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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Child Support Enforcement Division v. Bromley (9/17/99) sp-5180

State, Child Support Enforcement Division v. Bromley (9/17/99) sp-5180

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, CHILD 		)
SUPPORT ENFORCEMENT DIVISION,	)	Supreme Court Nos. S-7833/7883
)
   Appellant and	)	Superior Court No.
   Cross-Appellee,	)	4FA-96-117 CI
)
v.					)	O P I N I O N
)
KEITH W. BROMLEY,			)	[No. 5180 - September 17, 1999]
)
   Appellee and	)
   Cross-Appellant.	)
______________________________)




Appeal from the Superior Court of the State of 
Alaska, Fourth Judicial District, Fairbanks,
	Ralph R. Beistline, Judge.


Appearances: Scott Davis, Assistant Attorney 
General, Fairbanks, and Bruce M. Botelho, 
Attorney General, Juneau, for Appellant/ 
Cross-Appellee.  Bret D. Cook, Cook, Schuhmann 
& Groseclose, Inc., Fairbanks, for Appellee/ 
Cross-Appellant.


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


FABE, Justice.


I.	INTRODUCTION

This appeal and cross-appeal arise out of a dispute over 
child support payments.  Keith Bromley argues that he is entitled 
to a refund from the Child Support Enforcement Division (CSED) 
because CSED acted outside its authority in establishing his 
support obligation.  He also contends that in modifying his child 
support obligation, the superior court should have applied 
Pennsylvania law instead of Alaska law because his child lives in 
Pennsylvania.  Because Bromley is precluded from contesting whether 
CSED acted in excess of its subject matter jurisdiction, we hold 
that its decision must stand and that Bromley is not entitled to a 
refund on that basis.  We further hold that the superior court 
properly decided to apply Alaska law in modifying Bromley's support 
obligation.  
In its appeal, CSED contends that although the superior 
court correctly decided to apply Alaska law in modifying Bromley's 
support obligation, it improperly decided to vary from the Alaska 
Civil Rule 90.3 formula for determining child support.  Because we 
conclude that the superior court was not justified in departing 
from the formula and that Bromley's request for modification based 
on the order's lack of validity was in essence a collateral attack 
on the 1993 order, we reverse and remand.
II.	FACTS AND PROCEEDINGS

In October 1985 Keith W. Bromley and Patricia G. Marlar 
were divorced by judgment of the Maine District Court.  The court 
awarded primary physical custody of the couple's one child, Shane 
(d/o/b 3/21/84), to Marlar, and ordered Bromley to pay $215 a month 
in child support.  In June 1986 the Maine court amended the divorce 
judgment, increasing Bromley's child support obligation to $315 a 
month.  Following the divorce, Marlar moved with Shane to 
Pennsylvania and Bromley relocated to Alaska.  Neither Marlar nor 
Shane has ever lived in Alaska.
In August 1992 the State of Pennsylvania asked the Alaska 
CSED to establish a child support order for Shane.  CSED issued a 
notice and finding of financial responsibility in October 1992.  
Following an informal conference in November 1992, CSED established 
Bromley's child support obligation at $695 a month.  Bromley 
appealed on several grounds, but in January 1993 a senior revenue 
hearing officer of the Alaska Department of Revenue upheld CSED's 
support calculation.  Although Bromley was entitled to appeal that 
decision to the superior court within thirty days, he did not do 
so. Thereafter, Bromley made the support payments established by 
CSED.
Three years later, in January 1996, Bromley registered 
the Maine child support order in the superior court pursuant to AS 
25.25.601.   CSED responded that it did not oppose enforcement or 
prospective modification of the Maine child support order, but that 
it would object to any attempt to modify the finding of financial 
responsibility retroactively.  CSED then moved to modify Bromley's 
child support obligation.  It contended that under Alaska Civil 
Rule 90.3(a)(2)(A), Bromley's child support obligation should be 
twenty percent of his income, or $840 a month.

Bromley opposed the motion, arguing that his support 
obligation should be calculated under the law of the child's home 
state, Pennsylvania.  In the alternative, he argued that CSED's 
calculation under Rule 90.3 was erroneous and that his obligation 
under the rule would only be $795 a month.  Bromley also moved for 
a credit or refund of "funds wrongfully collected"by CSED, 
insisting that CSED's establishment in 1993 of child support was 
"void ab initio." CSED opposed this motion.
Following a hearing, Superior Court Judge Ralph R. 
Beistline granted CSED's motion to modify.  But instead of 
increasing Bromley's child support obligation, the court decreased 
it.  Applying Alaska law, the court found that unusual 
circumstances under Rule 90.3(c)(1)(A), including the fact that 
CSED's establishment of the support obligation was "in excess of 
its statutory authority,"justified a downward departure from the 
Rule 90.3(a) formula for determining child support.  It decreased 
Bromley's support obligation to $527 a month, which it asserted was 
approximately the amount Bromley would owe under Pennsylvania law. 
 The court denied Bromley's motion for a credit or refund.  CSED 
sought reconsideration of the modification order, arguing that the 
superior court misapplied Rule 90.3.  The superior court granted 
reconsideration, but did not alter its order.
CSED appeals the superior court's departure from the Rule 
90.3(a) formula, and Bromley appeals its denial of his motion for 
a credit or refund and its decision not to apply Pennsylvania law 
in modifying the Maine support order.

III.	DISCUSSION		
A.	Bromley Is Not Entitled to a Refund of Payments Made in 
		Excess of the Maine Order.

We begin by analyzing Bromley's arguments on cross-
appeal.  He argues that he is entitled to a refund of child support 
payments made in excess of the Maine order because CSED's 
establishment of his child support obligation in 1993 was void ab 
initio.  In the alternative, Bromley contends that retroactive 
application of our decision in State, Department of Revenue v. 
Dunning  entitles him to a refund.  These arguments present 
questions of law, which we review de novo.   We will "adopt the 
rule of law that is most persuasive in light of precedent, reason, 
and policy."
1.	Voidness
Relying on our decision in Dunning, Bromley first 
maintains that CSED had no authority to establish a child support 
order in 1993 because the Maine order already existed.  He equates 
this lack of authority with a lack of subject matter jurisdiction 
and contends that decisions made in excess of jurisdiction are void 
ab initio.  He therefore concludes that he is entitled to a refund 
of his payments made in excess of the Maine order.

We must determine whether CSED's establishment of child 
support was void.  A decision made by a tribunal lacking subject 
matter jurisdiction may be considered void.   Thus, if CSED lacked 
subject matter jurisdiction over Bromley's child support 
obligation, then its decision could be set aside as void.  But not 
all decisions made by a forum lacking in subject matter 
jurisdiction can be contested by a party who participated in the 
proceedings before the forum.  We have previously looked to the 
Restatement (Second) of Judgments for guidance in determining when 
a decision can be collaterally attacked on a claim of lack of 
subject matter jurisdiction.   It provides that "[a] judgment may 
properly be rendered against a party only if the [tribunal] has 
authority to adjudicate the type of controversy involved in the 
action."  As we observed in Colville Environmental Services, Inc. 
v. North Slope Borough, section 12 of the Restatement states that 
a tribunal's subject matter jurisdiction in a contested proceeding 
cannot be contested in later litigation unless:
(1)	The subject matter of the action was so 
plainly beyond the [tribunal's] jurisdiction 
that its entertaining the action was a 
manifest abuse of authority; or

(2)	Allowing the judgment to stand would 
substantially infringe the authority of 
another tribunal or agency of government; or


(3)	The judgment was rendered by a [tribunal] 
lacking capability to make an adequately 
informed determination of a question 
concerning its own jurisdiction and as a 
matter of procedural fairness the party 
seeking to avoid the judgment should have 
opportunity belatedly to attack the 
[tribunal's] subject matter jurisdiction.[ ]


In this case, none of the three requirements is 
satisfied.  First, establishment of a child support decree is not 
plainly beyond CSED's jurisdiction.  In fact, the legislature 
established CSED in part to "establish, enforce, and administer 
child support obligations administratively under this chapter." 
 Second, even if CSED exceeded its statutory authority, it did not 
infringe upon another agency's authority or "seriously distur[b] 
the distribution of governmental powers."  The authority of the 
Maine court was not substantially infringed upon because, when CSED 
acted, none of the parties resided in Maine.  Thus, under section 
611 of the Uniform Interstate Family Support Act, the Maine order 
was subject to modification in another jurisdiction.   Third, 
nothing suggests that CSED was unable to make an informed decision 
about its jurisdiction.  The commentary to the Restatement explains 
that if "fair opportunity is available to contest subject matter 
jurisdiction in the [tribunal] whose jurisdiction is in question"
and "the rules afford opportunity for appellate review,"then the 
finality of a decision is generally recognized.   In establishing 
the child support order in this case, CSED entertained Bromley's 
argument that it did not have the "ability"to establish a child 
support order.  Furthermore, CSED informed Bromley of his right to 
appeal its decision to the superior court within thirty days.  
Bromley, however, did not exercise this right.  In consideration of 
these factors, we conclude that Bromley cannot challenge CSED's 
subject matter jurisdiction in this case.
This holding is consistent with our decision in 
Dunning. 
That case involved a similar factual background.  But Dunning 
directly appealed the CSED determination with which he disagreed 
rather than bringing a collateral attack.  The superior court held 
that CSED did not have "the power to create an independent order of 
a different amount against an in-state obligor when there is an 
existing out-of-state child support court order."  It therefore 
concluded that "CSED proceeded in excess of its statutory 
jurisdiction,"and reversed CSED's child support order.   Our 
initial decision in Dunning, which we later withdrew, simply 
adopted and appended the trial court's decision.  

CSED then moved for clarification.  In anticipation of 
challenges precisely like Bromley's, CSED asked us to clarify 
whether we "intended to equate CSED's lack of statutory authority 
with a court's lack of subject matter jurisdiction." It explained 
that "[i]f so, the 1,000+ such administrative orders CSED has 
entered under its presumed authority may be void.  If those orders 
are void, obligors will raise difficult questions regarding 
possible refund of monies collected pursuant to those orders and 
forwarded to custodial parents."
We granted CSED's motion, withdrew our decision, and 
reissued the decision with a new footnote:
We agree with Judge Wood's opinion in all 
respects except for his use of "jurisdiction"
and "statutory jurisdiction"in Section III.B. 
and IV. of his opinion.  We disapprove of such 
phraseology.  The appropriate terminology is 
"statutory authorization"or "authority."[ ]

Although "authority"and "jurisdiction"are terms that can be used 
interchangeably,  the differentiation which we made in the new 
footnote at least suggests that the CSED error was not such a 
serious one that it could be regarded as "plainly beyond the 
court's jurisdiction"or a "manifest abuse of authority." We 
conclude, based on the foregoing reasons, that Bromley may not 
contest in this collateral proceeding the validity of the 1993 
decision.  Bromley therefore is not entitled to a refund from CSED 
on this basis.

2.	Retroactivity
Bromley argues that even if we do not conclude that 
CSED's 1993 order was void ab initio, we should give Dunning 
retroactive effect.  He presumably believes that if Dunning is 
applied retroactively, he will be entitled to a refund of his child 
support payments made in excess of the Maine order.
Essentially, Bromley seeks retroactive modification of 
his child support obligation.  But we have held that absent special 
circumstances not present in this case, "courts may not 
retroactively modify support orders."   As we explained in Hendren 
v. State, Department of Revenue, retroactive modification is 
allowed only where it is explicitly permitted by statute.   Because 
retroactive modification is not statutorily authorized under the 
circumstances of this case, we conclude that Bromley is not 
entitled to a refund of any payments allegedly made in excess of 
the Maine order.
B.	Alaska Law Controls Bromley's Child Support Obligation.

We must next determine which state's law governs the 1996 
modification of Bromley's child support obligation.  This issue 
presents a question of law, that we review de novo.   Bromley 
contends that because Pennsylvania has the closest connection to 
Shane, its law should apply.  CSED counters that the Uniform 
Interstate Family Support Act (UIFSA)  requires application of 
Alaska law.

UIFSA took effect in Alaska on January 1, 1996,  
replacing the Uniform Reciprocal Enforcement of Support Act.   One 
of UIFSA's governing principles is that in every case only one 
child support order will exist at a time.   To this end, UIFSA 
provides that a state that issues a child support order has 
"continuing, exclusive jurisdiction"over the order "as long as 
[that] state remains the residence of the obligor, the individual 
obligee, or the child for whose benefit the support order is 
issued."  Additionally, the issuing state's law "governs the 
nature, extent, amount, and duration of current payments and other 
obligations of support and the payment of arrearages under the 
order."  Maine was the issuing state.  Thus, so long as Bromley, 
Marlar, or Shane remained a resident of Maine, it retained 
continuing, exclusive jurisdiction and another state could not 
modify its order.   But a tribunal may modify another state's 
existing child support order if certain conditions are met.  
Specifically, under AS 25.25.611(a)(1), if another state's order 
has been registered in Alaska, then Alaska may modify it if three 
conditions are satisfied:
(A)	the child, the individual obligee, and 
the obligor do not reside in the issuing 
state;

(B)	the petitioner who is not a resident of 
this state seeks modification; and 

(C)	the respondent is subject to the personal 
jurisdiction of the tribunal of this state.

Where these requirements are satisfied, the "modifying tribunal 
assumes continuing, exclusive jurisdiction over the only operative 
child support order."  In this case, the three conditions are 
satisfied:  Bromley, Marlar, and Shane no longer reside in Maine, 
the issuing state; Marlar, who is not a resident of Alaska, seeks 
modification through CSED; and Bromley is subject to the personal 
jurisdiction of CSED, the tribunal in Alaska.  Thus, under AS 
25.25.611(a)(1), the superior court may modify the Maine child 
support order and assume continuing, exclusive jurisdiction over 
the child support order in this case.

This analysis, however, does not resolve the question of 
which state's law CSED should use in modifying the child support 
order.  Once Alaska has continuing, exclusive jurisdiction over the 
order, should the court apply Alaska, Maine, or Pennsylvania law? 
 We answer this question by considering the relevant provisions of 
Alaska's version of UIFSA.  Alaska Statute 25.25.611(b) provides 
that an order issued in another state is modified as if it had been 
issued by an Alaska tribunal:
Modification of a registered child support 
order is subject to the same requirements, 
procedures, and defenses that apply to the 
modification of an order issued by a tribunal 
of this state and the order may be enforced 
and satisfied in the same manner.  
We read the use of the term "requirements"to mean that Alaska 
substantive law applies when Alaska assumes exclusive jurisdiction 
to modify a child support order.

Although this language might be interpreted to mean that 
Alaska's procedural rules, but not substantive law, should apply in 
such a modification proceeding, several sources support our 
construction.  The official comment to UIFSA  611 explains that 
when a state has modification jurisdiction, as Alaska does in this 
case, its substantive law applies:  "[I]f the forum has 
modification jurisdiction because the issuing state has lost 
continuing, exclusive jurisdiction, the proceedings will generally 
follow local law with regard to modification of child support 
orders."  Thus, the commentary clarifies that modification of 
Bromley's child support obligation should follow Alaska law.  
Consistent with this view, the Oregon Court of Appeals, the only 
court we are aware of that has squarely addressed this issue, has 
interpreted UIFSA  611(b) to mean that "[o]nce an Oregon court 
acquires jurisdiction over the foreign support order in accordance 
with [ 611(a)], it is to apply Oregon law to determine the proper 
amount of the child support."

More importantly, AS 25.25.303, which is virtually 
identical to UIFSA  303, directs CSED to apply Alaska "procedural 
and substantive law,"including the rules on choice of law  and to 
"determine the duty of support and the amount payable under the law 
and support guidelines of this state"when acting as a responding 
tribunal.   The official commentary to this UIFSA section 
emphasizes that application of forum law "continues as a key 
principle of UIFSA."  As the commentary explains, this principle 
is based primarily on efficiency concerns:  "To insure the 
efficient processing of the huge number of interstate support 
cases, it is vital that decision-makers apply familiar rules of 
local law to the maximum degree possible."  Because CSED acted as 
a responding tribunal in this case,  303, like  611, indicates 
that the superior court appropriately applied Alaska law to 
modification of Bromley's child support order.

We also consider AS 25.25.604,  UIFSA's choice of law 
provision, which "identifies situations in which local law is 
inapplicable."  Because  604 defines when a state may diverge 
from local law, and because  303 provides that local law applies 
"[e]xcept as otherwise provided by [UIFSA],"these sections, read 
together, imply that forum law applies in all circumstances not 
expressly identified by UIFSA.  The commentary to  604 reinforces 
this interpretation; it states that "[a]bsent a loss of continuing, 
exclusive jurisdiction and a subsequent modification of the order, 
the [issuing state's] order never becomes 'an order of the 
responding state.'"  Conversely, once the issuing state has lost 
continuing, exclusive jurisdiction, as Maine has in this case, its 
order presumably becomes an order of the responding state, Alaska, 
and Alaska law applies.

The report to Congress of the United States Commission on 
Interstate Child Support also supports the view that local law 
applies when a state assumes jurisdiction to modify a child support 
order.  The Commission, which Congress created in 1988 to recommend 
"how to improve the interstate establishment and enforcement of 
child support awards," favored a system under which the modifying 
jurisdiction's law would apply in modification proceedings.   In 
its report to Congress, the Commission noted that it had heard 
testimony advocating a variety of approaches to deciding which 
state's law to apply in such proceedings:  Some witnesses testified 
that the law most advantageous to the child should govern, others 
testified that the law where the obligor resides should govern, and 
still others testified that the law where the child resides should 
govern.   The Commission ultimately recommended "that the 
procedural and substantive law of the forum state should govern in 
establishment and modification proceedings,"citing the "ease and 
efficiency of application of local law by decision-makers"as an 
important consideration.   As discussed above, the official UIFSA 
commentary echoes this concern for efficiency. 
Consideration of UIFSA's  611(b), 604, and especially 
AS 25.25.303, thus compels our conclusion that when an Alaska 
tribunal assumes continuing, exclusive jurisdiction of a child 
support order under AS 25.25.611 for the purpose of modification, 
it should apply Alaska law to determine the appropriate amount of 
child support.  Therefore, the superior court did not err by 
applying Alaska law to the modification of Bromley's child support 
obligation.
C.	The Superior Court Erred by Departing from Rule 90.3(a).

Because we conclude that it was appropriate for the 
superior court to apply Alaska law in modifying Bromley's child 
support obligation, we turn next to CSED's argument that the 
superior court erred by varying from the Rule 90.3 formula for 
determining child support.  CSED claims that the superior court 
erred in departing from the rule because Bromley never sought a 
variance from the rule or presented evidence to justify such a 
variance and because principles of finality bar Bromley's attack on 
the child support order.  "Whether the trial court used the correct 
method of calculating child support is a matter of law, therefore 
we give no deference to the trial court's decision."

Under Rule 90.3, in the case of sole or primary physical 
custody of one child, the trial court must determine the non-
custodial parent's adjusted annual income and multiply it by twenty 
percent to calculate the child support award.   The court may vary 
the award, however, "for good cause upon proof by clear and 
convincing evidence that manifest injustice would result if the 
support award were not varied."  "It may do so only after the most 
careful scrutiny of the facts in the particular case."  Rule 
90.3(c)(1)(A) states that good cause to vary from the rule includes 
findings of "[u]nusual circumstances."  Although the meaning of 
"good cause"depends on the context in which it is used, it "must 
focus first and foremost on the needs of the children."
The superior court found that Bromley established by 
clear and convincing evidence "that manifest injustice would result 
if the formula of 90.3(a) were strictly adhered to." In concluding 
that "unusual circumstances exist here which require variation"
from Rule 90.3, the superior court made the following findings:

1.	Mr. Bromley has never been in arrears and 
has cooperated fully with CSED in ensuring 
Shane's needs have been met.

2.	For over three years Mr. Bromley has made 
support payments which CSED had established in 
excess of its statutory authority.

3.	Shane has never lived in Alaska.  Ms. 
Marlar has never lived in Alaska.  
Pennsylvania has a lower cost of living than 
Alaska.

4.	There is no evidence to show that Shane's 
reasonable needs have not been met or that any 
state has incurred costs related to him.  This 
is true even under the former Maine order 
which fixed support at $315 a month.

5.	The formula in Rule 90.3(a) was intended 
to address the percentage of a non-custodial 
parent's income which should be paid to meet a 
child's reasonable expenses while living in 
Alaska.  While relocation of a custodial 
parent out of Alaska will not normally justify 
a reduction in support, evidence that the 
custodial parent and the child have never 
lived in Alaska would justify a departure.

Given these findings, the superior court set Bromley's child 
support obligation at the level that it believed would be 
appropriate under Pennsylvania's child support guidelines:
The state of Pennsylvania, where Shane 
resides, has determined that approximately 15% 
of the non-custodial parent's income should go 
to meet the reasonable expenses of a child in 
Pennsylvania.  This Court feels that Alaska 
law permits it to set Mr. Bromley's support 
obligation at $527 a month.  This figure 
represents approximately 15% of Mr. Bromley's 
income and will adequately meet the needs of 
his son, Shane.

In our view, this departure from the Rule 90.3 formula 
was not justified.  We will address the superior court's 
justifications for varying from the formula in turn.

First, the superior court found that Bromley has never 
been in arrears in his support payments and has cooperated with 
CSED.  But compliance with a support order, while laudable, does 
not represent an unusual circumstance justifying departure from 
Rule 90.3.
Second, the superior court noted that Bromley had made 
payments set by CSED in excess of its statutory authority.  
Although overpayment might justify a variance from Rule 90.3's 
child support calculation formula in some circumstances, we need 
not reach the question of whether the court here properly granted 
a variance based on overpayment because we agree with CSED that 
Bromley's overpayment argument was barred by principles of 
finality. 
Whether principles of finality apply to a judgment is a 
question of law that we review de novo.   Res judicata (claim 
preclusion) prevents relitigation of claims that already have or 
should have been decided in previous lawsuits:  "Once a judgment on 
the merits of a controversy has been entered, res judicata bars 
subsequent actions between the same parties on the same claim or on 
claims that were required to be brought in the original 
proceeding."  The related doctrine of collateral estoppel (issue 
preclusion) prevents relitigation of an issue already litigated and 
decided, barring relitigation where:

(1)	the party against whom the preclusion is 
employed was a party to or in privity with a 
party to the first action; (2) the issue 
precluded from relitigation is identical to 
the issue decided in the first action; (3) the 
issue was resolved in the first action by a 
final judgment on the merits; and (4) the 
determination of the issue was essential to 
the final judgment.[ ]

Both finality doctrines aim to prevent parties from "again and 
again attempt[ing] to reopen a matter that has been resolved by a 
court of competent jurisdiction."  Principles of finality may be 
applied to the decisions of administrative agencies if, after case-
specific review, a court finds that the administrative decision 
resulted from a procedure "that seems an adequate substitute for 
judicial procedure" and that it would be fair to accord preclusive 
effect to the administrative decision.   
We apply finality principles slightly differently in the 
context of child support enforcement.  In Bunn v. House,  we noted 
that Rule 90.3(1)'s modification procedure "provides an exception 
to the general principle that final judgments should not be 
disturbed" and declined to articulate finality principles in 
preclusion terms.  But we emphasized the importance of finality:

Some courts articulate [statutory modification 
procedures] in terms of res judicata.  That 
is, they hold that a child support decree is 
res judicata unless and until there is a 
material change of circumstances which opens 
the door to modification.  While we believe 
that such motions to modify child support, 
under Alaska law, do not technically raise res 
judicata concerns, the principle of finality 
is a good one . . . .  A party should not be 
allowed to relitigate the same facts in the 
hope of gaining a more favorable result.[ ]

Applied to Bromley's case, we believe that it is fair to afford 
preclusive effect to the administrative tribunal's 1993 child 
support determination.
"[B]efore the trial court may modify a child support 
order under Rule 90.3(h)(1), the moving party must allege and prove 
a material change in circumstances.  Absent changed circumstances, 
the sound principle of finality requires the order to be treated as 
final."  Bromley and CSED agree that, because the existing Maine 
order was calculated based upon Bromley's 1986 income, a material 
change in circumstances existed in 1996 to justify modification of 
the support order.  But Bromley's 1996 arguments in favor of 
modification and his "Motion for Credit and/or Refund"sought more 
than an updated calculation.  Rather, Bromley sought to obtain a 
"refund of funds wrongfully collected"pursuant to the 1993 
administrative modification of his child support obligation.

Although it rejected Bromley's motion for a refund, the 
superior court in effect accepted Bromley's reasoning when the 
court granted Bromley a variance from Rule 90.3's guidelines 
because "[f]or over three years Mr. Bromley has made support 
payments which CSED had established in excess of its statutory 
authority." This rationale -- that Bromley should pay less now 
because he paid too much before -- indicates that Bromley's request 
for modification functioned as a collateral attack upon the 1993 
decision.  This reasoning also seems to indicate that Bromley asked 
for and received a retroactive modification of his 1993 support 
order, which is generally prohibited under both federal and Alaska 
law. 
We have noted that "[h]owever denominated, a claim is 
functionally an administrative appeal if it requires the court to 
consider the propriety of an agency determination."  Bromley's 
claim is properly considered an untimely appeal "because a court 
could grant the relief he seeks . . . only if it determined that 
the [agency's] prior decision was erroneous."  When the superior 
court granted Bromley a variance, it did so not because Bromley's 
circumstances had changed, but because it believed that CSED's 1993 
decision was erroneous.

In January 1993 a hearing officer rejected Bromley's 
claim that CSED was without authority to alter the Maine order.  At 
that time, the agency informed Bromley of his right to appeal the 
decision within thirty days.  Bromley failed to do so, instead 
waiting three years to challenge the hearing officer's decision. 
 Bromley's 1996 motions simply restated his earlier allegations 
that CSED was without authority to modify the Maine order.  The 
motion for a credit even noted that CSED's "administrative 
modification was upheld at the hearing even though Bromley 
questioned the ability of CSED to administratively modify his child 
support obligation."
The fact that an administrative tribunal has already 
addressed the merits of Bromley's claims indicates that the proper 
forum for these allegations is not a motion to modify filed three 
years after a hearing officer rejected his claims.  Rather, Bromley 
should have appealed.  Having foregone the chance to file a timely 
appeal, Bromley was not entitled "to relitigate the same facts in 
the hope of gaining a more favorable result."  Accordingly, the 
superior court's second rationale does not support granting Bromley 
a variance.

Third, the court found that Shane has never lived in 
Alaska and that Pennsylvania has a lower cost of living than 
Alaska.  Although it is true that Shane has never lived in Alaska, 
nothing in the record supports the court's finding that 
Pennsylvania has a lower cost of living.  Furthermore, the 
commentary to Rule 90.3 indicates that another state's lower cost 
of living does not warrant decreasing child support:
The relocation of the custodial parent to a 
state with a lower cost of living normally 
will not justify a reduction in support.  The 
level of Alaska's guidelines is comparable to 
the national average.  The fact that the 
obligor parent's income has in effect 
marginally increased relative to the 
children's living expenses simply enables the 
children to be supported at a slightly higher 
level.[ ]

Although we have not adopted or approved the commentary, we often 
rely upon it "for guidance in child support matters."  In this 
case, it aids our determination that Pennsylvania's cost of living, 
even if lower than Alaska's, is not the kind of unusual 
circumstance contemplated by Rule 90.3(c) as justifying a downward 
departure.

Fourth, the court found that there was no evidence to 
show that Shane's reasonable needs had not been met.  We have 
expressly rejected the argument that "an increase in the support 
award is not warranted because the children's needs are being met 
at the current level of support."  "This argument runs counter to 
the premise of Rule 90.3"because "[a]n obligor parent who 
experiences an increase in income cannot avoid paying additional 
support merely by showing that the children's needs are being met 
by an existing support award."  To the contrary, the commentary 
to Rule 90.3 explains that "[t]he rule operates on the principle 
that as the income available to both parents increases, the amount 
available to support the children also will increase."  Given that 
Bromley's income had increased, the superior court was not 
justified in lowering his support obligation from $695 to $527 a 
month.
Fifth, the court justified departure from the Rule 90.3 
formula on the ground that Marlar and Shane have never lived in 
Alaska.  The court offered no explanation why this circumstance 
justified departure from Rule 90.3 or made its application unjust. 
 And as discussed above, the fact that the custodial parent and 
child live in another state with a lower cost of living does not 
justify a reduction in support.
Finally, Rule 90.3(c)(1)(A) requires a court varying from 
the formula provided in the rule to consider the custodial parent's 
income.  In this case, however, the superior court made no 
reference to Marlar's income.  In sum, departure from the Rule 90.3 
formula for determining the amount of Bromley's child support 
obligation was not justified.
IV.	CONCLUSION

We conclude that Bromley is not entitled to a refund from 
CSED for past child support payments.  We further hold that the 
superior court did not err in deciding to apply Alaska law to the 
modification of Bromley's child support obligation.  We therefore 
AFFIRM the superior court's decisions on these issues.  But because 
we conclude that the superior court erred by departing from the 
Rule 90.3 formula for determining child support, we REVERSE and 
REMAND for a child support determination consistent with Rule 90.3 
and this opinion.
 	AS 25.25.601 provides:

Registration of order for enforcement. A 
support order or an income withholding order 
issued by a tribunal of another state may be 
registered in this state for enforcement.
 	907 P.2d 1 (Alaska 1995).
 	See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
 	Id.
 	See Perry v. Newkirk, 871 P.2d 1150, 1153 n.5, 1157 
(Alaska 1994).
 	See, e.g., id.; Colville Envtl. Servs., Inc. v. North 
Slope Borough, 831 P.2d 341, 345 (Alaska 1992). 
 	Restatement (Second) of Judgments  11 (1982).
 	831 P.2d at 345-46 (quoting Restatement (Second) of 
Judgments  12 (1982)).
 	AS 25.27.020(a)(4).  
 	Restatement (Second) of Judgments  12 cmt. d (1982).
 	See AS 25.25.611(a)(1); Unif. Family Support Act  611 
commentary, 9 U.L.A. 396 (Supp. 1998).
 	Id. at cmt. e; see also Wall v. Stinson, ___ P.2d ___, 
Op. No. 5142 (Alaska, July 23, 1999).
 	907 P.2d 1 (Alaska 1995).
 	Id. at 4.
 	Id. at 7.
 	Id. at 2 n.1.
 	See Restatement (Second) of Judgments  11.
 	Hendren v. State, Dep't of Revenue, 957 P.2d 1350, 1352 
(Alaska 1998).
 	See id.
 	See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979). 
 
 	AS 25.25.101-.903.
 	See Ch. 57,  28, SLA 1995.
 	Former AS 25.25.010-.100 (repealed by Ch. 57,  21, SLA 
1995).
 	See, e.g., Unif. Interstate Family Support Act  201 
commentary, 9 U.L.A. 345 (Supp. 1998) (describing UIFSA's "new one-
order regime"); Patricia Wick Hatamyar, Critical Applications and 
Proposals for Improvement of the Uniform Interstate Family Support 
Act and the Full Faith and Credit for Child Support Orders Act, 71 
St. John's L. Rev. 1, 4 (1997).
 	AS 25.25.205(a)(1).
 	AS 25.25.604(a).
 	See Unif. Interstate Family Support Act  611 commentary, 
9 U.L.A 396 (Supp. 1998).
 	Id. at 397.
 	Id. at 398.
 	In re Marriage of Cooney, 946 P.2d 305, 307 (Or. App. 
1997).
 	AS 25.25.303(1).
 	AS 25.25.303(2).  In its entirety, AS 25.25.303 provides:

Application of law of this state. Except as 
otherwise provided by this chapter, a 
responding tribunal of this state shall

(1)	apply the procedural and substantive law, 
including the rules on choice of law, 
generally applicable to similar proceedings 
originating in this state and may exercise all 
powers and provide all remedies available in 
those proceedings; and

(2)	determine the duty of support and the 
amount payable under the law and support 
guidelines of this state.
 	Unif. Interstate Family Support Act  303 commentary, 9 
U.L.A. 360 (Supp. 1998).
 	Id.
 	AS 25.25.604 provides:

(a)	The law of the issuing state governs the 
nature, extent, amount, and duration of 
current payments and other obligations of 
support and the payment of arrearages under 
the order.

(b)	In a proceeding for arrearages, the 
statute of limitation under the laws of this 
state or of the issuing state, which is 
longer, applies.
 	Unif. Interstate Family Support Act  604 commentary, 9 
U.L.A. 390 (Supp. 1998).
 	Id.
 	United States Commission on Interstate Child Support, 
Supporting Our Children: A Blueprint for Reform xii (1992).
 	See id. at 91-92.
 	See id. at 91.
 	Id. at 91-92.
 	See Unif. Interstate Family Support Act  303 commentary, 
9 U.L.A. 360 (Supp. 1998).
 	Turinsky v. Long, 910 P.2d 590, 594 n.10 (Alaska 1996).
 	See Alaska R. Civ. P. 90.3(a)(1), (2)(A).  
 	Alaska R. Civ. P. 90.3(c)(1).
 	Coats v. Finn, 779 P.2d 775, 777 (Alaska 1989). 
 	Alaska R. Civ. P. 90.3(c)(1)(A).
 	Doyle v. Doyle, 815 P.2d 366, 373 (Alaska 1991) 
(quotation and citation omitted); see also Coats, 779 P.2d at 777 
(observing that good cause exists to deviate from the formula when 
the formula produces an award that substantially exceeds or falls 
short of the amount needed to provide for the child's reasonable 
needs).
 	See Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631, 
633 (Alaska 1999).
 	Id. at 633; see also Jackinsky v. Jackinsky, 894 P.2d 
650, 654 (Alaska 1995).
 	Jackinsky, 894 P.2d at 654.
 	Engebreth v. Moore, 567 P.2d 305, 307 (Alaska 1977).
 	Holmberg v. State, Div. of Risk Management, 796 P.2d 823, 
825 (Alaska 1990) (citation omitted).
 	See Johnson v. Alaska Dep't of Fish and Game, 836 P.2d 
896, 908-09 (Alaska 1991).
 	934 P.2d 753 (Alaska 1997).
 	Id. at 757.
 	Id. at 757-58 (citations, quotations, and footnote 
omitted).
 	Rusenstrom v. Rusenstrom, ___ P.2d ___, Op. No. 5130 at 
13 (Alaska, June 4, 1999).
 	See 42 U.S.C.  666(a)(9); Alaska Civil Rule 90.3(h)(2); 
Boone v. Gipson, 920 P.2d 746, 749-51 (Alaska 1996).
 	Hayes v. State, Commercial Fisheries Entry Comm'n, 746 
P.2d 892, 893 (Alaska 1987).
 	Id.
 	Bunn, 934 P.2d at 758.  
 	Alaska R. Civ. P. 90.3, Commentary VI.B.4.
 	Bunn v. House, 934 P.2d 753, 755 n.7 (Alaska 1997) 
(citations omitted).
 	Berkbigler v. Berkbigler, 921 P.2d 628, 631 (Alaska 
1996).
 	Id.
 	Alaska R. Civ. P. 90.3, Commentary II.

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