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Alaska Dept. of Revenue, CSED v. Kevin Lyn Dillon (5/28/99), 977 P 2d 118


     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-8047
ENFORCEMENT DIVISION,         )
                              )    Superior Court No.
               Appellant,     )    3KN-92-805 DR
                              )    
     v.                       )
                              )    O P I N I O N
KEVIN LYN DILLON,             )     
                              )    [No. 5129 - May 28, 1999]
               Appellee.      )
______________________________)    



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
                     Jonathan H. Link, Judge.


          Appearances: Terisia K. Chleborad, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellant.  Allan D. Beiswenger, Robinson,
Beiswenger & Ehrhardt, Soldotna, for Appellee. 


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


          PER CURIAM.
  

I.   INTRODUCTION
          The Child Support Enforcement Division (CSED) appeals a
superior court order modifying Kevin L. Dillon's monthly child
support payments.  CSED contends that the court should have made
its order effective as of the time Dillon received CSED's Notice of
Petition for Modification.  We agree.  Under Alaska Civil
Rule 90.3(h)(2), a revised child support order presumptively
relates back to notice of a petition for modification.  Absent good
cause for a later effective date, this presumptive date must govern
Dillon's case.
II.  FACTS AND PROCEEDINGS
          Kevin Dillon and Tonya Pugh (then Ross) had a child
together, Mikayla Dillon, on February 28, 1992.  In June 1993, the
superior court awarded Pugh primary physical custody of Mikayla and
ordered Dillon to pay $167 per month in child support.  Three years
later, in May 1996, Pugh evidently sought CSED's help in modifying
the support award.  On May 9, 1996, CSED sent Dillon a "Notice of
Petition for Modification of Judicial Support Order."  Dillon
acknowledges that he received the notice that same month, even
though CSED mailed it to an address that was no longer current.
[Fn. 1] 
          In July 1996, relying on information it obtained from the
Department of Labor, CSED calculated Dillon's support obligation at
$506 per month.  On July 3 CSED mailed Dillon and Pugh a proposed
consent order reflecting the increased support.  On July 15 Dillon
informed CSED of his new address and complained that its
calculations were inaccurate.  On three other occasions, he called
and asked to speak to the CSED representative handling his case,
but his calls were never returned.
          On August 9, 1996, CSED mailed Dillon a copy of a newly-
filed motion, signed by Pugh, formally requesting the court to
modify the support award to reflect CSED's new figure.  Dillon
evidently did not receive his copy of this motion.  On August 29,
1996, the court entered an order increasing Dillon's child support
obligation to $506 per month, beginning June 1, 1996.  
          In December 1996 Dillon moved for relief from judgment,
stating that he had only learned of the court's August 29 order
through his October Account Statement, and claiming that the new
obligation was incorrect.  He submitted information showing that
his new monthly payment should have been $482.94.  The court
granted Dillon's motion and adopted his proposed order on
January 28, 1997, making it effective as of January 1, 1997. 
          CSED moved for reconsideration, arguing that, under
Rule 90.3(h)(2), the court should have made its order effective on
June 1, 1996 -- the first day of the month after Dillon received
CSED's May 7, 1996, Notice of Petition for Modification.  The court
denied reconsideration, noting that it had chosen January 1, 1997,
as the effective date because, despite making efforts to notify
CSED of his new address, Dillon had not received Pugh's August 9,
1996, motion for modification.
III. DISCUSSION
          CSED argues that the superior court erred in establishing
January 1, 1997, as the effective date for Dillon's modified child
support obligation.  CSED asserts that, under Rule 90.3(h)(2), the
new child support order should have been effective seven months
earlier -- on June 1, 1996. 
          Rule 90.3(h)(2) prohibits retroactive modification of
child support awards, but provides that a modification is not
considered retroactive if made effective "on or after the date that
a motion for modification, or a notice of petition for modification
by the Child Support Enforcement Division, is served on the
opposing party . . . ."[Fn. 2]  
          Recently, in Boone v. Boone, [Fn. 3] a case involving a
motion for modification that substantially predated a modified
child support award, [Fn. 4] we concluded that, absent an express
finding of good cause to the contrary, this rule required the trial
court to make its modification order effective as of the date the
motion for modification was filed. [Fn. 5]  We explained our
decision as follows:
               The rule's text does not express a
preference or presumption that a modification become effective on
the motion service date, and does not prevent the superior court
from exercising its discretion and selecting a later effective
date.  But we are nonetheless persuaded that the motion service
date should be the preferred effective date, and that the superior
court should exercise its discretion in selecting a different
effective date only if it finds good cause for doing so.  One
reason for our preference of the motion service date as the
effective date of a modified child support order is that child
support reflects the child's current needs.  Another is that child
support is both based on and paid out of the obligor's current
income.  Ideally, a claim of changed circumstances would be
immediately resolved to permit immediate relief to the movant. 
Delays in resolving such disputes should not disadvantage parties
entitled to relief.  The rule commentary, noting the prohibition on
retroactive modification, urges prompt applications: "Thus, either
the custodial or the obligor parent should promptly apply for a
modification of child support when a material change in
circumstances occurs."  Alaska R. Civ. P. 90.3 cmt. X.

               . . . .

               Further, service of the motion gives the
opposing party both fair warning that support may change and an
opportunity to reassess, even before the court rules, the correct
amount of support.  This gives an opportunity to adjust consumption
patterns in anticipation of modification, and thus minimize
prejudice when relief is granted effective as of the service date.

               This preference does not prevent the
superior court from exercising its discretion to select a later
effective date if it finds good cause for doing so.  But unbounded
discretion to choose a later effective date could sabotage the
efficacy of Rule 90.3.[ [Fn. 6]]

          The modification order at issue in Boone had been
initiated by motion rather than by a CSED notice of petition for
modification. [Fn. 7]  Accordingly, we decided only whether Rule
90.3(h)(2) permits the effective date of a modification order to
relate back to the time of service of a motion for modification;
[Fn. 8] we did not discuss the rule's application in cases where a
modification order is initiated by a petition for modification. 
But we see no reason why Boone's analysis should not be extended to
require courts in such cases to make modifications effective upon
service of CSED's notice, absent a finding of good cause to the
contrary.
          The rule itself draws no distinction between motions for
modification and CSED notices of petitions for modification.  And
our reasoning in Boone, though dealing with an order initiated by
motion, applies with equal force to a case like Dillon's, where the
order grew out of a CSED petition.  In both situations, allowing
modified child support orders to take effect upon receipt of the
initial notice adequately protects noncustodial parents against
prejudice, while both increasing the likelihood that their payments
will accurately reflect their ability to pay and depriving them of
incentives to engage in tactical delay. [Fn. 9]  
          Here, the court made its January 28, 1997, order
modifying Dillon's support obligation effective as of the month of
the order's issuance.  The court did not find good cause or
otherwise explain its decision not to extend the effective date
back to June 1996 -- the month immediately following Dillon's
receipt of CSED's notice of Pugh's petition for modification.  
          Later, in response to CSED's motion for reconsideration,
the court gave two reasons for making its order effective upon
issuance.  It explained that "[t]he [effective] date established by
the Court was based on the fact that defendant did not receive the
motion as opposed to the notice [and] the fact that defendant
attempted to contact CSED with a new address."  
          But neither of these reasons amounts to good cause for
failing to apply Rule 90.3(h)(2)'s preferred effective date.  That
Dillon remained unaware for several months of Pugh's formal motion
for modification does nothing to negate that CSED, by giving him
notice of Pugh's petition for modification, had already alerted him
that his original support obligation was being questioned. 
Likewise, since Dillon ultimately was able to establish the correct
amount for his modified support obligation, he suffered no actual
prejudice from CSED's regrettable failure to respond to his earlier
contacts.  
          We thus conclude that, in the absence of good cause, the
court abused its discretion in failing to make its order of
modification effective as of June 1, 1996.
IV.  CONCLUSION
          For these reasons, we REMAND this case for amendment of
the January 29, 1997, Order for Modification of Child Support to
provide for an effective date of June 1, 1996.           
In the Supreme Court of the State of Alaska



State of Alaska, CSED,          )
                                )        Supreme Court No. S-08047
                                   Appellant,   )
                   v.           )                 Order
                                )                     
Kevin Lyn Dillon,               )                     
                                )                     
                                   Appellee.    ) Date of Order: 5/28/99
                                )
Trial Court Case # 3KN-92-00805DR

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

     On consideration of the motion to publish the memorandum opinion and judgment No. 0914,
issued on March 24, 1999,

     It is Ordered:

     1.   The motion to publish is Granted.

     2.   Memorandum Opinion and Judgment No. 0914, issued on March 24, 1999, is
Withdrawn and Opinion No. 5129 is issued in its place. 

     Entered by direction of the court.

                                   Clerk of the Appellate Courts


                                                                                                         
                                   Marilyn May
cc:  Supreme Court Justices
     Trial Court Judge Link
     Trial Court Appeals Clerk
     Publishers

Distribution:  
 
     Terisia K. Chleborad 
     Asst Attorney General 
     1031 West Fourth Ave  #200 
     Anchorage AK 99501 

      Allan D Beiswenger 
     Robinson Beiswenger & Ehrhardt 
     35401 Kenai Spur Highway 
     Soldotna AK 99669


                            FOOTNOTES


Footnote 1:

     Dillon's affidavit
actually states that he
received CSED's notice in May
1995, but his reference to 1995
is obviously mistaken, since it
is undisputed that CSED mailed
the notice in 1996.    


Footnote 2:

     Alaska R. Civ. P.
90.3(h)(2) (emphasis added).   
  


Footnote 3:

     960 P.2d 579 (Alaska
1998).


Footnote 4:

     See id. at 581-82.  


Footnote 5:

     See id. at 585.


Footnote 6:

     Id. at 585-86 (footnote
omitted).


Footnote 7:

     See id. at 581.


Footnote 8:

     See id. at 585.


Footnote 9:

     See id. at 585-86.