MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 21 Docket: Cum

- 16

- 55 Submitted

On	Briefs: November	29,	2016 Decided: January	26,	2017 Panel: SAUFLEY,	C.J. ,	and ALEXANDER , MEAD, JABAR , HJELM, and HUMPHREY, JJ.

JANICE W. DUNWOODY

v. STEVEN M. DUNWOODY

SAUFLEY , C. J. [¶1] Steven M. Dunwoody	appeals	from a judgment	of the	District	Court (Portland, Powers,	 J. )	 adopting	 the	 decision	 of	 the Family	 Law	 Magistrate ( Najarian,	 M. ) over	 Steven’s	 objection. The	 magistrate granted	 Steven’s request	to modify	child	support	but	den ied his	request	 for	a	declaration	 that he	 did	 not	 owe	 any	 past	 due	 support. Steve n	 argues	 on	 appeal	 that	 the magistrate	 should	 have	 determined	 t hat	 he	 had prevailed	 on at	 least	 one equitable	 defense	 to	 any	 attempt	 to	 collect	 child	 support	 arrearages. We affirm	the	judgment.2 I.		BACKGROUND [¶ 2 ] Steven M. Dunwoody and	Janice W. Dunwoody	were	divorced	by	a jud gment	dated	November	13,	2001. Steven,	who	receives	disability	benefits, 1 was	ordered	to	pay	child	support	pursuant	to	three	orders covering	different periods	of	time,	apparently	due	to	anticipated	changes	in	the	parties’	incomes. [¶ 3 ] Steven	 has	 never directly paid	 child	 support,	 b ut	 the	 children received dependent	benefits based	on	Steven’s	disability

. At some times , the dependent	benefits	paid	to	the	children	exceeded	the	amount	of	child	support ordered	 by	 the	 court,	and	at	 other	 times there	was	a	 deficiency

. During	 the period	w hen	Steven’s	support	obligation	exceeded	the	disability	benefits,	the cumulative	 d eficiency was	 $21,978. Both	 parties	 assumed	 that	 because	 the children	were	receiving	dependent	disability	benefits,	Steven did	not	have	to make any	child	support	payments himself

. [¶ 4 ]	 	 Sometime	 before	 February	 19,	 2014,	 Janice	 applied	 for	 child support	 enforcement	 services	 from	 the	 Department	 of	 Health	 and	 Human Services,	 and	 the	 Department	 issued	 a	 notice	 of	 debt. On	 June	 24,	 2014, Steven	 filed	a	motion in	 the	Distric t	Court seeking	a	modification	of	his	child support	obligation	and	a	declaration	that	he	did	not	owe	any	arrearages. S ee

1 In	1999, Steven was	injured in	a	ski ing accident , leaving him	paralyzed	from	the	chest	down.3 M.R.	Civ. P.	120 (a).		He	argued	that	he	was	entitled	to	a	credit	against	any	past due child support	 for the period	 during	 which the	 de pendent	 disability benefits exceeded his monthly child	 support	 obligation

. Steven	 alleged	 that during	this	period,	the	dependent	disability	payments	exceeded	his	obligation by	 a	 total	 of $33,000. In	 the	 alternative, Steven	 argued	 that	 the	 equitable defenses	 of	 laches,	 waiver,	 and	 equitable	 estoppel	 precluded	 Janice	 from collecting any past	due	child	support. [¶ 5 ]	 	 T he magistrate issued	 an	 order on	December	 22,	 2015, granting Steven’s	 motion	 to modify child	 support, but	 denying his	 request	 for	 a declaration	t hat	he	did	not	owe	past	support

. The	magistrate concluded	that (1) the	child	support	statutes	precluded	crediting the	excess	of	the	dependent disability	benefits	over	his	support	obligation	against his past	due support and (2)	 the	undisputed	 facts	did	not	generate	any	equitable	defense s . The	order established that	Steven	owed	$21,978	in	past	due	child	support. [¶ 6 ] Steven	 filed	a	 timely	 objection	 to	 the	magistrate’s	 final	judgment on	 January	 8,	 2016. S ee M.R.	 Civ. P.	 118 (a).	 	 The District	 Court entered	 an order	adopting the	magistrate’s	judgment	on	February	2,	2016. Steven timely appealed

. S ee 14	 M.R.S.	 § 1901	 (2016 ) ; M.R.	 App. P.	 2 (b)(3);	 M.R.
Civ. P. 118(b).4 II.		DISCUSSION [¶ 7 ] “When	the	District	Cou rt	adopts	the	magistrate’s	order,	we	review the	 magistrate’s	 order	 directly.” Dep’t	 of	 Health	 &	 Human Servs .	 v.	 Pelletier , 2009	 ME	 11 ,	 ¶ 14,	 964	 A.2d	 6 3 0. Neither	 party	 disputes	 the	 magistrate’s factual	findings regarding	the	amount	of	the	deficiency

. Steven	contends only that	the	magistrate	erred	in	failing	to	find	that	the	defenses	of	laches,	waiver, and	equitable	estoppel	applied	 to	 Janice’s	attempt	 to	enforce the	established child	support arrearage . A. Establishment	of	Arrearage [¶ 8 ] The child	 support	 statute	 provides	 that	 when	 a	 court	 orders support	 for	 a	 child	 who	 receive s	 dependent	 disability	 payments , (1) the dependent	payments	must	be	credited	against the child	support obligation but (2) any	 excess	 cannot	 be	 credited	 against	 past	 or	 future	 child	 support obligations. 19

- A	M.R.S.	§ 2107	(2016 )

. [¶ 9 ] T he statute codifies a	 policy	 that	 in	 each	 month	 during	 which support	 is	 ordered,	 the	 child	 will	 receive	 the	 greater	 of	 t he	 dependent disabil ity	 payment or	 the	amount of	 support ordered	 by	 the	 court. In	 other words,	w hen	an	“excess”	exists,	the	Legislature	has determined that	the	child ,5 not	 the	 obligor	 parent, will	 receive the	 benefit .	 	 There	 was	 no	 error	 in	 the court’s	determination	that a child	support	arrearage	existed

. B. Equitable	Defenses
1. Laches [¶1 0 ]	 	 After	 the	 parties	 had	 filed	 their	 briefs,	we explicitly announced that	 laches does	 not	 apply to	 the	 collection	 of	 child	 support	 arrearages. Brochu v.	McLeod ,	2016	ME	146 ,	¶ 15, 148 A.3d 1220. The	magistrate	did	not err	in	 concluding	 that	laches	 did	 not	 prevent	 the	 collection	 of	Steven’s	 child support	arrearages.
2. Waiver [¶1 1 ] “Waiver	is	 the	voluntary	and	knowing	relinquishment	of	a	right and	may	be	shown	by	a	course	of	conduct signifying	a	purpose	not	to	stand	on a	right,	and	leading,	by	a	reasonable	inference,	to	the	conclusion	that	the	right in	question	will	not	be	insisted	upon.” McCarthy	v.	Goroshin ,	2016	ME	98 ,	¶ 8, 143	 A.3d	 138 (quotation	marks	 omitted)

. “When	 the	 trial court	 determines that	 there	 is	 no	 waiver, we	 review any	 factual	 findin gs	 for	 clear	 error	 and
review de	novo	whether	the	facts	are	sufficient	to	constitute	waiver.” Id. [¶1 2 ] In	 the	 matter	 before	 us,	 t he	 only	 relevant	 finding	 is	 that	 both parties	assumed	that Steven	did	not	have	to	make	support	payments	directly6 because	 the	 children	 received dependent	 disability	 benefits. The	 parties’ shared	 misunderstanding	 does	 not	 demonstrate	 that Janice	 voluntarily and knowingly	relinquished	 the	right	 to	collect	child	support,	and	 the	magistrate did	not	err	in	concluding	that	there	was	no	waiver.
3. Equitable	Estoppel [¶1 3 ] “Equitable	estoppel	precludes	a	party	from	asserting	rights	which might	perhaps	have	ot her wise	existed [] .	.	.	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.” Pelletier ,	2009	ME	11 ,	¶ 17,	964	A.2d	6 3 0 (q uotation	marks	omitted). “Equitable	estoppel	requires	a	misrepresentation.		A	misrepresentation	need not	 consist	 solely	 of	 an	 affirmative	 statement;	 it	 may	 arise	 through	 a combination	of	misleading	statements,	conduct,	or	silence.” Id. ¶ 18	(citation
omi tted). “We	review a	judgment	on	a	defense	of	equitable	estoppel	for	clear error	as	to	factual	findings	and	for	abuse	of	discretion	as	to	the	application	of principles	of	equity	to	those	facts.” Id. ¶ 15. [¶1 4 ]	 	 The undisputed	 facts	 do	 not	 include	 any	 kind	 of misrepresentation by	Janice

— even	by	silence .		N or	was	there	a ny finding	that Steven	 detrimentally	 relied	 on	 any	 representation	 that	 he	 did	 not	 owe	 child7 support.	 	 Thus,	 the	 magistrate	 did	 not	 abuse	 her	 discretio n	 in	 determining that	Janice	was	not	equitably	estopped	from	collecting	Steven’s	child	support debt.
III.		CONCLUSION [¶1 5 ]		There	was	no	error	in	the magistrate ’s	determination	that	Steven owed	 a	 child	 support	 arrearage	 of	 $21,978,	 nor	 in her determinati on	 that there	 was	 no	 legal	 or	 equitable	 theory	 that	 would be a	 defense	 to	 Janice’s attempt	 to	 collect on that	 debt. Although	 this	 result may	 seem harsh considering Steven’s	disability	and	limited	earning	potential,	we	note	that	the court	can	take	his	circ umstances	into	account if and	when it	is	called up on	to determine	how	to	enforce	Janice’s	collection	of	the	arrearage. The	entry	is: Judgment	affirmed.

Timothy E. Robbins, Esq., South Portland, for appellant Steven M. Dunwoody Susan Schultz McEvoy, Esq., for appellee Janice W. Dunwoody

Portland District Court docket number FM

- 2000

- 75 For Clerk Reference Only