahomey of record for tne Darty identified i this waiver. I hare gone over tnis form and any axachments witn nty clieni. I have n explained each p r ~ v i s l o n t h l s f o r m to m y client and answered the cltnnt's questiorls with regard to thls fonn. I have d ~ s c u s s e d facts of of the the case with my client and possible alterfiatives to and conditions ior waiver. I have explain8d the consequences of the waiver and benefits and detrirnsnk of any agreement. f-7 W P E OR PRlNT N ~ H E ) ~ Date, (SIGMTURE OF A f l O ; W C Y FOR P&TV O R D E M O T O PAY SUPPORT) 3.-2,7& C U 5 0.OR PRINT NAME ) , . (SIGNATURE OR F O - PARTY WAWING PilST SUPPORT) LOCAL CHILD SUPPORT AGENCY INTERPRETER'S STATEMENT (if applicable) ~ The partynamed below is unable to read or understand his St~putation and Order Waiving Unassigned Arrears be- a u s e 0Party waiving past supp 0Party ordered to pay su 1 (spscW): Other 1 My, read o r transated f ~ the r rtyiparties stated he o r she Date. V P E OR PRINT NAME OF INTERPREER) (SKNATUXE OF INTERPR-TR FOR ktm?nJne) Date. (SIGNATIJRE INEUPRETER FOR (msed rwmc) OF COURT'S FINDINGS AND ORDER me court, having reviewed and considered this Stipulatron. and any attachments, finds that the party owed support expressly, knowcngly, voluntarily and ~nrelligently has waivea past-due support as mors specifically set forth in this document The court accepts thls Shpulation, a p p r o v e s it, and orders that all further enforcement IStermmated as to the waived suppod IT IS SO ORDERED. Date: (JUDlClhL OFFICER OF TI(= SUPERIOR COURT) FLGZF. [NW hnunrt I. ZOMI STlPULATlON AND ORDER WAIVING UNASSIGNED ARREARS (Governmantal) page A of A { . FOR COURT USE ONLY OF ,ALIFORNIA, COUNTY OF SAN BERNARDlhr STIPULATION AND ORDER ON ORDER TO SHOW CAUSE [MUST BE PRINTED WITH BLACK BALLPOINT PEN OR n P E D - PRESS HARD, YOU'RE MAKING FOUR COPIES) SUPERIOR COURT Case NO. m.36 / -f? Case N a s tor% st& 6 I11olpresent) represented - -d6 ~ 7 D~~~ by Arry . - %, * % [ n o preuntl repressntod by A n y ~ C THE PARTIES HEREBY STIPULATE AND AGREE as follows - last h * a add/4-s-S sw @*& k ~ ~ ~ P N ch+.s / I A / + B 6b,ouo. 9%~ & s6 7 - 3 kd&dd Q * &+ rO&. / & &&?a& &*& ~ ~ / z cxQb5es z : ujri;,/3u U* ,O Y & CZ/flews . i i & & d . &* A & AMP n&h w/ m b+ f A- 7 4 % I 2 8% ~ 73.5- 0 & 3 - W L t& - ~7tk7,co*-rrcod~ -44. /? da+, ~F %ti- 4 .iaL/ 00 Y& ~ gkc l A ( d cL & &-.1-a--66. Arrorney for .km%& Anornsy /or SPne SIGNATURE O PARTIES F We have read the entire sttpulatlon and agreement. We understand ~tfully and request the Court t o make our stipularron end agreement the Court's order. We understand that willful failure tocomply with the provistons of this order will be a comempt of Court and may be punished by fine and imprisonment. We waive all further notice of this order. Husband ..-. IT I SO ORDERED THIS S Wife ( r ]- Judge AClS Code ABF 13-15508-360 DISTRIBUTION Wh,m file . .20 day of Green - Sptm - Cdn.?~ Perlrioner Pink Page / of Z -- - RcspofJcienr Lotdenrod - FC#P,~D. Accm'y. , OF SAN BERNARbir STIPULATION AND ORDER ON ORDER TO SHOW CAUSE (MUST BE PRINTED WITH BLACK BALLPOINT PEN OR TYPED - PRESS W O . YOU'RE MAKING F U COPIES) OR SUPERIOR COURT 0, case No. W Case Name ~liinl UIFORNIA. COUNTY couaT USEONL Y I %ofe d - s.T~fl&, aq. Petrtioner (Husband) Wtfel, (present) (not prescnt) reprccsntsd by A n y %Q5/0/ Respondent (Husband) (Wife), (present) (not present) represented by A n y THE I FOR PARTIES HEREBY STIPULATE AND AGREEas tallows @ TL ei-t8e-+ /&,%&, ihdll bL c4.w 'PQi -. - . /e--~- ~ m Xi~ l arrpad o&, Q$L b c &H 3 2 , ~ ; ~ u L 730.b3 !h m &&-l*LI @ % w u & 5 & 5-q-7- iw- &S-,-f&. 0 /' SIGNATURE OF PARTIES f / We have read the entire stipuletion and agreement.We.understand it fuHy and request the Court to make our stipulation a d agreement the Court's order. We understand that willfd failure to comply with the provisions of this order wiU be a conternat ofCourt and may be punished by fine and imprisonment. We waive all further notice of this order. . q . IT IS SO ORDERED THIS J * w , .20 06 . Page -2of2 JJLY A BOURGET CLEPX rX3ERLAND COUNTY SUPEIiIOR C O W I Box 287 IRTLAND K 0 4 1 1 2 E Class Mail DAVID TURESKY (YSq 477 CONGRESS ST SUITE 4 0 0 P O R T M D $E 0 4 1 0 1 I ' &J

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