                                            	
MAINE	SUPREME	JUDICIAL	COURT	 	          	     	    	      	       Reporter	of	Decisions	
Decision:	 2018	ME	89	
Docket:	   Cum-17-189	
Argued:	   November	16,	2017	
Decided:	  July	3,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	 SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
Dissent:	  JABAR,	J.	
	
	
               DEPARTMENT	OF	HEALTH	AND	HUMAN	SERVICES	
                                    	
                                   v.	
                                    	
                         JAMES	F.	FAGONE	et	al.	
	
	
SAUFLEY,	C.J.	

	     [¶1]	 	 James	 F.	 Fagone	 appeals	 from	 a	 judgment	 of	 the	 Superior	 Court	

(Cumberland	 County,	 Warren,	 J.)	 vacating	 the	 decision	 of	 a	 Department	 of	

Health	and	Human	Services	hearing	officer.		The	hearing	officer	had	concluded	

that	 a	 child	 support	 order	 entered	 in	 James’s	 2008	 divorce	 from	 Kristin	 L.	

Fagone	 authorized	 the	 Department’s	 Division	 of	 Support	 Enforcement	 and	

Recovery	to	adjust	the	amount	of	child	support	owed,	without	a	modification	of	

the	 court	 order,	 upon	 the	 oldest	 of	 the	 parties’	 three	 children	 reaching	 age	

eighteen.		We	affirm	the	court’s	judgment.	
2	

                                  I.		BACKGROUND	

	     [¶2]		The	undisputed	historical	facts	are	drawn	from	the	hearing	officer’s	

findings,	 which	 are	 supported	 by	 substantial	 evidence	 in	 the	 administrative	

record.		See	MacDougall	v.	Dep’t	of	Human	Servs.,	2001	ME	64,	¶	6,	769	A.2d	829.		

James	and	Kristin	Fagone	were	married	in	1990,	had	three	children,	and	were	

divorced	 by	 a	 judgment	 signed	 by	 the	 District	 Court	 (Bridgton,	 Oram,	 J.)	 on	

May	22,	2008.		The	judgment	required	James	to	pay	child	support	of	$247.19	

per	 week	 for	 the	 parties’	 three	 children,	 who	 were	 born	 in	 1994,	 1998,	 and	

2001,	 and	 whose	 ages	 were	 thirteen,	 nine,	 and	 six	 when	 the	 judgment	 was	

entered.	 	 The	 court	 reached	 the	 $247.19-per-week	 amount	 based	 on	 a	 child	

support	worksheet	providing	the	following	basic	weekly	support	obligation:	

      Basic	weekly	support	for	all	children	up	to	18	years	(or	up	to	19	
      years	if	still	in	high	school)	.	.	.	.	
      	
      a.			 Total	number	of	children	3	
      b.		 Number	of	children	ages	0-11	2	multiplied	by	amount	from	
            table	113	=	$226	
      c.	   Number	of	children	ages	12-17	1	multiplied	by	amount	from	
            table	140	=	$140	
	
The	court	calculated	the	total	basic	weekly	support	as	$366;	added	the	$99.81	

that	James	paid	for	the	children’s	health	insurance;	apportioned	the	resulting	

total	 weekly	 support	 obligation	 of	 $465.81	 between	 the	 spouses,	 with	 74.51	
                                                                                      3	

percent	attributed	to	James;	and	subtracted	the	$99.81	health	insurance	cost	

from	James’s	resulting	$347	obligation	to	reach	$247.19.			

	     [¶3]	 	 The	 child	 support	 order	 further	 provided	 that	 the	 child	 support	

obligation	would	“continue	for	each	child	until	that	child	reaches	the	age	of	18;	

provided,	 however,	 that	 if	 the	 child	 has	 not	 graduated,	 withdrawn,	 or	 been	

expelled	from	secondary	school	as	defined	in	Title	20-A,	the	child	support	shall	

continue	until	the	child	graduates	or	reaches	the	age	of	19,	whichever	occurs	

first.”		The	order	states,	“Any	party	to	this	action	may	ask	the	court	to	review	

the	amount	of	child	support	and	if	appropriate,	to	modify	it	in	accordance	with	

the	state’s	child	support	guidelines.		To	start	this	process,	a	party	must	file	with	

the	court	a	Motion	to	Modify.”			

	     [¶4]		James	made	all	payments	in	the	amount	of	$247.19	per	week	until	

the	oldest	child	reached	age	eighteen	in	2012.		After	that	date,	James	reduced	

payments	 by	 one-third	 without	 either	 party	 filing	 a	 motion	 to	 modify	 in	 the	

District	Court	so	that	the	court	could	determine	the	amount	that	James	owed	

for	the	two	younger	children.			

	     [¶5]		Nearly	four	years	later,	in	April	2016,	Kristin	sought	the	assistance	

of	 the	 Department	 of	 Health	 and	 Human	 Services	 Division	 of	 Support	

Enforcement	 and	 Recovery	 to	 obtain	 amounts	 she	 claimed	 were	 owed.	 	 See	
4	

19-A	M.R.S.	§	2103(2)	(2017).		The	Division	calculated	a	$17,938.45	arrearage	

based	on	James’s	reduction	of	support	without	obtaining	any	modification	in	

court	 following	 their	 oldest	 child’s	 eighteenth	 birthday.	 	 On	 July	 7,	 2016,	 the	

Division	sent	James	a	notice	of	a	$17,938.45	debt	and	informed	him	of	the	right	

to	 request	 an	 administrative	 hearing	 within	 thirty	 days	 after	 receiving	 the	

notice.		See	19-A	M.R.S.	§§	2352,	2451	(2017).			

	        [¶6]	 	 James	 timely	 requested	 a	 hearing	 and	 submitted	 his	 completed	

“affirmation”	 form	 alleging	 that	 Kristin	 had	 agreed	 to	 the	 reduction	 in	 child	

support	to	$164.50	per	week	when	the	oldest	child	reached	age	eighteen.1		A	

hearing	officer	held	a	hearing	on	the	matter	on	September	21,	2016.		There	was	

no	dispute	about	when	and	by	what	amount	the	payments	had	been	reduced;	

the	only	question	was	whether	the	change	in	child	support	was	self-effectuating	

or	instead	required	modification	of	the	court	order.			

	        [¶7]	 	 The	 hearing	 officer	 reached	 a	 decision	 in	 September	 2016	

concluding	that	the	child	support	order,	unlike	the	order	at	issue	in	Bartlett	v.	

Anderson,	2005	ME	10,	¶	13,	866	A.2d	829,	specifically	connected	an	amount	of	


     1		James	also	offered	testimony	at	the	administrative	hearing	that	he	and	Kristin	had	agreed	to	the	

reduction	 in	 child	 support.	 	 The	 hearing	 officer	 did	 not	 reach	 any	 findings	 about	 any	 agreement	
between	 the	 parents	 because	 it	 did	 not	 consider	 any	 such	 agreement	 material	 in	 determining	
whether	the	Division’s	actions	were	consistent	with	enforcing	the	existing	judgment.		See	Berry	v.	
Bd.	of	Trs.,	Me.	State	Ret.	Sys.,	663	A.2d	14,	19	(Me.	1995)	(holding	that	administrative	agencies	may	
not	apply	equitable	doctrines	absent	statutory	authorization).			
                                                                                         5	

basic	weekly	support	with	the	oldest	child	($140),	such	that	when	the	child	was	

removed	from	the	total	basic	weekly	support	obligation	and	health	insurance	

was	 accounted	 for,	 James	 was	 responsible	 for	 only	 $142.95	 per	 week.	 	 The	

hearing	officer	did	not	recalculate	the	amount	owed	after	each	of	the	younger	

children	reached	age	twelve	or	adjust	the	amount	owed	per	child	when	support	

was	to	be	paid	for	two	children	instead	of	three.			

	      [¶8]		On	October	26,	2016,	the	Division	filed	a	petition	for	judicial	review	

of	the	hearing	officer’s	decision	in	the	Superior	Court.		See	19-A	M.R.S.	§	2453	

(2017);	M.R.	Civ.	P.	80C.		Although	the	court	entered	an	order	welcoming	briefs	

from	all	interested	parties,	only	the	Department	filed	a	brief.			

	      [¶9]	 	 The	 court	 (Warren,	 J.)	 considered	 the	 matter	 on	 the	 papers	 and	

entered	a	judgment	for	the	Department	on	April	14,	2017.		The	court	reasoned	

that	because	the	child	support	order	entered	upon	the	Fagones’	divorce	did	not	

specify	 the	 adjustments	 in	 support	 for	 each	 of	 the	 younger	 children	 upon	

reaching	 the	 age	 of	twelve,	 the	 order	 was	 not	 self-adjusting.	 	 Thus,	 the	 court	

held,	 James	 “was	 not	 entitled	 to	 reduce	 child	 support	 when	 his	 oldest	 child	

turned	18	without	seeking	a	modification	of	his	child	support	obligations	from	

the	court.”			
6	

	        [¶10]		James	timely	appealed	from	the	judgment.		See	5	M.R.S.	§	11008	

(2017);	M.R.	Civ.	P.	80C(m);	M.R.	App.	P.	2	(Tower	2016).2			

                                            II.		DISCUSSION	

	        [¶11]		We	today	issued	Higgins	v.	Wood,	2018	ME	88,	---	A.3d	---,	in	which	

we	 addressed	 the	 legal	 issue	 that	 controls	 the	 outcome	 in	 this	 matter.		

Specifically,	 we	 held	 that	 “a	 motion	 to	 modify	 child	 support	 is	 required	 if	 a	

parent	 seeks	 an	 adjustment	 that	 is	 not	 explicitly	 quantified	 in	 the	 existing	

judgment.”	 	 Id.	 ¶	 38.	 	 For	 a	 reduction	 to	 be	 self-effectuating	 upon	 any	 event,	

including	a	child	reaching	age	eighteen,	the	judgment	must	specify	the	amount	

of	 support	 owed	 for	 the	 other	 children	 after	 that	 event.	 	 See	 id.	 ¶¶	 39-42.		

Without	 such	 specificity,	 judicial	 decision-making	 is	 necessary	 because	 the	

judgment	cannot	be	enforced	on	its	existing	terms.		Id.	¶	42.	

	        [¶12]		Here,	the	child	support	order	in	the	parties’	divorce	judgment	did	

not	specify	the	amount	owed	for	support	of	the	two	younger	children	upon	the	

termination	of	James’s	obligation	for	the	oldest	child.		The	judgment	also	did	

not	 specify	 any	 changes	 in	 the	 amount	 of	 child	 support	 upon	 the	 younger	

children	each	reaching	the	age	of	twelve,	including	with	respect	to	any	change	


     2		We	cite	to	the	rules	in	effect	when	James	filed	his	notice	of	appeal.		See	M.R.	App.	P.	1	(providing	

that	 the	 restyled	 Maine	 Rules	 of	 Appellate	 Procedure	 apply	 to	 appeals	 filed	 on	 or	 after	
September	1,	2017).	
                                                                                                                  7	

in	the	cost	of	health	insurance	for	the	remaining	children.		The	Superior	Court	

correctly	 concluded	 that	 the	 Department	 could	 not	 enforce	 the	 judgment	 for	

any	amount	other	than	the	$247.19	obligation	stated	in	the	divorce	judgment’s	

child	support	order	unless	and	until	an	amended	judgment	was	entered	on	a	

motion	to	modify	the	amount	of	child	support.		See	id.	¶	39.3			

	       [¶13]		Accordingly,	the	Superior	Court	correctly	concluded	that	the	order	

required	 the	 payment	 of	 support	 in	 the	 amount	 specified	 unless	 and	 until	

ordered	otherwise,	and	that	the	hearing	officer	erred	in	calculating	a	reduced	

amount	based	on	the	terms	of	the	existing	child	support	order.			




    3		No	issue	of	equitable	estoppel	was	raised	in	the	Superior	Court	or	briefed	to	us	on	appeal,	and	

therefore	 the	 issue	 is	 not	 before	 us.	 	 See	 M.R.	 Civ.	 P.	 80C(i);	 Teele	 v.	 West-Harper,	 2017	 ME	 196,	
¶	11	n.4,	 170	 A.3d	 803;	 Metro.	 Prop.	 &	 Cas.	 Ins.	 Co.	 v.	 Estate	 of	 Benson,	 2015	 ME	 155,	 ¶	4	 n.2,	
128	A.3d	1065;	see	also	Dep’t	of	Health	&	Human	Servs.	v.	Pelletier,	2009	ME	11,	¶	17,	964	A.2d	630.		
Nor	would	an	argument	in	equity	be	persuasive.		Even	if	James	had	moved	to	modify	immediately	
after	the	oldest	child’s	eighteenth	birthday	in	2012,	the	guidelines	increase	the	amount	owed	per	
child	 when	 fewer	 children	 are	 subject	 to	 a	 support	 order.	 	 See	 Child	 Support	 Guidelines	 and	
Calculation	 Tables	 (effective	 Dec.	 1,	 2008),	 available	 at	 19-A	M.R.S.A.	 §	2011	 (2012).	 	 Thus,	 the	
difference	 in	 support,	 assuming	 that	 the	 health	 insurance	 cost	 was	 unchanged,	 would	 have	 been	
relatively	modest,	with	James	paying	$214.48	instead	of	$247.19	per	week	based	on	the	guidelines	
then	 in	 effect.	 	 See	 id.	 	 Furthermore,	 when	 the	 youngest	 child	 turned	 twelve	 in	 2013,	 James’s	
obligation	for	the	two	youngest	children	would	have	increased	to	$239.81	per	week,	only	dollars	less	
than	 the	 originally	 ordered	 $247.19	 per	 week	 in	 child	 support.	 	 See	 id.	 	 Adjustments	 to	 the	 child	
support	 calculation	 tables	 in	 2014	 would	 have	 resulted	 in	 James	 owing	 more	 than	 the	 ordered	
$247.19	 obligation.	 	 See	 Child	 Support	 Guidelines	 and	 Calculation	 Tables	 (effective	 Feb.	 8,	 2014),	
available	at	19	M.R.S.A.	§	2011	(Supp.	2014).		After	the	middle	child	reached	age	eighteen,	James	filed	
a	 motion	 to	 modify,	 and	 the	 court	 (Cadwallader,	 M.)	 ordered	 James	 to	 pay	 $171.93	 per	 week	 in	
support	 for	 the	 youngest	 child.	 	 See	 Fagone	 v.	 Fagone,	 No.	 FM-07-215	 (Me.	 Dist.	 Ct.,	 Bridgton,	
Nov.	17,	2016).		Thus,	although	James	might	have	realized	some	reduction	in	the	amount	of	support	
if	he	 had	filed	a	motion	to	modify	when	the	oldest	child	reached	age	eighteen,	the	discrepancy	in	
amounts	is	not	vast.	
8	

      The	entry	is:	

                    Judgment	affirmed.	

                               	     	      	      	     	

JABAR,	J.,	dissenting.	

	     [¶14]	 	 In	 addition	 to	 this	 case,	 the	 Court	 today	 issued	 an	 opinion	 in	

Higgins	v.	Wood,	2018	ME	88,	---	A.3d	---,	which	addressed	a	similar	legal	issue	

to	the	issue	presented	here.		As	I	expressed	in	my	dissenting	opinion	in	Higgins,	

I	believe	that	the	plain	language	of	19-A	M.R.S.	§	1653(12)(A)	(2017)	and	the	

plain	language	of	the	court	order	in	this	case	should	control	the	outcome.		See	

2018	ME	 88,	 ¶¶	 57-67,	 ---	 A.3d	 ---.		 Moreover,	 this	case	 can	 be	 distinguished	

from	our	holding	in	Bartlett	v.	Anderson,	2005	ME	10,	866	A.2d	829,	because,	

unlike	 the	 presumably	 undifferentiated	 child	 support	 order	 in	 Bartlett,	 the	

child	 support	 order	 in	 this	 case	 is	 differentiated.	 	 For	 these	 reasons,	 and	

because	I	believe	that	the	Court	does	not	apply	the	proper	standard	of	review	

in	this	case,	I	respectfully	dissent.			

A.	   Standard	of	Review		

	     [¶15]		In	this	80C	appeal,	where	the	Department	of	Health	and	Human	

Services	 Division	 of	 Support	 Enforcement	 and	 Recovery	 petitioned	 the	

Superior	Court	for	review	of	its	own	hearing	officer’s	decision,	see	19-A	M.R.S.	
                                                                                       9	

§	 2453	 (2017);	 M.R.	 Civ.	 P.	 80C,	 our	 review	 is	 necessarily	 constrained:	 with	

respect	 to	 “our	 constitutional	 separation	 of	 powers	 and	 statutes	 governing	

administrative	 appeals,	 our	 review	 of	 state	 agency	 decision-making	 is	

deferential	 and	 limited.”	 	 Friends	 of	 Lincoln	 Lakes	 v.	 Bd.	 of	 Envtl.	 Prot.,	

2010	ME	18,	¶	12,	989	A.2d	1128	(citation	omitted).		One	of	the	most	important	

mandates	relating	to	our	review	of	agency	decisions	requires	that	we	“affirm	

findings	of	fact	if	they	are	supported	by	substantial	evidence	in	the	record,	even	

if	the	record	contains	inconsistent	evidence	or	evidence	contrary	to	the	result	

reached	by	the	agency.”		Id.	¶	13	(footnote	omitted).		Although	the	Court	does	

not	set	forth	a	standard	of	review	in	its	analysis,	it	is	with	this	concept	in	mind	

that	I	turn	to	a	brief	discussion	of	the	administrative	decision.				

B.	   The	Hearing	Officer’s	Factual	Findings		

	     [¶16]		After	a	hearing	held	in	September	2016,	a	hearing	officer	for	the	

Division	issued	a	decision,	finding,	after	considering	the	applicable	law	as	set	

forth	in	Bartlett,	2005	ME	10,	¶¶	13-14,	17,	866	A.2d	829,	that	the	child	support	

order	 at	 issue	 delineated	 the	 amounts	 owed	 for	 the	 children	 based	 on	 their	

ages.		Specifically,	the	hearing	officer	found	that				

            The	 applicable	 child	 support	 order	 in	 this	 case	 reads	 in	
      pertinent	 part	 as	 follows:	 “The	 child	 support	 obligation	 shall	
      continue	for	each	child	until	that	child	reaches	the	age	of	18	.	.	.	.”		
      The	 order	 addresses	 weekly	 child	 support	 for	 a	 total	 of	 three	
10	

     children,	one	of	whom	.	.	.	turned	18	years	of	age	on	August	2,	2012.		
     The	 attached	 child	 support	 worksheets	 indicate	 that	 the	
     Non-Custodial	 Parent	 was	 ordered	 to	 pay	 74.51%	 of	 the	 total	
     weekly	 support	 obligation	 of	 $465.81,	 of	 which	 amount	 $140.00	
     represented	 the	 basic	 support	 entitlement	 for	 [the	
     eighteen-year-old],	 less	 a	 health	 insurance	 adjustment	 of	
     $99.81.	.	.	.			
     	
               Per	 the	 terms	 of	 the	 applicable	 order,	 the	 Non-Custodial	
     Parent’s	 weekly	 child	 support	 obligation	 for	 [the	
     eighteen-year-old]	terminated	as	of	August	2,	2012.		Consequently,	
     .	.	.	his	weekly	support	obligation	in	this	case	automatically	reduced	
     from	$247.19	to	$142.95	(i.e.,	74.51%	of	the	remaining	total	weekly	
     support	obligation	of	$325.81,	or	$242.76,	less	$99.81)	at	that	time.			
     	
Orders—like	the	order	in	this	case—distinguishing	between	the	amount	owed	

for	 different	 children	 based	 on	 the	 ages	 of	 the	 children	 are	 “differentiated”	

orders.		The	use	of	the	word	“differentiate”	in	this	context	comports	with	the	

plain	 dictionary	 meaning	 of	 that	 word:	 “To	 make	 different	 by	 alteration	 or	

modification.”		Differentiate,	The	American	Heritage	Dictionary	of	the	English	

Language	 (5th	 ed.	 2016).	 	 Differentiated	 orders	 are	 distinguished	 from	

undifferentiated	 orders,	 which	 set	 forth	 a	 single	 payment	 obligation	 without	

allocating	specific	amounts	for	each	child.		See	Bartlett,	2005	ME	10,	¶¶	13-14,	

17,	866	A.2d	829.			

	     [¶17]	 	 Based	 on	 our	 limited	 and	 deferential	 review	 of	 factual	 findings	

contained	in	agency	decisions,	see	Friends	of	Lincoln	Lakes,	2010	ME	18,	¶	12,	

989	A.2d	1128,	the	hearing	officer’s	factual	findings,	which	are	supported	by	
                                                                                    11	

substantial	 record	 evidence,	 should	 be	 affirmed.	 	 Because	 the	 hearing	 officer	

found	that	the	child	support	order	differentiated	the	amount	owed	based	on	the	

children’s	 ages,	 any	 comparison	 to	 Bartlett	 v.	 Anderson,	 which	 analyzed	 the	

consequences	 of	 undifferentiated	 child	 support	 orders,	 is	 unhelpful	 in	 our	

analysis	and	inapplicable	to	this	case.		See	generally	2005	ME	10,	866	A.2d	829.			

C.	      Conclusion		

         [¶18]	 	 I	 would	 conclude	 that	 the	 plain	 language	 of	 19-A	 M.R.S.	

§	1653(12)(A)	 and	 the	 plain	 language	 of	 the	 court	 order	 control	 here,	 and,	

alternatively,	that	we	should	defer	to	the	agency’s	supported	factual	findings.		

As	a	result,	I	would	hold	that	when	the	oldest	child	turned	eighteen,	the	child	

support	obligation	as	to	him	should	have	terminated	without	the	need	for	the	

obligor	to	return	to	court.			

	        	        	         	   	   	

Andrea	 S.	 Manthorne,	 Esq.	 (orally),	 and	 Clifford	 H.	 Ruprecht,	 Esq.,	 Roach,	
Hewitt,	Ruprecht,	Sanchez	&	Bischoff,	Portland,	for	appellant	James	F.	Fagone	
	
Janet	T.	Mills,	Attorney	General,	and	Jennifer	Googins	Huston,	Asst.	Atty.	Gen.	
(orally),	 Office	 of	 the	 Attorney	 General,	 Augusta,	 for	 appellee	 Department	 of	
Health	and	Human	Services	
	
	
Cumberland	County	Superior	Court	docket	number	AP-2016-46	
FOR	CLERK	REFERENCE	ONLY	
	
