Tardiff v. State of Maine, Dep't of Health and Human Servs.

• Court: Superior Court of Maine
• Decided: June 18, 2007
• Docket: KENap-07-26
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO. AP-07.,26 C ,),-, / I , .b -:; r:, I I' '~') /2-"')

KEVIN TARDIFF,

Petitioner

v. DECISION ON APPEAL

STATE OF MAINE, DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Respondent

This matter comes before the court on the appeal of petitioner Kevin Tardiff

pursuant to M.R. Civ. P. 80C, from a decision of the Department of Health and Human

Services ("DHHS") concerning Tardiff's child support debt.

Background

Petitioner Tardiff was previously married to Tanya Tardiff, and he and his wife

had a daughter, Tiffany. Pursuant to a divorce decree issued on October 25, 1996,

Tardiff was ordered to pay $28.50 a week in child support. Though the record is

unclear, it appears that Tardiff has been incarcerated since December of 1997. In 1998,

DHHS notified Tardiff that it was going to intercept his federal income tax return for

the tax year 1998 and apply the funds towards his outstanding child support

obligation.! Tardiff appealed the DHHS decision to the Superior Court with regard to

the amount owed, and by decision dated January 12, 2000, the court determined that his

debt is $1,710.

! Tardiff was involved in earlier actions contesting the amount of support he owed. Tardiff's child support obligations have been suspended as of December 23, 1997, due to his incarceration. The outstanding balance represents payments not made prior to his incarceration. 2

In 2006, DHHS again sent Tardiff notice that any income tax refunds he was due

would be intercepted and offset against his outstanding child support obligation.

Tardiff appealed this action and a hearing was held on January 4, 2007. Essentially,

Tardiff is arguing that he has never received credit for the 1998 income tax refund

intercept. However, there is no evidence that he ever filed a tax return in 1998 and

DHHS has no record of ever receiving an intercept. Tardiff asserts that he talked to

someone at DHHS (who he cannot name) who told him over the phone that DHHS had

intercepted a tax refund but refused to tell him the dollar amount taken. Subsequent

investigation during the administrative hearing provided no record of any payment or

credit to Tardiff's account.

Tardiff also complains that the record is wrong concerning the party to whom he

owes the child support. This issue, which was not raised at the administrative hearing,

appears to be a non-issue resulting from a clerical error (since corrected) to the effect

that he was liable for child support on behalf of "Tanya" instead of "Tiffany."

Standard of Review

When the decision of an administrative agency is appealed pursuant to Rule 80C,

this court reviews the agency's decision directly for abuse of discretion, errors of law or

findings not supported by the evidence. Centamore v. Dep't of Human Services, 664 A.2d

369,370 (Me. 1995). "An administrative decision will be sustained if, on the basis of the

entire record before it, the agency could have fairly and reasonably found the facts as it

did." Seider v. Bd. of Examiners of Psychologists, 2000 ME 206,

2000). The burden of proof rests with the party seeking to overturn the agency's

decision, and that party must prove that no competent evidence supports the agency's

decision. Id. 3

Discussion

A review of the entire record indicates that the hearing officer of the Department

was justified in finding that the petitioner still owes $1,710. The petitioner introduced

no evidence before the Department other than his uncorroborated assertion concerning

the telephone conversation with someone at DHHS regarding the 1998 tax refund offset.

There was no evidence presented that the petitioner even filed a tax return for 1998 or, if

he did, the amount of any refund to which he would have been entitled. The burden on

this point is on the petitioner. Furthermore, the 2000 Superior Court review had

already fixed his child support obligation at $1,710 and he was notified in September

1998 that the Department was going to intercept any tax refund. Any determination by

the court in 2000 concerning the amount he owed would have taken into account any

offset that he was allegedly entitled to at that time.

The petitioner also complains that the records of the Department are wrong

concerning the person to whom he owes the child support. This issue was not raised

during the administrative hearing and is technically irrelevant to the issue on appeal.

However, the court's own review of the record makes it clear that the petitioner's

apparent confusion is the result of a simple clerical error in one finding during the

previous hearings, which was corrected later.

In summary, after a full review of the record and consideration of the arguments

of both parties, the court finds no abuse of discretion, error of law or findings not

supported by the evidence. The entry will be:

The Department's decision is AFFIRMED.

Dated: June )t) I 2007 S. Kirk Studstrup Justice, Superior Court Date Filed _----"3:...L/....:::1.1..-/=0-'---7 _ Kennebec Docket No. ~__ A_P_0_7_-_2_6 ~_ County

Action _ _---'P.....e=t=i-"'t=i""o~n'___"=f_"oc.::r~R;..:e:....:v:....:i::..:e::..:w::...._ _ 80C

Kevin C. Tardiff vs. Department of Human Services

Plaintiff's Attorney Defendant's Attorney Kevin C. Tardiff, Pro Se David A. Cloutier, AAG Maine State Prison 6 State House Station 807 Cushing Road Augusta, Maine 04333-0006 Wareen, Maine 04864

Date of Entry

3/1/07 Petition for Judicial Review of Final Agency Action, filed s/Tardiff, Pro S

3/7/07 Letter entering appearance, filed. s/Cloutier, AAG

3/9/07 Application to Proceed Without Payment of Fines, Indigency Affidavit, DOC Trust Account Statement, filed. s/Tardiff, Pro Se

3/9/07 Letter from Plaintiff regarding acceptance of service with attachments, filed. s/Tardiff, Pro Se 3/19/07 Certified Record, filed. s/Cloutier, AAG

ORDER, Studstrup, J. It is ORDERED that: the filing fee is waived. Copy to Kevin Tardiff, Pro Se 3/20/07 Notice of briefing schedule mailed to Pltf. and atty.

4/18/07 Filing of Brief, with attachments, filed 4/17/07. s/Tardiff, Pro Se

4/18/07 Notification of Discovery Service, filed 4/17/07. s/Tardiff, Pro Se Copy of Brief, served on D. Cloutier, AAG on 4/12/07.

S/8/07 Respondent's Brief, filed S/7/07. s/Najarian, AAG

S/16/07 Petitioner's Reply Brief, filed. s/Tardiff, Pro Se

6/4/07 Writ of Habeas Corpus issued. s/Studstrup, J. Attested copies to KSO. 6/7/07 Oral arguments held with the Hon. Justice Kirk Studstrup, presiding. Tape 7S4 Index 130-732 Kevin Tardiff, ?ro Se Petitioner and Andrea Najarian, AAG Oral arguments made to the court. Court to take matter under advisement. REMANDING ORDER, Studstrup, J. Attested copy given in hand to KSO