Nealey v. Walsh

• Court: Superior Court of Maine
• Decided: November 7, 2003
• Docket: CUMap-03-24
• Status: Unpublished

Opinion

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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. AP-03-2 a 2EC chm lhe PETER C. NEALEY NOU NeY -7 A 155 Bec Chi | i 7 Petitioner, ORDER ON PETITIONER’S v. DONALDS 6s. 80C APPEAL Lay ite ce lyk PETER E. WALSH “ Respondent. NOV 26 2003

Petitioner contends that the Hearing Officer erred by refusing to consider evidence of child support payments made by Petitioner prior to November 7, 2002. A party challenging a decision of an administrative agency bears the burden of proving

that the decision was improper. See Bischoff v. Board of Trustees, 661 A.2d 167, 170

(1995). For the following reasons, the court finds that the Petitioner has not established that the decision of the Hearing Officer was improper.

On November 7, 2002, the State of Maine Department of Human Services (Department) issued to Petitioner a Notice of Debt, which was served via certified mail on November 15, 2002. Section 2.a of the Notice of Debt stated that Petitioner’s child support debt from May 31, 1996 through November 7, 2002 totaled $1,073.05, and that it was continuing to accrue at $150.00 per week. Sections 7.a. and 7.e. of the Notice of Debt stated that Petitioner could contest the amount of debt within thirty days by requesting an administrative hearing, and that if he failed to do so, he would lose his right to contest the debt. The Department did not receive a timely request from the Petitioner for an administrative hearing to contest the Notice of Debt.

On December 31, 2002, the Department issued a Notice of Lien against Petitioner. On January 3, 2003, Petitioner filed a request for an administrative hearing. The

request, however, did not state whether it was submitted in response to the Notice of Debt or the Notice of Lien. The hearing was held on February 2, 2003. At the hearing, the Petitioner attempted to introduce evidence of payments made prior to November 7, 2002, and the Hearing Officer refused to consider the Petitioner’s records, as they pertained to payments made prior to the Notice of Debt.

Given that Petitioner waited until after thirty days from receiving the Notice of Debt to challenge the amount of child support owed as of November 7, 2002, the Hearing Officer’s refusal to consider evidence of payments made prior to November 7,

2002 was not clearly erroneous and must be affirmed. Imagineering, Inc. v.

Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991).

In addition, the Petitioner did not properly raise the issue before the Department

before bringing a challenge in the Superior Court. See Wells v. Portland Yacht Club,

2001 ME 20, { 5, 771 A.2d 371, 373. Therefore, he is precluded from obtaining judicial review of the Department’s determination of the amount of his child support debt as of

November 7, 2002. See Oliver v. City of Rockland, 1998 ME 88, J 7, 710 A.2d 905, 907.

The entry is The decision of the Respondent is AFFIRMED.

Dated at Portland, Maine this 4th day of November, 2003.

il

Robert E. Crowley Justice, Superior Court Date Filed___ 94-02-03

Cumberland

Docket No. AP-03-24

Action 80C Appeal

County

PETER C. NEALEY

STATE OF MAINE, DEPARTMENT OF HUMAN SERVICES

vs.

Plaintiff's Attorney PRO SE

Peter C. Nealey 43 Towpath Road Gorham, ME 04038 (207) 892-4479

Date of

Defendant’s Attorney

Carlos Diaz

Assistant Attorney General

Department of the Attorney General 6-State-Heuse-Statien 44 Oak St., 4th Fli Augusta;—Matne-04333-—0006-Portland, ME (207) 822-0260 0410]