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Ferguson v. Child Support Enforcement Agency (4/30/99), 977 P 2d 95
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
RAY FERGUSON, )
) Supreme Court No. S-8123
) Superior Court No.
v. ) 2KB-91-00039 CI
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF REVENUE, CHILD SUPPORT )
ENFORCEMENT DIVISION ex rel. ) [No. 5110 - April 30, 1999]
Appeal from the Superior Court of the State of
Alaska, Second Judicial District, Kotzebue,
Richard H. Erlich, Judge.
Appearances: Jody Davis and Andrew
Harrington, Alaska Legal Services Corporation, Fairbanks, for
Appellant. Scott Davis, Assistant Attorney General, Fairbanks, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
Six years after Ray Ferguson admitted paternity of Paul
Gold and a paternity judgment was entered against Ferguson, blood
tests excluded Ferguson as Paul's father. Ferguson then sought
relief from the superior court, which vacated the paternity
judgment and ordered the Child Support Enforcement Division (CSED)
to cease collecting future child support, but refused to extinguish
the arrearages that had accrued under the judgment. Because
Ferguson sought and received relief only under Alaska Civil Rule
60(b)(5), and argued only that the judgment should no longer have
prospective application, we affirm, and reject Ferguson's argument
that he should not have to pay the arrearages that accumulated
before the superior court disestablished paternity.
II. FACTS AND PROCEEDINGS
Paul Gold was born in February 1986. In February 1991
Paul's mother, Rebecca Gold, signed a paternity affidavit alleging
that Ray Ferguson was Paul's father. [Fn. 1] Based on this
affidavit, CSED filed a Complaint for Establishment of Paternity
against Ferguson. The complaint alleged that Ferguson was Paul's
biological father and that Ferguson owed Paul a duty of support
from the date of Paul's birth.
Ferguson admitted these allegations. He also signed and
filed an Acknowledgment of Paternity, admitting that he was Paul's
father and acknowledging that he could be held financially
responsible for Paul. Accordingly, on July 5, 1991, the court
entered a judgment in favor of CSED and an order adjudicating
Ferguson to be Paul's father.
In October 1991 CSED issued a Notice and Finding of
Financial Responsibility to Ferguson, imposing monthly child
support of $792 and finding support arrearages of $37,928 for the
period of February 1, 1986 to November 30, 1991. In November 1995
CSED administratively reduced the monthly support to $144,
effective May 1, 1995. Although the parties' briefs do not
expressly say so, it appears from the record that CSED sought
reimbursement from Ferguson for public assistance paid on Paul's
In late 1995 or early 1996 Ferguson's daughter, Hadley
Hess, learned that Rebecca Gold had stated that Ferguson was not
Paul's father. Hess then arranged genetic testing of her father,
Rebecca, and Paul. The test results excluded Ferguson as Paul's
In March 1997 Ferguson moved to vacate the judgment of
paternity; relying on Alaska Civil Rule 60(b)(5), he argued that
the paternity judgment should no longer have prospective
application. He requested that the court order CSED to "cease
collection . . . of all past and future child support based on the
CSED filed a limited opposition. It did not oppose the
motion "as it pertains to prospective enforcement of his child
support obligation from the date of filing of the motion." But it
opposed any order which would restrict CSED's ability to collect
child support arrearages accruing under the paternity judgment.
The superior court granted relief to Ferguson under Rule
60(b)(5) and vacated the paternity judgment. It ordered CSED to
cease collecting future child support, but it denied Ferguson's
request that CSED cease collecting arrearages. CSED later
recalculated Ferguson's entire support obligation based on his
actual income and determined that he owed $6,734.64 in arrearages.
A. Standard of Review
This case raises an issue concerning the legal effect of
paternity disestablishment on existing child support arrearages.
This is a legal question, which we review de novo, adopting the
rule of law that is "most persuasive in light of precedent, reason,
and policy."[Fn. 2]
We exercise our independent judgment in interpreting the
civil rules. [Fn. 3]
B. Alaska Civil Rule 60(b)(5)
Ferguson argues that he should not have to pay child
support arrearages accruing between July 1991, when the paternity
judgment was entered, and March 1997, when Ferguson moved to vacate
the judgment. CSED responds that the superior court properly
refused to extinguish Ferguson's arrearages because relief was
granted to Ferguson under Rule 60(b)(5), which provides only
prospective relief from judgments or final orders.
Alaska Civil 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:
. . . .
(5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application.
Our previous Rule 60(b)(5) cases involved litigants who
sought relief under that subsection, claiming that their judgment
had prospective effect. [Fn. 4] Ferguson sought both prospective
and retroactive relief. It is a question of first impression in
Alaska whether a litigant who obtains Rule 60(b)(5) relief on
grounds that a judgment should not have prospective application is
entitled to both prospective and retroactive relief.
Our previous descriptions of the scope and application of
Rule 60(b)(5) suggest that relief under that provision is available
only when judgments have prospective effect. In Lawrence v.
Lawrence, [Fn. 5] we stated that Rule 60(b)(5) encompasses any
final judgment having prospective application. [Fn. 6] We there
held that a divorced father was entitled to relief from the
"prospective facet"of a divorce decree under Rule 60(b)(5),
[i]t has been noted that the primary
applicability of (b)(5) will be to injunctions of a continuing
nature. On the other hand, Professor Moore has observed that "the
breadth of (b)(5) is broad and encompasses any final judgment
having prospective application." Thus in any circumstance where
the judgment in question has prospective application, relief under
Civil Rule 60(b)(5) may be granted from its prospective features
when subsequent events make it no longer equitable that the
judgment have prospective application.[ [Fn. 7]]
We have also distinguished between judgments with and
without prospective application for purposes of relief under Rule
60(b)(5). In Bauman v. Day, [Fn. 8] we held that parties were not
entitled to Rule 60(b)(5) relief because they did not "explain how
the final judgment here has prospective effect."[Fn. 9] In Dewey
v. Dewey, [Fn. 10] we held that a former stepfather was not
entitled to a modification of child support under Rule 60(b)(5)
because he failed to provide "sufficient evidence of inequity in
the judgment's prospective effect to warrant relief under
60(b)(5)."[Fn. 11] And in Lawrence, we stated that "[w]hen a
party seeks relief from a judgment, which does not have prospective
application, because of a subsequent change in the law a Civil Rule
60(b)(1) motion should be used."[Fn. 12]
If Rule 60(b)(5) relief is available only if a movant
shows that the prospective application of a judgment is
inequitable, it would be anomalous to give both prospective and
retroactive effect to a modification after relief is properly
granted under Rule 60(b)(5). We therefore hold that the
"prospective application"requirement limits not only the
circumstances in which Rule 60(b)(5) may be applied, but also the
type of relief available under Rule 60(b)(5).
Our interpretation of Alaska Civil Rule 60(b)(5) is
consistent with the federal courts' interpretation of the identical
The prospective application provision of Federal Rule of
Civil Procedure 60(b)(5) is given content by two United States
Supreme Court opinions, State of Pennsylvania v. Wheeling & Belmont
Bridge Co. [Fn. 13] and United States v. Swift & Co. [Fn. 14] Both
opinions reflect the historic power of a court of equity to modify
its decree in light of changed circumstances and describe how
judgments may have prospective application. [Fn. 15]
In Wheeling, the Court addressed the past and prospective
effects of a judgment rendered three years earlier. In 1852 the
Court had held that a particular bridge in Wheeling was an
unconstitutional obstruction to commerce and ordered its abatement.
[Fn. 16] Congress subsequently enacted a statute declaring the
bridge to be a lawful structure. In 1855 the Court distinguished
between the present and prospective effects of the 1852 judgment,
and held that the company that owned the bridge remained liable for
costs in the earlier proceeding, but that the part of the decree
that required the bridge's removal could no longer be enforced.
In Swift, the Court was asked to modify an injunction in
light of changed circumstances. Although the Court declined to do
so, it acknowledged that "[a] continuing decree of injunction
directed to events to come is subject always to adaptation as
events may shape the need,"and that decrees are continuing if they
involve "the supervision of changing conduct or conditions and are
thus provisional and tentative."[Fn. 18]
Relying on the principles announced in Swift and
Wheeling, federal courts of appeal distinguish between the present
and prospective effects of judgments for purposes of determining
what relief is available under Federal Rule of Civil Procedure
60(b)(5). In Marshall v. Board of Education, [Fn. 19] the court
noted that the prospective application clause in Rule 60(b)(5)
"incorporates the time-honored rule that a 'court of equity [may]
modify an injunction in adaptation to changed conditions.'"[Fn.
20] The court then distinguished between executory and final
judgments, stating that "[Rule 60(b)(5)] empowers a court to modify
a judgment only if it is 'prospective,' or executory,"whereas a
"judgment at law for damages for past wrongs is 'inherently
Another court stated that "an order or judgment may be
modified under [the prospective application clause] of Rule
60(b)(5) only to the extent that it has 'prospective application,'"
and concluded that, "the standard we apply in determining whether
an order or judgment has prospective application within the meaning
of Rule 60(b)(5) is whether it is 'executory' or involves 'the
supervision of changing conduct or conditions.'"[Fn. 22]
Relief under Rule 60(b)(5) is therefore available against
only the prospective, or executory, aspects of judgments. A
paternity judgment has prospective aspects that can be alleviated
under Rule 60(b)(5), because a paternity judgment gives rise to
prospective duties, including a duty to pay child support in the
future. But each child support payment, as it becomes due, is a
final judgment in its own right. [Fn. 23] As a result, vacating
Ferguson's paternity judgment under Rule 60(b)(5) eliminated only
its prospective effect and did not preclude the collection of
amounts past due. Given Rule 60(b)(5)'s limited scope, the
superior court appropriately alleviated only the prospective
effects of the paternity judgment and support order after Ferguson
sought and received relief on grounds that the paternity judgment
should no longer have prospective effect under Rule 60(b)(5).
Accordingly, we affirm.
Jurists elsewhere have reached similar conclusions in the
context of paternity disestablishment and child support arrearages.
In Strack v. Pelton, [Fn. 24] a putative father sought Rule 60(b)
relief from a 1978 divorce judgment on grounds that a 1987 genetic
test disestablished his paternity. The court held that his motion
based on newly-discovered evidence was time-barred. [Fn. 25] The
dissent argued that relief was warranted on grounds that the
judgment should not have prospective application, but that the
putative father should not be reimbursed for any child support
previously paid: "The judgment . . . need not be retroactively
undone -- but its prospective, inequitable application can be
stopped easily. . . . Strack should not be refunded any of the
payments he made prior to the filing of his motion, but he should
not be forced to continue to pay child support . . . ."[Fn. 26]
The dissenting opinion in Gosink v. Hamm, [Fn. 27] makes the same
point in a case with analogous facts:
[Rule 60(b)(4)] provides for vacating a
judgment if "it is no longer equitable that the judgment should
have prospective application." This clearly seems to be the
section of the rule that should be applied. Appellee is not asking
that support already paid should be refunded, but only that he
should not be required to pay support in the future for a child
that is conclusively not his.[ [Fn. 28]]
Ohio's Rule 60(b)(4) is identical to Alaska's Rule 60(b)(5).
Finally, in Department of Revenue v. W.Z., [Fn. 29] a
disestablished father sought reimbursement, but not under Rule
60(b), of child support paid after disestablishment of paternity.
[Fn. 30] The court implied that W.Z. could not be reimbursed (or
escape any arrearages owed) even if he had sought relief under Rule
60(b), stating that "[a]lthough we shall assume that the defendant
could be relieved from the prospective application of the support
order under Mass. R. Civ. P. 60(b)(5), . . . Rule 60(b) presents no
basis for retroactive relief from the support order."[Fn. 31]
Ferguson contends that preventing CSED from collecting
the arrearages is necessary to eliminate the prospective
application of the vacated paternity judgment. He asks: "Does the
'prospective application' of the judgment, which is to be barred
when relief is granted under Rule 60(b)(5), differentiate between
prospective assessment of support (which the CSED agrees is
barred), and prospective collection of support (which the CSED
asserts is not barred) or does it encompass both?"
We conclude that Alaska Civil Rule 60(b)(5)
differentiates between prospective assessment for support payable
in the future and prospective collection of arrearages that
resulted from a failure to pay past-due support. Collecting a
previously owed money judgment is not a prospective application of
the judgment. As one court has stated,
[v]irtually every court order causes at least
some reverberations into the future, and has, in that literal
sense, some prospective effect; even a money judgment has
continuing consequences, most obviously until it is satisfied. . .
. That a court's action has continuing consequences, however, does
not necessarily mean that it has "prospective application"for the
purposes of Rule 60(b)(5).[ [Fn. 32]]
Moreover, the distinction Ferguson asks us to draw would
unreasonably disfavor obligors who comply with court orders and pay
child support and favor obligors who fail to pay child support and
generate arrearages. Assuming that obligors who comply with child
support orders will not be reimbursed even if their paternity is
later disestablished, [Fn. 33] the distinction Ferguson proposes
would give child support obligors incentive not to pay child
support, in hopes that paternity might someday be disestablished.
Such a distinction would also give potential obligors incentive not
to resolve paternity disputes promptly. CSED argues that it is a
matter of social policy to resolve paternity disputes promptly. We
Ferguson received the relief to which he was entitled
under Rule 60(b)(5). That was the only basis for his motion; we
need not consider whether more comprehensive relief might have been
granted under some other part of Rule 60(b) if he had requested it.
Because we affirm on the ground that Ferguson was entitled to only
prospective relief under Rule 60(b)(5), we need not decide whether,
as CSED argues, reducing child support arrearages after
disestablishing paternity would be a retroactive modification of
child support that federal law prohibits. [Fn. 34]
C. Effect of AS 25.27.166(d)
Ferguson argues that a judicial disestablishment order,
like an administrative disestablishment determination, should
extinguish child support arrearages. Alaska Statute 25.27.166 now
requires the agency to grant relief from arrearages when paternity
is administratively disestablished. [Fn. 35] But Ferguson's
paternity was not administratively disestablished, and the
legislature's silence about the effect of judicial disestablishment
orders provides no relevant expression of legislative intention
regarding any statute applicable to Ferguson. The relief required
following judicial disestablishment is therefore governed by Alaska
Civil Rule 60(b) and the applicable legal principles discussed in
D. Unjust Enrichment
Ferguson argues that the State will be unjustly enriched
if CSED is permitted to collect child support arrearages following
vacation of the paternity judgment. We disagree.
State, CSED v. Wetherelt [Fn. 36] controls. In that
case, Wetherelt was identified as the father on the birth
certificate of a child. [Fn. 37] CSED collected money from
Wetherelt for public assistance paid by the State on the child's
behalf. [Fn. 38] Wetherelt later disestablished paternity and
sought a refund of the child support collected by CSED, claiming
that the State would be unjustly enriched if it was permitted to
retain the money. [Fn. 39] We held that Wetherelt was liable for
support of the child before paternity was disestablished, and that
he was therefore not entitled to a refund. [Fn. 40]
Wetherelt precludes Ferguson's requested relief. If
Wetherelt had no right to a refund, Ferguson may not keep the money
he owed CSED. [Fn. 41]
Ferguson distinguishes Wetherelt on grounds that
Wetherelt sought a refund of money already paid to CSED, whereas
Ferguson seeks to prevent CSED from collecting the money from him
in the first place. This is not a principled distinction. In
Indiana Department of Public Welfare v. Murphy, [Fn. 42] a
disestablished father sought reimbursement from the state for money
collected by the state under a child support order. [Fn. 43] The
court held that the state did not have to refund any money
collected for payments that accrued before Murphy's paternity was
disestablished in February 1989, even if the money was collected
after February 1989: "It is not the date that the money was
collected that is the determinative factor; rather, it is the date
that the support payments accrued."[Fn. 44] Wetherelt and the
instant case present the identical question: whether an individual
who disestablishes paternity may be relieved from a previously
existing duty to reimburse the state for public assistance paid for
the period during which the child was the financial responsibility
of the putative father.
Ferguson contends that State, CSED v. Mitchell [Fn. 45]
prevents CSED from collecting arrearages based on the vacated
paternity judgment. We there affirmed in part a superior court
order, issued under Rule 60(b), that retroactively vacated a child
support order and directed CSED to reimburse child support payments
previously collected from Mitchell, after Mitchell's paternity had
been disestablished. [Fn. 46] We stated that, "[a]bsent any
limiting condition on the order vacating the default judgment or
any other intervening principle, as between Mitchell and the State,
the State should not be allowed to retain proceeds collected
pursuant to a judgment which was set aside."[Fn. 47]
Ferguson reasons that he would be entitled under Mitchell
to be reimbursed if he had already paid the child support, and by
extension, that CSED should not be able to collect arrearages. But
Mitchell is inapposite to Ferguson's situation. The extent to
which the State was unjustly enriched by retaining the previously
paid child support was not fully litigated in Mitchell. The State
there did not initially oppose Mitchell's motion for reimbursement.
[Fn. 48] The central dispute there was whether the State might
have to repay amounts it collected from Mitchell and paid to the
child's mother in excess of the public support. [Fn. 49] Because
the issue raised in Mitchell was limited, and because the State did
not there dispute whether it could be required to pay back the
monies it had retained (as distinguished from those paid to the
child's mother), Mitchell does not control.
We conclude that the State is not unjustly enriched by
collecting arrearages accruing for monthly support Ferguson failed
to pay before paternity was disestablished. As CSED maintains,
"[Paul] was [Ferguson's] legal child regardless of the biology of
the situation." Ferguson must pay for Paul's support owed during
the period before he disestablished paternity.
Because Ferguson sought and was granted relief under Rule
60(b)(5) on the ground that the paternity judgment should no longer
have prospective application, we conclude that Ferguson must pay
the arrearages owed for the period between July 1, 1991, and March
1997, when he filed his motion to vacate the judgment of paternity.
We therefore AFFIRM.
"Paul Gold"and "Rebecca Gold"are pseudonyms.
See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
See Airoulofski v. State, 922 P.2d 889, 892 (Alaska 1996).
See Bauman v. Day, 892 P.2d 817, 829 (Alaska 1995); Dewey v.
Dewey, 886 P.2d 623, 626-27 (Alaska 1994); Propst v. Propst, 776
P.2d 780, 783 (Alaska 1989).
718 P.2d 142 (Alaska 1986).
See id. at 146.
Id. (quoting 7 James Wm. Moore et al., Moore's Federal
Practice 60.26 , at 261-62 (2d ed. 1985)) (emphasis added).
892 P.2d 817 (Alaska 1995).
Id. at 829.
886 P.2d 623 (Alaska 1994).
Id. at 628.
718 P.2d at 145.
59 U.S. (18 How.) 421 (1855).
286 U.S. 106 (1932), declined to follow by Rufo v. Inmates of
Suffolk County Jail, 502 U.S. 367, 379-80 (1992); see generallyTwelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C.
See 11 Charles Alan Wright et al., Federal Practice and
Procedure sec. 2863, at 336-47 (1995).
See Wheeling, 59 U.S. at 429; see also Wright, supra, note 15,
See Wheeling, 59 U.S. at 431-32.
Swift, 286 U.S. at 114.
575 F.2d 417 (3d Cir. 1978).
Id. at 425 (quoting Swift, 286 U.S. at 114).
Id. (citations omitted) (holding that district court's
refusal to vacate its award for damages for past overtime wages
wrongfully withheld conformed with mandate of Rule 60(b)(5),
notwithstanding Supreme Court's subsequent decision in unrelated
decision that overruled precedent upon which damages award was
Twelve John Does, 841 F.2d at 1138-39 (citations omitted).
See generally John F. Wagner Jr., Annotation, Construction and
Application of Rule 60(b)(5) of Federal Rules of Civil Procedure,
Authorizing Relief from Final Judgment Where Its Prospective
Application Is Inequitable, 117 A.L.R. Fed. 419, sec.sec. 5-6, at
See AS 25.27.225; State ex rel. Inman v. Dean, 902 P.2d 1321,
1323 (Alaska 1995) ("Alaska considers periodic child support
obligations 'judgments' that vest when an installment becomes due
but remains unpaid."); Greene v. Iowa Dist. Court for Polk County,
312 N.W.2d 915, 917-18 (Iowa 1981) ("The effect of an award of
child support is to provide the custodial parent with a money
judgment. Each installment becomes a judgment when due. Accrued
installments thus become the vested right of the spouse entitled to
the support and may not be taken away.") (citations omitted).
637 N.E.2d 914 (Ohio 1994).
See id. at 916.
Id. at 917 (Pfeifer, J., dissenting).
676 N.E.2d 604 (Ohio App. 1996).
Id. at 608.
592 N.E.2d 1297 (Mass. 1992).
See id. at 1298-99.
Id. at 1300 (footnote omitted).
Twelve John Does, 841 F.2d at 1138; see also Ryan v. U.S.
Lines Co., 303 F.2d 430, 434 (2d Cir. 1962) ("Rule 60(b)(5) . . .
properly applies only to judgments with prospective effect, and so
does not cover the case of a judgment for money damages.").
See State, CSED v. Wetherelt, 931 P.2d 383, 390-91 (Alaska
42 U.S.C. sec. 666(a)(9) (1994) requires states to adopt
[p]rocedures which require that any payment or
installment of support under any child support order, whether
ordered through the State judicial system or through the expedited
processes required by paragraph (2), is (on and after the date it
. . . .
(C) not subject to retroactive modification
by such State or by any other State;
except that such procedures may permit modification
with respect to any period during which there is pending a petition
for modification, but only from the date that notice of such
petition has been given, either directly or through the appropriate
agent, to the obligee or (where the obligee is the petitioner) to
AS 25.27.166 provides for administrative disestablishment of
paternity, and requires that an administrative decision
disestablishing paternity extinguish existing child support
arrearages, but "only to the extent not prohibited by federal law":
(a) The agency shall, by regulation,
establish procedures and standards for the disestablishment of
paternity of a child whose paternity was established in this state
other than by court order if the paternity was not established by
genetic test results that met the standards set out in AS
25.20.050(d) at the time the test was performed.
. . . .
(c) The agency shall disestablish paternity
under this section if genetic test results are negative under the
standard set out in AS 25.20.050(d) and if the other standards
established in its regulations are met.
(d) If a decision under this section
disestablishes paternity, the petitioner's child support obligation
or liability for public assistance under AS 25.27.120 is modified
retroactively to extinguish arrearages for child support and
accrued liability for public assistance based on the alleged
paternity that is disestablished under this section. This
subsection may be implemented only to the extent not prohibited by
(Emphasis added.) This provision became effective January 1, 1996,
when 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; Wetherelt, 931 P.2d at 388 n.8. These provisions
were not in effect when Ferguson's child support obligation began
to accrue. He applied for judicial, not administrative, relief
from a judgment that judicially established paternity. The statute
gave the agency no authority to disestablish paternity established
by court order. See AS 25.27.166(a).
931 P.2d 383 (Alaska 1997).
See id. at 385.
See id. at 384-90.
See id. at 390-91.
See also Smith v. Ohio Dep't of Human Servs., 658 N.E.2d 1100,
1100-02 (Ohio App. 1995) (holding that Smith was not entitled to
restitution from Department of Human Services for child support
collected by agency after he voluntarily acknowledged paternity
although genetic tests later disproved paternity; stating that "the
unjust impoverishment which [Smith] has suffered does not
necessarily correspond to any unjust enrichment on the part of the
608 N.E.2d 1000 (Ind. App. 1993).
See id. at 1002.
Id. at 1003; see also State ex rel. Blackwell v. Blackwell,
534 N.W.2d 89, 91 (Iowa 1995) ("[R]efusing to enforce a judgment as
opposed to vacating a judgment 'constitutes a distinction without
a difference.'") (citation omitted).
930 P.2d 1284 (Alaska 1997).
See id. at 1289.
Id. (citing Restatement of Restitution sec. 1 (1937)).
See id. at 1287-88.
See id. at 1289-90.