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Dillon v. Miller

Court of Special Appeals of Maryland

September 29, 2017

RICARDO DILLON
v.
LYNITA MILLER, et al.

         Circuit Court for Anne Arundel County Case No. 02-P-13-9197

          Graeff, Friedman, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

          OPINION

          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 Sivani Miller. Dillon and Miller were never married and never resided in the same household. Sivani has lived exclusively with Miller since birth.

         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 Sivani-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 Sivani provided by her employer is $379.90 per month.
(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 Magistrate 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 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)(1)(A) ("[T]he court shall not direct the entry ...


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