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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Revenue, Child Support Enforcement Div. v. McCormick (6/23/00) sp-5290

State, Dept. of Revenue, Child Support Enforcement Div. v. McCormick (6/23/00) sp-5290

     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-9149
ENFORCEMENT DIVISION,         )    
                              )    Superior Court No.
               Appellant,     )    3KO-92-488 CI  
                              )    
          v.                  )    
                              )    O P I N I O N
LARRY P. McCORMICK,           )    
                              )    [No. 5290 - June 23, 2000]
               Appellee.      )   
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kodiak,
                    Donald D. Hopwood, Judge.


          Appearances: Diane L. Wendlandt, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellant.  No appearance by Appellee.


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


          PER CURIAM.


I.   FACTS AND PROCEEDINGS
          Upon dissolution of the McCormicks' marriage in 1992, the
superior court awarded primary physical custody of their two
children to Colleen and ordered Larry to pay monthly child support
of $291.88.  The original child support order contemplated that the
payments for each child would continue until the child reached the
age of eighteen.  In 1999 the Child Support Enforcement Division
(CSED) moved to increase Larry's child support, alleging that his
financial circumstances had changed.  CSED's motion also included
a request to extend the support order beyond the children's
eighteenth birthdays, as authorized by the 1992 amendment of
AS 25.24.170(a). [Fn. 1]
          The superior court granted CSED's motion to increase
support but denied its request for post-majority support.  In
declining to extend the support order, the court noted that the
original child support order did not provide for post-majority
support.  The court also relied on its decision in State v. Veltri,
[Fn. 2] a similar case in which it had declined to modify a support
order to provide for post-majority support because there had been
no change in circumstances.  CSED appealed.
II.  DISCUSSION
           While CSED's appeal was pending, this court issued
Scully v. Scully, [Fn. 3] in which we reversed the superior court's
decision in Veltri, construing the amended version of
AS 25.24.170(a) to authorize post-majority support in all but "the
exceptional case":
               Because of a legislative policy decision
on the appropriate age for children to enter kindergarten, a
substantial number of children will turn eighteen while still
attending high school and will need continued support.  If we were
to require parents to delay in filing requests for extension, it
could leave thousands of children without support while motions
proceed through the courts.  The contingent nature of the order
adequately protects an obligor parent, who will only be required to
provide support if a child meets the statutory requirements of
being unmarried, actively pursuing a high school diploma, and
living as a dependent with a parent or guardian.  And it should be
the exceptional case in which a court declines to extend child
support payments beyond the child's eighteenth birthday where these
statutory requirements have been met.  For these reasons, we hold
that the trial court erred in its refusal to include a
post-majority provision in its modification of the Veltri child
support order.[ [Fn. 4]]

          Scully is not entirely controlling here.  The original
child support orders at issue in Scully were entered before the
legislature's 1992 amendment authorizing post-majority support.
[Fn. 5]  Because we held that the 1992 amendment was a changed
circumstance warranting modification, we found no need to decide
whether a showing of changed circumstances would be required before
a court could grant a motion for post-majority support when the
original support order was issued after the 1992 amendment. [Fn. 6] 
In contrast to the situation in Scully, McCormicks' original
support order was entered in 1992, shortly after the legislature
amended AS 25.24.170.  Since the amendment antedated the support
order, the statutory change cannot be considered a changed
circumstance warranting modification.  The present case thus
requires us to resolve the issue we reserved in Scully: whether the
court could add post-majority support without a showing of changed
circumstances.
          We hold that no showing of changed circumstances was
necessary.  When a support order by its own terms expires upon a
child's eighteenth birthday, a later order providing for post-
majority support does not modify any provision of the original
order; it extends the order to a time period not covered by the
original order.  Thus, barring an affirmative provision in the
original support order or in an incorporated agreement establishing
that the issue of post-majority support was expressly considered
and decided, a subsequent motion to extend the duration of support
is not a motion to modify the original order and need not allege a
change of circumstances. [Fn. 7]
III. CONCLUSION
          Because no change in circumstances was necessary here, we
conclude that the superior court erred in denying CSED's request
for post-majority support.  We therefore REVERSE and REMAND for
entry of an order granting post-majority support.


                            FOOTNOTES


Footnote 1:

     As amended, AS 25.24.170(a) provides:

               Subject to AS 25.20.110, any time after
judgment the court, upon the motion of either party, may set aside,
alter, or modify so much of the judgment as may provide for
alimony, for the appointment of trustees for the care and custody
of the minor children or for their nurture and education, for the
care, nurture, and education of unmarried 18-year-old children of
the marriage while they are actively pursuing a high school diploma
or an equivalent level of technical or vocational training and
living as dependents with a parent, guardian, or designee of the
parent or guardian, or for the maintenance of either party to the
action. 


Footnote 2:

     3KO-91-190 DR (Alaska Super., April 15, 1998).


Footnote 3:

     987 P.2d 743 (Alaska 1999).


Footnote 4:

     Id. at 747 (footnote omitted). 


Footnote 5:

     See id. at 745.


Footnote 6:

     See id. at 746 n.12.


Footnote 7:

     See Van Brocklin v. Van Brocklin, 635 P.2d 1186, 1189-90
(Alaska 1981) (post-divorce motion for alimony and property
division required no showing of changed circumstances when original
decree did not address the issues and the record did not establish
waiver or estoppel); see also Benson v. Benson, 977 P.2d 88, 92
(Alaska 1999) (applying Rule 90.3 does not modify an existing
arrearage if there is no support order in effect for the relevant
period) and Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska 1996)
(same).