MARCOS NARANJO, JR. vs. DEPARTMENT OF REVENUE.

DUFFLY, J. Marcos Naranjo, Jr., claims that the child support enforcement division of the Department of Revenue (DOR) undertook steps to suspend his driver's and trade licenses for failing to pay court-ordered child support to two women without first granting his timely requests for administrative review and hearing. He filed a complaint in Superior Court seeking declarations that the DOR was required by G. L. c. 119A to provide him with hearings and administrative review at various stages in the administrative process. [Note 1] The DOR filed a motion to dismiss Naranjo's complaint for lack of subject matter jurisdiction, arguing that under G. L. c. 119A, §§ 6 and 16, the Probate and Family Court has exclusive jurisdiction to consider his claims. The motion was allowed and Naranjo filed this appeal.

Because we agree that Naranjo properly relied on G. L. c. 231A, §§ 1 and 2, to seek declarations in Superior Court as to his right to a hearing and administrative review of the DOR's actions, we vacate the judgment dismissing his complaint.

Background. The DOR is the "IV-D agency" that under G. L. c. 119A, §§ 1 and 2, is charged with enforcement of child support orders. [Note 2] The DOR sent to Naranjo a form notice, bearing the date of September 21, 2002, entitled "Annual Notice of Child Support Delinquency As of 9/22/2002." The notice informed Naranjo that orders of the Probate and Family Court obligated him to pay child support to his former wife, Juana Naranjo (Juana), in the amount of $95 per week, and to Venus Rodriguez, in the amount of $75 per week. The notice also stated that his failure to make court-ordered payments had

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resulted in a child support arrearage in the amount of $75,782.36 for the support of his children with Juana and a child support arrearage in the amount of $77,149.75 for the support of his child with Rodriguez. [Note 3] The notice further advised that if Naranjo disputed that he owed the arrears, he could request administrative review by completing an enclosed form and mailing it to the DOR within thirty days. [Note 4] Naranjo completed two requests (one for each child support order) and filed them within the prescribed period, attaching affidavits he had written as support for his claim that he did not owe the stated amounts. Naranjo's request for review of payments due to Juana asserted, in essence, that (1) the child support calculation was incorrect because his divorce judgment provided for an automatic, annual adjustment to support; (2) the DOR was not a party to the proceeding and had "never entered an appearance in this case to enforce support payments"; and (3) he and Juana had an agreement regarding child support payments while he was incarcerated. [Note 5] In his request for review of payments due to Rodriguez, Naranjo asserted that he owed no child support to her because he was never served with a copy of the summons and complaint to establish paternity and thus no valid order of support was in effect.

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The form to request administrative review limits supporting documentation to proof of payment, as does the notice of delinquency, and the DOR refused to conduct a review of Naranjo's claims because, according to the DOR, his documentation was insufficient.

Instead, on December 6, 2002, the DOR sent Naranjo a notice of noncompliance. This notice advised that, whereas Naranjo had previously been informed of his court-ordered child support obligations and no payments had been received in the twelve weeks preceding the notice of noncompliance, his failure to make the payments "will result in the suspension of [his] driver's license . . . [and] any professional licenses [he] may have." The notice provided that if Naranjo disputed the action to suspend his licenses he could within thirty days request an administrative hearing, but that he would only be eligible for such a hearing if he had documents to support "the only defenses recognized by the law (G. L. c. 119A, § 16)." These defenses were described on the form as follows: (1) "You are not the individual owing the arrearage"; (2) "No child support arrearage exists" [Note 6]; or (3) "You are complying with the terms of the child support order." [Note 7] If he failed within thirty days "to submit information verifying one of the defenses or conditions listed above . . . DOR [would] notify the licensing authority or authorities to suspend or revoke [his] licenses."

On December 12, 2002, Naranjo sent the DOR a letter demanding "administrative and judicial review" and noting that he had previously submitted two separate requests for administrative review but that none had been conducted. He asserted that he owed no child support to the DOR. Referring to the DOR case involving Juana he said that there was no court order requiring him to make payments to the DOR and that Juana had

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not applied for services. Naranjo also stated in the letter that he had not been served with process in connection with the proceeding involving Rodriguez and that an appeal was pending in that action in which he claimed lack of jurisdiction and violation of due process.

On January 28, 2003, the DOR sent Naranjo a document captioned "Final Determination of Delinquency." This document informed him that -- because he had failed to make child support payments after being sent a notice of noncompliance, or, if he had requested an administrative hearing, he had failed to provide documentation establishing that he is not the individual owing the arrearage, that no child support arrearage exists, or that he is in compliance with the terms of his child support order -- the DOR had "notified the appropriate licensing authorities to suspend any licenses [he] may have." It further advised Naranjo that he could not contact the Registry of Motor Vehicles or the licensing board that issued his professional license because the "DOR alone is responsible for the determination to suspend [his] license for failure to pay child support." If he wished to contest this action, Naranjo was instructed that he could "file a complaint for judicial review in the court that entered [his] child support order within 45 days of the date that the licensing authority notifies [him] of the suspension of [his] license."

Naranjo commenced this action against the DOR in Superior Court on September 19, 2003. His complaint, as amended, seeks declarations that the DOR failed to conduct an administrative review in violation of G. L. c. 119A, § 6(b)(2), and failed, in violation of G. L. c. 119A, § 16(c), to provide him with a hearing prior to taking steps to have his driver's license and trade license suspended. He also sought declarations that he was deprived of procedural due process secured to him by arts. 10 and 12 of the Massachusetts Declaration of Rights and the Fourteenth Amendment to the United States Constitution. Naranjo's complaint further demanded that his driver's and trade licenses be restored and that a preliminary injunction issue prohibiting the DOR from further enforcement action against him until he has exhausted judicial review of the cases pending in the Appeals Court.

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The DOR filed a motion to dismiss the complaint, arguing that the Superior Court lacked subject matter jurisdiction, and that even if the court had jurisdiction, the complaint was not timely filed. On December 8, 2003, a judge of the Superior Court dismissed the complaint for lack of subject matter jurisdiction.

Discussion. 1. Subject matter jurisdiction. "Because the [DOR] filed a motion to dismiss due to lack of subject matter jurisdiction under Mass. R. Dom. Rel. P. 12(b)(1), the burden fell on [Naranjo] to prove jurisdictional facts." Caffyn v. Caffyn, 441 Mass. 487 , 491 (2004).

Naranjo's verified complaint sets forth the facts and procedural history we have summarized above. The DOR does not deny that it did not conduct any administrative review or hearing at the various points that it sought to enforce payment of child support to both Rodriguez and Juana, and makes no claim that Naranjo's requests for administrative review or for hearing were not timely made. Rather, the DOR takes the position that administrative review was not warranted because, as the DOR notes in its brief, Naranjo "failed to support his request[s] with documentation necessary to trigger such administrative review[,]" by failing to "submi[t] the documentation listed in the instructions to the Request for Administrative Review form."

Naranjo's complaint in Superior Court does not seek judicial review of the amounts that the DOR determined he owed to Rodriguez and Juana for past due child support. As Naranjo states in his memorandum in opposition to the DOR's motion to dismiss:

"Simply put, the plaintiff is seeking a determination as to the legality of the [DOR's] enforcement actions suspending his privilege to have a driver's license and professional trade license without affording him a hearing and without first submitting a determination in response to his timely requests for administrative reviews of case numbers 90W0397PA1 [support due to Rodriguez] and 92D0259DV1 [support due to Juana]."

The question we are asked to address is whether, under G. L.

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c. 119A, § 6(c), judicial review of Naranjo's claims must be brought, if at all, in the Probate Court.

Ordinarily, a complaint for declaratory relief such as the one brought by Naranjo in this case is properly brought in Superior Court pursuant to G. L. c. 231A, §§ 1 and 2. See G. L. c. 30A, § 7, as appearing in St. 1974, c. 361, § 3 ("[u]nless an exclusive mode of review is provided by law, judicial review of any regulation . . . may be had through an action for declaratory relief in the manner and to the extent provided under [G. L. c. 231A]"). See also Westland Hous. Corp. v. Commissioner of Ins., 352 Mass. 374 , 380 (1967). Furthermore, declaratory determinations may be obtained in "the superior court, the land court and the probate courts, within their respective jurisdictions." G. L. c. 231A, § 1, inserted by St. 1945, c. 482, § 1. The Superior Court has specific, exclusive authority to issue injunctive relief and determinations as to "the legality of the administrative practices and procedures of any . . . state agency," to the extent that the practices and procedures are alleged to violate the United States Constitution, or the Constitution or laws of the Commonwealth, or any rule or regulations promulgated under such laws. G. L. c. 231A, § 2, inserted by St. 1974, c. 630, § 1. A complaint for declaratory relief filed in Superior Court is the proper vehicle for challenging the legality of an administrative action "even though such action is neither an 'adjudication' nor the promulgation of a 'rule,' " so long as the prerequisites to bringing a declaratory judgment action are met. Haverhill Manor, Inc. v. Commissioner of Pub. Welfare, 368 Mass. 15 , 30, cert. denied, 423 U.S. 929 (1975), quoting from Westland Hous. Corp. v. Commissioner of Ins., supra at 383. See Williams v. Secretary of the Executive Office of Human Servs., 414 Mass. 551 , 567 n.10 (1993).

The DOR argues that G. L. c. 119A, § 6(c), which provides that "[a]ny person aggrieved by a determination of the IV-D agency pursuant to [§ 6] may, upon exhaustion of the procedures for administrative review provided in section 17, seek judicial review within 45 days in the court where the order or judgment was issued or registered," sets forth the exclusive mode of judicial review for Naranjo's claim in the Probate Court, because the Probate Court issued the orders obligating Naranjo

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to pay child support. See G. L. c. 119A, § 6(c), as amended by St. 1998, c. 64, § 93.

We disagree. It is evident from the plain language of G. L. c. 119A, § 6, that the limitation on judicial review is only with respect to determinations made pursuant to § 6 -- that is, only as to the amount of any child support arrearage that the DOR has determined to be due. See Schultz v. Grogean, 406 Mass. 364 , 366 (1990) ("[w]ords or phrases in a statute are to be given their ordinary meaning. They are to be construed according to their natural import and approved usage" [citation omitted]). See also Iodice v. Newton, 397 Mass. 329 , 332-333 (1986).

Naranjo's complaint seeking declarations as to his right to a hearing and administrative review of the DOR's actions should not have been dismissed for lack of subject matter jurisdiction. [Note 8]

2. Lack of standing. To secure declaratory relief in a case involving administrative action, a plaintiff must show that (1) there is an actual controversy; (2) he has standing; (3) necessary parties have been joined; and (4) available administrative remedies have been exhausted. Villages Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs, 410 Mass. 100 , 106 (1991).

We reject the DOR's claim that Naranjo lacks standing to bring this action because he failed to allege that he has a driver's or trade license or that he was notified by the appropriate licensing authorities that his driver's or trade licenses were suspended. Fairly read, the complaint asserts that Naranjo has both a driver's license and a trade license, and that he has been deprived of the use of both.

The DOR does not dispute that it sent to Naranjo a notice that it had notified the appropriate licensing agencies to suspend his driver's and trade licenses, or that it did not first provide Naranjo with a hearing in accordance with G. L. c. 119A, § 16(a)-(c). It is this failure to provide a hearing that is the subject of Naranjo's complaint. Because Naranjo is not seeking

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review of "a final determination of delinquency," [Note 9] he was not required to await notice from any licensing authority that it had acted on the DOR's notification to suspend his licenses before filing his complaint for declaratory relief.

3. Statute of limitations. We also reject the DOR's additional claim that even if the Superior Court has jurisdiction, the complaint was not filed within forty-five days of the date the document entitled "Final Determination of Delinquency" was issued. The reliance by the DOR on Iodice v. Newton, 397 Mass. at 334, is misplaced. There, the plaintiff appealed a decision of a permit-granting authority after exhaustion of administrative remedies. Id. at 330. The statute applicable in that case provided that an appeal to the Superior Court under its provisions (including an appeal "pertinent to the authority of the . . . special permit granting authority") must be brought within twenty days, and "shall be the exclusive remedy of '[a]ny person aggrieved by a decision of . . . any special permit granting authority.' " Id. at 334.

Here, the forty-five day limitations period governs appeals from a "final determination of delinquency." Naranjo's complaint is directed to the DOR's failure to provide him with the administrative review and hearings to which he claims entitlement; until a review has been conducted resulting in a final determination, the limitations period does not begin to run. "[A] statute of limitations is not operative until an actual controversy has arisen between the parties creating a right to secure a judicial declaration pursuant to G. L. c. 231A." Page v. LeRoux, 43 Mass. App. Ct. 708 , 712 (1997) (plaintiff sought declaration as to her ownership interests in partnership; where there was evidence of mischaracterization of plaintiff's interests

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which could work to her detriment in the future, but no evidence of past injury traceable to breach of contract, statute of limitations in declaratory action did not begin to run).

4. Declaration of rights. Because we have before us the material documentary evidence, we are "in a position to decide the merits of the case." Villages Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs, 410 Mass. at 110.

The DOR argues that Naranjo was not entitled to a review or a hearing because he failed to attach to his request the appropriate supporting documents, citing G. L. c. 119A, §§ 6(b)(2) and 17, which require the submission of "sufficient documentation," § 6(b)(2), or "necessary information and documentation," § 17. The statutes do not specifically define what constitutes documentation that is either "necessary" or "sufficient." The DOR asserts that "necessary" documents are those described on the notices and forms provided to Naranjo, which prescribe, in essence, that only documents that establish that child support has been paid will suffice. [Note 10]

This view fails to recognize that it is also a defense to payment that Naranjo was not properly served with the summons and complaint to establish paternity that was filed by the DOR on behalf of Rodriguez. See, e.g., G. L. c. 119A, § 16(c) (providing that improper service of warrant or summons is a defense; at hearing, the obligor shall be entitled to establish that "he was not properly served"). Naranjo's request for review of the notice informing him that he owed Rodriguez $77,149.75 for the support of his child with her was based on his claim that he was not properly served with the summons and complaint and he attached to his request his affidavit setting forth this defense. In the absence of a description of documents that the DOR would accept in support of this defense, we think Naranjo's affidavit constituted sufficient documentation entitling him

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to administrative review and hearing prior to the suspension of his licenses.

With respect to Naranjo's dispute regarding the amounts due to Juana, the DOR already had in its possession a copy of the divorce judgment, and had relied on this judgment to conclude that Naranjo owed Juana $75,782.36. [Note 11] Naranjo's request for review was also supported by the divorce judgment. Under that judgment, Naranjo's child support obligation was subject to an automatic, annual adjustment that would have substantially reduced his child support payments during any period he was unemployed and without assets. [Note 12] See Naranjo v. Naranjo, ante 256, 257 (2005). Naranjo's affidavit, attached to his request for review, explains that he is relying on this judgment to support his defense that he does not owe the arrearage. [Note 13] This documentation was, in the circumstances, sufficient, and Naranjo was entitled to administrative review and hearing provided by G. L. c. 119A, §§ 6(b)(2) and 16(b)-(c).

Because we conclude that there is nothing in c. 119A that forecloses Naranjo's right to review and a hearing, "we need not reach [his] claim of a procedural due process right to a hearing under either the State or Federal Constitution." Veksler v. Board of Registration in Dentistry, 429 Mass. 650 , 652 (1999).

Conclusion. We reverse the judgment dismissing Naranjo's complaint for declaratory relief. A new judgment shall enter

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declaring Naranjo's right to administrative review and hearing in accordance with this opinion, and for such other proceedings as may be appropriate to resolve Naranjo's claim for injunctive relief.

So ordered.