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Alaska Child Support Enforcement Div. V. Gause (11/20/98), 967 P 2d 599


     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
                                 

STATE OF ALASKA, DEPARTMENT   )
OF REVENUE, CHILD SUPPORT     )    Supreme Court No. S-7953
ENFORCEMENT DIVISION ex rel.  )
CONSTANCE L. GAUSE,           )    Superior Court No.
                              )    3AN-80-0524 CI
             Appellant,       )
                              )    O P I N I O N
     v.                       )
                              )    [No. 5045 - November 20, 1998]
THOMAS GAUSE,                 )
                              )
             Appellee.        )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Karen L. Hunt, Judge.


          Appearances: Diane L. Wendlandt, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellant.  Martha C. Shaddy, Anchorage, for
Appellee.


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


          FABE, Justice.
          COMPTON, Justice, dissenting in part.


I.   INTRODUCTION
          In an effort to collect child support arrears owed by
Thomas Gause, the Child Support Enforcement Division (CSED) filed
a motion under AS 25.27.226 seeking to establish a judgment for the
past due payments.  The superior court denied the motion, ruling
that it was barred by the statute of limitations set out in AS
09.10.040(b), which applies to "actions."  In State ex rel. Inman
v. Dean, [Fn. 1] we held that AS 25.27.226 motions to collect child
support arrears do not qualify as "actions."  The legislature's
view to the contrary, as expressed in sec. .040(b), was based on
erroneous lower court decisions issued prior to Dean.  Because
statutes based on a mistaken premise do not change the legal rules
in effect prior to their enactment, we conclude that sec. .040(b)
does
not apply to AS 25.27.226 motions.  We therefore reverse.
II.  FACTS AND PROCEEDINGS
          Thomas Gause and Constance Gause married in 1967 and
divorced in 1980.  In the divorce decree, the superior court
awarded custody of the Gauses' three children to Constance and
ordered Thomas to pay $150 per month in support for each child. 
The court modified this order on two separate occasions to reflect
changes in the custody of Gwendolyn, the Gauses' oldest child.  In
the last modification approved in February 1984, the court ordered
Thomas to pay Constance a total of $300 per month in child support
for months when Gwendolyn lived with him, and $500 per month in
months when Gwendolyn lived with her. 
          Thomas subsequently moved to South Carolina.  After his
move, CSED filed a petition in South Carolina under the Uniform
Reciprocal Enforcement of Support Act (URESA), then in effect in
Alaska. [Fn. 2]  Based on the URESA petition, a South Carolina
court issued an order requiring Thomas to pay a total of $175 per
month in child support.  CSED thereafter changed its accounting to
show Thomas as accruing arrears of $175 per month, rather than $300
or $500 per month as required under the Alaska order.  The
statements sent by CSED to Thomas reflected this change in CSED's
accounting practices.
          One month after the Gauses' youngest child turned twenty-
one, CSED filed a motion under AS 25.27.226 [Fn. 3] asking the
superior court to establish a judgment for the child support
arrears owed by Thomas.  CSED sought arrears based on the original
Alaska support order.  Thomas opposed the motion, arguing that it
was barred by the statute of limitations set out in AS
09.10.040(b), which provides that an "action"to establish a
judgment for child support arrears must be commenced by the date on
which the youngest child covered by the support order turns twenty-
one. [Fn. 4]  Alternatively, Thomas claimed that the amount of
arrears should be reduced because (i) CSED was estopped from
claiming arrears under the Alaska order, rather than the South
Carolina order; and (ii) CSED should be precluded from collecting
support owed on his children's behalf for months when they resided
with him.
          Superior Court Judge Karen L. Hunt denied CSED's motion
without entering findings of fact or conclusions of law.  When CSED
requested that she clarify her decision, she specified her reliance
on Thomas's discussion of the statute of limitations and estoppel
issues.  CSED appeals, arguing both that its motion was not time
barred and that Thomas's arrears should not be reduced based on the
claims he raised below.
III. DISCUSSION
     A.   Does the Statute of Limitations Set Out in AS
09.10.040(b) Bar CSED's Motion to Establish a Judgment for Child
Support Arrears Owed by Thomas? 
     
          The parties' dispute over the meaning of AS 09.10.040(b)
lies at the center of this appeal. [Fn. 5]  Because the context in
which the legislature passed this statute is particularly relevant
to how we interpret it in this case, we begin by discussing the
circumstances surrounding its enactment.  
          In 1993 two superior court judges ruled that former AS
09.10.040 [Fn. 6] barred CSED from recovering child support arrears
that had accrued more than ten years before the date of its AS
25.27.226 motion. [Fn. 7]  In the lower courts, CSED had not argued
that the ten-year limit did not apply to its motions to collect
arrears; instead, it claimed that the statute of limitations should
be tolled based on its timely commencement of administrative
enforcement actions. [Fn. 8]  The superior court judges rejected
CSED's argument, and it appealed to this court. [Fn. 9] 
          Before we decided CSED's appeal, the legislature amended
former AS 09.10.040 by adding subsection (b). [Fn. 10]  The new
subsection provides that "[a]n action may be brought to establish
a judgment for child support payments that are 30 or more days past
due under a support order . . . if the action is commenced by the
date on which the youngest child covered by the support order
becomes 21 years of age."[Fn. 11]  As CSED states, the "purpose of
the new legislation was to lengthen the period of time in which
motions to reduce arrears to judgment could be filed."  In fact,
subsection (b) was created at CSED's request because it feared the
loss of its collection authority over a substantial amount of
arrears if we affirmed the decisions of the superior court judges.
[Fn. 12]
          After the legislature passed new subsection (b), we
decided State ex rel. Inman v. Dean, which resolved CSED's appeal
of the lower court rulings interpreting former AS 09.10.040. 
Because the CSED motions at issue in Dean had been filed prior to
the effective date of subsection (b), our decision interpreted the
statute's former version. [Fn. 13]  As we explained, former AS
09.10.040 became part of Alaska's statutory law in the late 1800s
and stemmed from the Oregon code. [Fn. 14]  Thus, our opinion
relied on common law interpretations of the terms used in the
statute.  
          We began our statutory analysis in Dean by stating that
a judicially decreed child support payment is a judgment that vests
when the installment becomes due but remains unpaid. [Fn. 15] 
Therefore, we explained, although AS 25.27.226 describes motions to
collect arrears as "establish[ing] a judgment,"such motions are
actually proceedings to enforce an already existing judgment. [Fn.
16]  We then held that enforcing a judgment does not qualify as
"bring[ing] an action"within the meaning of former AS 09.10.040
because an "action"under common law is a proceeding commenced by
the filing of a complaint. [Fn. 17]  We thus concluded that the
former statute did not apply to CSED's motions under AS 25.27.226
to collect arrears. [Fn. 18]  Instead, we ruled that such motions
were governed by AS 09.35.020, which applies to executions of
judgments. [Fn. 19]  Under this statute, a judgment creditor who
attempts to execute a judgment after a lapse of five years must
show good cause for the delay; however, the statute places no
absolute time limit on enforcement proceedings. [Fn. 20] 
          1.   The parties' arguments        
          CSED argues that Dean's construction of the term "action"
in former AS 09.10.040 must govern our interpretation of new
subsection (b) because the subsection also refers to bringing an
action. [Fn. 21]  Thus, it argues, because a motion to collect
arrears is not an action, subsection (b) does not apply to the AS
25.27.226 motion filed in this case.
          Thomas replies that our construction of the word "action"
in Dean is irrelevant to interpretation of AS 09.10.040(b) because
Dean's holding was based on the former version of the statute,
which did not include subsection (b). [Fn. 22]  He further claims
that the legislature passed subsection (b) at CSED's request to
apply to AS 25.27.226 motions.  Thus, he concludes that it would
contradict legislative intent to construe the new subsection as not
applying to the motion to collect arrears filed in this case.
          2.   Construing AS 09.10.040(b)
          Each of the parties' arguments about the scope of
subsection (b) has merit.  As CSED claims, a motion to establish a
judgment for child support arrears under AS 25.27.226 is not an
"action"as that term was understood at common law.  But Thomas is
correct that the legislature drafted AS 09.10.040(b) with the
understanding that it would apply to such motions. [Fn. 23]
          The crucial point, however, is that the legislature added
new subsection (b) because of the lower courts' erroneous
conclusion that former AS 09.10.040 applied to CSED's motions to
collect arrears.  We have previously considered how to analyze a
statute when the legislature acts based on a mistaken premise. 
          In City of Fairbanks v. Schaible, [Fn. 24] we were asked
to decide whether the City could be held liable for injuries
resulting from the negligence of its fire department. [Fn. 25]  The
City urged us to find that it was immune from tort liability; as
evidence, it pointed to a statute enacted in 1957 that assumed that
fire-fighting organizations enjoyed such immunity. [Fn. 26]  We
recognized that the legislature's understanding of immunity law
stemmed from decisions of the territorial district court in Alaska,
which had held that cities were not liable in tort for their
exercise of governmental functions. [Fn. 27]  We concluded,
however, that the territorial court had misinterpreted the law of
our state and that municipalities in Alaska did not enjoy immunity
from tort liability. [Fn. 28]  We also implicitly held that the
1957 statute did not change the law and emphasized that it was
based on an "erroneous belief."[Fn. 29]
          The circumstances in Schaible, although different from
those in this case, are sufficiently analogous to provide guidance
in resolving the issue before us.  The legislature that passed the
AS 09.10.040(b) amendment, like the legislature that passed the
1957 statute in Schaible, was relying on an erroneous construction
of the law by a lower court.  A statute passed based on a mistaken
premise does not change the legal rule in effect before its
passage. [Fn. 30]  Although the 1957 statute in Schaible was not an
amendment to the preexisting statute, that case presented us with
an opportunity to broaden the scope of municipal immunity beyond
that in the preexisting statute based on the legislature's implied
recognition of such immunity in the later statute.  Instead, we
declined to change the judicially recognized meaning of immunity to
conform to the legislature's mistaken view of the law. [Fn. 31]
          In this case, the legislature's decision to amend AS
09.10.040(b) does not relieve us of the duty of interpreting the
term "action"in that provision.  Understandably, the legislature
relied on erroneous trial court decisions in its assumption that
motions to reduce arrears to judgment constitute "actions."  But in
Dean we held that they do not.  As in Schaible, we decline to
broaden the judicially recognized scope of the word "action"to
conform to the legislature's "erroneous belief"about the law.
          Thus, we hold that new subsection (b) does not apply to
AS 25.27.226 motions to collect arrears because such motions are
not "actions"as that term is understood in the common law.  The
superior court therefore erred in concluding that new subsection
(b) barred CSED's AS 25.27.226 motion in this case. [Fn. 32]
     B.   Other Issues
          CSED also discusses the other claims raised below by
Thomas regarding the amount of arrears owed.  It argues (i) that it
should not be estopped from seeking arrears under the Alaska order
based on accounting statements sent to Thomas; (ii) that the URESA
order did not modify the Alaska support order; and (iii) that,
because he failed to file a motion to modify the custody and
support order, Thomas's support obligation was not suspended during
periods when he had physical custody of the children.
          The superior court's clarification order suggests that it
considered only the statute of limitations and estoppel issues in
reaching its decision.  We therefore limit our discussion of the
other claims raised by CSED to the estoppel issue.  On remand, the
superior court should address the merits of CSED's two remaining
arguments. [Fn. 33]  
          We analyze the estoppel argument by relying on the rule
established in our recent decision in State, Department of Revenue
v. Valdez. [Fn. 34]  In Valdez, we stated that when CSED is
collecting child support on behalf of the custodial parent, its
actions cannot amount to waiver or estoppel because it has no power
to waive a child's right to support. [Fn. 35]  In contrast, we
suggested that the doctrines of waiver and estoppel could apply
when CSED is seeking reimbursement for AFDC payments, because only
the State's rights would be at stake in such situations. [Fn. 36] 
  
          Recognizing the applicability of our ruling in Valdez to
the facts of this case, Thomas now concedes that CSED's actions in
sending him erroneous accounting statements cannot justify his
refusal to pay arrears owed to his ex-wife.  He argues, however,
that CSED is not entitled to the $600 that he owes the State for
AFDC reimbursement.  Although CSED theoretically could be estopped
from recovering such funds under the rationale of Valdez, [Fn. 37]
Thomas's estoppel claim with respect to these funds fails because
he cannot show detrimental reliance. [Fn. 38]  As CSED points out,
Thomas's debt for the AFDC payments accrued in 1980 and 1981,
before the URESA order was issued and before CSED began sending him
accounting statements showing his arrears as accruing under that
order.  Therefore, because Thomas could not have reasonably relied
on the accounting statements in concluding that he did not owe the
$600 in AFDC payments, CSED may recover these funds.
IV.  CONCLUSION
          The superior court erred in concluding that the statute
of limitations set out in AS 09.10.040(b) barred CSED's AS
25.27.226 motion to collect child support arrears owed by Thomas. 
Subsection (b) applies only to "actions"establishing a judgment,
and AS 25.27.226 motions do not qualify as "actions."  The
legislature's view to the contrary was based on the erroneous
conclusion of the lower courts.  Because statutes based on a
mistaken premise do not change the legal rules in effect prior to
their enactment, we conclude that subsection (b) does not apply to
AS 25.27.226 motions because they are not "actions."  We therefore
REVERSE the decision of the superior court and REMAND for
proceedings consistent with this opinion.
COMPTON, Justice, dissenting in part.
          I do not agree with Section III.A.2.  It is based on City
of Fairbanks v. Schaible, 375 P.2d 201 (Alaska 1962), which is
distinguishable in a significant and material way from this case. 
I do not believe Schaible is either controlling or persuasive.  
          In Schaible we held that "[s]ection 56-2-2 A.C.L.A. 1949
in plain language imposes liability 'for an injury to the rights of
the plaintiff arising from some act or omission' of the City."  Id.
at 208.  Noting that the City "relies heavily on [Gilbertson v.
City of Fairbanks, 262 F.2d 734, 739 (9th Cir. 1959)], where the
Court of Appeals for the Ninth Circuit . . . held that the mantle
of municipal immunity covers a firefighting activity of the City of
Fairbanks,"id. at 209, we observed that sec. 56-2-2
          was totally ignored in the Gilbertson opinion. 
Whether it was considered in reaching that decision, we do not
know.   Assuming it had not been considered, we cannot speculate as
to whether a different result would have been reached if the
history and meaning of that statute had been examined. In any
event, it would make no difference here.  The Supreme Court of the
State of Alaska is not bound by the Ninth [C]ircuit decision in
Gilbertson.
 
Id. (footnotes omitted).
          We then addressed the City's following argument:
               Finally, the City contends that a 1957
statute of the Alaska legislature impliedly recognized municipal
immunity in this area.38  It may be true that the person who drafted
this act and the legislature that enacted it believed that such
immunity existed.  This is understandable in light of the then
prevailing view of the Territorial district court that a city was
not liable in tort in the exercise of a governmental function.  But
we hold that this is not the law in Alaska.  Thus, the most that
can be said for the 1957 statute is that it represents an erroneous
belief that cities are not liable in tort for negligence connected
with fire-fighting activities.

                                

          38   S.L.A.1957, ch. 92 [Sec. 40-14-1
A.C.L.A.Cum.Supp.1957]  provides that fire-fighting organizations
of Alaska, when engaged outside their home districts, "shall have
the same immunities and privileges as if performing the same
[functions] within their respective cities, towns, incorporated
area or territory."  The City's argument as to the meaning of this
language finds support in Gilbertson . . . .

Id. at 209-10 (footnotes and citations omitted, except as noted;
emphasis added).
          Section 40-14-1 did not purport to amend sec. 56-2-2. 
The
City argued that sec. 40-14-1's enactment was an impliedrecognition
of municipal immunity.  It is not clear from the opinion whether
the City was arguing that sec. 40-14-1 impliedly created municipal
immunity or that it was implied evidence of the meaning of
sec. 56-2-2.  Regardless, neither interpretation is material in
this
case.
          It is not correct to say, as does the court, that "[t]he
legislature that passed the AS 09.10.040(b) amendment, like the
legislature that passed the 1957 statute in Schaible, was relying
on an erroneous construction of the law by a lower court."  Slip
Op. at 10-11.  I assume that the court is referring to
sec. 40 14 1,
the 1957 statute, as "the statute in Schaible,"and referring to
sec. 56 2 2, the 1949 municipal-liability statute, as "the law"
that a lower court had "erroneous[ly] constru[ed]."  But Schaiblenever
determined that the 1957 legislature did, in fact, pass
sec. 40 14 1
in reliance on any construction of sec. 56 2 2 by a lower court. 
We
said "it may be true"that the drafter of sec. 40 14 1 and the
legislature that passed it were relying on an erroneous view of the
law; we did not say that it was true.  Moreover, the City's
argument was that sec. 40 14 1, the later statute, had impliedly
recognized municipal immunity from tort liability for negligent
firefighting; contrary to the City's view, however, we held that
such liability was imposed "in plain language"by sec. 56 2 2.   We
did not determine that the later statute had in fact established or
recognized municipal immunity.  And we did not determine that the
1957 legislature had intended to establish or recognize municipal
immunity, only that the "1957 statute . . . represents an erroneous
belief that cities are not liable in tort for negligence connected
with fire-fighting activities."  Id. at 209.  Had that been the
legislative intent, the analogy might be persuasive.
          In sum, my disagreement focuses on the court's equation
of AS 09.10.040(b) with sec. 40 14 1, which the court says was "the
statute in Schaible."  It was not.  The "statute in Schaible"was
sec. 56 2 2, which governed the case and made the City liable "in
plain language."  The City unsuccessfully tried to put sec. 40 14 1
"at issue"by pointing to it as evidence that a later legislature
had thought that municipalities were immune from such liability. 
In this case, AS 09.10.040(b), the statute at issue, is not
evidence of how to interpret some other statute that in fact
governs the case; it is the statute that governs the case.  
          In the case before us, there is no question what the
legislature intended.  The fact that its intention was motivated by 
trial courts having interpreted a statute in a way the legislature
-- or, in this case, the executive branch -- found unwise or
unworkable is no reason to ignore what the legislature intended. 
That is not our prerogative.  We cannot suppose that, had the
legislature known we would disagree with the trial courts'
interpretations of AS 09.10.040(b), it would have enacted a
different statute.  Yet that is the import of the court's opinion. 
          The best that can be said for Schaible is that the
legislature acquiesced in a federal appellate court's
interpretation of Alaska law, an interpretation that the Alaska
Supreme Court ultimately found wanting.  In the case at bar, the
legislature emphatically disagreed with trial courts'
interpretations of a law, and enacted a law that it wanted to
govern the rights and responsibilities of parties in a given
situation.  It did not acquiesce in judicial determinations; it
rejected those determinations and declared what it wanted the law
to be.  This is not a distinction without a difference.      
          Since it is clear to me, and by its own admission to the
court as well, that the legislature amended the statute intending
the result the State asks us to enforce, we must do so.


                            FOOTNOTES


Footnote 1:

     902 P.2d 1321, 1323-24 (Alaska 1995).


Footnote 2:

     See former AS 25.25 (repealed 1995).


Footnote 3:

     AS 25.27.226 provides:

          To collect the payment due, the custodian of a
child, or the agency on behalf of that person, shall file with the
court (1) a motion requesting establishment of a judgment; (2) an
affidavit that states that one or more payments of support are 30
or more days past due and that specifies the amounts past due and
the dates they became past due; and (3) notice of the obligor's
right to respond. . . . 


Footnote 4:

     AS 09.10.040(b) provides:

          An action may be brought to establish a
judgment for child support payments that are 30 or more days past
due under a support order, as defined in AS 25.27.900, if the
action is commenced by the date on which the youngest child covered
by the support order becomes 21 years of age.  An action after the
establishment of the judgment is governed by (a) of this section.


Footnote 5:

     Because the meaning of a statute is a question of law, we
review de novo the superior court's interpretation of AS
09.10.040(b).  See State, Dep't of Revenue v. Gerke, 942 P.2d 423,
425 (Alaska 1997).  


Footnote 6:

     Former AS 09.10.040 provided:

          No person may bring an action upon a judgment
or decree of a court of the United States, or of a state or
territory within the United States, and no action may be brought
upon a sealed instrument unless commenced within 10 years.


Footnote 7:

     See State ex rel. Inman v. Dean, 902 P.2d 1321, 1322 (Alaska
1995).


Footnote 8:

     See id. at 1323.


Footnote 9:

     See id.


Footnote 10:

     See ch. 86, sec. 2, SLA 1994.


Footnote 11:

     AS 09.10.040(b).


Footnote 12:

     See Child Support: Hearing on House Bill 362 Before the House
Health, Education and Social Services Standing Comm., 18th Legis.,
2nd Sess. (Alaska 1994) (statement of Mary Gay, Director of CSED).


Footnote 13:

     See Dean, 902 P.2d at 1322 n.1.  


Footnote 14:

     See id. at 1324 n.9.


Footnote 15:

     See id. at 1323 (citing AS 25.27.225).


Footnote 16:

     Id. at 1324 (emphasis added).


Footnote 17:

     Id. at 1323-24.  


Footnote 18:

     See id.  We suggested, however, that former AS 09.10.040 would
apply to CSED's attempts to collect child support arrears based on
foreign support orders because enforcing such judgments under the
common law required commencing a new action.  See id. at 1323.


Footnote 19:

     See id. at 1324.  


Footnote 20:

     AS 09.35.020 provides:

          When a period of five years has elapsed after
the entry of judgment and without an execution being issued on the
judgment, no execution may issue except by order of the court in
which judgment is entered.  The court shall grant the motion if the
court determines that there are just and sufficient reasons for the
failure to obtain the writ of execution within five years after the
entry of judgment.


Footnote 21:

     See AS 09.10.040(b).  


Footnote 22:

     See former AS 09.10.040 (amended 1994).  


Footnote 23:

     See, e.g., Child Support: Hearing on House Bill 362 Before the
Senate Judiciary Comm., 18th Legis. 2nd Sess. (April 25, 1994)
(testimony of Philip Petrie, Chief Operations Officer of CSED). 
Mr. Petrie stated:

          [T]his bill has two purposes.  The first part
of it is a change to the statute of limitations. . . . About five
years ago due to our -- a limitation on AG resources, a decision
was made at the Division not to send Child Support cases to court
to establish judgments, which would allow us to enforce against
them.  It was thought at that time, and it lasted for several
years, that our enforcement -- administrative enforcement actions
actually tolled the statute.  Then last summer, we had two court
cases come down in Anchorage where the judge said administrative
enforcement actions did not toll the statute of limitations, which
put us in a catch-22 situation where we have a substantial number
of cases, 8,785 cases representing $43 million that without this
change will effectively evaporate off of the books.  
          
          We have -- we are appealing both of those
cases [to] the Supreme Court now; but that's a lengthy process. 
And we looked at other state statute of limitations and realized
that we needed to extend ours to a more reasonable period of time
so that we aren't going back into court to officially establish a
judgment.  And the case now, we would have to do that approximately
twice in the lifetime of a normal child, assuming 18 [years]. 
Because there's a ten year statute of limitation.  So that's the
purpose of the first part of it.

See Transcript of Senate Judiciary Committee Meeting, April 25,
1994.


Footnote 24:

     375 P.2d 201 (Alaska 1962), overruled on other grounds by 
Scheele v. City of Anchorage, 385 P.2d 582 (Alaska 1963).


Footnote 25:

     See id. at 206.


Footnote 26:

     See id. at 209.


Footnote 27:

     See id.  


Footnote 28:

     See id.  


Footnote 29:

     See id.


Footnote 30:

     See id.


Footnote 31:

     See id. 


Footnote 32:

     AS 09.10.040(b), like former section .040, will apply only to
CSED's attempts to collect child support arrears based on foreign
support orders because enforcing such judgments under the common
law requires commencing a new action.  See Dean, 902 P.2d at 1325.


Footnote 33:

     We would like to provide guidance to the superior court,
however, in evaluating these remaining arguments.  In deciding
whether the URESA order modified the previous Alaska support order,
the superior court should find helpful our recent decision in
State, Department of Revenue v. Valdez, 941 P.2d 144, 154 n.14
(Alaska 1997).

          With respect to its argument concerning Thomas's support
obligation during periods when he had physical custody of the
children, CSED now concedes that Thomas's arrears should be
decreased to reflect months in which Gwendolyn lived with him. 
Recognizing that the order at issue in this case assumed a shifting
support obligation based on Gwendolyn's residence, CSED agrees that
Constance is precluded from seeking support for months in which
Gwendolyn lived with Thomas.  See Karpuleon v. Karpuleon, 881 P.2d
318, 321-22 (Alaska 1994).  But CSED claims that Thomas's arrears
should not be credited for months when his youngest child Vanessa
resided with him because it was his duty to seek a modification of
the custody and support order when circumstances changed.  See id.
at 320.  In addressing this claim, the superior court may wish to
decide whether a credit would be appropriate under AS 25.27.020(b),
which provides that an obligor can receive an offset against child
support owed for payments made directly to the obligee or to the
obligee's custodian. 


Footnote 34:

     941 P.2d 144 (Alaska 1997).


Footnote 35:

     See id. at 154 n.14.


Footnote 36:

     See id.


Footnote 37:

     See id. at 154 n.14. 


Footnote 38:

     See id. at 152 n.9 (setting out the requirements of estoppel
claims).