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S. Carvalho v. D. Carvalho (9/4/92), 838 P 2d 259
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
STEPHEN R. CARVALHO, )
Appellant, ) File No. S-4029
v. ) 3KO 80 423 CI
DENISE D. CARVALHO, ) O P I N I O N
Appellee. ) [No. 3881 - September 4, 1992]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kodiak,
Roy H. Madsen, Judge.
Appearances: Allison E. Mendel, Mendel &
Huntington, Anchorage, for Appellant.
Charlene A. Lichtmann, Law Offices of
Charlene Lichtmann, Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
I. FACTS & PROCEEDINGS
Stephen and Denise Carvalho were divorced in 1981.
Pursuant to their divorce settlement, Denise received sole
custody of the parties' two children, and Stephen was ordered to
pay $600.00 a month in child support. On February 22, 1990,
Denise initiated this action seeking $36,789.00 in child support
arrears. Her motion for arrears was supported by affidavits and
On March 15, 1990, Stephen filed a request for hearing
and an opposition to Denise's motion. The opposition contested
the total amount Stephen owed as well as the amount he had
previously paid. An affidavit from Stephen's present wife,
Jessica Carvalho, supported the opposition, but Stephen did not
file an affidavit himself. Stephen requested a hearing "so that
the contested factual matters may be resolved by a Judge."
Judge Madsen granted the request for a hearing.1
A hearing was set for April 17, 1990, in Kodiak. On
April 16, Denise filed a reply to Stephen's opposition2 and a
motion to participate in the hearing telephonically pursuant to
Alaska Civil Rule 99. Judge Madsen granted her Rule 99 motion on
the day of the hearing. Stephen did not file a motion to
participate telephonically but did submit, on the day of the
hearing, a child support guidelines affidavit with attachments.
Denise and Stephen both lived outside Alaska during this period.
At the hearing, only Judge Madsen was physically
present in the courtroom; all the other participants were on the
telephone. The telephone participants included Denise, Ms.
Lichtmann (Denise's attorney), and Ms. Mendel (Stephen's
attorney). Stephen was not listening on the telephone but was
apparently available and willing to testify at the hearing.
The hearing consisted entirely of the attorneys' oral
argument. The attorneys' referred the judge to the affidavits
and memoranda which they had previously submitted to the court.
After both attorneys had stated their positions, Ms. Mendel
attempted to present evidence as to the disputed child support
issues. The following exchange occurred:
Ms. Mendel: Your honor, may I address the
The Court: I think you've had your
opportunity, Ms. Mendel.
Ms. Mendel: Well, I just want the Court to
be aware that my client, although he's not on the
phone now, he's available to testify now.
The Court: Well, you should have made
arrangements before now to put on any testimony,
or submit anything further. It's a little bit
late in the . . . .
Ms. Mendel: Well, my understanding with
Ms. Lichtmann was that we were doing this hearing
telephonically, and he is available by telephone
Ms. Lichtmann: Your Honor, I have been told
in many conversations that Mr. Carvalho is not
available. There was an extension granted already
in this case because Mr. Carvalho was out in the
It seems that he's available when they
need him, but not when we need him to have him
testify. They've had weeks to get ready for this
hearing, and it's too late for them to present his
The Court: Well, it was my understanding
that this was on for oral arguments, not for a
Ms. Mendel: Your Honor, it was my
understanding the reason that we put off this
hearing was because we were having an evidentiary
hearing on the merits. And, furthermore, it's
incorrect that there's nothing in the record;
there is an Affidavit from Mrs. Carvalho [i.e.,
Jessica Carvalho] who, you know, was equally in
control of a financial situation. It's not an
incompetent Affidavit, and he has submitted his
child support guidelines Affidavit. It's not at
all true that the file is devoid of any
opposition. He's available to testify.
We were under the understanding that
this was an evidentiary hearing. If that's not
the Court's understanding that's fine, but that's
what we're prepared to do.
Judge Madsen never responded to Ms. Mendel's offers to
present evidence. Without indicating the facts upon which he
based his decision, Judge Madsen orally entered a judgment for
$41,220.00 in child support arrears and indicated that he would
sign an income withholding order. In May 1990, Denise submitted
to the court a prejudgment computation sheet which listed
$41,220.00 in child support arrears as of the date of the hearing
plus $14,883.65 accrued interest (from July 1, 1982, to April 30,
1990) for a total judgment of $56,103.65.
On May 18, 1990, Judge Madsen signed without comment
Denise's proposed "Judgment for Child Support Arrears and Order
to Withhold and Deliver Property."3 Stephen appealed the
judgment and sought a stay of execution. The record does not
reveal whether the trial court granted the stay. However,
Stephen maintains on appeal that funds to satisfy the judgment
have already been deducted from his paycheck and sent to Denise.
Stephen argues that he was deprived of a substantial
property interest without being allowed to participate in the
hearing or defend himself.4 He claims that his counsel did not
specifically object to the lack of opportunity to call or cross-
examine Denise because the trial court had already ruled that the
hearing was limited to oral argument. Finally, Stephen argues
that he had no opportunity to defend himself at a later execution
of judgment proceeding because the income withholding order was
such that money to satisfy the judgment was deducted directly
from his paycheck.5
Stephen cites two cases, Johnson v. Johnson, 544 P.2d
65 (Alaska 1975), and Ryfeul v. Ryfeul, 650 P.2d 369 (Alaska
1982), in support of his due process argument. In Johnson, a
trial judge summarily modified a divorce decree without allowing
the parties an opportunity to brief the issues or conduct oral
argument. Johnson 544 P.2d at 68. Prior to the trial court's
decision, Ms. Johnson had moved to reduce alimony and child
support arrears to judgment. Id. The trial court appointed a
trustee and ordered, inter alia, that the trustee "was to do
everything necessary to collect arrearages in both alimony and
child support"and use the arrearages to offset losses to a trust
which had been established for the education of the parties'
children. Id. Ms. Johnson was unhappy with certain aspects of
the modified decree and moved the trial court to reconsider its
decision. After full briefing and oral argument, the trial court
denied her motion. Id. Ms. Johnson appealed claiming that the
trial judge's summary manner in initially modifying the decree
and ordering arrearages to be used to compensate the trust
deprived her of a property interest without due process of law.
Johnson, 544 P.2d at 70.
We explained that procedural due process under the
state constitution requires "notice and opportunity for hearing
appropriate to the nature of the case."Id. (quoting Aguchak v.
Montgomery Ward Co., 520 P.2d 1352, 1356 (Alaska 1974)). We
further noted that the due process clause of the federal consti
tution requires that every person
`shall have the protection of [a] day in
court, and the benefit of the general law, a
law which hears before it condemns, which
proceeds not arbitrarily or capriciously, but
upon inquiry, and renders judgment only after
a trial . . . .' More specifically, due
process requires notice and an opportunity to
be heard prior to the deprivation of a
property interest protected by the fourteenth
Johnson, 544 P.2d at 70 (quoting Truax v. Carrigan, 257 U.S. 312,
332 (1921)) (footnote omitted). We went on to state that had Ms.
Johnson appealed the trial court's decision directly "the due
process violation would have been readily established, and the
necessity of remand clear." Johnson, 544 P.2d at 71. However,
we noted that Ms. Johnson had moved for reconsideration and had
an opportunity to brief the issues and orally argue
"substantially the same arguments she has made before this court
on appeal." Id. Therefore we concluded that Ms. Johnson was
her day in court. Under the particular facts
of this case where the trial court was enforcing
the terms of the prior decree, ample opportunity
was afforded to brief and argue the merits and to
introduce any evidence tending to disprove any of
the trial judge's adverse findings.
Id. (emphasis added).6
In Ryfeul, we concluded that a custody modification
proceeding held in a father's absence was a violation of the
father's due process rights where the trial court knew that the
father had attempted to attend the hearing but was arrested on an
outstanding bench warrant when he entered the courthouse.
Ryfeul, 650 P.2d at 372. We emphasized the "relative ease with
which his presence could have been secured, and the importance of
the questions at issue in the modification hearing." Id.
Stephen argues that he was similarly denied an opportunity to
participate in the hearing because the trial court refused to
admit his telephonic testimony.
Ryfeul may be distinguished from the present case
because Stephen did not attempt to physically attend the hearing
nor did he file a motion to telephonically participate prior to
the hearing as required by Civil Rule 99. Cf. Ryfeul, 650 P.2d
at 374 (where the husband's "failure to attend the modification
hearing was not negligent or intentional but was caused by
factors beyond his immediate control"). However, given that
Stephen was apparently available to testify by telephone and the
desirability of allowing him a meaningful opportunity to present
his defenses, we conclude that the trial court abused its
discretion by refusing to allow him to testify.7 In Ryfeul we
stated that "absent compelling circumstances to the contrary, a
party to a proceeding like the hearing in this case has the right
to be present, regardless of whether he is in a position to
affect the outcome of the proceeding." Ryfeul, 650 P.2d at 374
It is perhaps not surprising that Judge Madsen assumed
that the hearing was only open for oral argument.8 Stephen
acquiesced to a telephonic hearing in which neither party was
physically present in the courtroom; such a proceeding does not
lend itself to the give and take of evidence. Also, Stephen's
attorney could and should have been more forceful in directing
the court's attention to its order granting Stephan's request for
an evidentiary hearing. See In re C.L.T., 597 P.2d 518, 522
(Alaska 1979) ("By consenting to certain procedures or by failing
to object to others, a party may waive those rights which are
arguably encompassed within due process guarantees."). Finally,
we recognize that in a proceeding to collect past due child
support some procedural safeguards are reasonably eased to ensure
that the child's welfare is protected. Id. at 523 (quoting Otton
v. Zaborac, 525 P.2d 537, 539 (Alaska 1974)) ("Due process is
flexible, and the concept should be applied in a manner which is
appropriate [to] the nature of the proceeding.").
However, even taking these factors into account, we
must conclude that the trial court's refusal to admit Stephen's
testimony or take other evidence at the hearing deprived Stephen
of a meaningful opportunity to be heard. See Johnson, 544 P.2d
at 70; see also Malone v. Malone, 591 P.2d 296, 298 (Okla. 1979)
("Due process requires an orderly proceeding adapted to the case
in which the parties have an opportunity to be heard, and to
defend, enforce and protect their rights."); In re Moseley, 660
P.2d 315, 318 (Wash. App. 1983) ("Notice, open testimony, time to
prepare and respond to charges, and a meaningful hearing before a
competent tribunal in an orderly proceeding are all elements of
civil due process.").
This case clearly involved contested facts. Stephen's
only opportunity to present live testimony or to cross-examine
Denise came at the hearing. See Malone, 591 P.2d at 298 ("Where
important decisions turn on questions of fact, due process
requires an opportunity, in almost every situation, to confront
and cross-examine adverse witnesses."). Based on these
considerations, we vacate the judgment and remand the case for
further proceedings. The trial court should also enter findings
of fact supporting its final judgment. See Alaska R. Civ. P.
REVERSED and REMANDED.
1. A proceeding to collect past due child support is
governed by AS 25.27.226 (1991), formerly AS 47.23.226. The
statute provides that if a custodial parent has filed a motion
for arrears with a supporting affidavit together with "notice of
the obligor's right to respond,"the obligor must respond:
no later than 15 days after service by
filing an affidavit with the court. If the
obligor's affidavit states that the obligor
has paid any of the amounts claimed to be
delinquent, describes in detail the method of
payment or offers any other defense to the
petition, then the obligor is entitled to a
hearing. After the hearing, if any, the
court shall enter a judgment for the amount
of money owed. If the obligor does not file
an affidavit under this section, the court
shall enter a default judgment against the
Id.; see also AS 25.27.225 (providing that periodic support
payments become vested judgments "when each payment becomes due
2. Denise's reply claimed that Stephen's opposition was
deficient under AS 25.27.226 because he did not file an affidavit
himself, relying instead on his wife's affidavit. Denise
requested that the trial court enter a default judgment.
3. The judgment lists the principal sum as $41,221.00.
The dollar discrepancy between the oral and written judgments
appears to be a typographical error.
4. The determination whether a state action or procedure
violates the due process protections of the state and federal
constitutions is a question of law, and we review the matter
using our independent judgment. See Property Owners Ass'n of the
Highland Subdivision v. City of Ketchikan, 781 P.2d 567, 571
5. In addition, Stephen raises two arguments in his brief
that he did not argue below or include in his points on appeal.
First, he argues that service of process was defective under AS
25.27.226 because Denise did not inform him of his right to
respond to the motion. Second, he argues that the income
withholding order which allowed for an employer deduction of 55%
of Stephen's disposable income and a direct payment to Denise
violated AS 25.27.062 and 25.27.250. We need not address these
issues here because Stephen has failed to preserve them for
appeal. See Alaska R. App. P. 210 (appellate court will only
consider issues and arguments included in points on appeal); see
also Wetzler v. Wetzler, 570 P.2d 741, 742 n.2 (Alaska 1977)
(supreme court will not consider issues that are argued in brief
but not set forth in points on appeal).
6. In this case, Stephen has appealed Judge Madsen's
decision directly. Furthermore, Judge Madsen did not provide the
factual findings upon which he based his decision. Even if it is
assumed that the judge implicitly found Denise's affidavits and
supporting documents entirely credible and Stephen's affidavits
incredible, Stephen was denied an opportunity to introduce
evidence, other than pre-hearing affidavits, which tended to
disprove any of the trial court's adverse findings.
7. Alaska Civil Rule 94 provides:
These rules are designed to facilitate
business and advance justice. They may be
relaxed or dispensed with by the court in any
case where it shall be manifest to the court
that a strict adherence to them will work
See, e.g., Gregg v. Gregg, 776 P.2d 1041, 1042 (Alaska 1989)
(where trial court relaxed the technical requirements of Rule
99). We have held that a trial court may abuse its discretion by
failing to relax procedural rules in circumstances where a strict
adherence to the rule does not advance the rule's objective and
results in a denial of substantial justice. See Palzer v. Serv-U
Meat Co., 419 P.2d 201, 206 (Alaska 1966).
8. Although Judge Madsen assumed the hearing was limited
to oral argument, his order did not inform Stephen of this
limitation. In fact, given Stephen's request for a hearing so
that "contested factual matters may be resolved by a Judge,"
Judge Madsen's order must be construed as granting an evidentiary
Denise argues on appeal that Stephen was not entitled
to an evidentiary hearing because he failed to file his own
affidavit in response to her motion for arrears. We need not
address this argument because any defect in Stephen's opposition
was cured by Judge Madsen's order granting the hearing and
Denise's failure to object or file a cross-appeal. See In re
C.L.T., 597 P.2d 518, 522 (Alaska 1979).