SUSAN L. MCGARVEY, Petitioner,
MAINE DEARTMENT OF HEALTH AND HUMAN SERVICES, Respondent and JOHN C. MCGARVEY, Party-in-Interest.
ORDER ON PETITIONER'S RULE 80C APPEAL
MaryGay Kennedy, Justice Superior Court.
the Court is Petitioner Susan McGarvey's Rule 80C appeal
of the October 23, 2018 decision of Respondent Maine
Department of Health and Human Services ("DHHS")
Acting Chief Administrative Hearing Officer that denied Ms.
McGarvey an administrative hearing regarding her
court-ordered child support.
record in this case contains only Ms. McGarvcy's request
for administrative hearing date stamped October 17,
2018 (R. Ex. 1) and the Hearing Officer's decision
denying the request for hearing dated October 23, 2018 (R.
Ex. 2). In her request for hearing, Ms. McGarvey complains
that child support debt she has incurred is ""100%
invalid" and "has not been legally established,
..." (R. Ex, 1, ) The Hearing Officer's denial
letter states: "If you wish to reduce the amount of
child support that you were ordered to pay by a court, then
you must ask the court issuing the order to amend its order.
No Department of Health & Human Services Hearing Officer
has any authority to amend a court order." (R. Ex. 2.)
Rule 80C petition filed in this Court on November 27,
2018, Ms. McGarvey complains she "is
aggrieved by action of the Respondent by imposing and
assessing a child support order that has not been legally
established and is currently in appeal in the Law
Court." (Pet's Compl. ¶ 3.) She requests that
this Court "reverse the decision of Respondent in regard
to owing any child support, stop threatening to lien my Maine
State Tax Refunds, driver's license and any other
licenses or refunds due Plaintiff and issue a $0 child
support order." (Pet.'s Compl. p. 2.)
acting in an appellate capacity pursuant to Rule 80C and the
Administrative Procedures Act, 5 M.R.S. §§
11001-11008, the Court reviews an agency's decision for
errors of law, abuse of discretion, or findings not supported
by substantial evidence in the record. Somerset Cnty. v.
Dep't of Corr., 2016 ME 33, ¶ 14, 133 A.3d
1006. The party seeking to vacate an agency's decision
bears the burden of persuasion to demonstrate error.
Rossignol v. Me. Pub. Emps. Ret Sys., 2016 ME 115,
¶ 6, 144 A.3d 1175.
occurred before DHHS, Ms. McGarvey has not presented an
appealable issue to this Court. The operative decision under
review merely denies Ms. McGarvey a hearing on a notice of
tax offset. It makes no determination as to any of the
issues raised in the 80C petition, including whether Ms.
McGarvey owes child support/ whether DHHS will undertake an
enforcement action, or the amount of child support Ms.
McGarvey should be required to pay. Moreover, Ms,
McGarvey's arguments in her Rule 80C brief are aimed
almost entirely at the District Court's child support
order, with the exception of a single argument made in her
"Addendum to 80C Appeal Brief" that DHHS cannot
legally attach her tax returns. This latter argument was not
raised in her hearing request to DHHS and therefore was not
preserved for review by this Court, Carrier v. Sec'y
of State, 2012 ME 142, ¶ 18, 60 A.3d 1241
("Issues not raised at the administrative level are
deemed unpreserved for appellate review/') (citations
omitted), In her reply brief, Ms. McGarvey even concedes;
"Petitioner understands that a request for an
administrative hearing was denied because, .. Petitioner
presented no appealable issue(s) for which the Hearing
Officer has authority to review." (Pet.'s
Reply Br, 1; emphasis in original.) In short, Ms. McGarvey
has not satisfied her burden to demonstrate error in
on the record before it, the Court discerns no error of law,
abuse of discretion, or findings not supported by substantial
evidence in the record. Therefore, the Court DENIES Ms.
McGarvey's appeal and AFFIRMS DHHS's October 23, 2018
decision, The Clerk is directed to incorporate this Order
into the docket by reference pursuant to Maine Rule of Civil
 In addition to Ms. McGarvey*s
handwritten request, Exhibit 1 contains a form cover page
entitled "Request for Administrative Hearing," upon
which DHHS noted its opposition to the hearing request by
stating at the bottom of the form: “NO APPELABLE
ISSUES. NCFS ISSUES ARE WITH THE COURT ORDER, WHICH CANNOT BE
ADDRESS [sic] VIA HEARING.”
 Although the Court denies Ms.
McGarvey's appeal on the merits, it recognizes there may
also be a jurisdictional issue here. Ms. McGarvey's 80C
petition was filed 34 days after the date of DHHS's
decision. Pursuant to 5 M.R.S. § 11002(3), the petition
must be filed "within 30 days after the receipt of
notice" of the agency decision if taken by a party to
the proceeding. However, because the record does not state
the date Ms. McGarvey received notice of the decision, there
is no "affirmative basis in the record for the court to
conclude it lacks jurisdiction," and therefore the Court
will not dismiss the petition on that basis. Mutty v.
Dep't of Cons., 2017 ME 7, ¶ 12, 153 A.3d
The Court takes judicial notice of the
Law Court's opinion on the appeal of the underlying child
support case, issued after Ms. McGarvey filed her 80C appeal,
in which the Law Court affirmed the District Court's
denial of Ms. McGarvey's motion to modify the divorce
judgment. McGarvey v. McGarvey, 2019 ME 40.
 The notice of tax offset has not been
included in the certified appellate record, but a copy of the
notice was attached to Ms. ...