Opinion
File No.: CN93-07479 Petition No.: 18-25999
03-20-2019
C. P. Petitioner, v. Division of Child Support Services ("DCSS"), and V. M. Respondents.
C. P. , pro se, Petitioner V. M. , Respondent DCSS, Respondent Represented by Constance A. Dorsney. Esq.
DCSS No.: 275389
REVIEW OF COMMISSIONER'S ORDER
Date of DCSS Hearing: July 11, 2018 Date Appeal of DCSS Decision Filed: August 27, 2018 Date of Commissioner Order: December 26, 2018 Date Review of Commissioner Order Filed: January 3, 2019 Submitted to Judge: January 18, 2019 C. P. , pro se, Petitioner
V. M. , Respondent
DCSS, Respondent
Represented by Constance A. Dorsney. Esq. Haskins, J.
Pending before the Court is a Request for Review of a Commissioner's Order (the "Request") filed by C. P. ("Ms. P. "). Ms. P. contests an Order, affirming DCSS's decision to intercept her tax return due to child support arrears, entered by a Commissioner on December 26, 2018. Ms. P. was originally denied her tax return for tax year 2017 at a DCSS hearing on July 11, 2018 (the "July DCSS Hearing").
In her Request, Ms. P. asserts that DCSS did not have the authority to intercept her tax return, because a 2010 Court Order stated that she only needed to pay $10.00 every month towards her child support arrears. DCSS asserts that the Request should be dismissed for lack of proper service. Additionally, DCSS asserts that it had the authority to intercept Ms. P. 's tax return pursuant to 13 Del. C. § 2207 and that a Court Order establishing payment on arrears does not preclude a tax intercept.
PROCEDURAL BACKGROUND
The underlying child support case originated in the State of Ohio on July 14, 1999. Ms. P. 's child was in the guardianship of Ms. M. in the State of Delaware. On November 18, 1999, Ms. P. entered into a stipulation with the Cuyahoga Support Enforcement Agency (CSEA). The stipulation stated that Ms. P. owed the State of Delaware $19,698.00 in child support arrears as of November 31, 1999, and that payment would be suspended until further order of CSEA. There is no supporting documentation as to how CSEA reached the figure of $19,698.00.
The Court notes that November 31, 1999, is not a recognized date in any calendar as the month of November only has thirty days. However, November 31, 1999, is the date indicated on the original stipulation from 1999 and the Ohio Order from May 22, 2003.
On May 22, 2003, the hearing officer found that Ms. P. owed two different balances to two different states. The hearing officer found that Ms. P. owed $674.46 to the State of Ohio and owed the State of Delaware $19,698.00. On August 8, 2009, Ms. P. filed a Petition to register her out of state support Order. This Court granted the Petition. Based on the evidence presented at the time, this Court found that the certified arrears from the State of Ohio were $26.93. DCSS then moved to reopen the case concerning the determination of the certified arrears balance established in 2009 and to have the State of Delaware arrears set at the correct amount of $17,594.00. On October 10, 2010, this Court set the arrears balance at $17,493.24.
It is later clarified in a 2010 Order that CSEA states that $26.93 was the balance owed to the State of Ohio and that $17,594.00 was the amount owed to the State of Delaware.
The pending appellate history begins on March 2, 2018, when DCSS sent Ms. P. notice of a Federal Tax Offset and State Tax Offset. Based on the notice of a Federal and State Tax Offset, Ms. P. timely requested a hearing before DCSS. On July 11, 2018, DCSS held an administrative hearing regarding their ability to intercept Ms. P. 's 2017 tax return. At the July DCSS Hearing, DCSS found that Ms. P. was making timely payments towards her arrears. DCSS further found that the amount of the arrears makes the case eligible for tax return interception, and that as of March 2, 2018, Ms. P. owed $16,439.00 in child support arrears. Ultimately, DCSS determined that the agency could properly intercept Ms. P. 's tax return.
Ms. P. appealed DCSS's decision on August 27, 2018. A Commissioner issued an Order on Ms. P. 's appeal on December 26, 2018, ruling that DCSS had the authority to intercept Ms. P. 's tax return and that the arrears balance is assumed correct. Ms. P. then filed for a Review of a Commissioner's Order ("ROCO") on January 3, 2019. In the ROCO, Ms. P. only objects to the fact that DCSS and the Commissioner concluded that DCSS has the authority to intercept her tax return even though a Court Order for monthly payments was in place.
STANDARD OF REVIEW
A party may seek a review of a Commissioner's Order pursuant to 10 Del. C. § 915(d)(1), which provides:
Any party, except a party in default of appearance before a Commissioner, may appeal a final order of a Commissioner to a judge of the Court by filing and serving written objections to such order, as provided by the rules of Court, within 30 days from the date of the Commissioner's order. A judge of the Court shall make a de novo determination of those portions of the Commissioner's order to which objection is made. A judge of the Court may accept, reject, or modify in whole or in part the Order of the Commissioner. The judge may also receive further evidence or recommit the matter to the Commissioner with instruction.
Because this was a Commissioner's Final Order, the Court reviews the Order de novo. According to Black's Law Dictionary a de novo review is "[a]n appeal in which the appellate court uses the trial court's record but reviews the evidence and law without deference to the trial court's rulings." Pursuant to Family Court Civil Rule 53.1(b), an appeal of a Commissioner's Order must "set forth with particularity the basis for each objection." Upon taking the matter under review, a judge of the Court will make a de novo determination regarding the objected to portions of the Commissioner's Order. A Judge will make an independent decision by reviewing the Commissioner's findings of fact determined at the Commissioner's hearing, any testimony and documentary evidence on the record, and the specific objections of the moving party.
Id.
Black's Law Dictionary (10th ed. 2014).
FAM. CT. CIV. P. R. 53.1(b).
10 Del. C. § 915(d)(1); see also FAM. CT. CIV. P. R. 53.1(e).
C.M. v. L.A., 2007 WL 4793042, at *1 (Del. Fam. Ct. Dec. 27, 2007).
DISCUSSION
The Court reviewed the electronic transcript from the July DCSS Hearing, the written decision from the July DCSS Hearing, Ms. P. 's appeal of the DCSS decision, the Commissioner's Order affirming the DCSS decision, Ms. P. 's ROCO, and the case file. Based on this review, the Court finds that the Order issued by the Commissioner on December 26, 2018, shall be AFFIRMED, and Ms. P. 's ROCO shall be DENIED. Below, the Court addresses each of DCSS's procedural objections and Ms. P. 's objections to the Commissioner's Order issued on December 26, 2018.
1. DCSS argued that the ROCO should be dismissed on procedural grounds as Ms. P. failed to send DCSS proper notice of the proceeding.
In DCSS's Response to Ms. P. 's ROCO, DCSS states that Ms. P. failed to send DCSS notice of the proceeding. In a Motion For Extension of Time, DCSS stated that on January 14, 2019, DCSS became aware that the ROCO was pending and thus received notice. DCSS asserts that it did not receive a copy of the ROCO from Ms. P. nor did counsel. Family Court Civil Procedure Rule 53.1(b) states:
An appeal of a commissioner's order shall be accomplished by filing with the Court within 30 days from the date of the commissioner's order written objections to the commissioner's order which set forth with particularity the basis for each objection. A copy of the written objections shall be served on the other party, or the other party's attorney, if the other party is represented.DCSS correctly articulated the rule in their response, however, DCSS is not prejudiced by going forward. DCSS was able to respond in a timely fashion and submit a response before chambers received the file for review. As Ms. P. is pro se it is understandable that she may send documents to the incorrect party as DCSS is standing in place of Ms. M. . Ms. P. did send Ms. M. a copy of the ROCO. Additionally, DCSS stated that they received notice of the pending litigation prior to chambers reviewing the file.
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The Court concludes that DCSS will not be prejudiced if the Court reviews the ROCO on its merits.
2. DCSS is authorized to intercept federal and state tax returns if the arrears balance is over $500.00 and $150.00 respectively.
Ms. P. claims that DCSS does not have the authority to intercept her tax returns and that DCSS is precluded from intercepting her tax returns because of the 2010 Court Order. The 2010 Court Order instructed Ms. P. to pay $10.00 towards her arrears balance until the arrears balance was paid in full. While the 2010 Court Order binds Ms. P. to make $10.00 payments every month until the balance is paid, the 2010 Order does not preclude DCSS from other enforcement methods available to it.
Title 13 Del C. § 2205 specifically states: "...[that] the Division of Child Support Services is authorized to take the following actions for the purpose of ... enforcing a support order, without the necessity of obtaining a Court order." Enforcement methods can include interception of state and federal tax return programs. Collectively 13 Del. C. §§ 2205 and 2207 state that DCSS has the authority to create a tax intercept program and use the program to collect child support arrears and enforce a support order.
The state of Delaware created an intercept program for state tax returns. Title 30 Del C. § 545 states in part: "Upon receiving notice from [DCSS] that a taxpayer owes a debt to such agency, the Director shall: Reduce the amount of any overpayment of tax payable to the taxpayer..." Additionally, DCSS has created a policy to only intercept state tax returns if the child arrears balance is over $150.00. DCSS is not bound by any statutory provision to create a threshold balance. DCSS made an administrative decision in order have a consistent policy throughout the agency. The federal government created a tax intercept program for federal tax returns under 26 U.S.C.A. § 6402(c) (2018). Under federal law a tax return can only be intercepted if $500.00 or more is owed to the state, in this case DCSS.
42 U.S.C. A. § 664(b)(2)(A) (2014).
As of March 2, 2018, when notice of the tax interception was given the total arrears balance from DCSS was $16,439.00. As Ms. P. did not raise an objection to the amount in arrears at any point during the appeal proceeding, this Court has no reason to question the arrears balance as reported by DCSS. Additionally, without evidence to the contrary, this Court assumes DCSS's accounting is correct.
13 Del C. § 513(c)(4)
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As DCSS's accounting places Ms. P. 's arrears well over the threshold levels of $500.00 for federal tax intercept and $150.00 for state tax intercept, DCSS has the authority to intercept Ms. P. 's federal and state tax returns. DCSS can exercise such authority to enforce child support arrears without a Court Order, and one mechanism for collection created by the state and federal government was tax return interception. While the 2010 Order is still in effect, that order does not preclude DCSS from intercepting Ms. P. 's state and federal tax returns in addition to DCSS receiving $10.00 a month until the arrears balance is paid in full.
See 13 Del C.§ 2205, 13 Del C.§ 2207, 30 Del C.§ 545, 26 U.S.C.A. § 6402(c) (2018), 42 U.S.C.A. § 664(b)(2)(A) (2014). --------
CONCLUSION
For the foregoing reasons, the Court finds that the Order issued by the Commissioner on December 26, 2018, shall be AFFIRMED, and Ms. P. 's ROCO shall be DENIED. IT IS SO ORDERED this 20th day of March, 2019.
/s/ _________
NATALIE J. HASKINS, Judge Cc: Parties/Counsel NJH/jw Date mailed: