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Hermosillo v. Hermosillo (8/14/98), 962 P 2d 891

     Notice:  This opinion is subject to 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) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

RICHARD HERMOSILLO,           )
                              )    Supreme Court No. S-7886
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-91-10424 CI
                              )
MARY K. HERMOSILLO and STATE  )    O P I N I O N
OF ALASKA, DEPARTMENT OF      )
REVENUE, CHILD SUPPORT        )    [No. 5018 - August 14, 1998]
ENFORCEMENT DIVISION,         )
                              )
             Appellees.       )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Elaine M. Andrews, Judge.


          Appearances: Richard Hermosillo, pro se,
Anchorage, Appellant.  Diane L. Wendlandt, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee State of Alaska.


          Before:  Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.  


          PER CURIAM


I.   INTRODUCTION
          Richard Hermosillo appeals the superior court's denial of
his Alaska Civil Rule 60(b) motion seeking relief from a child
custody, visitation, and support order.  We conclude that the
superior court erred in failing to incorporate Child Insurance
Benefits (CIB) into its calculation of Richard's child support
arrears and in ordering that visitation sanctions would offset that
debt. [Fn. 1]  We remand to the superior court for a recalculation
of Richard's child support arrears.
II.  FACTS AND PROCEEDINGS
          During their marriage, Richard and Mary Hermosillo had
one child, Paul, born August 31, 1978.  Richard and Mary were
divorced in 1982.  The superior court ordered Richard to pay child
support for Paul in the amount of $150 per month.  In 1983 the
superior court reduced Richard's support obligation to $100 per
month, but in 1984 it reinstated the original $150 amount at the
request of the Child Support Enforcement Division (CSED), which was
providing Mary public assistance on behalf of Paul. [Fn. 2]  CSED,
however, failed to enter this change into its computer system and
undercharged Richard until it discovered its mistake in 1996.
          In August 1984 Paul became eligible for CIB payments when
Richard became disabled.  In 1986 the Social Security
Administration paid retroactive benefits on Paul's behalf in a
lump-sum amount.  It is unclear which parent received Paul's
monthly CIB checks from 1986 to 1987.  After 1987 periodic payments
of varying amounts were apparently sent to Mary.  In 1988 Richard
contacted CSED about the effect of the CIB payments on his child
support obligation.  In 1990 CSED informed Richard that his support
arrearage would continue to accrue without any credit for the CIB
payments.  
          As a result of an ongoing child custody and visitation
dispute between the parties, Mary removed Paul from the state in
December of 1993, in violation of the standing custody order.  In
October 1994 the superior court issued an order awarding Mary full
custody and granting Richard visitation during the month of July
every year.  The court ordered Mary to pay the transportation for
these summer visits.  The court also ordered that each day of
missed visitation would be deemed a violation of the custody decree
and would result in a $200 sanction to be offset against Richard's
child support arrears.  The court held, however, that the sanctions
would cease once Richard's child support debt was satisfied.
          When Paul did not return to Alaska for scheduled
visitation in July 1995, Richard filed a Rule 60(b) motion for
relief from the 1994 order.  He addressed a wide array of issues
including custody and visitation, sanctions, and, for the first
time, whether CIB credits should offset his child support
obligation.  The superior court denied Richard's motion with
respect to custody and visitation, but held that Richard owed the
State a public assistance debt of $7,531.22.  The superior court
also ruled that Richard owed Mary approximately $5,295 in child
support arrears, but ordered that visitation sanctions in the
amount of $12,000 would be offset against that amount.  The
superior court found that, because the sanctions fully offset the
child support arrearage, it was unnecessary to incorporate the CIB
payments into its calculation of Richard's arrears.  The superior
court did conclude that neither the CIB payments nor the sanctions
could be used to offset Richard's public assistance debt.
          CSED discovered its earlier accounting error while
preparing its proposed order and filed a new audit with the
superior court.  The superior court denied CSED's attempt to reopen
the matter.  The superior court issued a written order entering
judgment in favor of the State for the public assistance debt,
reaffirming the imposition of sanctions and corresponding offset
against arrears and denying Richard's pending motions concerning
visitation and custody.  Finally, the superior court held that if
the child support debt was greater than the amount of the
sanctions, the "CIB issue may be raised through an appropriate
motion."  Richard appeals.
III. DISCUSSION
     A.   Standard of Review
          Whether the superior court appropriately considered CIB
in the computation of Richard's child support arrears is a question
of law that we review de novo.  See Pacana v. State, Dep't of
Revenue, 941 P.2d 1263, 1264 (Alaska 1997) (citing Miller v.
Miller, 890 P.2d 574, 576 (Alaska 1995)).  Whether visitation
sanctions may offset child support arrears is a question that
involves statutory interpretation and therefore is also reviewed de
novo.  See Aetna Cas. & Sur. Co. v. Marion Equip. Co., 894 P.2d
664, 666 (Alaska 1995).  "Under this standard, our duty is to adopt
the rule of law that is most persuasive in light of precedent,
reason and policy."  Pacana, 941 P.2d at 1264 (quotation and
citation omitted).
          We will overturn a superior court's child support
determination only if the court abused its discretion, or if its
factual findings are clearly erroneous.  See Nass v. Seaton, 904
P.2d 412, 414 (Alaska 1995).
     B.   The Superior Court Erred in Failing to Incorporate the
CIB Payments into the Calculation of Richard's Support Arrears.

          Richard argues that the superior court erred in failing
to consider the CIB payments when it calculated his arrears.  He
contends that CSED should have offset his arrears with the CIB
payments before incorporating the visitation sanctions.  CSED
agrees that remand for recalculation is necessary, claiming that
the offset of visitation sanctions violated AS 25.27.080(c).  CSED
also seeks to recalculate the arrears using the correct child
support obligation of $150 per month.
          We agree that the superior court erred in failing to
account for the CIB payments when calculating Richard's arrears. 
We note, however, that the trial court rendered its decision
without the benefit of our decisions in Pacana v. State, Department
of Revenue, 941 P.2d 1263 (Alaska 1997) and State, Department of
Revenue v. Fry, 926 P.2d 1170 (Alaska 1996), each extending the
rule of Miller v. Miller, 890 P.2d 574, 577 (Alaska 1995).
          In Miller, we adopted the majority view permitting social
security benefits [Fn. 3] paid to a child on the parent's behalf to
be credited toward child support obligations.  See 890 P.2d at 577. 
We reasoned:
          The primary purpose of Civil Rule 90.3 is to
ensure that child support orders are adequate to meet the needs of
children, subject to the ability of the parents to pay.  Social
security benefits payable to a child are geared toward fulfilling
the same objective.      Although the
                         benefits are
                         payable
                         directly to the
                         child rather
                         than through
                         the
                         contributing
parent, the child's entitlement to payments derives from the
parent, and the payments themselves represent earnings from the
parent's past contributions.  

Id. (citations omitted).
          In Fry, we reaffirmed and extended Miller "to hold that
ongoing support obligations of obligor parents are offset by CIB
payments made to their children, including children who have
received AFDC assistance."[Fn. 4]  Fry, 926 P.2d at 1174. 
Finally, in Pacana, we addressed whether CIB payments may
retroactively offset child support arrears that accrued before the
parent moved to modify child support.  See Pacana, 941 P.2d at
1264-66.  There, we read Rule 90.3(h)(2) [Fn. 5] to allow an
automatic credit against child support arrears for CIB.  See id. at
1266.  We reasoned that "[t]he Rule 90.3(h)(2) restriction only
applies to retroactive changes in the amount of the child support
award,"but "[b]ecause the CIB payments are regular monthly
payments and the custodial parent is aware of them, they can be
credited against a child support obligation."  Id.
          Given our prior holdings, the superior court erred in
calculating Richard's arrears without first having accounted for
the CIB payments.  Accordingly, we remand the matter to the
superior court for a determination of Richard's support and public
assistance arrears.
     C.   The Superior Court Erred in Ordering the Visitation
Sanction to be Offset against Richard's Support Arrears.

          In 1994 the trial court's order provided for sanctions of
$200 for each day that Richard was deprived of visitation with
Paul.  The 1996 judgment ordered that a total of $12,000 in
visitation sanctions be deducted from Richard's support arrears. 
While CSED agrees with Richard that his child support arrears must
be recalculated to take into account the CIB payments, it contends
that AS 25.27.080(c) prohibits the trial court from applying the
visitation sanctions as an offset against the corrected amount.  We
agree.
          We interpret a statute by examining its language with a
view towards its purpose.  See Beck v. State, Dep't of Transp. &
Pub. Facilities, 837 P.2d 105, 116-17 (Alaska 1992). "Under our
'sliding scale' approach to statutory interpretation, the plainer
the language of the statute the more convincing the evidence of
contrary legislative intent must be."  O.R. v. State, Dep't of
Health & Soc. Servs., 932 P.2d 1303, 1310-11 (Alaska 1997).
          Alaska Statute 25.27.080(c) provides that
          [t]he determination or enforcement of a duty
of support is unaffected by any interference by the custodian of
the child with rights of custody or visitation granted by a court. 

The language of this provision is clear and unambiguous; a
noncustodial parent's support obligation may not be reduced due to
a custodial parent's conduct in interfering with his or her
visitation rights.  Richard has pointed to no contrary legislative
intent.  Allowing visitation sanctions to be offset against child
support arrears would certainly affect the determination and
enforcement of Richard's child support obligation, thus
accomplishing what the statute expressly prohibits.  On remand, the
superior court should not include the visitation sanctions in its
recalculation of Richard's arrears.
     D.   Other Considerations on Remand
          CSED's 1984 record-keeping error did not have the effect
of modifying a court-ordered support obligation.  On remand the
superior court should instruct CSED to recalculate Richard's
arrears based upon the $150-per-month support obligation that the
court reinstated in 1984.  Furthermore, because the record is
unclear, the superior court may also wish to consider additional
evidence to determine which parent received the CIB payments on
behalf of Paul and when those payments were received. [Fn. 6]
IV.  CONCLUSION
          We VACATE the superior court's order and REMAND for a 
recalculation of Richard's child support arrears and public
assistance debt in a manner consistent with this opinion.


                            FOOTNOTES


Footnote 1:

     We do not address Richard's custody or visitation arguments
because they became moot when Paul turned 18 years of age on August
31, 1996.  See AS 25.20.010 ("A person is considered to have
arrived at majority at the age of 18, and thereafter has control of
the person's own actions . . . ."); Turinsky v. Long, 910 P.2d 590,
594 n.9 (Alaska 1996) (treating custody issues as moot where child
had reached age of majority before appeal was taken but addressing
child support issues).


Footnote 2:

     The State provided public assistance through April 1986. 


Footnote 3:

     For the purposes of our analysis in Miller, we held that there
is no reason to distinguish between social security retirement
benefits and social security disability benefits.  See Miller v.
Miller, 890 P.2d 574, 577 (Alaska 1995).


Footnote 4:

     We explained:

          CIB eligibility and benefit calculations,
based on parental work history and earnings, are the same
regardless of whether a child receives public assistance.  The fact
that a child receives AFDC assistance does not justify withholding
an offset of CIB against an obligor parent's ongoing support
obligations to his or her children.  

State, Dep't of Revenue v. Fry, 926 P.2d 1170, 1173 (Alaska 1996)
(citations omitted).


Footnote 5:

     Alaska Civil Rule 90.3(h)(2) provides:

          Child support arrearage may not be modified
retroactively, except as allowed by AS 25.27.166(d)
[disestablishment of paternity].  A modification which is effective
on or after the date that a motion for modification, or a notice of
petition for modification by the Child Support Enforcement
Division, is served on the opposing party is not considered a
retroactive modification.


Footnote 6:

     We do not reach the issue of whether the CIB payments may
offset Richard's state public assistance debt.  Neither party has
directly appealed or adequately briefed this issue.

          Additionally, as CSED argues, the recalculation on remand
may eliminate the need to decide whether CIB can offset against
prior public assistance debt.