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Child Support Enforcement Div. v. Wetherelt (1/24/97), 931 P 2d 383
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
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) Supreme Court No. S-7464
ENFORCEMENT DIVISION, )
) Superior Court No.
Appellant, ) 3AN-94-2569 CI
v. ) O P I N I O N
ROBERT WETHERELT, ) [No. 4468 - January 24, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: Diane L. Wendlandt, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellant. Kenneth C. Kirk, Anchorage, for
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
At issue in this appeal are arrearage payments made by
Robert Wetherelt to the State of Alaska, Department of Revenue,
Child Support Enforcement Division (CSED) for the support of a
child who was ultimately proven not to be his. Wetherelt was named
as father on Roberta Wetherelt's birth certificate, thus
establishing a legal presumption of paternity. CSED proceeded to
collect reimbursement for child support based on the premise that
Wetherelt was legally responsible for Roberta Wetherelt. Though
Wetherelt asserted to CSED in April 1989 that he could not be
Roberta's father, he did not conclusively prove this by blood test
until March 1994. He thereafter brought an action to recover the
payments he made to CSED.
The superior court held that a 1983 dissolution decree
which failed to mention Roberta disestablished Robert Wetherelt's
paternity as a matter of law and that CSED should not have
collected support from him after this date. The superior court
further determined that CSED was unjustly enriched by Wetherelt's
payments and ordered the State to reimburse Wetherelt the amount
retained by CSED. The State now brings this appeal.
II. FACTS AND PROCEEDINGS
Robert Wetherelt and Mary Lake were married in 1972. On
December 14, 1974, Lake gave birth to a daughter, Roberta
Wetherelt. On the birth certificate, Wetherelt was named as
father. (EN1) Wetherelt and Lake separated soon after and in
October 1977, Lake applied for Aid to Families with Dependent
Children (AFDC) on behalf of Roberta. On the application for
assistance, Lake stated that she was separated from Wetherelt and
identified him as Roberta's father. As required by statute, Lake
assigned her rights to child support payments to the State for as
long as she received AFDC benefits.
In 1983, Lake and Wetherelt filed a joint Petition for
Dissolution of Marriage. Where the petition asked, "Are there
minor children born of the marriage or adopted?"the parties marked
"no." The petition nowhere mentions Roberta.
On August 18, 1983, a dissolution hearing was held before
a master. The hearing was brief, and Wetherelt did not appear.
Lake testified that there were no children of the marriage. No
evidence of paternity was admitted, nor did the superior court make
any findings or conclusions related to Roberta. The superior court
proceeded to enter a decree of dissolution which incorporated the
parties' agreements as reflected in the petition. With respect to
child custody and support, the superior court entered "N/A"on the
standard form decree.
Since the State had been supporting Roberta through AFDC,
CSED served Wetherelt with an administrative support order known as
a Notice and Finding of Financial Responsibility (NFFR) in April
1989. Two forms provided by Lake to CSED indicated that Wetherelt
was Roberta's father. The NFFR stated that if the recipient had
any objections, he had the right to request a conference at which
the issue of liability would be decided; otherwise, the NFFR would
be legal and binding.
In response, Wetherelt requested an informal telephonic
conference, stating: "Roberta is not my child. Mary and I had
separated and she had a baby by someone else. I had visectomy
[sic] over 22 years ago." Based on this claim, CSED investigated
the matter and obtained copies of the dissolution papers and
Roberta's birth certificate, indicating that the parties were
indeed married when Roberta was born. CSED concluded that a legal
parent-child relationship between Wetherelt and Roberta was created
at birth, and that the dissolution decree was not sufficient to
disestablish paternity. In a letter addressed to Wetherelt dated
June 29, 1989, CSED stated:
[T]he decree of dissolution of marriage
stating that there are no children of the
marriage does not constitute a court order
sufficient to override the presumption of
paternity as the court might not have been
aware that there were any children and there
was an issue of paternity or non-paternity and
just accepted that there were no children. The
Attorney General's position is that CSED is
entitled to rely upon the presumption of
paternity for the following reasons: (1) The
parties were married at the time of the birth
of the child. (2) You are listed as the father
on the birth certificate. (3) Mary Wetherelt
named you as the father on 2 AFDC
applications. Therefore CSED will pursue the
proceedings for the establishment of a child
support order and you will have to pursue your
own legal action to determine non-paternity.
CSED began collecting support from Wetherelt in January
1990. In April 1992, Wetherelt wrote to CSED requesting that the
sum of his wages garnished monthly in order to pay his support
obligation be decreased. Wetherelt stated in the letter that
"there is a dispute about the paternity of the child I am
supporting and at this point I am trying to resolve it." He
further claimed that the financial burdens being inflicted by CSED
made any such resolution impossible. Attached to the letter was an
affidavit asserting that Wetherelt had an "irreversible vasectomy"
performed on March 16, 1964, and that he had fathered no children
since that time. Wetherelt also enclosed medical records
indicating that the vasectomy actually occurred and that his sperm
count was zero as of June 1990.
In response, CSED sent Wetherelt a letter dated April 9,
1992, agreeing to modify its order withholding monthly wages. With
respect to the issue of paternity, CSED stated:
As you are aware, you will have to obtain an
attorney and prove paternity on your own.
Because you and Mary were married at the time
the child was conceived, the State of Alaska
considers you to be the father of said child.
Meanwhile, while you are working towards
settling the paternity issue, your support
order could be reviewed for modification if
you would complete and return the paperwork
that was mailed in November 1991 . . . .
Wetherelt wrote to CSED again in April 1992,
acknowledging receipt of notice that his garnishment had been
lowered, and "asking for more help"in forgiving the interest on
his arrears. He again asserted that he was not the father of
Roberta, and stated that he was "seeking legal assistance to prove"
this. Wetherelt requested an informal hearing with CSED and a
blood test to prove non-paternity.
CSED responded on May 16, 1992, informing Wetherelt that
interest would not accrue on his debt, but that CSED would not
assist him in setting up blood testing. The letter stated that
because Wetherelt "signed the affidavit of paternity which put
[his] name on the child's birth certificate as the father,"(EN2)
he would have to get a judge's order removing his name from the
birth certificate before CSED could help set up dates for blood
In January 1993, Wetherelt filed motions to "reaffirm
non-paternity"and to enjoin CSED from enforcing child support
arrearages against him. The superior court denied these motions on
April 22, 1993, but ordered CSED to coordinate blood testing at
Wetherelt's expense. The court further specified that withholding
of Wetherelt's wages be continued, but that "effective on the date
of this Order, CSED shall deposit with the court those funds
garnished pending outcome of the paternity test. In the event that
nonpaternity is established accumulated funds shall be returned to
Subsequent paternity tests excluded Wetherelt as
Roberta's father. On August 25, 1994, the superior court entered
an order declaring Wetherelt "not to be the father of Roberta
Wetherelt"and ordered that CSED return to Wetherelt accumulated
support funds pursuant to the court's April 22, 1993 order. CSED
returned these funds to Wetherelt.
On March 24, 1994, shortly after receiving the results of
the paternity test, Wetherelt filed an action against CSED and Lake
seeking a refund of the money collected by CSED prior to April
1993. The parties filed competing summary judgment motions which
were denied. Thereafter, at the conclusion of a court trial, the
superior court issued oral findings and conclusions, which were
later reflected in its written findings of fact and conclusions of
The superior court concluded that the Master had
effectively determined in the 1983 dissolution proceedings that
Roberta was not a child of the Wetherelt's marriage. Thus the
superior court held that, given the dissolution decree, CSED should
not have proceeded to collect child support from Wetherelt. The
court ordered CSED to refund Wetherelt $20,118.69, the amount
retained by the State as reimbursement for AFDC payments, and
ordered Lake to refund Wetherelt $18,928.53, the amount disbursed
by CSED to her as child support.
CSED sought reconsideration, which was denied. After the
superior court entered its final judgment, CSED brought this
A. Did the Superior Court's 1983 Dissolution Decree
Terminate Wetherelt's Duty of Support? (EN4)
The parties do not dispute that prior to 1983 Wetherelt
owed Roberta a duty of support. The issue is when the presumption
of paternity that results from being married to a woman at the time
she gives birth was legally rebutted. In order for such a
presumption to be rebutted, a court must find clear and convincing
evidence that the child is not of the marriage. Smith v. Smith,
845 P.2d 1090, 1092 (Alaska 1993). The superior court concluded
that the 1983 dissolution decree specifically adopting Mary and
Robert Wetherelt's representations that there were no children of
the marriage effectively terminated Wetherelt's duty of support.
The State contends that this conclusion is incorrect as a matter of
law, asserting "a court cannot disestablish paternity if it does
not know that the child exists."
The State claims that the 1983 dissolution decree fails
to meet the clear and convincing evidence standard for overcoming
the legal presumption of paternity required under Smith. It
supports this claim with two basic arguments.
First, the decree on its face makes no findings
concerning children or the lack of children. Though the superior
court found that the dissolution order "was that there were no
children of the marriage,"the State points out that the order
merely incorporated the agreements reflected in the petition for
dissolution. "Because the parties (not the court) stated that
there were no children of the marriage, the court simply typed in
'N/A' in the space allowed for Child Custody and Support. Thus,
there was no express finding concerning children on the face of the
The State further contends that even if the court's
incorporation of the parties' agreement is interpreted as a finding
that there were no children of the marriage,
there was clearly no evidence offered, whether
clear and convincing or otherwise, on the
issue of paternity. The reason for this
omission was simple: the court did not know
Roberta existed. For this very reason, this
Court has warned against basing the
disestablishment of paternity on a form
dissolution decree. . . .
. . . The court in the dissolution action
did not even know (and could not have known)
that it was terminating Mr. Wetherelt's
parental obligations for an unidentified
child, via a later superior court judge's
decision. Thus, by its ruling in the present
case, the trial court effectively allowed Mr.
Wetherelt and Ms. Lake to decide between
themselves whether Mr. Wetherelt would be
responsible for a child born during the
In State, Dep't of Revenue, CSED v. Allsop, 902 P.2d 790
(Alaska 1995), we held that a dissolution decree entered as a
result of an uncontested summary proceeding did not disestablish
paternity. The judgment of dissolution in Allsop adopted the
pleadings on their face, including the parties' representations
that there were no minor children born of the relationship. There
was no separate adjudication of paternity. We concluded that "even
if CSED possessed the authority to independently disestablish
Allsop's paternity, it would have been justified in giving the
California order very little weight." Id. at 796.
The policy rationale for a rule requiring judicial
involvement to disestablish paternity is apparent.
Litigation in domestic relations cases is
particularly prone to undue influence and
coercion, given the often highly-charged
emotional setting in such cases. Because of
this risk and the fact that the interests of
the children may not be represented, Alaska
law does not permit parents to unilaterally
terminate parental obligations or enter into
agreements waiving child support without court
The State concludes that, since the 1983 dissolution decree did not
terminate the legal relationship between Wetherelt and Roberta,
Wetherelt owed a duty of support until 1994, when the court issued
an express order declaring that Wetherelt was not Roberta's father.
Smith and Allsop reflect the judicial judgment that
paternity should be disestablished only by a showing of clear and
convincing evidence. Such evidence was not presented to or in any
way considered by the superior court when it dissolved the
Wetherelts' marriage, and this absence is implicitly reflected in
the contents of its order. We therefore conclude that we must
reverse the superior court's holding that the 1983 dissolution
decree disestablished paternity.
B. Did CSED Abuse Its Discretion by Refusing to Disestablish
The superior court held that since CSED knew of the
dissolution decree and was aware of Wetherelt's claim that he had
a vasectomy prior to his marriage to Mary, it "would have been up
to CSED and Ms. Lake to establish a relationship of parent and
child in order for CSED to proceed reasonably . . . . [T]he
collection of funds by CSED in light of the evidence before them,
without making the paternity determination, was an abuse of their
discretion." The superior court's conclusion in this regard
amounts to an assertion that CSED was required to disestablish
paternity, since a presumption of paternity was in place at the
time that CSED began collecting support from Wetherelt. (EN7)
The State claims that the superior court's conclusion was
based on the incorrect assumption that CSED had the statutory
authority to make a paternity determination. The State argues that
in fact CSED lacked this authority at the time it took action in
Wetherelt's case. (EN8)
At the time, CSED did not have the statutory
authority to determine Mr. Wetherelt's
paternity or nonpaternity of Roberta. CSED
was only authorized to "initiate efforts to
have the paternity of children born out of
wedlock determined by the court." AS
25.27.040(a). Moreover, in such cases, CSED
was not authorized to make the determination
of paternity administratively; it could only
initiate such efforts in court. AS
Since Mr. Wetherelt and Ms. Lake were
married, the child Roberta was not born out of
wedlock. There was no statutory mechanism in
place at that time which would have allowed
CSED to make factual findings that Roberta was
not Mr. Wetherelt's child. . . . Because CSED
was not authorized by the Alaska legislature
to disestablish paternity, if Mr. Wetherelt
wished to disestablish paternity, he (not
CSED) had to initiate proceedings in court to
de-legitimize [sic] Roberta. And, he was so
informed by CSED.
(Emphasis in original, footnote omitted.)
The State argues that CSED's statutory mandate allowed it
to do nothing more than inform Wetherelt of the steps he needed to
take in order to disestablish paternity. Until he obtained a court
order to this effect, "CSED was statutorily required to enforce
[Wetherelt]'s support obligation. AS 25.27.020(a)(4); AS
25.27.080(b).[ (EN9)] CSED's collection of support cannot be deemed
an abuse of discretion when it had no discretion to ignore the
support obligation." (Emphasis added.)
Wetherelt cites State, Dep't of Revenue, CSED v. A.H.,
880 P.2d 1048 (Alaska 1994), to support the proposition that CSED
was authorized to disestablish paternity before obligating
Wetherelt for Roberta's support. At issue in A.H. was a state law
entitling AFDC recipients to paternity testing at CSED's expense
where there is a "contested paternity action." The mother first
filed a paternity action in court and then sought the assistance of
CSED in establishing paternity in a man not her husband. CSED
refused to pay for paternity testing, based on the legal
presumption that the woman's husband at the time of conception was
the child's father. This court concluded that CSED had a duty to
pay for testing where the parties each filed affidavits to the
effect that the presumption of paternity was incorrect. We stated:
For the limited purpose of construing AS
25.27.040(a)[ (EN10)] -- i.e., whether a
paternity action is "contested"-- we hold
that these unimpeached affidavits constitute
clear and convincing evidence sufficient to
rebut the presumption of [the putative
father]'s paternity and to require CSED to pay
for paternity testing.
A.H., 880 P.2d at 1050.
The State contends that Wetherelt's reliance on A.H. is
misplaced. It asserts that the decision "had nothing to do with
administrative disestablishment . . . . The only question
addressed in A.H. was whether AS 25.27.040(a) required CSED to pay
for paternity testing to aid the parties and the court in the
paternity action . . . . Nowhere did the court state, or even
imply, that CSED had authority to administratively disestablish
paternity once the testing was complete." (Emphasis added.)
Our reading of A.H., in the context of the statutory
framework relevant to this case, comports with the State's
position. We hold that CSED lacked statutory authority to
disestablish paternity and, therefore, we reverse the superior
court's ruling that CSED abused its discretion by instituting
enforcement of Wetherelt's support obligation without making a
C. Would CSED Be Unjustly Enriched if Permitted to Retain
Support Collected from Wetherelt Prior to April 1993?
The superior court's ultimate conclusion was that CSED
would be unjustly enriched if permitted to retain the money it
collected from Wetherelt prior to April 1993. (EN12) The State
argues that the superior court's application of the unjust
enrichment doctrine is improper, contending that Wetherelt failed
to prove the elements of the claim. (EN13) In particular, the
State asserts that CSED did not receive "something for nothing,"
since the money it collected from Wetherelt was reimbursement for
payments already made for the support of a child for whom Wetherelt
was, at that time, legally responsible.
The essence of the State's argument is that, regardless
of the ultimate disposition of this matter (i.e., disestablishment
of paternity), Wetherelt was responsible for supporting Roberta
until he obtained a court order disestablishing paternity. The
State thus suggests:
There is nothing inequitable or unjust in
allowing CSED to retain the public assistance
reimbursement collected from Mr. Wetherelt.
. . . Mr. Wetherelt had a valid and
enforceable obligation to pay child support
for Roberta until August 1994 when a
determination of non-paternity was finally
issued by the court. By statute, the child
support arrears which accrued under the
administrative order prior to that date became
judgments when due and unpaid. AS 25.27.225.
Thus, the monies collected by CSED prior to
August 1994 were validly owed by Mr. Wetherelt
and were properly collected by CSED. . . .
CSED collected no more than was validly
owed by Mr. Wetherelt. It retained as
reimbursement no more than what it had paid to
support Mr. Wetherelt's child. CSED was unable
to change the situation since it did not have
the authority to disestablish paternity. . . .
Under the circumstances, CSED did not receive
a benefit the retention of which would be
either unjust or inequitable.
We are in agreement with the State's contention that
Wetherelt failed to meet the first and third prongs of the Darling
test for unjust enrichment. (EN14) We therefore reverse the
superior court's determination that CSED would be unjustly enriched
if it is permitted to retain support monies collected from
Wetherelt prior to April 1993.
The superior court's rulings that the 1983 dissolution
decree terminated Wetherelt's duty to support Roberta, that CSED
abused its discretion by refusing to disestablish paternity, and
that CSED would be unjustly enriched if permitted to retain support
monies collected from Wetherelt prior to January 20, 1993, are
REVERSED. (EN15) The superior court's judgment requiring the State
to pay Wetherelt $20,118.69 plus interest, costs, and attorney's
fees is REVERSED and VACATED.
1. AS 18.50.160(d) provides:
If the mother was married at the time of
conception or birth, the name of the husband
shall be entered on the certificate as the
father of the child unless paternity has been
determined otherwise by a court of competent
jurisdiction, in which case the name of the
father, if determined by the court, shall be
2. Wetherelt notes that he never signed a paternity
acknowledgment. However, his name appears on the birth certificate
pursuant to AS 18.50.160(d).
3. In its written findings the superior court found in part:
The court also finds overall that there
were no children of the marriage since the
court in 1983 had made the determination on
legal principles that Mr. Wetherelt was not
the father. A separate action was not
necessary in order for Mr. Wetherelt to be
found to not be the father of the child.
The court finds that given the 1983
dissolution decree, CSED should not have
proceeded to collect child support from Mr.
4. The legal effect of a court order is a question of law, which
this court reviews de novo. Wright v. Black, 856 P.2d 477, 479
(Alaska 1993). The court must exercise its independent judgment
and "adopt the rule of law that is most persuasive in light of
precedent, reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979).
5. Wetherelt's response is that the State "blurs the lines
between disestablishment of paternity, and termination of parental
rights." He further asserts that the 1983 dissolution decree
should be treated as sufficient to overcome the presumption of
paternity as required by Smith.
Wetherelt argues in the alternative that the dissolution
decree declaring that there were no children of the marriage was
valid, but subject to being set aside. Under this approach, more
appropriately propounded in a legislative context, paternity would
be disestablished by the decree unless and until the State filed a
motion requesting that the court (re)establish paternity.
Wetherelt cites Perry v. Newkirk, 871 P.2d 1150 (Alaska 1994),
setting aside an agreement regarding child support as of the time
the motion was filed by the custodian, in support of his
proposition that paternity disestablishment should be treated in
this manner. This reliance is misplaced, as it rests upon the
incorrect equation of the Wetherelts' 1983 dissolution decree with
the Perry agreement to waive support.
6. Whether CSED abused its discretion when it refused to
disestablish paternity is a mixed question of law and fact.
Whether CSED had the statutory authority to disestablish
paternity is a question of law subject to de novo review. Hertz v.
Carothers, 784 P.2d 659, 660 (Alaska 1990); McKean v. Municipality
of Anchorage, 783 P.2d 1169, 1170 (Alaska 1989).
7. In its Conclusions of Law, the superior court wrote:
CSED chose not to request and pay for
paternity testing when they knew that
paternity was contested. At this time, the
court does not think there was any basis for
them to do that. Nonetheless, they could have
filed a paternity action in court themselves
in 1989 in the face of conflicting evidence,
and chose not to, but chose to proceed
administratively. . . .
. . . This court holds that the collection of
funds by CSED in light of the evidence before
them, without making the paternity
determination, was an abuse of their
discretion in this case and under these facts.
8. Effective January 1, 1996, CSED was given the authority to
establish and disestablish paternity administratively. See AS
25.27.020(a)(11); AS 25.27.165; AS 25.27.166. These provisions
were not operative at the time CSED began collecting support from
9. AS 25.27.020(a)(4) states:
The agency shall establish, enforce, and
administer child support obligations
administratively under this chapter.
AS 25.27.080(b) states:
The agency on behalf of the custodian or
the state shall take all necessary action
permitted by law to enforce child support
orders so entered, including petitioning the
court for orders to aid in the enforcement of
10. AS 25.27.040(a) provides in part:
The agency may appear on behalf of minor
children or their mother or legal custodian or
the state and initiate efforts to have the
paternity of children born out of wedlock
determined by the court. When the agency is a
party to a court action in which paternity is
contested, it shall request and pay for
genetic testing and procedures . . . . The
agency may recover the costs of the tests as a
cost of the court action, except that costs
may not be recovered from [an AFDC recipient].
11. Unjust enrichment is an equitable doctrine which ordinarily
falls within the trial court's broad discretion. Alaska Sales and
Serv. v. Millet, 735 P.2d 743, 747 (Alaska 1987). Whether there
has been unjust enrichment is generally a question of fact. As
such, the trial court's determination should not be set aside
unless clearly erroneous. Wright, 856 P.2d at 479. Where the
facts are clearly established, the issue becomes one of law, and
the court must "adopt the rule of law that is most persuasive in
light of precedent, reason, and policy." Guin, 591 P.2d at 1284
12. In its Conclusions of Law, the superior court determined:
This court also holds that the State of
Alaska, Child Support Enforcement Division
. . . received a direct benefit from the
collection of child support from Mr.
Wetherelt, that being the money that was
collected from him and which they received.
This court holds that to allow CSED . . .
to retain these funds would be inequitable.
13. In order to recover for unjust enrichment, a party must show:
(1) a benefit conferred upon the defendant by
(2) appreciation by the defendant of such
(3) acceptance and retention by the defendant
of such benefit under such circumstances that
it would be inequitable for him to retain it
without paying the value thereof.
Darling v. Standard Alaska Prod., 818 P.2d 677, 680 (Alaska 1991),
cert. denied, 502 U.S. 1097 (1992). In order to recover, it is not
enough that a benefit was conferred on a defendant. Rather, "the
enrichment to the defendant must be unjust; that is, the defendant
must receive a true windfall or 'something for nothing.'" Alaska
Sales and Serv., 735 P.2d at 746.
14. Darling, 818 P.2d at 680. The State's position as to the
third prong is quoted above. As to the first prong, the State
First, CSED did not receive "something for
nothing"from Mr. Wetherelt. The state paid
in advance for what it collected from Mr.
Wetherelt by supporting the child to whom Mr.
Wetherelt owed a legal duty of support. There
is absolutely no evidence which would suggest
that the state retained as public assistance
reimbursement more than it paid to support the
child. The state was simply reimbursed for
the money spent on Mr. Wetherelt's legal
15. At oral argument before this court, counsel for CSED conceded
that Wetherelt is entitled to a refund of any of his wages
garnished by CSED between January 20, 1993, and April 23, 1993
(January 20, 1993, being the date Wetherelt filed his motion to
reaffirm non-paternity in the dissolution case).
On remand the superior court is directed to enter a modified
judgment against the State requiring it to pay Wetherelt any sums
garnished by CSED during this three-month period together with
costs, interest, and an award of attorney's fees, if deemed
We conclude it is unnecessary to address any other issues
raised in this appeal.