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MacDougall v. D.H.S.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 64
Docket:	Yor-00-333
Submitted
on Briefs:	December 13, 2000
Decided:	April 24, 2001

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




JOEL MACDOUGALL v. DEPARTMENT OF HUMAN SERVICES


DANA, J.

	[¶1]  Joel MacDougall appeals from a judgment entered in the
Superior Court (York County, Fritzsche, J.) affirming a decision of the
Department of Human Services determining the amount of child support he
owed.  He contends that the DHS hearing officer erred in calculating his
gross base pay for purposes of determining the amount of child support due. 
Because we conclude that the hearing officer erred in categorically rejecting
all of MacDougall's reported business expenses, we vacate.
	[¶2]  This case involves enforcement of child support pursuant to the
Uniform Interstate Family Support Act, 19-A M.R.S.A. §§ 2801-3401 (1998
& Supp. 2000) (UIFSA).  The facts are undisputed.  Joel MacDougall and
Deborah MacDougall (now Moran) were divorced in New Hampshire.  The
divorce decree incorporated a stipulation agreement that provided for joint
custody of their two children and calculated child support as follows:
Joel T. MacDougall shall pay to Deborah Ann MacDougall twenty-
five (25%) per cent of his gross base pay (excluding any income
for overtime, additional pay above base rate through his current
employer, and any income from second employment that may be
required of him to fulfill his financial responsibilities as set forth
herein) for the support of the parties' minor children.  The
parties recognize that the support obligation shall be reviewed
and adjusted as each child attains the age of 18 years.
	[¶3]  At the time of the stipulation and through 1988, MacDougall was
employed at the Kittery Naval Shipyard where he received base pay,
overtime pay, and other pay for hazardous or dirty working conditions.  In
1988, MacDougall left the Shipyard and became a self-employed carpenter. 
From the time of the divorce in 1984 until 1995, MacDougall paid child
support in the amount of $336 per month.  In 1995, when his oldest child
attained the age of 18, he unilaterally reduced the child support to $168 per
month.
	[¶4]  Deborah Moran moved to North Carolina.  In June 1998, DHS
received a Child Support Enforcement Transmittal Request from the State
of North Carolina requesting collection of a child support arrearage of
$67,560 from MacDougall for April 1984 through June 1998, based on an
affidavit of arrears calculating MacDougall's "gross base pay" as his gross
receipts or sales listed on Schedule C (Profit or Loss from Business) of his
tax returns.  The North Carolina agency subsequently amended that figure to
$63,190.46, and DHS served a notice of debt upon MacDougall alleging child
support debt of $63,190.46.
	[¶5]  MacDougall appealed to DHS on the basis he did not owe any past
child support, and an evidentiary hearing was held. See 19-A M.R.S.A.
§ 2451 (1998).  The hearing officer issued a decision finding MacDougall's
child support debt to be $19,516.29, on the basis that the proper
measurement of "gross base pay" was his "gross income" shown on his
Schedule C after deducting the cost of goods sold.  MacDougall timely sought
judicial review by the Superior Court pursuant to 19-A M.R.S.A. § 2453
(1998) and M.R. Civ. P. 80C.  The Superior Court entered a judgment
affirming the hearing officer's decision, and MacDougall appeals.
	[¶6]  When the Superior Court acts as an intermediate appellate court,
we review DHS's decision directly.  See Baer v. Comm'r, Maine Dep't of
Human Servs., 1999 ME 145, ¶ 7, 738 A.2d 849, 850.  We review for legal
error and, when the findings are disputed, we will overturn the findings of
fact "only where they are clearly erroneous, i.e. unsupported by substantial
evidence anywhere in the record."  Kelley v. Comm'r, Maine Dep't of Human
Servs., 591 A.2d 1300, 1303 (Me. 1991).
	[¶7]  MacDougall contends that the hearing officer erred as a matter of
law in its determination of "gross base pay."  See 5 M.R.S.A.
§ 11007(4)(C)(4) (1989).  According to MacDougall, the hearing officer
should have taken into account his business deductions in determining his
gross base pay.  We agree.
	[¶8]  Pursuant to UIFSA, the law of the state that issued the divorce
decree governs the nature, extent, amount, and duration of the support
obligation and payment of arrearages under the order.  See 19-A M.R.S.A.
§ 3153 (1998).  In New Hampshire, courts interpret the meaning of a
stipulation as incorporated in a divorce decree by looking at the intent of
the parties as expressed by the language in the stipulation.  See Sommers v.
Sommers, 742 A.2d 94, 99 (N.H. 1999); Miller v. Miller, 578 A.2d 872, 873
(N.H. 1990).  "[I]n ascertaining the intent of the parties, [the court] will
consider the situation of the parties at the time of their agreement and the
object that was intended thereby, together with all the provisions of their
agreement taken as a whole."  Miller, 578 A.2d at 873 (internal quotation
marks omitted).  "[A]bsent fraud, duress, mutual mistake, or ambiguity, the
parties' intentions will be gleaned from the face of the agreement." Id. 
"Questions of intent are to be resolved by the trier of fact, whose findings
will be upheld if supported by the evidence, while the meaning of the
language in the agreement is a matter of law for [the] court to decide." Id.
(citations and internal quotation marks omitted.)
	[¶9]  In this case, there is no statutorily, contractually, or other clearly
defined meaning of "gross base pay."  The parties' intent and the language of
the agreement focused on MacDougall's employment at the time the
stipulation was entered into.  The agreement excludes overtime pay, extra
pay for things such as working in dangerous conditions, or income from a
second job.  Thus, in the present context, it is necessary to determine for a
self-employed person what would be comparable to gross base pay of an
employee for purposes of child support pursuant to the agreement.
	[¶10]  In general, for income tax purposes, the items reported as
"income" on an individual income tax return include both gross wages and
the net profit or loss from business reflected on Schedule C.  Thus, the
amount reported from Schedule C, although labeled "net" profit, is
analogous to "gross" wages.  The amount of net profit or loss takes into
consideration deductions for "ordinary and necessary expenditures directly
connected with or pertaining to the taxpayer's trade or business . . . ." 
Treas. Reg. § 1.162-1.
	[¶11]  As the party seeking to recover a child support arrearage, DHS
has the burden of establishing that MacDougall owes child support.  See
Dep't of Human Servs. v. Roy, 585 A.2d 813, 816 (Me. 1991) (placing
burden on DHS to establish amount of debt it seeks to recover from the
parent responsible for the State's payment of public assistance to support
the child); Jones v. Jones, 671 So. 2d 852, 854 (Fla. Dist. Ct. App. 1996)
(stating that the party seeking to enforce the divorce judgment has the
obligation to establish the amount the former spouse was required to pay
and the amount he did pay).
	[¶12]  DHS purported to meet its burden by merely introducing a
schedule setting forth, for the years 1989 to 1997, MacDougall's "gross
receipts" from line one on his Schedule C to his federal tax returns.  DHS
argued that MacDougall should have paid twenty-five percent of that total,
i.e., $113,590.46, that he did pay $50,400, and therefore owed the
difference of $63,190.46.  MacDougall responded that after he ceased being
an employee of the Kittery Naval Shipyard, his "gross base pay" was his "net
profit" reported on his Schedule Cs.  According to MacDougall's Schedule
Cs, that amount totalled $66,718.15 for the 1989 to 1997 period.  Because
MacDougall had paid substantially more than twenty-five percent of
$66,718.15, MacDougall argued that he owed nothing.
	[¶13]  Although DHS argued that the "gross receipts" line was the
appropriate measure of "gross base pay" and MacDougall argued that the
"net profit" line was appropriate, the hearing officer picked the line
representing gross income before business expenses.  The hearing officer
gave two independent rationales for this amount.  First, he found as a matter
of law that it would be inappropriate to deduct business expenses because
the divorce order "made no provision for any deductions for insurance,
transportation to work, tools or other work-related expenses."  Second, he
found as a matter of fact that MacDougall's reported business expenses were
"unreliable."{1}
	[¶14]  The hearing officer's first rationale, that the divorce order
failed to provide for deductions of business expenses, does not establish that
MacDougall's business expenses should now be ignored.  Because MacDougall
was working at the Shipyard at the time of the divorce, his "gross base pay"
was easily calculated as his normal wages.  The Shipyard paid all business
expenses related to MacDougall's labor.  The hearing officer erred in
concluding that the divorce decree's silence about business expense
deductions was probative of how to calculate MacDougall's "gross base pay"
as a self-employed individual.
	[¶15]  The hearing officer's second rationale, i.e., that MacDougall's
business expenses listed on his tax returns were "unreliable," was not
advanced by DHS at the hearing,{2} and is unsupported on this record.  The
hearing officer observed that MacDougall paid more child support than he
was required to pay (in effect conceding the error of his legal position).  In
the absence of a DHS challenge to the reliability of MacDougall's tax returns,
evidence that MacDougall's profits were low and that he continued to pay
child support at the level he had paid when he was employed by the
Shipyard, does not establish that he made more money than his tax returns
reveal.  Many individuals are willing to sacrifice income to enjoy the
independence associated with self-employment.  In any event, being
unwilling to let one's dependents suffer for one's employment choices is not
evidence of tax fraud as the hearing officer suggests.  Moreover, the hearing
officer heard evidence that MacDougall's current wife contributed her
income to the family coffers.  He therefore erred in concluding that
MacDougall's tax returns were unreliable based on the erroneous assumption
that MacDougall lived solely off his business income, and relied only on his
business income to make his child support payments.
	[¶16]  Though DHS suggested at the end of its closing argument that
the hearing officer might compromise and use MacDougall's gross receipts
less the cost of goods sold, DHS's primary position throughout the hearing
was that the hearing officer should use the line providing "gross receipts." 
MacDougall contended that his "net profit" from his tax returns was the
amount comparable to his regular wages or his "gross base pay," but neither
his contention, nor that of DHS, required the hearing officer to renounce
the discretion, on an adequate record, to disallow some, rather than all, of
the expenses listed by MacDougall.
	The entry is:
Judgment vacated.  Remanded to the Superior
Court with instructions to remand to the
Department of Human Services for a new
hearing to determine the amount of child
support due, if any.
 
Attorney for plaintiff: Patrick S. Bedard, Esq. P O Box 366 Eliot, ME 03903 Attorneys for defendant: G. Steven Rowe, Attorney General Justine Guignard Tanguay, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . Specifically, the hearing officer determined as follows: What is clear from Mr. MacDougall's "Profit or Loss from Business" statements is that his reported profit or loss is unreliable. Mr. MacDougall reports a self- employed level of income below that of an unskilled worker. Additionally, he offered only vague explanations of why his full-time occupation often earns well below minimum wage or even the poverty level of income. Most telling regarding the unreliability of these profit or loss amounts is the fact that during this period of self employment Mr. MacDougall only reported a profit of $66,718.15, yet paid during that same time period $30,240.00 in child support payments. This time period included two years (1994 and 1997) when Mr. MacDougall's reported profit/loss was less than the amount he paid in child support. {2} . Nothing alerted MacDougall that the hearing officer would be questioning the accuracy of his tax forms. DHS did not contend that they were inaccurate. Furthermore, though DHS casts the hearing officer's decision as a credibility determination, the DHS did not raise any issue of credibility at the hearing.