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State, CSED v Schofield (12/3/99) sp-5212

     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-8370
ENFORCEMENT DIVISION, ex rel, )
KAREN A. HUSA,                )    Superior Court No.
                              )    3AN-78-915 CI
             Appellant,       )
                              )    O P I N I O N
     v.                       )
                              )    [No. 5212 - December 3, 1999]
DAVID L. SCHOFIELD,           )
                              )
             Appellee.        )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.


          Appearances: Daniel L. Brewster, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellant.  Patrick J. Blackburn, Law Offices
of Patrick J. Blackburn, Anchorage, for Appellee.


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


          PER CURIAM


I.   INTRODUCTION
          The Alaska Child Support Enforcement Division (CSED)
appeals an order by the superior court reducing some of David
Schofield's child support arrears to judgment.  The superior court
concluded that David and CSED had reached an agreement for David to
pay a lower amount of monthly child support and accordingly reduced
his arrearage.  Because the superior court's judgment was a
retroactive modification of child support obligations prohibited by
Alaska Civil Rule 90.3(h)(2), we reverse.
II.  FACTS AND PROCEEDINGS
          David L. Schofield and Karen A. Schofield (now Karen
Husa) were married in 1968 and have two children.  The couple
divorced in 1978, and Karen eventually was awarded custody of the
children. CSED calculated David's child support obligation as
$520.45 per month under Alaska Civil Rule 90.3, and on September
30, 1988, the trial court ordered that David pay this amount.
          In June 1991 CSED informed David of his right to request
a review of the amount of his child support obligation.  CSED sent
him a form to complete in order to initiate the review process. 
David apparently indicated to CSED that he wished such a review,
[Fn. 1] and the agency accordingly requested tax and other
financial information from both David and Karen.  Based on this
information, CSED recalculated David's child support
responsibilities under  Rule 90.3 as being $286.00 per month. 
          CSED then notified both parents of the new $286.00 figure
as well as the calculation method used to obtain it, and sent David
a proposed consent order that the agency could file with the court. 
Along with the order, CSED sent David a letter explaining the
procedure for modification of court-ordered child support
obligations:
          Please review the order, sign it before a
notary, and return it to CSED . . . .  CSED will then send the
order to the other party for signature.  After both parties sign
the order, CSED will send it to the court for approval.  The court
will mail you a copy of the signed order and CSED will make the
necessary adjustments to your case.
 
CSED also sent a copy of the proposed consent order to Karen,
explaining that "[i]f the other party does not sign the consent
order, the existing support order will not be modified unless a
motion is filed with the court."
          David was dissatisfied with the order, but he signed it
"under protest"and returned it to CSED. [Fn. 2]  Karen, however,
did not sign the order.  As a result, CSED notified David that his
remaining option was to file a motion with the court to achieve the
modification of his child support obligation.  CSED enclosed a copy
of the motion for his signature but David never returned it to
CSED.  Two months later CSED sent David another copy of the motion;
again, he did not return it.  David claimed that either he never
received these papers or he lost them.  Because it did not receive
the signed motions, CSED notified David in May 1992 that it had
denied his request for modification of his support award because
"[n]either party has returned necessary documentation to continue
with the modification procedure."  Despite this notification, David
began making his child support payments in the amount of $286.00. 
No motion for modification was ever filed.
          CSED reduced David's monthly payments to $385.52 in 1992
because his oldest child had reached the age of majority. [Fn. 3] 
This figure was calculated under Rule 90.3, [Fn. 4] but did not
take into account the more recent tax information that CSED had
used to calculate the $286.00 figure.
          Due to his long-standing history of non-payment and
under-payment of child support, David accumulated substantial
arrears.  In June 1997 CSED filed a motion to reduce $6,113.65 in
arrears to judgment under AS 25.27.226.  David opposed the motion,
claiming that he only owed $286.00 per month rather than $385.52
and that the arrearage amount requested by CSED was too high.  He
explained to the superior court his belief that CSED erroneously
overcharged him and that CSED failed to cooperate with him during
numerous attempts to resolve the discrepancy between the two
figures.
          The superior court held a hearing on the motion to reduce
arrears to judgment on July 23, 1997.  The court expressed concern
that to reduce David's child support arrears by recalculating his
obligations using the $286.00 figure might be a prohibited
retroactive modification. [Fn. 5]  Ultimately, however, it invoked
its equitable powers to reduce the judgment against David because
"it was not unreasonable to think that the reduction [to $286.00]
should have been granted, that the . . . administrative error in
not granting it, getting it achieved, ought not to be a penalty to
Mr. Schofield."  The court found that "the parties intended that
the monthly support obligation from and after January of 1992,
until the last child's emancipation [in] August of 1993, was in the
amount of $286.00 and that was the actual amount of monthly support
arrearages, plus interest and deducting payments made . . . ." 
Based upon this finding, the superior court issued a judgment
against David for $2,466.64.  CSED appeals.
III. STANDARD OF REVIEW
          We apply de novo review when interpreting statutes and
rules, adopting the rule of law most persuasive in light of
precedent, reason, and policy. [Fn. 6]  But we generally will not
disturb a trial court's decision on a motion to modify a child
support award unless the trial court abused its discretion. [Fn. 7] 
We will set aside a lower court's factual findings only when they
are clearly erroneous. [Fn. 8]  Findings are clearly erroneous
when, "after reviewing the record as a whole, this court is left
with a definite and firm conviction that a mistake has been made."
[Fn. 9]
IV.  DISCUSSION
     A.   The Superior Court's Decision Was a Retroactive
Modification of Mr. Schofield's Child Support Obligation.

          CSED argues that because it never filed or served motion
papers in the case, the superior court did not have the authority
to modify Mr. Schofield's child support obligation effective
January 1992. [Fn. 10]  We agree with CSED that the superior
court's decision was a retroactive modification.  
          Both federal and Alaska law prohibit, with few
exceptions, retroactive modification of child support obligations, 
whether the change is an increase or a decrease in the parent's
obligation. [Fn. 11]  At times pertinent to this appeal, former
Rule 90.3(h)(2) stated that "[c]hild support arrearage may not be
modified retroactively.  A modification which is effective on or
after the date that a motion for modification is served on the
opposing party is not considered a retroactive modification."[Fn.
12]  
          David argues that since he and CSED agreed that the
proper figure was $286.00 per month, the court's finding in accord
with that agreement was not a retroactive modification.  To be
sure, CSED does not dispute that $286.00 was the correct figure for
David's monthly child support payment.  But Rule 90.3 requires more
than a proposed agreement as to the correct calculation of a
parent's child support payment; instead, the rule provides a
process that parents must follow in order to modify their statutory
obligations.  Because David neither signed a motion for
modification nor served one on Karen, the trial court's
modification of his obligation was prohibited by the terms of Rule
90.3.
          If the procedural requirements of Rule 90.3 did nothing
more than ensure all parties of adequate notice of changes in child
support payments, one could argue that the superior court properly
invoked its equitable powers to set the date of modification to
January 1992 given that CSED informed both parties of the $286.00
figure well before the change was to take effect.  But the
commentary to the rule explains that the rule is designed to "make
more predictable the process of determining child support, both for
the courts and the parties,"[Fn. 13] not merely to require notice
of proposed changes.  Here, CSED informed Karen that David's child
support would not be modified unless both parties signed a consent
order or a motion for modification was filed with the court.  Thus,
allowing the court to alter David's obligation absent the filing of
a motion for modification would undermine Rule 90.3's stated goal
of ensuring predictability in determining the amount of child
support to be paid.
          Moreover, we have required parties to conform strictly to
the rule's procedural requirements.  In Boone v. Gipson, [Fn. 14]
we explained that a motion for modification was the only pleading
that would satisfy the procedural requirements of former Rule 90.3:
               The first part of former Civil Rule
90.3(h)(2) states a general prohibition on modifying child support
payments retroactively.  The second half of the rule provides for
an exception to this general prohibition.  Given the general
prohibition, we think that the exception should be construed
narrowly.  Since the exception in the second half of the rule only
refers to motions for modification, and contains no indication that
"functional equivalents"of motions for modification also suffice,
we conclude that nothing short of a motion or petition for
modification satisfies the requirement of the former rule.[ [Fn.
15]]

Here, the parties neither signed nor served on the court any motion
or petition for modification.  Gipson thus compels our conclusion
that the superior court's modification was retroactive.
          David's position -- that the modification is not
retroactive because an agreement existed between himself and CSED 
-- could also be interpreted as an argument that we should treat
some portion of the papers exchanged between CSED and David as a
motion for modification for purposes of determining the date of
retroactivity.  But this argument is also foreclosed by Gipson, in
which we specifically rejected the idea that documents not
mentioned in the text of the rule can be the "functional
equivalent"of a motion or petition to modify. [Fn. 16]
          Because neither CSED nor David filed or served a motion
for modification, their agreement to the proper amount of monthly
support simply does not meet the requirements of Rule 90.3.  The
superior court's decision to modify David's obligation was thus an
abuse of discretion.  
     B.   The Superior Court's Finding That the Parties Agreed to
          a $286.00 Per Month Child Support Obligation Is Clearly
Erroneous.

          The superior court made the factual finding that "the
parties intended that the monthly support obligation from and after
January of 1992, until the last child's emancipation [in] August of
1993, was in the amount of $286.00"and therefore concluded that
"[$286.00] was the actual amount of monthly support arrearages,
plus interest and deducting payments made . . . ."  After examining
the record, we believe that this finding is clearly erroneous.
          The superior court's finding ignores the fact that CSED
clearly did not intend for David's support obligation to change
before the parties complied with Rule 90.3's mandatory procedures. 
The agency informed Karen that it would make no changes in David's
child support obligation until both parents signed the consent
order or a motion for modification was filed with the court. 
Neither of those things happened.  Accordingly, the record does not
support the finding that CSED or the parties agreed that David's
support obligation should change effective January 1992.
          Nor did David have grounds for a reasonable belief that
his child support obligations could be modified without the
existence of a motion for modification.  He received notices from
CSED explaining the consent order and motions process.  Even if
David initially believed that his child support obligation had been
reduced when he signed the consent order, he subsequently received
mailings from CSED making clear that he had not completed the
necessary steps to modify his obligation.  CSED sent David two
copies of the motion for modification.  When he did not return
them, the agency notified David that it had halted the modification
process because of insufficient paperwork from the parties.  These
documents should have alerted David that his child support
obligation would not be lowered unless he took the proper steps to
file a motion to modify.
          Since the record does not support the finding that either
CSED or David expected that David's child support obligation would
be modified in the absence of a motion to modify, the trial court's
factual finding was clearly erroneous.  
V.   CONCLUSION
          Because the superior court retroactively modified David's
child support obligation, we REVERSE and REMAND to the superior
court for entry of judgment against David for the entire amount of
his arrears.


                            FOOTNOTES


Footnote 1:

     David's response to the CSED form is not in the record.  But
since CSED continued with the review process, presumably he
indicated to it that he wished the agency to do so.


Footnote 2:

     It is not clear from the record exactly why David was
dissatisfied with the proposed order; above his signature he
complained that "[t]he order is inaccurate"but did not explain why
he believed this to be the case.


Footnote 3:

     The oldest child turned 18 in May 1991.  But because of
confusion over whether the support order was a per-child order or
not, as well as some procedural delays, CSED did not reduce the
support amount until December 1992.  Neither party has raised
claims related to this delay on appeal.


Footnote 4:

     Rule 90.3 contains guidelines for calculation of child support
awards.  Under its formulae, the non-custodial parent must pay 27%
of his income if he is supporting two minor children, and 20% of
his income to support one child.  See Civ. R. 90.3(a)(2).  


Footnote 5:

     Alaska and federal law both prohibit, with few exceptions,
retroactive modification of child support payments.  See 42 U.S.C.
sec. 666(a)(9); Alaska R. Civ. P. 90.3(h)(2); Boone v. Gipson, 920
P.2d 746, 749-51 (Alaska 1996).


Footnote 6:

     See Gipson, 920 P.2d at 748 (citing M.R.S. v. State, 897 P.2d
63, 66 (Alaska 1995)).


Footnote 7:

     See Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998).


Footnote 8:

     See Dodson v. Dodson, 955 P.2d 902, 905 (Alaska 1998).


Footnote 9:

     Marine v. Marine, 957 P.2d 314, 316 (Alaska 1998) (citation
and internal quotation marks omitted).


Footnote 10:

     CSED also argues that the superior court should not have held
a hearing on CSED's motion to reduce David's arrears to judgment
because David did not file an affidavit conforming to AS 25.27.226. 
Instead, David filed an opposition to CSED's motion. But CSED did
not make this argument below nor include it in its statement of
points on appeal, and accordingly the agency has waived it.  See
State Farm Ins. Co. v. American Mfrs. Mut. Ins. Co., 843 P.2d 1210,
1214 (Alaska 1992).


Footnote 11:

     See 42 U.S.C. sec. 666(a)(9); Alaska R. Civ. P. 90.3(h)(2);
Yerrington v. Yerrington, 933 P.2d 555, 558 (Alaska 1997); Gipson,
920 P.2d at 749-51.


Footnote 12:

     Rule 90.3 was amended several times between 1995 and 1998. 
Subsection (h)(2) now reads: 

          Child support arrearage may not be modified
retroactively, except as allowed by AS 25.27.166(d) [relating to
paternity actions].  A modification which is 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 is not considered a retroactive
modification.

(Emphasis added.)  This court applies the version of the rule in
effect when the case was before the superior court.  See Gipson,
920 P.2d at 749-50.


Footnote 13:

     Alaska R. Civ. P. 90.3 cmt. I(B).


Footnote 14:

     920 P.2d 746 (Alaska 1996).


Footnote 15:

     Id. at 751 (emphasis added).


Footnote 16:

     Id.