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Dewey v. Dewey (1/15/99), 969 P 2d 1154


     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
                                 


MICHAEL A. DEWEY,             )
                              )    Supreme Court No. S-7621
             Appellant,       )
                              )    Superior Court No.
     v.                       )    1PE-85-004 DR
                              )
HELEN K. DEWEY (ROBERTS),     )    O P I N I O N
                              )
             Appellee.        )    [No. 5065 - January 15, 1999]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Petersburg,
                   Walter L. Carpeneti, Judge.


          Appearances: Fred W. Triem, Petersburg, for
Appellant.  William W. Whitaker, Winegarden & Whitaker, Kodiak, for
Appellee.


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


          MATTHEWS, Chief Justice.      


I.   INTRODUCTION
          Michael Dewey stipulated that his stepdaughter, Tisha
Melovidov, was a child "of the marriage"in dissolution proceedings
and agreed to pay child support for Tisha and his son Robert.  Ten
years later, the superior court increased the monthly support
amount in accordance with the Civil Rule 90.3 guidelines.  Michael
appeals the increase in his obligation to support Tisha, arguing
that Rule 90.3 does not apply and that he is entitled to relief
under contract principles.  He also argues that the superior court
lacked subject matter jurisdiction because Tisha was not a child
"of the marriage."  We affirm because we conclude that Michael's
obligation may be increased pursuant to Rule 90.3 and that the
superior court had subject matter jurisdiction to enter the
original support award.
II.  FACTS AND PROCEEDINGS
          Michael and Helen Dewey signed a dissolution petition in
1985 in which Michael agreed to pay child support for their son,
Robert Dewey, and Helen's daughter, Tisha Melovidov, Michael's
stepdaughter.  In the petition, Michael and Helen listed Tisha and
Robert as "minor children born of the marriage or adopted"by the
petitioners.  Michael agreed to pay $200 monthly in child support
per child.  The superior court entered a dissolution decree in
February 1985 and a child support order in March 1985 incorporating
this support obligation.  The support order required payments to be
made through the Child Support Enforcement Division (CSED).
          In 1992 Michael sought relief from his child support
obligation from this court.  We held in Dewey v. Dewey, 886 P.2d
623, 625-26 (Alaska 1994) (Dewey I), that Michael's express
agreement to support Tisha was enforceable as an exception to the
general rule that stepparents have no duty to support a stepchild.
[Fn. 1]  We rejected Michael's attempts at relief under Civil Rule
60(b)(1) (mistake), 60(b)(5) (no longer equitable to enforce
judgment), and 60(b)(6) (extraordinary circumstances).  See id. at
626-29.  Finally, we held that Michael failed to present enough
evidence to justify a reduction in his obligation pursuant to AS
25.24.170 and Civil Rule 90.3(h).  See id. at 629-30.
          In October 1994 Helen and CSED filed a motion to increase
Michael's child support obligation in accordance with Civil Rule
90.3.  The superior court entered an Order for Modification of
Child Support in May 1995, increasing  Michael's monthly support
from $400 to $721 for both children.  This amount was calculated
using Rule 90.3.  Michael moved for reconsideration in June 1995
and the superior court granted the motion, ordering a de novo
review of the applicability of contract principles to the
modification, the effect of subsequent children, and the necessity
of an evidentiary hearing.  The superior court also allowed Michael
to file an opposition to Helen's motion to modify child support,
including "detailed hardship affidavits,"within twenty days.
          Michael failed to meet this deadline and instead filed a
combined opposition and motion for relief from judgment in
September 1995.  First, Michael argued that although Dewey I
rejected his Rule 60(b) motions for relief, he was entitled to
present additional evidence to "lay out an adequate proof of his
claim of mistake."  He also asserted that he should be relieved of
his support obligation because Helen had breached the support
contract and the covenant of good faith and fair dealing.  Finally,
Michael attempted to provide supplemental evidence for his claim
that his support amount should be reduced pursuant to Rule 90.3.
          Noting that Michael had confused the issues by combining
his motion for relief from judgment and his opposition to the
increase in child support, the superior court entered two orders.
First, it entered an Order Denying Motion for Relief from Judgment
in March 1996, rejecting Michael's attempts at relief under Rule
60(b)(1), (5) and (6) as untimely and foreclosed by Dewey I. [Fn.
2]  Second, the superior court entered an Order Confirming Order
Modifying Child Support, also in March 1996.  Emphasizing that the
issue was simply "not a contract dispute,"the superior court
concluded that the agreement, once incorporated into the
dissolution judgment, was fully modifiable. [Fn. 3]
III. STANDARD OF REVIEW
          Whether Civil Rule 90.3 applies to Michael's child
support obligation is a matter of law to which we apply our
independent judgment.  See Taylor v. McGlothlin, 919 P.2d 1349,
1351 n.3 (Alaska 1996); Miller v. Miller, 890 P.2d 574, 576 (Alaska
1995).  It is our duty "to 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).
          We will not disturb the superior court's denial of relief
under Civil Rule 60(b) absent an abuse of discretion.  See Lowe v.
Lowe, 944 P.2d 29, 31 (Alaska 1997).  However, we review a
challenge to the lack of subject matter jurisdiction de novo.  See
B.J. v. J.D., 950 P.2d 113, 115 (Alaska 1997); Hydaburg Coop. Ass'n
v. Hydaburg Fisheries, 925 P.2d 246, 248 (Alaska 1996); Andrews v.
Alaska Operating Eng'rs-Employers Training Trust Fund, 871 P.2d
1142, 1144 (Alaska 1994).  "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 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) (footnote omitted). 
IV.  DISCUSSION
     A.   The Superior Court Properly Applied Civil Rule 90.3 to
Michael's Child Support Obligation.

          Generally, an obligor may modify a support obligation
upon a showing of a material and substantial change in
circumstances.  See Curley v. Curley, 588 P.2d 289, 291 (Alaska
1979).  The adoption of the Rule 90.3 guidelines constitutes such
a material change.  See AS 25.24.170(b); Perry v. Newkirk, 871 P.2d
1150, 1155 (Alaska 1994).  Although Rule 90.3 does not
retroactively alter child support obligations, see Taylor v.
McGlothlin, 919 P.2d 1349, 1353 (Alaska 1996), pre-Rule 90.3 child
support awards are subject to modification in accordance with the
guidelines.  See Richmond v. Richmond, 779 P.2d 1211, 1217 (Alaska
1989).  Similarly, child support agreements entered into between
the parties prior to the enactment of Rule 90.3 may also be
modified.  See Taylor, 919 P.2d at 1353.  
          Michael argues that conventional modification principles
do not apply to his purely contractual child support obligation
because the contract was entered into in 1985, prior to the
adoption of the rule in 1987.  He claims that to increase his
support obligation in accordance with Rule 90.3 would "overturn the
well established, time honored common law rule that excuses a
former stepparent from having to pay child support for a former
stepchild whom he has not adopted."
          Helen replies that Michael has misconstrued the nature of
his support obligation.  She finds fault with Michael's logic that
because the superior court "found a consensual basis for the origin
of his support obligation, any modification of his support order
should also be governed by principles of contracts law."  She
maintains that the reasoning of the superior court clearly governs
this issue.  We agree.
          The superior court stated:
               Michael reads too much into the supreme
court decision in this case.  While the court relied on the
voluntary nature of Michael's agreement to support Tisha, it did so
in the context of a voluntary stipulation to settle a lawsuit. 
Once the suit is settled, and the court incorporates the settlement
into an order, the normal rules for modification of a support order
apply.  As the Dewey court noted, AS 25.24.170 allows for
modification of child support orders, and, under Curley v. Curley,
"[a] child support order may be modified notwithstanding the fact
that it was based on a separation agreement or stipulation signed
by the parties."  This observation by the court thoroughly
undercuts Michael's arguments based on contract law in the present
case.

(Citations omitted.) 
          We view Michael's agreement to support Tisha as an
undertaking to provide her with an amount necessary for her care,
subject to his financial ability to pay, rather than an agreement
for a specific monthly dollar amount.  We reach this result by
analyzing the language used by the parties in their dissolution
petition in light of the governing statutes.  At the time of the
dissolution proceedings, the superior court was required to ensure
that the "agreements between the spouses concerning . . . child
support . . . are fair, just, and equitable as between the spouses
and in the best interests of the children of the marriage[.]"  AS
25.24.220(d)(2) (1983); see also AS 25.24.230(a)(2) (1983).  Since
the parties stipulated that there were minor children of the
marriage, the superior court scrutinized the agreement to ensure
that the award of child support was fair and in the children's best
interests.  The dissolution decree stated:
          The agreements between petitioners concerning
. . . child support . . . and allocation of obligations are not
grossly unfair, unjust, or inequitable and are in the best
interests of the children of the marriage[.]
The child support order specified that the award was "based on
annual income."  Thus to allow Michael's obligation to be modified
in accordance with the level of support necessary to provide for
Tisha's care upholds the expectations of both parties:  (1) that
Tisha receive adequate support and (2) that Michael continue to pay
what is appropriate consistent with his financial ability. [Fn. 4] 
          Rule 90.3 is comprehensive in scope.  The commentary 
states:  "Rule 90.3 applies to all proceedings involving child
support . . . including without limitation actions involving . . .
dissolution [and] support modification . . . ."  Alaska R. Civ. P.
90.3 commentary I.C. (emphasis added); see Eagley v. Eagley, 849
P.2d 777, 779 (Alaska 1993) (explaining that, while not formally
adopted by this court, we have relied on the commentary for
guidance).  We indicated in Dewey I that Michael could reduce his
"allegedly contractual obligation"under Civil Rule 90.3(h) by
demonstrating a material change in circumstances.  886 P.2d at 629-
30 & n.14.  Since Michael has been entitled to decrease his support
obligation in accordance with the guidelines, it follows that his
obligation may also be increased. [Fn. 5]
          This is not to say that a person who undertakes a purely
contractual agreement to pay child support has no effective way of
limiting his or her bargain.  A person under no legal obligation to
support a child may agree to pay a specific monthly dollar amount
for the child's care.  Further, if appropriate, an obligor may
obtain relief under Rule 60(b).  In this case, however, we are
convinced that Michael did not undertake such a limited duty. 
Therefore, we conclude that Michael's obligation to pay support for
Tisha is subject to the modification principles under Civil Rule
90.3.
     B.   Michael Is Barred by the Law of the Case Doctrine from
Asserting a Claim of Mistake.

          Michael argues that he is entitled to relief because (1)
the parties made a mutual mistake that he was obligated to support
Tisha and (2) he made a unilateral mistake as to this duty.  He
fails to set forth the basis on which he relies to request relief;
however, since the time for direct attack on the judgment has
expired, his motion must be viewed as a request for relief pursuant
to Rule 60(b). [Fn. 6]  See O'Link v. O'Link, 632 P.2d 225, 228
(Alaska 1981).  In Dewey I we said:
               Relief under Civil Rule 60(b)(6) is
inappropriate when a party takes a deliberate action that he later
regrets as a mistake.  Here, Michael deliberately agreed to support
Tisha but now regrets the consequences.  Furthermore, this court
has held that "clause (6) is reserved for extraordinary circum-

stances not governed by the preceding clauses,"and that "[t]ime-
barred relief under the first five clauses is not allowed under
clause (6)."  In this case, Michael is essentially alleging a
"mistake."  Post-judgment relief for a mistake is governed by Civil
Rule 60(b)(1), and is time-barred if not brought within one year. 
Michael cannot assert 60(b)(6) as a means of avoiding this time
limitation.

886 P.2d 623, 628 (Alaska 1994) (citations and footnotes omitted).
          The law of the case doctrine "requires a lower court to
follow an appellate court's prior decision and prohibits
reconsideration of issues which have been adjudicated in an appeal
of the case."  Bauman v. Day, 942 P.2d 1130, 1132 n.1 (Alaska 1997)
(citing Mogg v. National Bank of Alaska, 846 P.2d 806, 810 (Alaska
1993)).  In light of our prior decision, Michael is clearly barred
from rearguing the issue of mistake.
     C.   The Superior Court Had Subject Matter Jurisdiction to
Enter the Original Child Support Order.
          Michael argues that the 1985 support order is "void"
under Civil Rule 60(b)(4) because the superior court lacked subject
matter jurisdiction to establish child support for Tisha. [Fn. 7] 
A judgment may be attacked as void under Rule 60(b)(4) on the basis
of subject matter jurisdiction.  See Perry v. Newkirk, 871 P.2d
1150, 1153 n.5 (Alaska 1994).  A court that lacks subject matter
jurisdiction is "without power to decide a case."  Wanamaker v.
Scott, 788 P.2d 712, 713 n.2 (Alaska 1990). 
          Helen asserts that Michael's motion is untimely and
therefore waived.  Her argument is not well-taken.  A Rule 60(b)(4)
motion attacking subject matter jurisdiction may be brought at any
time and is not subject to the "reasonable time"limitation found
in Civil Rule 60(b).  Burrell v. Burrell, 696 P.2d 157, 163 n.11
(Alaska 1984); DeVaney v. State, Dep't of Revenue, Child Support
Enforcement Div. ex rel. DeVaney, 928 P.2d 1198, 1199 n.1 (Alaska
1996); Kennecorp Mortgage & Equities, Inc. v. First Nat'l Bank, 685
P.2d 1232, 1236 (Alaska 1984).  A challenge to subject matter
jurisdiction may be raised at any point during the litigation.  See
Wanamaker, 788 P.2d at 713 n.2 ("[N]o matter how disingenuous it
may be for a party which has previously invoked a state's
jurisdiction later to challenge it in a related case, this court
must ensure that the superior court's order is not 'void.'")
(citation omitted).  Further, a judgment may be collaterally
attacked for lack of subject matter jurisdiction.  See DeNardo v.
State, 740 P.2d 453, 456-457 (Alaska 1987); Burrell, 696 P.2d at
162.  Therefore Michael's motion is properly before this court.
          Michael relies on a literal reading of the dissolution
statutes referring to minor children "born of the marriage or
adopted by the petitioners"to support his argument. [Fn. 8] 
Michael reasons that because Tisha was literally neither born nor
adopted during the marriage, the superior court lacked jurisdiction
to order child support.
          We rejected a similar argument in J.C. v. M.L.C., 668
P.2d 1351 (Alaska 1983).  In J.C., the husband and wife stipulated
in the dissolution petition that one child was "born of the
marriage,"that the wife would have custody, and that the husband
would have reasonable visitation and pay child support.  Id. at
1352.  The superior court then entered a dissolution decree
incorporating this agreement.  See id.  Over one year later, the
husband denied paternity and sought to set aside his child support
obligation.  See id.  He argued in part that the superior court
lacked subject matter jurisdiction because the child was not a
child "of the marriage,"as described in the dissolution statutes. 
Id. at 1352-53.  We held that the superior court had subject matter
jurisdiction to enter the child support order because the court was
"competent to render judgment concerning child custody and
support[.]"  Id. at 1353.  We commented:  "Moreover, the petition
can be interpreted as an agreement to support the child regardless
of its paternity.  We know of no reason why the superior court
would lack authority to enforce such an agreement."  Id. 
          We are persuaded that the superior court had jurisdiction
to enter the initial child support order.   At the time of the
dissolution proceedings, the statutory scheme allowed the superior
court to consider and incorporate the parties' agreements
concerning child support.  See, e.g., AS 25.24.210(e)(6) (1983)
("petition shall state in detail the terms of agreement as between
the spouses with regard to . . . child support . . . [and] other
facts and circumstances which the petitioners believe should be
considered"); AS 25.24.220(d)(2) (1983) (court shall consider
whether child support agreements are "fair, just, and equitable as
between the spouses and in the best interests of the children of
the marriage"); AS 25.24.230(a)(2) (1983) (court shall provide
relief as to child support agreements if "not grossly unfair,
unjust, or inequitable and are in the best interests of the
children of the marriage").  The current statutes also recognize
such agreements. 
          The superior court's jurisdiction in this area is broad. 
The dissolution statutes contemplate agreements between the parties
regarding child support.  And we have not limited the court's
jurisdiction in this context.  See, e.g., Wright v. Black, 856 P.2d
477, 481 (Alaska 1993) (summarily denying Rule 60(b) relief to
father who later denied paternity of child listed as "child of the
marriage"in dissolution decree); Adrian v. Adrian, 838 P.2d 808,
809 n.1 (Alaska 1992)  (reviewing child support order between
parties who agreed in divorce proceedings that mother's
stepdaughter was "child of the marriage"). [Fn. 9] 
          In Perry v. Newkirk, 871 P.2d 1150 (Alaska 1994), we
discussed the contours of subject matter jurisdiction: 
               The question therefore is whether the
public interest in observance of the particular jurisdictional rule
is sufficiently strong to permit a possibly superfluous vindication
of the rule by a litigant who is undeserving of the accompanying
benefit that will redound to him.  The public interest is of that
strength only if the tribunal's excess of authority was plain or
has seriously disturbed the distribution of governmental powers or
has infringed a fundamental constitutional protection.

Id. at 1155 (quoting Restatement (Second) of Judgments sec. 12 cmt.
d
(1982)).  Strong public policy favors enforcement of express,
voluntary agreements to support children, especially where it
cannot be said that the "subject matter of the action was so
plainly beyond the court's jurisdiction that its entertaining the
action was a manifest abuse of authority[.]"  Restatement (Second)
of Judgments sec. 12 (1982).       
          We therefore conclude that the superior court did not
lack jurisdiction to enter a child support order based on Michael's
express agreement to support Tisha. 
V.   CONCLUSION
          The superior court properly increased Michael's child
support obligation pursuant to Civil Rule 90.3.  Michael's attempts
to obtain relief due to mistake are foreclosed by our decision in
Dewey I.  The initial child support order is not void for want of
subject matter jurisdiction.  We therefore AFFIRM the judgment of
the superior court.


                            FOOTNOTES


Footnote 1:

     Justice Bryner agreed that a "knowing and voluntary agreement
between divorcing parents for child support payments is enforceable
on contractual grounds, regardless of the obligor parent's
preexisting legal duty to pay support,"but concluded that the
contract was invalid because the parties had labored under a mutual
mistake that Michael had a legal obligation to support Tisha. 
Dewey I at 630-32 (Bryner, J., dissenting).


Footnote 2:

     The superior court ruled that the only issue left open by
Dewey I was the argument that the one-year time limit for a Rule
60(b)(1) motion for relief due to mistake runs with each monthly
support payment.  It held that Michael failed to bring this motion
within a reasonable time.  Michael does not appeal this ruling.


Footnote 3:

     The superior court also ruled that Michael did not present
sufficient evidence to justify a reduction in his child support
under the "exceptional circumstances"provision of Rule 90.3(c)(1). 
Further, the superior court held that Michael waived his right to
an evidentiary hearing by failing to request one.  Michael does not
challenge these rulings.


Footnote 4:

     Cf. Alaska R. Civ. P. 90.3 commentary I.B. ("The primary
purpose of Rule 90.3 is to ensure that child support orders are
adequate to meet the needs of children, subject to the ability of
parents to pay.").


Footnote 5:

     The monthly support amount of $721 for both children
calculated pursuant to the Rule 90.3 guidelines represents an 80
percent increase from the $400 prior obligation.


Footnote 6:

     Rule 60(b) provides in relevant part:

               On motion and upon such terms as are
just, the court may relieve a party or a party's legal
representative from a final judgment, order, or proceeding for the
following reasons:

               (1) mistake, inadvertence, surprise or
excusable neglect;

               . . .

               (6) any other reason justifying relief
from the operation of the judgment.

               The motion shall be made within a
reasonable time, and for reasons (1), (2) and (3) not more than one
year after the date of notice of the judgment . . . .


Footnote 7:

     Rule 60(b)(4) provides:  "[T]he court may relieve a party or
a party's legal representative from a final judgment, order, or
proceeding [if] . . . the judgment is void[.]"


Footnote 8:

     Michael primarily relies on AS 25.24.210(e) and AS
25.24.220(h).  Subsection .220(h) was enacted in 1990 and thus did
not govern the jurisdiction of the superior court over the 1985
dissolution proceedings.  However, the phrase "child of the
marriage"or similar language appeared in 1985 in subsections
.200(a)(2), .210(e)(4), .220(d)(2), and .230(a)(2).  It currently
appears in subsections .200(a)(2), .210(e)(4), .220(d)(2),
.220(h)(3), .220(i), and .230(b)(2).  Thus, we address Michael's
arguments in light of this general language. 


Footnote 9:

     Similarly, we have construed the term "child of the marriage"
broadly in custody and visitation cases.  See, e.g., Buness v.
Gillen, 781 P.2d 985, 988 (Alaska 1989) (holding that a
"psychological parent"is a parent within the meaning of AS
25.20.060 for purposes of custody); Carter v. Brodrick, 644 P.2d
850, 853, 856 (Alaska 1982) (concluding that statutory language,
child "of the marriage,"includes stepparents in loco parentis for
purposes of visitation).