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

                                        IN THE COURT OF SPECIAL APPEALS

                                                   OF MARYLAND


                                                        No. 901

                                                September Term, 2016

                                            _________________________

                                                 RICARDO DILLON

                                                           v.

                                               LYNITA MILLER, et al.

                                            _________________________

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

                                                       JJ.
                                            _________________________

                                               Opinion by Friedman, J.
                                            _________________________


                                           Filed: September 29, 2017
       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


                                             2
                     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




       1
        Miller testified to the contrary—that Dillon regularly performed construction work
and actually had a green card.
       2
         This immigration form was not helpful. Specifically, the form was a courtesy copy
of United States Citizenship and Immigration Services (“USCIS”) Form I-797 Notice of
Action that was received by USCIS on April 11, 2014. Dillon’s wife was named as the
Petitioner and Dillon was listed as the beneficiary. The copy introduced at the hearing,
however, stated, “[t]his courtesy copy may not be used in lieu of official notification to
demonstrate the filing or processing actions taken on this case.” Thus, Dillon’s immigration
status and the possible repercussions of his return to Jamaica to work remain unclear.
       3
         Testimony at the second hearing established that Dillon also has another child, for
whose benefit he voluntarily pays about $200 per month towards buying groceries. In sum,
in addition to Sivani who Dillon has with Miller, Dillon also has a child with his current
wife, and two other children from two other women.


                                             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


       4
           That Rule states in pertinent part:

                If a magistrate finds that extraordinary circumstances exist and
                recommends that an order be entered immediately, the court
                shall review the file and any exhibits and the magistrate’s
                findings and recommendations and shall afford the parties an
                opportunity for oral argument. The court may accept, reject, or
                modify the magistrate’s recommendations and issue an
                immediate order. An order entered under this subsection
                remains subject to a later determination by the court on
                exceptions.

Md. Rule 9-208(h)(2).
       5
        The circuit court concluded that, consistent with the Child Support Guidelines
Worksheet, Dillon owed a base amount of $423 per month in child support payments.
Because Dillon’s child support obligation was backdated to October 1, 2015, he was also
found to owe $3,807 in arrears. As a result, the circuit court concluded that Dillon should

                                                 4
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.




pay an extra $105 per month, for a total payment of $528 per month, until the arrears are
satisfied.


                                              5
       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 of an order or judgment

based upon the magistrate’s recommendations until the expiration of the time for filing

exceptions, and, if exceptions are timely filed, until the court rules on the exceptions.”).

       When, however, the Magistrate finds that extraordinary circumstances exist to

justify the entry of an immediate order, as the Magistrate did in this case, the circuit court

may enter an order before the time for filing exceptions has passed. See Md. Rule

9-208(h)(2) (“If a magistrate finds that extraordinary circumstances exist and recommends

that an order be entered immediately, the court shall review the file and any exhibits and

the magistrate’s findings and recommendations and shall afford the parties an opportunity

for oral argument. The court may accept, reject, or modify the magistrate’s

recommendations and issue an immediate order.”). When this happens, a litigant can then



                                              6
file exceptions, which the circuit court would have to consider, after the entry of the order

from the circuit court. See id. (“An order entered under this subsection remains subject to

a later determination by the court on exceptions.”). Although filing exceptions after the

entry of the order by the circuit court is procedurally anomalous, this is precisely what a

litigant who is dissatisfied with the Magistrate’s recommendations should do under the

Rules when the circuit court enters an immediate order.

       The consequences of the failure to file exceptions are different depending on the

nature of the appeal. Rule 9-208(f) specifies that “[a]ny matter not specifically set forth in

the exceptions is waived unless the court finds that justice requires otherwise.” Rule 9-

208(f). This Court has previously held that “if [an] appellant’s sole basis for appeal was

that the [Magistrate’s] factual findings, such as they are, were clearly erroneous, her failure

to file exceptions [is] fatal to such an argument.” Miller v. Bosley, 113 Md. App. 381, 393

(1997) (“In short, in all cases lacking timely exceptions, any claim that the [Magistrate’s]

findings of fact were clearly erroneous is waived.”). If, however, the basis of appeal is that

the circuit court erred in its disposition of the case based upon the facts found by the

Magistrate, this Court, while still bound by the findings of fact, may review the circuit

court’s application of those facts in reaching its decision. Id. (allowing the appeal to

proceed where it assigned “error to the trial judge in the exercise of his independent

judgment as to the propriety of his disposition of the case” from the facts contained in the

Magistrate’s Recommendations).



                                              7
       Here, Dillon argues that the circuit court erred when it accepted facts found by the

Magistrate regarding the amount he should pay for child support and regarding the amount

that Miller paid for medical insurance. These are factual challenges. The circuit court

entered its order—based on the facts found by the Magistrate and based on the Magistrate’s

finding of extraordinary circumstances to justify an immediate order—before the time for

filing exceptions had passed. Dillon failed to file exceptions to the Magistrate’s second

Report and Recommendations as required under the Rules. As a result, he cannot challenge

these facts.6 Thus, we affirm the circuit court’s decisions regarding child support and

medical insurance.

II.    Voluntary impoverishment and imputed income

       Next, Dillon argues that the trial court erred when it concluded, based on the facts

found by the Magistrate, that he was voluntarily impoverished and imputed income to him

at a level consistent with his earning the federal minimum wage. Specifically, Dillon

contends that, while he occasionally works in construction, his immigration status—his

lack of a green card or work authorization—prevents him from finding consistent work.

He testified, somewhat unclearly, that he could not return to Jamaica to work because it

may affect his immigration status and visa application. Therefore, Dillon argues that he is


       6
         Because Dillon failed to file exceptions to the Magistrate’s Report and
Recommendations, he can only challenge the circuit court’s conclusions of law based on
the facts found by the Magistrate (i.e., the circuit court’s conclusions on voluntary
impoverishment and imputed income based on the facts found by the Magistrate). See infra
Part II.

                                            8
not voluntarily impoverished, rather that he is merely underemployed and should not have

had income imputed to him. We disagree.

       “Title 12 of the Family Law [(“FL”)] Article of the Maryland Code sets forth a

comprehensive scheme with regard to parental child support” that considers the income of

each parent. Durkee v. Durkee, 144 Md. App. 161, 182 (2002) (citations omitted).

Maryland law defines “income” as:

              (1)      actual income of a parent, if the parent is employed to
                       full capacity; or

              (2)      potential income of a parent, if the parent is voluntarily
                       impoverished.

FL § 12-201(h). We consider a parent to be voluntarily impoverished “whenever the parent

has made the free and conscious choice, not compelled by factors beyond his or her control,

to render himself or herself without adequate resources.” Durkee, 144 Md. App. at 182

(citations omitted).

       We examine the following factors for voluntary impoverishment “[t]o determine

whether a parent has freely been made poor or deprived of resources.” Goldberger v.

Goldberger, 96 Md. App. 313, 327 (1993). The factors include:

              (1)      his or her current physical condition;

              (2)      his or her respective level of education;

              (3)      the timing of any change in employment or other
                       financial circumstances relative to the divorce
                       proceedings;




                                               9
              (4)    the relationship between the parties prior to the
                     initiation of divorce proceedings;

              (5)    his or her efforts to find and retain employment;

              (6)    his or her efforts to secure retraining if that is needed;

              (7)    whether he or she has ever withheld support;

              (8)    his or her past work history;

              (9)    the area in which the parties live and the status of the
                     job market there; and

              (10)   any other considerations presented by either party.

Lorincz v. Lorincz, 183 Md. App. 312, 331 (2008) (citations omitted). A circuit court’s

finding of voluntary impoverishment will be affirmed if, after viewing the record in the

light most favorable to the prevailing party, it is supported by any competent, material

evidence in the record. Sieglein v. Schmidt, 224 Md. App. 222, 252 (2015) (citation

omitted).

       After the circuit court makes a finding that a parent is voluntarily impoverished, the

circuit court must determine the amount of potential income that it will impute to the parent.

Shenk v. Shenk, 159 Md. App. 548, 551-52 (2004). Potential income is used to calculate

how much child support a voluntarily impoverished parent must pay. Id.; see also FL § 12-

204(b)(1) (“Except as provided … if a parent is voluntarily impoverished, child support

may be calculated based on a determination of potential income.”). Potential income is

defined as “income attributed to a parent determined by the parent’s employment potential

and probable earnings level based on, but not limited to, recent work history, occupational



                                             10
qualifications, prevailing job opportunities, and earnings levels in the community.”

FL § 12–201(l). Factors the court should consider to calculate a parent’s potential income

include:

              (1)     age;

              (2)    mental and physical condition;

              (3)    assets;

              (4)    educational background, special training[,] or skills;

              (5)    prior earnings;

              (6)    efforts to find and retain employment;

              (7)    the status of the job market in the area where the parent
                     lives;

              (8)    actual income from any source; and

              (9)    any other factor bearing on the parent’s ability to obtain
                     funds for child support.

Petitto v. Petitto, 147 Md. App. 280, 317-18 (2002) (citations omitted). If the potential

income amount calculated by the circuit court is “realistic, and the figure is not so

unreasonably high or low as to amount to [an] abuse of discretion, [then] the court’s ruling

may not be disturbed.” Id. at 318 (citation omitted).

       Dillon has not convinced us that the circuit court erred in finding competent,

material evidence on the record to support its determination that Dillon was voluntarily

impoverished, or that it abused its discretion in the level of income that it imputed to him.



                                             11
In arguing that the circuit court ruled incorrectly, Dillon contests only its characterization

of his employment prospects—the driving force behind the factors for both voluntary

impoverishment and imputed income. Specifically, Dillon argues that he is in a bind—he

cannot find consistent work in the United States because of his immigration status, and he

cannot return to Jamaica to work because it could undermine his immigration status and

current visa application.

       We hold, however, that based on the facts found by the Magistrate, the circuit court

did not err in its characterization of Dillon’s employment prospects—and, therefore, in its

treatment of the factors for voluntary impoverishment and imputed income. Dillon testified

that he completed high school in Jamaica, that he worked in construction in Jamaica, and

that he had no mental or physical limitations that prevented him from working. He testified

that he “[tries] to get work when [he] can.” He also testified that he receives money from

his wife and other family members to support his three other children. Thus, utilizing the

facts found by the Magistrate, the circuit court’s conclusions are reinforced by the options

available to Dillon to secure the funds to support Sivani. For example, Dillon can support

Sivani with:

               (1)   Gifts: Dillon’s wife and family members provide
                     money to support him and his three other children in the
                     United States. Potentially they can provide money to
                     Dillon to support Sivani as well.

               (2)   Salary and wages from work in the United States:
                     Dillon earns salary and wages from his work in United
                     States. The salary and wages that he receives can be


                                             12
                     used to support Sivani. To be clear, we are not telling
                     Dillon that he must work illegally to pay child support.
                     Rather, Dillon admitted that he works when he can,
                     even though he claims that he does not have a green card
                     or work authorization. We can, and must, count the
                     salary and wages that he earns from those jobs towards
                     his child support obligations. See Gallagher v.
                     Gallagher, 118 Md. App. 567, 581-82 (1997) (stating
                     that determining alimony based on illegal income does
                     not encourage or require a person to break the law, but
                     merely recognizes an existing reality).

              (3)    Salary and wages from work in Jamaica: Dillon
                     could also return to Jamaica to work full-time. The
                     salary and wages that he earns from full-time work in
                     Jamaica could be used to support Sivani. Although
                     Dillon claims that returning to Jamaica to work will
                     detrimentally affect his immigration status, he has not
                     provided any competent evidence to support this claim.7

       Because of the available methods by which Dillon can obtain money to pay child

support, we see no error in the circuit court’s determination—based on the facts found by

the Magistrate—that Dillon was voluntarily impoverished. And, for these same reasons,

we also hold that the circuit court did not abuse its discretion when it imputed to Dillon,

based on the facts found by the Magistrate, income at the lowest level: full-time work at

the federal minimum wage.


       7
         The Magistrate determined that Dillon’s testimony that “he had no income at all
from income earning sources” was not credible. This credibility determination by the
Magistrate supports the circuit court’s conclusions that Dillon was voluntarily
impoverished and that income should be imputed to Dillon at a level consistent with the
federal minimum wage. As this credibility determination is a fact found by the Magistrate,
Dillon cannot challenge it on appeal. See Miller, 113 Md. App. at 393 (“In short, in all
cases lacking timely exceptions, any claims that the [Magistrate’s] findings of fact were
clearly erroneous is waived.”).

                                            13
       Public policy supports this result. Dillon fathered Sivani in the United States. He

does not have any physical or mental limitations that prevent him from working. To the

contrary, he has a long work history in construction in both Jamaica and the United States.

Despite this, Dillon claims he cannot support Sivani because he is not authorized to work

in the United States. He also says that he cannot return to Jamaica to work because that

will affect his immigration status. The logical extension of Dillon’s argument is that a

person who is physically and mentally capable of working to support his or her child, but

is not authorized to work in the United States, cannot be required to pay child support. We

cannot countenance such a result. Therefore, as we explained above, Dillon must support

Sivani in any way that he can.

                                    CONCLUSION

       In sum, because Dillon failed to file exceptions to the Magistrate’s second Report

and Recommendations, we decline to address his challenges to the facts found by the

Magistrate that were accepted by the circuit court. Additionally, because we hold that the

circuit court did not err in finding that Dillon was voluntarily impoverished, and did not

abuse its discretion in imputing income to Dillon at the federal minimum wage, we affirm

the circuit court.

                                          JUDGMENT OF THE CIRCUIT COURT
                                          FOR   ANNE   ARUNDEL   COUNTY
                                          AFFIRMED. COSTS TO BE PAID BY
                                          APPELLANT.




                                            14
