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Lack of green card does not excuse child support, Md. court says

An able-bodied immigrant’s lack of work-authorization documents does not excuse him or her from the obligation to pay child support, Maryland’s second-highest court has ruled.

In its 3-0 decision, the Court of Special Appeals upheld a judge’s decision to impute minimum-wage income to Ricardo Dillon, a Jamaican national, and order him to pay a percentage of that figure in support for his elementary-school-age child. The court rejected Dillon’s argument, through counsel, that earning money would be illegal for him because he lacks a “green card” permitting him to work in the United States.

“Public policy supports this result,” Judge Dan Friedman wrote in the court’s reported opinion, filed last week. “The logical extension of Dillon’s argument is that a person who is physically and mentally capable of working to support his or her child, but is not authorized to work in the United States, cannot be required to pay child support. We cannot countenance such a result.”

Dillon had appealed the Anne Arundel County Circuit Court’s adoption of a magistrate’s recommendation he pay $535 per month in support for his child with Lynita Miller, whom he neither married nor ever resided with. The circuit court had concluded Dillon is physically and mentally able to work for at least minimum-wage and his failure to secure such work amounts to voluntary impoverishment.

The circuit court noted Dillon’s acknowledgment he finds work on occasion, despite his lack of authorizing documents, and receives financial support from his wife and other family members to support his other three children. The circuit court also rejected — due to lack of evidence — Dillon’s claim that if he returned to Jamaica, where he had worked in construction, he might not be able to secure a visa to return.

The Court of Special Appeals said it found no error in the circuit court’s finding that Dillon was voluntarily impoverished.

“To be clear, we are not telling Dillon that he must work illegally to pay child support,” Friedman wrote. “Rather, Dillon admitted that he works when he can, even though he claims that he does not have a green card or work authorization. We can, and must, count the salary and wages that he earns from those jobs towards his child support obligations.”

The Court of Special Appeals likened its child-support rationale to its 1997 holding in Gallagher v. Gallagher that calculating alimony “based on illegal income does not encourage or require a person to break the law, but merely recognizes an existing reality.”

Dillon’s attorney, Keith H. Asher, said Wednesday that he and his client have not decided whether to seek Court of Appeals review of the decision. Asher added he continues to disagree with the finding that Dillon was voluntarily impoverished.

“He (Dillon) is limited in whatever work he can access,” said Asher, of Asher & Asher in Silver Spring. “He attempted to gain employment but was rebuffed because he had no documentation. That fact should move it outside the realm of voluntary impoverishment.”

The Maryland attorney general’s office represented Miller in its capacity as counsel for the state Department of Human Services’ child-support enforcement. The office said in a statement Wednesday that it is “pleased” with the court’s decision.

Friedman was joined in the opinion by Judges Kathryn Grill Graeff and Irma S. Raker, a retired judge sitting by special assignment.

The Court of Special Appeals rendered its decision in Ricardo Dillon v. Lynita Miller et al., No. 901 September Term 2016.

The court had issued its decision as unreported Aug. 2. The court did not explain why it chose to reissue the decision as reported, which enables it to be cited as precedent in other cases.

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