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Kilpper v. Alaska Child Support Enforcement Division (7/2/99) sp-5138


     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

STEPHEN KILPPER,              )
                              )    Supreme Court No. S-7696
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3AN-92-9414 CI
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF REVENUE, CHILD SUPPORT     )
ENFORCEMENT DIVISION,         )    
                              )    [No. 5138 - July 2, 1999]
               Appellee.      )
                              )


          Appeal from the Superior Court of the State of
          Alaska, Third Judicial District, Anchorage,
                     Rene J. Gonzalez, Judge.


          Appearances: Dennis P. James, Law Offices of
          Dennis P. James, Anchorage, for Appellant. 
          Diane L. Wendlandt, Assistant Attorney
          General, Anchorage, and Bruce M. Botelho,
          Attorney General, Juneau, for Appellee.


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


          BRYNER, Justice.
          COMPTON, Justice, with whom MATTHEWS, Chief
          Justice, joins, dissenting in part.

          Stephen Kilpper acknowledged paternity of a child he did
not father.  Based on this acknowledgment, the superior court
entered a judgment establishing his paternity.  Years later, when
the Child Support Enforcement Division (CSED) sought to enforce
Kilpper's support obligation, Kilpper moved to disestablish
paternity and proved that he was not the biological father.  The
court granted Kilpper's motion prospectively; despite Kilpper's
request for a hearing on "an equitable defense to the[] claimed
arrearages,"the court summarily ordered him to pay all accrued
support.  We hold that because AS 25.27.226 entitled Kilpper to a
hearing on his claimed defense, the court erred in entering the
support judgment.  
I.   FACTS AND PROCEEDINGS
          Keith [Fn. 1] was born to Regina Foreman in Anchorage in
1982.  Stephen Kilpper signed an affidavit acknowledging paternity
and was listed on the birth certificate as Keith's father.  But
Kilpper knew that he was not Keith's biological father. 
          In May 1989, Regina began receiving public assistance on
Keith's behalf.  In 1991, as a first step towards obtaining
reimbursement from Kilpper, [Fn. 2] CSED filed an action to
establish his paternity.  Kilpper, who was then in Texas, signed
and returned to CSED an affidavit acknowledging that he was Keith's
father.  Based on Kilpper's acknowledgment, the superior court
granted CSED's motion for judgment on the pleadings and, in
February 1992, entered an order formally declaring Kilpper to be
Keith's father.  
          CSED, evidently uncertain of Kilpper's whereabouts,
waited more than two years before taking further action to secure
reimbursement from Kilpper.  On June 3, 1995, the agency issued an
administrative order requiring Kilpper to pay $303 per month in
ongoing child support and fixing arrears of $34,666 for support
payable from May 1989 through June 1995.  Kilpper administratively
appealed this decision by requesting an informal conference with
CSED; the conference was held on September 5, 1995.  That same day,
Kilpper moved for a blood test to prove he was not Keith's
biological father.
          On September 26, 1995, CSED issued an informal conference
decision, affirming its determination that Kilpper was responsible
for ongoing support payments and arrearages and increasing his
monthly support obligation to $592 and updating his accrued debt to
$36,064.  Meanwhile, the court granted Kilpper's motion for a blood
test.  On September 27 a lab report established that Kilpper was
not Keith's father.  Relying on this report, Kilpper moved for an
order vacating the February 1992 judgment establishing his
paternity.
          Shortly thereafter, Kilpper pursued his administrative
appeal to the next level, a formal conference, by notifying CSED of
his objection to its informal conference decision.  CSED took no
action on this administrative appeal because paternity appeared to
be the only issue that Kilpper contested and because he had already
filed a superior court action to vacate the 1992 paternity order.
CSED did not oppose Kilpper's motion to vacate the paternity order
but argued that the court should take prospective action only and
that Kilpper should remain liable for all support that had accrued
before he filed his motion. 
          On February 8, 1996, the court vacated paternity as of
October 23, 1995 -- the date Kilpper's motion to vacate paternity
had been served on CSED.  By a follow-up order, the court made it
clear that its order vacating paternity only relieved Kilpper of
obligations accruing after October 1995 -- he was not relieved of
$36,064 in arrearages accrued from May 1, 1989 to September 30,
1995.
          Prompted by this ruling, CSED moved to reduce Kilpper's
child support arrearages to judgment under AS 25.27.226.  Kilpper
opposed the motion, maintaining that CSED's continuing collection
efforts violated the court's previously issued orders and noting
that his administrative appeal was still pending. 
          In an affidavit accompanying his opposition, Kilpper
conceded that he had previously acknowledged paternity even though
he knew that he was not Keith's father.  But Kilpper claimed that
he had thought he was "just giving my name for the birth
certificate"and that Keith's mother had always been aware of
Kilpper's whereabouts, yet "I was never informed that consenting to
paternity would establish a basis for child support."  Kilpper
contended, "Had I known that the State of Alaska would seek child
support from me I would have had the DNA testing done so as to
immediately establish that I was not the biological father."  He
thus requested an evidentiary hearing, asserting, "I have an
equitable defense to these claimed arrearages." 
          Without addressing Kilpper's request for a hearing, the
superior court granted CSED's motion to reduce Kilpper's arrearages
to judgment, entering judgment against him for $36,064 in unpaid
child support accrued from May 1, 1989, through October 23, 1995. 
          Kilpper appeals.
II.  DISCUSSION
          Kilpper first asserts that CSED committed various due
process violations in seeking to hold him accountable for public
assistance that it had paid on behalf of Keith.  Second, he argues
that the court lacked grounds to hold him liable for Keith's past
support, because DNA testing conclusively established that he was
not actually Keith's father.  Last, Kilpper complains that the
court erred in denying his request for a hearing on his proposed
defenses to CSED's motion to reduce his arrears to judgment. 
     A.   Standard of Review  
          These issues all involve questions of law that we review
de novo. [Fn. 3]  We are not bound by the lower court's decision
and will "adopt the rule of law that is most persuasive in light of
precedent, reason, and policy."[Fn. 4] 
     B.   Due Process
          Kilpper claims that CSED violated his right to due
process in several ways.  He insists that he raised due process in
his affidavit before the superior court -- or that at least a due
process claim can be gleaned from his affidavit.  But our review of
the record establishes that Kilpper did not raise a due process
claim below.  We generally will not consider arguments unless they
were raised below. [Fn. 5]  Moreover, we are convinced that his due
process claims do not rely on undisputed facts, are not readily
gleaned from Kilpper's superior court pleadings, and do not involve
plain error.  Given these circumstances, we conclude that Kilpper
has failed to preserve his claims for review. [Fn. 6]
     C.   DNA Test

          Kilpper argues that, because his DNA test conclusively
established that he is not Keith's biological father, the superior
court lacked any basis for holding him liable for Keith's past
child support payments.  But Kilpper's argument mistakenly assumes
that biological parenthood is the only basis upon which the court
can impose a duty of support.
          As CSED correctly argues, by formally acknowledging
paternity and allowing himself to be listed on Keith's birth
certificate, Kilpper presumptively established himself as Keith's
father and became his legal parent regardless of biological
parenthood.  This legal relationship remained in effect until 1995,
when Kilpper established that he was not actually Keith's father.
[Fn. 7]  As Keith's legal parent, Kilpper was legally bound to
support his son, even in the absence of a court order requiring him
to make child support payments. [Fn. 8]   His obligation
encompassed the duty to reimburse others, including CSED, who
provided needed support in the absence of payments by Kilpper. [Fn.
9]  
          On the basis of the 1995 DNA test, the court could
terminate Kilpper's legal relationship to Keith and relieve him of
any further obligation to pay support.  But this action, by itself,
did nothing to alter the reality that Kilpper had been Keith's
legal father from birth until 1995.  Nor did it automatically
relieve Kilpper of the child support debt he had accumulated while
he was Keith's father.  Absent an independent justification for
absolving Kilpper of the child support debt that had already
accrued, Kilpper was entitled only to prospective relief. [Fn. 10] 
To date, Kilpper has failed to show good cause for undoing his
accrued child support debt.
     D.   Failure to Hold a Hearing
          Kilpper argues that the superior court erred in summarily
granting CSED's motion to reduce his child support arrearages to
judgment, thereby depriving him of a hearing at which he might have
established grounds for retrospective relief.  Alaska Statute
25.27.226 expressly entitles Kilpper to a hearing if he asserts any
defense to CSED's collection efforts. [Fn. 11]  To determine
whether Kilpper's affidavit "offered any defense"requiring a
hearing, we must ask what "defenses,"if any, might have justified
granting Kilpper relief against CSED's motion to reduce his
arrearages to judgment, and whether his affidavit sufficiently
"offered"any such defense.
          We have never squarely decided whether or when a presumed
father who disproves biological paternity is entitled to anything
more than relief from future child support payments.  But our
decisions suggest that broader relief might be available upon proof
of grounds that would warrant retrospective relief from judgment
under Alaska Civil Rule 60(b). [Fn. 12]  In addition, we have
indicated that an obligor may be entitled to raise defenses of
estoppel and waiver against CSED when it seeks to collect
arrearages upon an assigned claim for public assistance rather than
on behalf of the custodial parent. [Fn. 13] 
          In the present case, Kilpper's affidavit described
circumstances vaguely suggesting waiver and estoppel; he also
advanced a conclusory claim of "an equitable defense to these
claimed arrearages."  These generalized assertions do not permit us
to rule out the possibility that Kilpper might prove a successful
defense if given a hearing to do so.  Yet Kilpper's vague and
cryptic description of his proposed defenses raises a serious
question as to whether they are sufficient, as described, to
require an evidentiary hearing.  
          Ordinarily, we might resolve this question by a
straightforward application of Alaska Civil Rule 77.  Specifically,
Civil Rule 77(c)(2) provides that to oppose a motion, a party must
"[s]erve and file a brief, complete written statement of the
reasons in opposition to the motion, which shall include an
adequate answering brief of points and authorities."  Kilpper did
not comply with these requirements.  He provided no points and
authorities and did not make clear the defenses he desired to
assert.  In short, if Civil Rule 77(c)(2) clearly governed the
question of Kilpper's right to a hearing on the defenses set out in
his affidavit, then the superior court could properly have ignored
his request for a hearing and decided CSED's motion summarily.  
          But the question is not so straightforward.  As we have
previously indicated, AS 25.27.226 specifically governed Kilpper's
response to CSED's motion.  This statute required Kilpper to
respond by affidavit to CSED's motion and provided that if his
affidavit "offer[ed] any . . . defense to the petition, then [he
was] entitled to a hearing"(emphasis added).  No decision of this
court has previously interpreted Civil Rule 77 to apply to or to
modify section 226's literal language, which seemingly creates an
automatic right to a hearing upon the filing of an affidavit
offering "any . . . defense"other than payment. [Fn. 14]    
           Of course, we recognize that holding an evidentiary
hearing in the absence of any genuinely disputed material facts
makes little sense.  Accordingly, the superior court certainly had
discretion to require, before conducting a hearing, that Kilpper
offer prima facie evidence of a successful defense under standards
set out in Civil Rule 77(c)(2). [Fn. 15]  But without express
notice of the court's intent to hold him to this standard, Kilpper
reasonably might have read AS 25.27.226 at face value and assumed
from its literal language that his affidavit's vague offer of
defenses would suffice to give him a hearing at which he would be
able to flesh out his claims.
          Our review of Kilpper's pleadings leaves us skeptical of
his ability to allege or prove circumstances warranting relief from
the superior court's 1992 judgment establishing his paternity and
child support obligation. [Fn. 16]  But before his defenses can be
summarily rejected, Kilpper is entitled to advance notice of what
he is required to do to obtain a hearing.  Given that AS 25.27.226
might have led Kilpper to believe that he could obtain a hearing
listing any defense in his affidavit, we are not persuaded that
Kilpper was given fair notice or a fair opportunity to be heard. 
          Because Kilpper's affidavit asserts defenses that are not
patently meritless, we conclude that a remand is necessary to give
Kilpper an additional opportunity to assert his defenses with
sufficient specificity to meet the requirements of Civil
Rule 77(c)(2).  If Kilpper offers defenses on remand that entitle
him to a hearing under Rule 77(c)(2), the court should grant his
request for a hearing. [Fn. 17]
III. CONCLUSION
          For the foregoing reasons, we REMAND this case for
further proceedings.

COMPTON, Justice, with whom MATTHEWS, Chief Justice, joins,
dissenting in part.
          CSED's motion to reduce arrears to judgment was brought
under AS 25.27.226, which governs the collection of past-due
support.  It requires that the obligor, in response to a motion to
establish judgment, file an affidavit with the court.  If the
affidavit "states that the obligor has paid any of the amounts
claimed to be delinquent, describes in detail the method of payment
or offers any other defense to the petition, then the obligor is
entitled to a hearing."
          Kilpper's opposition to CSED's motion to reduce arrears
to judgment and accompanying affidavit "vaguely suggest[] waiver
and estoppel."[Fn. 1]  His "vague and cryptic description of his
proposed defenses raises a serious question as to whether they are
sufficient, as described, to require an evidentiary hearing."[Fn.
2] 
          Kilpper's primary contention is that arrears should not
be reduced to judgment, because doing so would violate the prior
court order disestablishing paternity.  This is not a meritorious
defense.  The trial court had explained that its prior order only
prospectively eliminated Kilpper's obligation to provide support to
Keith.
          Kilpper's affidavit concludes with the following
language:  "I believe I have an equitable defense to these claimed
arrearages.  I request a hearing prior to April 26, 1996."  This
court holds that what it has termed as "vague and cryptic"is
sufficient to require that the trial court do something.  The
rationale for this holding is questionable.
          Civil Rule 77(c)(2) provides that, to oppose a motion, a
party must "[s]erve and file a brief, complete written statement of
the reasons in opposition to the motion, which shall include an
adequate answering brief of points and authorities."  Kilpper's 
opposition and affidavit did not comply with this rule.  No points
and authorities were provided and the defense he desired to assert
was not made clear.  
          State v. Alaska International Air, Inc. [Fn. 3] provides
some guidance.  In that case we were required to decide whether a
motion to dismiss was adequate to "join the issue before the
court."[Fn. 4]  We looked to Civil Rule 77(b)(2), which contains
the same requirements as Civil Rule 77(c)(2), but applies to
motions rather than oppositions. [Fn. 5]  The motion to dismiss at
issue in Alaska International Air contained only a one-and-a-half
page memorandum which was "devoid of any authorities and merely
raised three somewhat dubious issues."[Fn. 6]  We concluded that
the motion was "so sparse as to prove frivolous."[Fn. 7] 
Kilpper's opposition was similarly devoid of authority and failed
to specify the defenses he wished to put at issue.
          The court notes that no prior decision has explicitly
held that Civil Rule 77 modifies the language of AS 25.27.226. [Fn.
8] However, there is no authority suggesting that compliance with
civil motion practice rules is rendered unnecessary by a simple
statutory acknowledgment that an individual offering a defense is
entitled to a hearing.  Alaska Statute 25.27.226 does not purport
to modify Civil Rule 77.  
          The court notes that "holding an evidentiary hearing in
the absence of any genuinely disputed material facts makes little
sense."[Fn. 9]  It also notes the trial court had the discretion
to require Kilpper to "offer prima facie evidence of a successful
defense under standards set out in Civil Rule 77(c)(2),"[Fn. 10]
a rule which the court may have just held does not apply to the
statute.  Since Kilpper may have taken the statute at face value,
opines the court, he may have assumed he was going to get a hearing
at which he could "flesh out his claims,"[Fn. 11] whatever they
might be.  While the court is skeptical of Kilpper's ability to
allege or prove circumstances warranting relief, he is entitled to
advance notice "of what he is required to do to obtain a hearing."
[Fn. 12]  He was not given "fair notice or a fair opportunity to be
heard."[Fn. 13]  The court holds that he must be given an
opportunity to meet the requirements of Civil Rule 77(c)(2).
          We are left to wonder whether the legislature has
inadvertently amended a rule of court, or whether Kilpper has
inadvertently successfully argued that he was denied due process of
law. 
          If the rule does not apply of its own force to require
Kilpper to file pleadings that are more than "vague and cryptic,"
then the statute has amended the rule.  If the statute standing
alone does not give Kilpper "fair notice and an opportunity to be
heard,"then it must be unconstitutional as applied to Kilpper. 
Yet Kilpper does not claim he was misled by the statutory language,
or that the statute is unconstitutional.  However, once we have
entered the realm of speculation, what Kilpper claims may be of
little importance.  Indeed, Kilpper does not even ask for a hearing
at which he can establish claims concerning the nature of which
this court can only speculate.  He asks that the trial court's
"judgment be vacated and this matter be remanded to CSED for a
determination of who is the biological father . . . so that proper
and just support can be assessed against that individual."  And we
must assume that if the trial court had discretion to require more
of Kilpper before it proceeded with a hearing, it could have
proceeded without requiring more of him.   
          Were Kilpper a pro per litigant, arguably the court's
decision could be justified on the basis of simple fairness to the
uninformed.  However, as Kilpper was represented by an attorney,
the pro per standard does not apply.  In my view the court's
analysis is not sound.  Since it is not clear what the court has
held, I cannot agree with this part of its decision.  
          In my view Kilpper's opposition did not adequately raise
a defense which would have required a hearing pursuant to
AS 25.27.226, since Kilpper did not comply with Civil Rule
77(c)(2).  The statute and rule must be read together.  The
superior court did not err in entering judgment without conducting
a hearing. 



                            FOOTNOTES


Footnote 1:

     We use a pseudonym for the name of the child.


Footnote 2:

     AS 25.27.120 authorized CSED to claim reimbursement from
Kilpper.



Footnote 3:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).  


Footnote 4:

     Id.


Footnote 5:

     Arnett v. Baskous, 856 P.2d 790, 791 n.1 (Alaska 1993). 


Footnote 6:

     See Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d
109, 115 (Alaska 1990).       


Footnote 7:

     See Ferguson v. State, CSED, ___ P.2d ___, Op. No. 5110 at 4-
19 (Alaska, April 30, 1999) (holding that Rule 60(b)(5) offers only
prospective relief); State, CSED v. Wetherelt, 931 P.2d 383, 388
(Alaska 1997) (disapproving of extinguishment of child support
arrearages after paternity disestablished).  


Footnote 8:

     Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987).


Footnote 9:

     Id.


Footnote 10:

     See Ferguson at 4-19; Wetherelt, 931 P.2d at 388.


Footnote 11:

     AS 25.27.226 provides, in relevant part:

          The obligor shall respond [to a motion
          requesting establishment of a judgment] no
          later than 15 days after service by filing an
          affidavit with the court.  If the obligor's
          affidavit states that the obligor has paid any
          of the amounts claimed to be delinquent,
          describes in detail the method of payment or
          offers any other defense to the petition, then
          the obligor is entitled to a hearing.  After
          the hearing, if any, the court shall enter a
          judgment for the amount of money owed.  If the
          obligor does not file an affidavit under this
          section, the court shall enter a default
          judgment against the obligor.


Footnote 12:

     See Ferguson at 12-13 (suggesting that retrospective relief
might be appropriate under some provisions of Rule 60(b), but
declining to approve retrospective relief to a disestablished
father who had alleged and proved grounds for relief under Rule
60(b)(5), which provides solely for prospective relief); compare
State, CSED v. Mitchell, 930 P.2d 1284, 1288-90 (Alaska 1997)
(affirming in part a superior court order, issued under Rule 60(b),
that retroactively vacated a previously entered child support order
and directed CSED to reimburse child support payments collected
from an individual whose paternity the court had disestablished),
with Wetherelt, 931 P.2d at 387-91 (reversing a superior court
order requiring CSED to reimburse previously collected child
support payments to a former father whose paternity the court had
newly disestablished and who had neither alleged nor proved grounds
for relief from judgment under Rule 60(b)).


Footnote 13:

     See Benson v. Benson, ___ P.2d ___, Op. No. 5109 at 11-13
(Alaska, April 23, 1999); State, CSED v. Valdez, 941 P.2d 144, 154
n.14 (Alaska 1997). 


Footnote 14:

     Section 226 treats a payment defense somewhat differently,
requiring an obligor who raises this defense to "describe[] in
detail the method of payment."  Thus, the mere assertion of a
defense of payment or partial payment does not entitle the obligor
to a hearing.


Footnote 15:

     Moreover, in our view, the court would not have erred in
declining to hold a hearing had Kilpper's affidavit committed him
to a specific defense or defenses that were facially meritless.


Footnote 16:

     See, e.g., Dewey v. Dewey, 886 P.2d 623, 626-29 (Alaska 1994)
(discussing the application of Rule 60(b) in the context of a non-
parent's belated motion for relief from a child support order
entered by stipulation upon the dissolution of his marriage to the
child's mother).


Footnote 17:

     If, on remand, Kilpper does show grounds for relief under Rule
60(b), the superior court might be faced with a question of 
whether retroactive relief, though permissible under a conventional
application of Rule 60(b), might nonetheless be barred in the
peculiar context of child support cases by provisions of federal or
state law.  The parties have not briefed this issue, and it would
be premature for us to decide it now.  Nevertheless, we note that
no child support order was in effect during the period covered by
the judgment establishing Kilpper's arrearages; accordingly,
altering Kilpper's arrearages would not in itself amount to a
retroactive modification of Kilpper's child support obligation. 
See Benson at 7-11.



                      FOOTNOTES   (Dissent)


Footnote 1:

     Slip Op. at 9.  


Footnote 2:

     Id. 


Footnote 3:

     562 P.2d 1064 (Alaska 1977).


Footnote 4:

     Id. at 1068.


Footnote 5:

     Id. at 1068-69.


Footnote 6:

     Id. at 1069.


Footnote 7:

     Id. at 1068.


Footnote 8:

     Slip Op. at 10.  


Footnote 9:

     Id.  


Footnote 10:

     Id. 


Footnote 11:

     Id. at 11.


Footnote 12:

     Id.  


Footnote 13:

     Id.