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Devaney v. State of Alaska, CSED (12/20/96), 928 P 2d 1198
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, phone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
WILLIAM DEVANEY, )
) Supreme Court No. S-7268
) Superior Court No.
v. ) 3KN-84-207 DR
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) O P I N I O N
ENFORCEMENT DIVISION, ex )
rel DEBORAH DEVANEY, )
Appellee. ) [No. 4447 - December 20, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
Charles K. Cranston, Judge.
Appearances: Karla F. Huntington and
Joseph D. O'Connell, Mendel & Huntington,
Anchorage, for Appellant. Diane L. Wendlandt,
Assistant Attorney General, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
The superior court denied William DeVaney's motion
seeking relief from a 1991 order that modified a 1984 dissolution
decree to correct an error in the decree. DeVaney appeals. We
II. FACTS AND PROCEEDINGS
In March 1984 William DeVaney and Deborah DeVaney
submitted to the superior court a petition for the dissolution of
their marriage. The petition provided that Deborah would have
physical custody of the DeVaneys' four children during the school
year. It further provided that William would pay child support of
"$175.00 per month, per child . . . for a total of $700.00 per
month,"excluding the summer months during which he would have
custody of the children. (Emphasis added.)
At a hearing on the petition, the court stated, "I have
provided for child custody and support as set out in the petition."
In the decree it issued following the hearing the court
incorporated as part of its findings "[t]he agreements of the
petitioners as outlined in the petition,"and therefore ordered:
2. Petitioners shall perform their
agreements as incorporated in the findings.
3. Child Custody and Support: Joint custody
of parties; Visitation per agreement as in
petition. Physical custody with Mother in
school year; Physical custody with Father in
vacations including summer. $175 per month
support by father except period June 1 - Aug
31. Total $175.00 per month paid 15th each
month beginning 5/15/84.
William knew the court had erred when it set the total
amount of child support at $175 per month, rather than at $175 per
child per month for a total amount of $700 per month. The court's
error notwithstanding, he agreed to pay Deborah $700 per month.
Thus neither party informed the court of the discrepancy between
the $700 child support total in the petition and the $175 total in
the court's decree.
In December 1990 William sent a letter to the court
seeking a reduction in his child support obligation. Apparently
the court discovered the discrepancy between the petition and the
decree while reviewing the file to respond to this letter. In
April 1991 the court issued an order amending the last two
sentences of paragraph three of the order section of the 1984
decree to read: "$175.00 per month per child support by father
except period June 1 - Aug 31. Total $700.00 per month paid 15th
of each month beginning 5-15-84." It wrote, "[t]his order is made
on the court's own motion and is made pursuant to [Alaska Civil
Rule] 60(a) . . . to correct the computational error in the
In May 1995 William filed a motion seeking relief from
the 1991 order. The superior court denied the motion.
A. Standard of Review
William claimed before the superior court that the 1991
order was void and sought relief from it pursuant to Alaska Civil
Rule 60(b)(4). (EN1) "Although under other subsections of Rule
60(b) the movant must show that denial of the motion below was an
abuse of discretion in order to prevail on the appeal, no question
of the lower court's discretion is presented by a Rule 60(b)(4)
motion because the validity of a judgment is strictly a question of
law." Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1354 (Alaska
1974); see also Kennecorp Mortgage & Equities, Inc. v. First Nat'l
Bank of Fairbanks, 685 P.2d 1232, 1236 (Alaska 1984).
William argues that the 1991 order is void because the
court issued it in a manner inconsistent with due process of law.
(EN2) Whether a state action violates the due process protections
of the state or federal constitution is a question of law.
Carvalho v. Carvalho, 838 P.2d 259, 261 n.4 (Alaska 1992). William
further argues that the error in the 1984 decree is not of the type
covered by Alaska Civil Rule 60(a), which provides for the
correction of clerical errors. Whether an error is properly
classified as a "clerical error"as that term is used in Rule 60(a)
involves interpretation of that rule and therefore is a question of
law. See Staso v. State, Dep't of Transp., 895 P.2d 988, 990
(Alaska 1995) (finding that interpretation of Alaska Civil Rule
42(c) is a question of law). This court reviews questions of law
de novo. Jones v. Jennings, 788 P.2d 732, 735 (Alaska 1990).
B. William Was Not Denied Due Process.
William argues that due process requires notice and an
opportunity to be heard prior to the correction of an error that
has been in place for so substantial a period as the seven years in
this case. His due process argument fails. William has not shown
an interest of sufficient importance to trigger due process
protection. "It is well-established that this court will take
cognizance of a due process claim only where there is an alleged
deprivation of a sufficient 'liberty' or 'property' interest to
warrant constitutional protection." Hornaday v. Rowland, 674 P.2d
1333, 1344 (Alaska 1983).
According to William, "[t]he private interest in this
case was William DeVaney's interest in being heard before his
rights and obligations under the 1984 Decree were altered."
William is claiming that the denial of a hearing deprived him of
the interest he had in the court's error. That is not an interest
sufficient to warrant constitutional protection. Thus the 1991
order does not violate due process.
C. The Court's Error Was Correctable Pursuant to Rule 60(a).
Alaska Civil Rule 60(a) provides in part:
Clerical Mistakes. Clerical mistakes in
judgments, orders or other parts of the record
and errors therein arising from oversight or
omission may be corrected by the court at any
time of its own initiative or on the motion of
any party and after such notice, if any, as
the court orders.
William argues that the court "erred in applying Rule
60(a) because the error in the 1984 Decree was judicial in
character rather than clerical." "The child support provisions of
the 1984 Decree may have been mistaken, but they accurately
reflected the trial court's intent." This argument is without
"Authorities agree that relief, pursuant to [Rule] 60(a),
is not limited to those errors made by clerks." Allen v. Russell,
558 P.2d 496, 501 n.8 (Alaska 1976). "The correction contemplated
by Rule 60(a) must be undertaken for the purpose of reflecting the
actual intention of the court and the parties." Lindsay v. Atkin,
680 P.2d 401, 402 (Utah 1984) (interpreting Rule 60(a) of the Utah
Rules of Civil Procedure, which contains language parallel to
Alaska Civil Rule 60(a)).
Here, the clear intent of the parties was for William to
pay child support of "$175.00 per month, per child, . . . for a
total of $700 per month." Their intent is evident from the
language of the petition and from William's agreement to pay $700
per month despite the court's error. The court's clearly stated
intent was to give force to the "agreements of petitioners as
outlined in the petition." The court's order of $175.00 per month
total child support was in direct conflict with both the parties'
and the court's intent. It is properly characterized as a clerical
The clear language of the rule establishes that the court
can correct such an error "at any time." The "if any"modifying
"after such notice"establishes that the court need not notify the
parties prior to correcting a clerical error. Thus, the court's
1991 order was within the bounds of Rule 60(a).
D. The Correction of the 1984 Decree Was Not a Prohibited
Retroactive Modification of Child Support Arrearages.
William argues that the 1991 order violates state and
federal laws prohibiting retroactive modification of child support.
As the State argues, the 1991 order did not modify DeVaney's
support obligation. It merely modified the 1984 decree to
eliminate the inconsistency between the incorporated agreement,
which reflected the intent of the parties and the court, and the
court's erroneous restatement of it in the order section of the
decree. As the superior court correctly observed in denying
DeVaney's motion, "Mr. DeVaney had an obligation to pay $700 total
per month in child support pursuant to the dissolution decree even
before the Court amended the decree to correct its error."(EN4)
The judgment of the superior court is AFFIRMED.
1. Alaska Civil Rule 60(b)(4) provides:
(b) On motion and upon such terms as are just,
the court may relieve a party . . . from a
final judgment, order, or proceeding for the
. . . .
(4) the judgment is void[.]
William filed his motion for relief from judgment more
than four years after the superior court entered the 1991 order
amending the 1984 decree. Generally, such a long delay would bar
his motion. See Alaska R. Civ. P. 60(b); Burrell v. Burrell, 696
P.2d 157, 163 (Alaska 1984). However, there is no time limit on an
attack on a judgment as void. See Burrell, 696 P.2d at 163 n.11;
Kennecorp Mortgage & Equities, Inc. v. First Nat'l Bank of
Fairbanks, 685 P.2d 1232, 1236 (Alaska 1984).
2. Amendment XIV, section 1 of the U.S. Constitution provides in
part: "No state shall . . . deprive any person of life, liberty, or
property, without due process of law[.]"
Article I, section 7 of the Alaska Constitution provides in
part: "No person shall be deprived of life, liberty, or property,
without due process of law."
William's assertion that a judgment can be rendered void if
entered in violation of due process is correct. See Aguchak, 520
P.2d at 1354.
3. Moreover, it conflicts with his earlier admission that the
trial court's "$175.00 per month child support"language was
4. From this statement, William concludes that "[t]he trial
court's position was that the child support provisions of the 1984
Decree were void ab initio . . . ." He argues that this position
is incorrect and that the "trial court erred in failing to accord
full faith and credit to the 1984 Decree." We are skeptical of the
conclusion William draws from the court's language. In any event,
his argument that the court erred in not giving "full faith and
credit"to the 1984 decree is different from the argument that the
superior court erred in modifying the decree in form only and is