MONTGOMERY COUNTY OFFICE OF CHILD SUPPORT ENFORCEMENT ex rel. JESSICA COHEN
Circuit Court for Montgomery County Case No. 117543FL
Berger, Reed, Zarnoch, Robert A. (Senior Judge, Specially
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
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.
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
& PROCEDURAL HISTORY
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
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.
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,
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. 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 . . . .
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."
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 -- $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. 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.
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.
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.
Standard of Review
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 (2006) (citing Moore v. State, 388 Md.
446, 452 (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 (2011)
(quoting Powell v. Breslin, 195 Md.App. 340 (2010),
cert. granted, 418 Md. 190 (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 (2014)
(citing Nesbit v. Gov't Emps. Ins. Co., 382 Md.
65, 72 (2004)).
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
The Circuit Court Erred By Ordering MCOCSE to
"Release the Hold" on Mr. Cohen's
circuit court gave the following ruling at the hearing on the
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
* * *
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.
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.
Child Support Enforcement Regulatory Law & the
Framework of Maryland's Passport Denial and Revocation
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).
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), ...