As a family law attorney, you’re familiar with negotiating child and spousal support, which we cover in our CFL™ course. Sometimes, years after a responsible spouse has made those payments, like in the Maryland appeals case of Nusbaum v. Nusbaum, they can seek to have them reallocated. Depending on the legal parameters involved, such requests may be unlawful.

Case History

When the divorce of Paul and Marsha Nusbaum was finalized in 2005, the circuit court ordered the ex-husband to pay $3,250 monthly in non-modifiable alimony and $1,422 monthly to support the couple’s four children. At Marsha’s request, Mr. Nusbaum’s support payments would be taken from his wages.

Circa 2008, Paul had moved to Georgia and eventually owed back child support and alimony; he didn’t earn enough money to make the payments. 

In April 2016, Mr. Nusbaum requested an audit to establish how much he owed for alimony and child support in Maryland. Earlier that year he noticed that Georgia allocated his back child support differently than Maryland. In Maryland, the debt was more than $50,000 higher. Georgia allocated more of his monthly payments to child support rather than alimony, while Maryland allotted 70 percent of his earnings to alimony and 30 percent to child support.

After the audit, he asked to apply a credit to his child support debt until that was satisfied, and to pay any excess toward his alimony obligation. Ms. Nusbaum opposed the reallocation request.

The trial court eventually held a hearing on Marsha’s motion to alter or amend judgment and the Office of Child Support Enforcement (OCSE)’s motion to reconsider. The judge noted that at prior hearings on Mr. Nusbaum’s requests to modify child support, he provided his income tax returns. The judge found that Mr. Nusbaum benefited from an income deduction based on the same method of alimony reallocation he challenged. 

Mr. Nusbaum received prior child support reductions based on his stated income and emancipating of some of his children, which had been adjusted based on a deduction for alimony paid. According to the judge, if Paul felt that all the payments should have been applied to child support first, as he asserted, it would be inconsistent to take a deduction for alimony paid in prior tax returns. Mr. Nusbaum was trying to “have his cake and eat it too” and in making these assertions or going back on his word, he was “judicially estopped” from seeking to reallocate past and future child support payments and prioritize them over his alimony obligation.

The judge didn’t mention whether the court could authorize the OCSE to reallocate the payments in the ratios Paul requested.

Maryland Court of Special Appeals Decision

In its ruling, the appeals court weighed the definitions of equitable and judicial estoppel before deciding on the separation of powers under constitutional law. It also reviewed prior Maryland cases on the issue of estoppel.

“We conclude that although Mr. Nusbaum claimed part of his payments to Ms. Nusbaum as alimony on his income tax returns, that is not the same thing as taking an inconsistent position in different litigation, the first element of the doctrine of judicial estoppel. In each Maryland case where judicial estoppel was invoked, regardless whether the doctrine applied or not, the salient fact is that one party took opposing factual positions in different lawsuits.” 

Regarding the separation of powers, the OCSE stated that the judicial branch can’t tell the executive branch how to apply the support payments. Each of the three branches of government (legislature, the courts, and executive agencies) are equal under the law and can’t dictate to another how they should perform their duties.

The appeals court concluded that “so long as an executive agency’s method of carrying out a statutory mandate is lawful, we are precluded from ordering the agency to restructure that method.” It held that the OCSE’s allocation of the payments, first to current child support, then to alimony, and back payments for both, to be legally correct. The state follows federal law over child and spousal support. 

In reply to Paul’s assertion that the payments should be allocated in the child’s best interest, the appeals court noted that “In the same vein that Maryland and federal law promote an overarching goal of intra-familial support, we recognize that support of the custodial spouse is often necessary for the children’s well-being. The two are not mutually exclusive. Child support will not guarantee the best outcome for a child if his or her custodial parent does not have the means to take care of him- or herself.”

The reallocation would benefit the Nusbaums’ grown child, but it could harm Paul’s ex-wife. Maryland and federal support statutes obliged the court to consider both equally. “Because this allocation structure is lawful, the judiciary is precluded by separation of powers from interfering with its operation. Accordingly, we sustain the judgment of the circuit court.”

Find out more about these and other support matters in our CFL™ course. A solid grasp of the financial principles of family law can set your practice apart and advance your legal career. Get more details in our free information packet today.