MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 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	denied his	request	 for	a	declaration	 that	

he	 did	 not	 owe	 any	 past	 due	 support.	 Steven	 argues	 on	 appeal	 that	 the	

magistrate	 should	 have	 determined	 that	 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	

judgment	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,	 but	 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	when	Steven’s	support	obligation	exceeded	the	disability	benefits,	the	

cumulative	 deficiency 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	District	Court	seeking	a	modification	of	his	child	

support	obligation	and	a	declaration	that	he	did	not	owe	any	arrearages.	 See

 1		In	1999, Steven	was	injured in	a	skiing 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	 dependent	 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]	 	 The	magistrate	issued	 an	 order	on	December	 22,	 2015,	 granting	

Steven’s	 motion	 to	 modify child	 support, but	 denying	 his	 request	 for	 a	

declaration	that	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	defenses.	 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.	 See M.R.	 Civ. P.	 118(a).	 	 The	 District	 Court entered	 an	

order	adopting the	magistrate’s	judgment	on	February	2,	2016.	 Steven	timely	

appealed.	 See 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	Court	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	 630. 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	 receives	 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]	 	 The	 statute	 codifies a	 policy	 that	 in	 each	 month	 during	 which	

support	 is	 ordered,	 the	 child	 will	 receive	 the	 greater	 of	 the	 dependent	

disability	 payment or	 the	amount	of	 support	ordered	 by	 the	 court.	 	In	 other	

words,	when	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

[¶10]	 	 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

[¶11]		“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	 findings	 for	 clear	 error	 and	

review de	novo	whether	the	facts	are	sufficient	to	constitute	waiver.”		Id.

[¶12]	 	 In	 the	 matter	 before	 us,	 the	 only	 relevant	 finding	 is	 that	 both	

parties	assumed	that	Steven	did	not	have	to	make	support	payments	directly	
6

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

[¶13]		“Equitable	estoppel	precludes	a	party	from	asserting	rights	which	

might	perhaps	have	otherwise	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	630	(quotation	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	

omitted).	 “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.

[¶14]	 	 The undisputed	 facts	 do	 not	 include	 any	 kind	 of	

misrepresentation by	Janice—even	by	silence.		Nor	was	there	any finding	that	

Steven	 detrimentally	 relied	 on	 any	 representation	 that	 he	 did	 not	 owe	 child	
7

support.	 	 Thus,	 the	 magistrate	 did	 not	 abuse	 her	 discretion	 in	 determining	

that	Janice	was	not	equitably	estopped	from	collecting	Steven’s	child	support	

debt.

III.		CONCLUSION

[¶15]		There	was	no	error	in	the	magistrate’s	determination	that	Steven	

owed	 a	 child	 support	 arrearage	 of	 $21,978,	 nor	 in	 her determination	 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	circumstances	into	account	if	and	when	it	is	called	upon	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