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John J. Koss v. Madonna Koss and Alaska Dept. of Revenue, CSED (5/28/99), 981 P 2d 106
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
JOHN J. KOSS, )
) Supreme Court No. S-8065
) Superior Court No.
v. ) 4FA-75-605 CI
MADONNA KOSS, and STATE OF )
ALASKA, DEPARTMENT OF REVENUE,) O P I N I O N
CHILD SUPPORT ENFORCEMENT )
DIVISION, ) [No. 5125 - May 28, 1999]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Richard D. Savell, Judge.
Appearances: Kenneth C. Kirk, Anchorage, for
Appellant. D. 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.
In 1996 John Koss moved to enjoin the Alaska Child
Support Enforcement Division (CSED) from enforcing two judgments
for unpaid child support that the superior court had entered
against him more than ten years earlier. He argued that the ten-
year statute of limitations set out in AS 09.10.040(a) barred CSED
from collecting on these judgments. The superior court disagreed
and denied Koss's motion. We affirm, holding the statute
inapplicable because CSED does not commence a new "action"when it
enforces an outstanding judgment for unpaid support.
II. FACTS AND PROCEEDINGS
John and Madonna Koss married in 1953 and divorced in
1973. In 1975 the superior court in Fairbanks ordered John to pay
child support in the amount of $400 per month. In 1982 the court
entered judgment against Koss for $25,425 in unpaid support. In
1985, after Koss's youngest child had reached the age of majority,
the court entered another judgment against Koss for $10,492 in
arrearage accruing since 1982.
In 1997, twelve years later, with the 1982 and 1985
judgments still unsatisfied, Koss moved to enjoin CSED from making
any further effort to collect them through administrative action.
He argued that any new effort by CSED to collect would be barred by
AS 09.10.040, which requires "an action upon a judgment"to be
"commenced within ten years." Superior Court Judge Richard D.
Savell denied Koss's motion, concluding that the statute of
limitations did not apply because CSED would not need to commence
"an action upon a judgment"to exercise its administrative
collection powers. Koss appeals.
A. Standard of Review
"We exercise our independent judgment when interpreting
and applying statutes of limitations."[Fn. 1] Whether AS
09.10.040 applies to bar CSED's administrative collection of the
child support judgments entered against Koss is a question of
statutory interpretation to which this court applies its
independent judgment. [Fn. 2]
B. Alaska Statute 09.10.040 Does Not Bar CSED's
Administrative Enforcement of Judgments That Are More Than Ten
Alaska Statute 09.10.040(a) states that "a person may not
bring an action upon a judgment . . . unless the action is
commenced within 10 years." The sole issue presented in this case
is whether this statute bars CSED from undertaking administrative
efforts to collect Koss's unsatisfied 1982 and 1985 judgments,
which are now more than ten years old. [Fn. 3] Koss argues that
attempts by CSED to collect administratively on the judgments would
be an "action"barred by the statute of limitations. CSED's
position is that the ten-year statute of limitations applies only
to new proceedings commenced by new complaints, and not to the
administrative collection of already existing judgments.
Our prior decisions support CSED's position. In State,
CSED v. Dean, we held that AS 09.10.040 applies "when litigants
'bring an action' and thus governs only proceedings commenced by
the filing of a complaint."[Fn. 4] Finding that a CSED motion to
reduce child support arrearages to judgment was a "proceeding . .
. in aid of enforcement of a judgment which was already in
existence,"[Fn. 5] and not a new "action,"we explained, "[i]t is
well-settled that executing upon a judgment does not operate to
commence an entirely new civil action."[Fn. 6] We reached similar
conclusions in State, CSED v. Gause, [Fn. 7] State, CSED v. Gerke,
[Fn. 8] and State, CSED v. Valdez. [Fn. 9]
CSED's primary collection powers, such as the power to
assert a lien on the property of an obligor [Fn. 10] and the power
to issue orders to withhold and deliver property, [Fn. 11] do not
require it to file a complaint or to initiate a new cause of
action. Instead, these are "independent powers . . . as effective
as those available in the courts."[Fn. 12] They are meant to
supplement judicial powers of enforcement. [Fn. 13] And they are
"akin to a standard [judicial] execution"[Fn. 14] as opposed to
the initiation of a new legal proceeding.
Koss cites Agen v. State, CSED [Fn. 15] as a "purely . .
. administrative case"in which we stated that a statute of
limitations should apply to CSED's enforcement of child support
obligations. But in Agen, CSED did not seek to collect on an
existing child support judgment. Instead, it issued an
administrative order establishing an alleged father's duty of
support -- a duty that it had never established before, either
administratively or through a court proceeding, and one that the
father expressly disavowed on the ground that he had entered into
a binding contract consenting to his child's adoption. [Fn. 16]
Accepting the father's premise that the six-year statute of
limitations for state actions applied to CSED's administrative
action, [Fn. 17] we found that CSED's action fell within the
prescribed time limit. [Fn. 18]
Moreover, the statute at issue in Agen, AS 25.27.160,
expressly required CSED to initiate its administrative
establishment proceeding by issuing a notice and finding of
financial responsibility, which entitles the recipient to a hearing
on the issue of liability. [Fn. 19] Thus, Agen dealt with an
administrative power that CSED could only exercise by commencing a
new "action"-- that is, by filing a complaint-like pleading, which
in turn set in motion a formal process of dispute resolution. [Fn.
Koss also argues that the "Doctrine of Merger"should
preclude CSED from taking administrative action that it would be
barred from taking in a judicial proceeding. His theory is that
CSED's rights "merge"into the judgments it seeks to enforce, and
so the statutes and rules that apply to judicial execution should
govern its procedures. But Koss raises this argument for the first
time in his reply brief, and he gives it only cursory treatment.
He has therefore failed to preserve it. [Fn. 21] In any event, the
argument lacks merit. CSED's administrative powers supplement
judicial powers of enforcement and stand independently. As we
recently said when we rejected a similar argument in CSED v. Gerke,
Gerke incorrectly argues that "by filing a
motion to reduce arrears to judgment under AS 25.27.226, CSED
subjected itself to the civil rules for all subsequent proceedings,
whether judicial or administrative." The Alaska Constitution, the
civil rules, and the child support statutes do not permit or
contemplate such a consequence.[ [Fn. 22]]
Last, Koss argues that public policy favors placing time
limits on CSED's administrative collection powers. He warns that
allowing CSED to exercise its administrative authority without any
time limit will have "horrific consequences." Koss's policy
arguments address concerns that are more legislative than judicial.
As currently written, Alaska law gives CSED the power to collect
unpaid support judgments without time restrictions. It is not our
role to restrict legislatively conferred powers in order to make
them conform to our views of sound public policy.
We hold that AS 09.10.040 does not apply to CSED's
collection of child support judgments. The agency's administrative
collections are not "actions upon a judgment." Accordingly, we
AFFIRM the superior court's order denying Koss's motion for an
McDowell v. State, 957 P.2d 965, 968 n.4 (Alaska 1998).
See University of Alaska v. Tumeo, 933 P.2d 1147, 1150
n.6 (Alaska 1997); Konecky v. Camco Wireline, Inc., 920 P.2d 277,
280 n.8 (Alaska 1996).
Subsection (b) of AS 09.10.040 formerly set a different
limit for an action to establish a judgment for past due support
when no judgment has previously been entered: "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 . . . 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."
Although this provision has recently been repealed, see
ch. 132, sec. 54, SLA 1998, it was in effect in 1996 when Koss
to enjoin CSED from enforcing the 1982 and 1985 child support
judgments. Nevertheless, Koss does not claim that subsection (b)
governs his case. By its own terms, subsection (b) applied only
when a court ordered child support but did not previously enter a
judgment for unpaid support. Here, the court had already entered
judgments in 1982 and 1985 establishing the amount of Koss's
arrearages. Moreover, in State, CSED v. Gause, 967 P.2d 599, 600-
03 (Alaska 1998), we interpreted subsection (b)'s use of the word
"action"to be consistent with the meaning of "action"that we
adopted in State, CSED v. Dean, 902 P.2d 1321, 1323 (Alaska 1995),
for purposes of applying subsection (a). We thus concluded in
Gause that a CSED motion to reduce unpaid support to judgment under
AS 25.27.226 is not an "action"for purposes of AS 09.10.040(b).
See Gause, 967 P.2d at 603.
Another provision, AS 09.35.020, sets a five-year limit
on issuance of execution after entry of a judgment: "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 [finding
just and sufficient reasons]." This provision is not at issue
here. In State, CSED v. Gerke, 942 P.2d 423, 427 (Alaska 1997), we
expressly held that "[AS] 09.35.020 . . . do[es] not apply to
CSED's administrative collection efforts."
Dean, 902 P.2d at 1323.
Id. at 1324. The judgment in existence is created by statute
as each support payment becomes due and unpaid. See AS 25.27.225.
Dean, 902 P.2d at 1324.
967 P.2d at 600-03.
942 P.2d at 425.
941 P.2d 144, 151-52 (Alaska 1997).
See AS 25.27.230.
See AS 25.27.250.
State, CSED v. Dean, 902 P.2d 1321, 1325 (Alaska 1995).
See Ch. 126, sec. 1, SLA 1977 ("The state . . . declares that
common law and Alaska statutes pertaining to the establishment and
enforcement of child support obligations shall be augmented by
additional remedies in order to meet the needs of minor
Dean, 902 P.2d at 1325.
945 P.2d 1215 (Alaska 1997).
Id. at 1216-17.
AS 09.10.120(a) provides that "[a]n action brought in the name
of or for the benefit of the state . . . may be commenced only
within six years of the date of accrual of the cause of action."
Agen, 945 P.2d at 1219.
AS 25.27.160(b)(3) provides, in relevant part:
[T]he alleged obligor may appear and show
cause in a hearing held by the agency why the finding is incorrect
. . . .
Cf. Hickel v. Halford, 872 P.2d 171, 176 (Alaska 1994)
(listing as the earmarks of an agency "proceeding"the existence of
a formal charging document that triggers a formal mechanism for
resolving disputes concerning the facts alleged therein).
See Alaska R. App. P. 212(c)(3); Sumner v. Eagle Nest Hotel,
894 P.2d 628, 632 (Alaska 1995); Conam Alaska v. Bell Lavalin,
Inc., 842 P.2d 148, 158 (Alaska 1992).
942 P.2d 423, 426 (Alaska 1997).