UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND. No September Term, MALKIYAH S. GOLDBERG f/k/a NEKERIA Q.

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1 UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No September Term, 2012 MALKIYAH S. GOLDBERG f/k/a NEKERIA Q. JENKINS-GRAHAM v. EDWARD R. GRAHAM Meredith, Graeff, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ. Opinion by Graeff, J. Filed: March 31, 2014

2 Malkiyah S. Goldberg, formerly Nekeria Q. Jenkins-Graham, appellant, appeals from an order of the Circuit Court for Frederick County regarding child support arrearages owed 1 to her by Edward R. Graham, appellee. The court ruled that the statute of limitations for the claim for arrearages was three years, and because the motion seeking arrearages was filed on November 29, 2011, Ms. Goldberg could recover arrears accrued only after November 29, rephrased: On appeal, Ms. Goldberg raises two questions for our review, which we have 1. Did the circuit court err in applying the statute of limitations of three years, where the appropriate limitations period was 12 years? 2. Was the delay excusable, preventing the doctrine of laches from barring relief? For the reasons that follow, we shall reverse the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND Ms. Goldberg and Mr. Graham were divorced on June 25, Prior to their divorce, on August 29, 2000, the parties entered into a Voluntary Separation and Property Settlement Agreement under seal (the agreement ). The agreement provided that the parties would have joint legal custody of the minor child, Keijerian. With respect to physical custody, for the first year following execution of the agreement, Keijerian would live primarily with Mr. Graham, and during that time, Ms. Goldberg would pay child support to Mr. Graham in accordance with the Maryland Child Support Guidelines (the Guidelines ). 1 Both Ms. Goldberg and Mr. Graham appeared pro se below and on appeal.

3 After one year, Ms. Goldberg would have primary physical custody of Keijerian, and Mr. Graham would pay child support to her in accordance with the Guidelines. The agreement also provided that it would be incorporated, but not merged, into any judgment of divorce. In accordance with the parties agreement, as well as Plaintiff s Exhibit #2, a copy of the Guidelines and worksheets calculating the support owed, the Judgment of Absolute Divorce provided that Ms. Goldberg would pay $320 per month in child support until May 25, After May 25, 2001, Mr. Graham would pay Ms. Goldberg $ per month in child support. The judgment approved the agreement between the parties and provided that all pertinent provisions contained therein be and they are hereby made a part hereof as if fully set forth herein. On January 16, 2007, the Frederick County Department of Social Services ( DSS ) filed a Notice of Change of Payee in the circuit court. The notice provided that Ms. Goldberg had applied for child support enforcement services through DSS, and according to Ms. Goldberg s records, Mr. Graham was in arrears in the amount of $18,749 as of December 14, 2006, with the last payment made in October The notice provided that, beginning January 1, 2007, Mr. Graham was to make child support payments directly to the support enforcement agency pursuant to Md. Code (2006) of the Family Law Article. -2-

4 On November 29, 2011, DSS filed a Motion to Suspend Child Support, Determination of Arrears and Set Payment in the circuit court, and the case was reopened for enforcement. The motion alleged that Mr. Graham had accumulated arrears in the amount of $19, as of November 22, DSS asked that Mr. Graham be found to be in arrears in child support payments in an amount to be determined by the court and that the court order him to make additional payments. On January 20, 2012, the court held a hearing. During the hearing, Mr. Graham acknowledged that the court ordered him to pay child support to Ms. Goldberg after May 25, He stated, however, that between 2001 to 2006, he and Ms. Goldberg shared joint physical custody, and therefore, he did not owe any support for that period. Specifically, Mr. Graham stated that his son had lived with him from January 2004 to December 2006, and his son currently was living with him. Thus, he sought to stop the child support payments that were still coming out of [his] check. Ms. Goldberg testified that, although the parties son did reside in between the both of us for that period of time and we shared financial responsibility for his well-being, they had a verbal agreement that the times that we exchanged the child I would not petition the courts for any additional sums of money and he would not petition the courts to change any of the motions, ah, that was already in place and... that was okay. -3-

5 DSS stated that the case had a bit of an accounting challenge. It requested the court initially to address only the arrears from 2001 to 2006 prior to the change of payee, and then it could recalculate the arrears based on the Department s records. At the conclusion of the hearing, the court discussed the statute of limitations, in relevant part, as follows: There also is... if there is a contract under seal the statute of limitations which is ordinarily... three years, is extended to twelve years. In looking at your... file, you had a separation agreement where there is a contract under seal. I had to look therefore to see whether the child support obligation setting out the monies was outlined in the separa[tion] agreement. If it was[,] th[e]n the monies due under that separation agreement would be monies due under a contract under seal where the limitations period is twelve years. The child support was not determined in the separation agreement. The child support was set and it looks like in another proceeding and... was entered by virtue of the court order where you all got divorced back in So I then looked at... what is the limitations period for bringing a claim due for monies unpaid under that judgment of divorce and the general limitations period... applies because there is no other exception. This, the motion to determine arrears wasn t filed until November of 2011 and I think... under Maryland law we can only go back three years from that date to claim any unpaid monies.... So whatever arrears are owed are arrears that accrued three years prior to the date of filing the motion for a determination of arrears. Any other modification past that I believe would be a retroactive modification of any support award, which is not permitted under Maryland law. And quite frankly if the support had been ordered... pursuant to the child support agreement it would ve had a twelve year limitations period and all of those monies would have been due. But since it wasn t payable under a contract for seal it s a three years limitation and we can only go back those three years. -4-

6 Accordingly, the court ruled that Ms. Goldberg could recover only arrears accrued after November 29, 2008, which would have been during the period of time that Mr. Graham was paying through [DSS]. On February 13, 2012, the court issued an order calculating Mr. Graham s child support arrearages for the period of November 2008 through November 2011 in the amount 2 of $ After the court denied Ms. Goldberg s Motion to Alter or Amend, this appeal followed. DISCUSSION I. Statute of Limitations Although Ms. Goldberg obtained an order for child support arrearages, it was only for $ The majority of the back child support she was seeking was from , before DSS became the payee. Ms. Goldberg contends that the circuit court erred in concluding that she was not entitled to this money because her claim was barred by the three-year statute of limitations. She asserts that, because child support was ordered in the judgment of divorce, a 12-year statute of limitations applies. Mr. Graham contends that the real issue is the lack of a factual dispute about the payments that were made. He asserts that there is competent material evidence in the record 2 The court also ordered that Mr. Graham s Motion for Genetic Testing was withdrawn at his request, and Mr. Graham s Motion to Suspend Child Support was continued, pending the outcome of Ms. Goldberg s Motion to Modify Custody. -5-

7 from which this Court can conclude that Mr. Graham had made all payments during the period of Moreover, Mr. Graham asserts that the undisputed evidence indicates that there were long periods of time when Keijerian resided with him during the applicable time frame. 3 Generally, [a] civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced. Md. Code (2006) of the Courts and Judicial Proceedings Article ( CJP ). CJP sets forth other such different periods of time for actions on specialities: (a) An action on one of the following specialties shall be filed within 12 years after the cause of action accrues: CJP 5-102(a). (3) Judgment; (5) Contract under seal. * * * * * * 3 Mr. Graham also argues that Ms. Goldberg is perpetrating a fraud by misleading this Court regarding the true identity of the minor child s father in order to gain a financial benefit. He suggests that the case should be remanded to the circuit court for further findings consistent with the law regarding paternity. We note, however, that Mr. Graham filed a motion for paternity testing in this case, but he expressly withdrew that request during the hearing on the arrears. Thus, the only issue before the circuit court, and us, involves the amount of arrears owed. -6-

8 The circuit court correctly noted that the agreement was a contract under seal, with a statute of limitations of 12 years. Because the agreement did not set forth the amount of the child support obligation, however, the court found that the limitations period was three years. We disagree. The Maryland appellate courts have addressed the period of limitations for recovery of child support arrearages on several occasions. In Bradford v. Futrell, 225 Md. 512, (1961), an action to recover child support arrearages, the Court of Appeals held that, when the support obligation was based on a judgment of divorce, the applicable statute of limitations was that for specialities, pursuant to what is now CJP 5-102(a). Accord Fishbach v. Fishbach, 187 Md. App. 61, 81(2009) ( in the context of a proceeding initiated to enforce a defendant s compliance with a divorce decree establishing support obligations... the decree could be enforced by execution or attachment as to all unpaid installments that became payable twelve years before the petition to enforce such payments is filed ); Miller v. Miller, 70 Md. App. 1, 20 (1987) (statute of limitations for action seeking to recover child support payments ordered by the court was 12 years). Here, DSS, on behalf of Ms. Goldberg, filed a motion in 2011 seeking a determination of arrears. Pursuant to the authority cited above, and applying a 12-year limitation period, Ms. Goldberg was entitled to seek child support arrears from the date of the judgment of divorce in Accordingly, the court erred in limiting Ms. Goldberg to recovering unpaid monies only for the prior three years. -7-

9 II. Laches Ms. Goldberg also argues that the court considered both the statute of limitations as well as laches, and the doctrine of laches does not bar the relief she seeks because her delay in seeking relief was due to Mr. Graham s deployment and/or his living out of state from She notes that, when Mr. Graham returned to Maryland, she sought assistance from DSS in collecting arrearages. Laches is a defense in equity against stale claims, and is based upon grounds of sound public policy by discouraging fusty demands for the peace of society. Ross v. State Bd of Elections, 387 Md. 649, 668 (2005) (citation and quotations omitted). Laches applies when there is an unreasonable delay in the assertion of one s rights and that delay results in prejudice to the opposing party. Frederick Road Ltd. P ship v. Brown & Sturm, 360 Md. 76, 117 (2000). Whether the elements of laches have been established is one of fact, while the question of whether in view of the established facts, laches should be invoked, is a question of law. See Liddy v. Lamone, 398 Md. 233, (2007). Our review of the record indicates that the trial court based its decision solely on the statute of limitations; it did not decide the case on the ground of laches. Accordingly, we need not address this issue. See Md. Rule ( Ordinarily, the appellate court will not -8-

10 decide any... issue unless it plainly appears by the record to have been raised in or decided by the trial court. ). JUDGMENT REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR FREDERICK COUNTY FOR A DETERM INATION OF ARREARAGES PURSUANT TO CJP 5-102(a). COSTS TO BE PAID BY APPELLEE. -9-