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State, Dept of Revenue, CSED v. Maxwell (8/18/00) sp-5306

     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     )
ENFORCEMENT DIVISION,         )
                              )    Supreme Court No. S-8886
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-10550 CI
                              )
JEFFREY A. MAXWELL,           )    O P I N I O N
                              )
             Appellee.        )    [No. 5306 - August 18, 2000]
______________________________)



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


          Appearances: Diane L. Wendlandt, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellant.  Kenneth C. Kirk, Anchorage, for
Appellee.


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


          CARPENETI, Justice.


I.   INTRODUCTION
          Krystal Maxwell, while married to but separated from
Jeffrey Maxwell, gave birth to T.W.  Both Krystal and Jeffrey knew
that T.W. was not Jeffrey's child; the biological father (Kurt
Walker) acknowledged his paternity of T.W.; and the Child Support
Enforcement Division (CSED) apparently knew that Kurt Walker was
T.W.'s biological father.  Nonetheless, CSED administratively
established a child support obligation for Jeffrey and large child
support arrearages.  Because Jeffrey was denied a fair and
meaningful opportunity to rebut the presumption of paternity when
CSED entered the support obligation against him, we affirm the
decision of the superior court striking Jeffrey's child support
obligation and disallowing enforcement of uncollected arrearages.
II.  FACTS AND PROCEEDINGS
          Jeffrey and Krystal Maxwell married in October 1988 while
Krystal was five months pregnant with the child of another man. 
She gave birth to the child in February 1989.  Soon after the
child's birth, the Maxwells permanently separated.  Krystal then
became involved in an intimate relationship with Kurt Walker.  This
relationship resulted in a second pregnancy, from which T.W. was
born on August 14, 1991. 
          The Maxwells sought to dissolve their marriage in October
1991, but their petition was rejected by the court.  They again
sought a dissolution in November 1993, which was granted in January
1994.  Although T.W. had been born while the parties were still
married, the dissolution papers made no mention of him. 
          CSED first attempted to collect child support from
Jeffrey in 1992 as reimbursement for public assistance paid for the
first child.  CSED pursued Jeffrey, the presumed father, because he
and Krystal were married when that child was born.  Jeffrey
responded by successfully disestablishing his paternity of the
child in 1993.  However, nothing was done at that time regarding
Jeffrey's presumed paternity of T.W.  Apparently, neither Jeffrey
nor Krystal understood that T.W. was also technically a child of
the marriage.   
          Jeffrey was listed on the birth certificate as T.W.'s
father in accordance with AS 18.50.160(d), [Fn. 1] despite the fact
that T.W. bore his biological father's surname. [Fn. 2]  Evidence
suggests that Kurt Walker may have provided Krystal with an
affidavit acknowledging paternity at the time of T.W.'s birth.  It
is unclear, however, who saw this affidavit.  It was apparently
never filed with a court or the Bureau of Vital Statistics.  But
CSED knew that Kurt Walker was T.W.'s biological father when, on
December 21, 1993, it opened a file for T.W. and initiated the
administrative process to collect child support from Jeffrey.  CSED
also knew Kurt Walker was living with Krystal and their child, T.W. 
          By 1994 CSED was actively seeking child support from
Jeffrey for T.W.  An order of support was issued and arrears were
established on approximately April 16, 1994. [Fn. 3]  However, the
Notice of Finding of Financial Responsibility (NFFR) was not served
on Jeffrey until January 20, 1995.  Jeffrey attempted to oppose
CSED's action.  He contacted CSED by telephone and explained that
he was not the biological father. [Fn. 4]  But the CSED
representative who spoke to Maxwell told him that his only recourse
was to seek a judicial disestablishment of paternity. 
          After receiving this advice, Jeffrey did not formally
contest CSED's administrative action.  Nor did he immediately seek
a judicial order to disestablish paternity.  Instead, in July 1997,
Jeffrey attempted to disestablish paternity by filing a motion in
the Palmer Superior Court as a part of the previous dissolution
action.  That motion was denied because a dissolution action cannot
determine paternity.  Upon receiving notice that his motion was
summarily denied, Jeffrey filed the complaint to disestablish
paternity that gave rise to this case. 
          Meanwhile, CSED sought involuntary recovery against
Jeffrey and collection began.  The first two involuntary
collections were withheld from Jeffrey's 1995 and 1996 Permanent
Fund Dividend checks.  Garnishments of his wages began in July
1997, presumably prompting both Jeffrey's motion to disestablish
paternity and his subsequent lawsuit to the same effect.
          Kurt Walker periodically paid voluntary child support for
T.W. directly to Krystal beginning in November 1994.  He filed to
establish paternity and secure visitation rights in February 1997. 
Trial was held the following August, with the court finding
paternity and ordering child support payments to be paid through
CSED. 
          Jeffrey's action to disestablish paternity came to trial
in June 1998.  After a one-day trial, the superior court vacated
the order of child support as of the filing date of Kurt Walker's
complaint to establish paternity.  The superior court also
eliminated arrears due but unpaid as of that date and ordered a
refund of involuntary payments withheld after that date.  CSED
appeals.
III. DISCUSSION     
     A.   Standard of Review
          CSED challenges the superior court's elimination of the
arrears that Jeffrey Maxwell owed. [Fn. 5]  Whether CSED's child
support order was void presents a question of law that we review denovo, 
[Fn. 6] adopting the rule of law that is "most persuasive in
light of precedent, reason, and policy." [Fn. 7]  We may affirm the
superior court's decision on any basis appearing in the record.
[Fn. 8]
     B.   Jeffrey Is Entitled to Relief Under Alaska Rule of Civil
Procedure 60(b)(4) Because He Was Not Accorded Due Process of Law.
          CSED argues that the superior court erred in vacating
Jeffrey's child support arrears.  It argues that because child
support arrears are enforceable judgments, they may not be
retroactively modified.  While child support arrears are
enforceable judgments, [Fn. 9]  we do not accord them more
deference than other forms of judgment.  
          1.   Alaska Rule of Civil Procedure 60(b) indicates the
circumstances under which relief is available in the instant case.
          As noted above, after being told that his only recourse
was a judicial action to disestablish paternity, Maxwell did not
formally challenge CSED's 1994 order establishing his child support
obligation and arrears.  As a result, the order became final thirty
days after it was served on Maxwell in January 1995. [Fn. 10]  
          The last sentence of Civil Rule 60(b) provides that "the
procedure for obtaining any relief from a judgment shall be by
motion as prescribed in these rules or by an independent action." 
Civil Rule 60(b) is the only Civil Rule that provides relief from
a judgment or order.  Because the Alaska Statutes treat CSED's
support orders as judgments for certain purposes, [Fn. 11] Civil
Rule 60(b) serves by analogy [Fn. 12] to indicate the circumstances
under which the superior court may grant relief from such orders.
          In Kilpper v. State, CSED, [Fn. 13] we suggested that
this approach may be appropriate in cases like this one: 
          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. 14]]
Since child support orders are treated like judgments, we hold that
trial courts may look to Civil Rule 60(b) for guidance in
determining when relief is available.
          2.   Civil Rule 60(b)(4) relief was available to Jeffrey
because CSED acted in a manner inconsistent with due process of
law.
          Civil Rule 60(b)(4) provides for relief from a void
judgment.  A judgment is void if the court that entered the
judgment was without jurisdiction to act, or if that court acted in
a manner inconsistent with due process of law. [Fn. 15]  This rule
of relief applies without time limitations [Fn. 16] because a void
judgment cannot gain validity simply by the passage of time.  
          Since the judgment at issue here was actually a child
support order issued by CSED that later became a series of
judgments by operation of law, [Fn. 17] Jeffrey may not obtain
relief unless the support order was issued without statutory
authority or in a manner inconsistent with due process.  Thus, the
judgments were valid unless CSED lacked statutory authority to
issue the original order of support or deprived Jeffrey of due
process.
               a.   CSED had statutory authority to enter an order
of child support against Jeffrey.
          CSED clearly had statutory authority to enter an order of
child support against Jeffrey under AS 25.27.140(a).  This statute
provides: 
          If no support order has been entered, the
agency may establish paternity and a duty of support utilizing the
procedures prescribed in AS 25.27.160-25.27.220 and may enforce a
duty of support utilizing the procedure prescribed in AS 25.27.230-
25.27.270.  Action under this subsection may be undertaken upon
application of an obligee, or at the agency's own discretion if the
obligor is liable to the state under AS 25.27.120(a) or (b). 
Accordingly, for Jeffrey to be entitled to relief, CSED must have
acted in a manner inconsistent with due process.
               b.   CSED violated Jeffrey's right to due process.
          Due process requires that CSED provide an alleged obligor
with an opportunity for a fair and impartial hearing before
finalizing and implementing a continuing child support order that
will become a series of enforceable judgments. [Fn. 18]  Jeffrey
did not receive a fair and impartial hearing.
          CSED predetermined that Jeffrey was the "legal father" of
T.W. when he was merely the legally presumed father. [Fn. 19]  The
difference is significant.  In the procedural context of a civil
action, a legal presumption is a pre-investigatory allocation of
evidentiary burdens; [Fn. 20] a finding of fact is a post-
investigatory conclusion based on the evidence presented. [Fn. 21] 

          Jeffrey was the legally presumed father of T.W. based on
the common law presumption that a husband is the father of any
child born to his wife during the term of their marriage. [Fn. 22] 
But once CSED took formal action to enforce this presumption by
issuing an administrative child support order, Jeffrey was entitled
to a formal opportunity to rebut the presumption before CSED's
order became final.  CSED, however, did not entertain Jeffrey's
efforts to rebut the presumption and show that he was not in fact
T.W.'s father.  Nor did CSED engage in any fact finding.  Because
CSED did not have the power to administratively disestablish
paternity at the time, it merely held that Jeffrey was the legal
father of T.W. and directed Jeffrey to the courts for relief.
          It might be argued that at most Jeffrey has established
grounds for reversal on appeal but not for Civil Rule 60(b) relief.
[Fn. 23]  Here, however, the mistaken conclusion that Jeffrey was
T.W.'s "legal father" was used by CSED to deny him a meaningful
hearing that could provide true relief in the procedural context of
CSED's administrative action.  His only recourse, as stated by
CSED, was to seek relief by initiating a separate paternity action
in the superior court.  But that position denies due process to the
presumed father: Arrears that accrue in the interim between service
of the NFFR and a court order disestablishing the paternity of the
presumed father cannot be retroactively modified because they are
final judgments.  Thus, the legally presumed father is liable for
the arrears and has no recourse.  Such a procedure denies a
fundamental aspect of due process, which is the right to be heard.
[Fn. 24]
     C.   Jeffery Is Entitled to Reimbursement of Child Support
Amounts Collected and Retained by the State.
          
          CSED argues that the superior court improperly ordered
the state to reimburse Jeffrey for funds involuntarily collected
from him after Kurt Walker filed his complaint. [Fn. 25]  As both
parties agree, our recent decision in State, CSED v. Mitchell [Fn.
26] controls.  In Mitchell, we held that to the extent that funds
were collected and retained by the state, a court may properly
order a refund, but that the court could not order a refund as to
funds collected but passed through to another entity. [Fn. 27]  As
to those funds, the disestablished father must instead collect
directly from that other entity. [Fn. 28]  Thus, any funds
collected from Jeffrey and retained by the state are subject to a
refund order; but Jeffrey must bring a separate action to obtain
those funds collected and passed through to either the federal
government or to Krystal.  Because the superior court's refund
order did not distinguish between funds retained by the state and
those passed through to another entity, we remand with directions
that only funds retained by the state are subject to the refund
order. 
IV.  CONCLUSION
          Jeffrey Maxwell was not accorded due process of law by
CSED when it entered a child support order and established child
support arrears against him.  Therefore, the order of support
entered by CSED against him was void.  As a matter of law, Jeffrey
Maxwell is entitled to relief under Civil Rule 60(b)(4). 
Accordingly, we AFFIRM the superior court's order vacating the
child support arrears.  We REMAND the superior court's order
concerning refund for further proceedings consistent with this
opinion.


                            FOOTNOTES


Footnote 1:

     AS 18.50.160(d) provides:

          If the mother was married at conception,
during the pregnancy, or at birth, the name of the husband shall be
entered on the certificate as the father of the child unless: (1)
paternity has been lawfully determined otherwise by a tribunal . .
. ; or (2) both the mother and the mother's husband execute
affidavits attesting that the husband is not the father . . . and
the mother and the other man execute affidavits attesting that the
other man is the father. . . .


Footnote 2:

     The record indicates that Krystal resisted efforts to list
Jeffrey as her husband for birth certificate purposes. 


Footnote 3:

     The record does not contain the actual order; accordingly, the
exact date is uncertain.


Footnote 4:

     The record shows that CSED returned Jeffrey's call on April
26, but CSED's records do not indicate the date of Jeffrey's call
that prompted this response. 


Footnote 5:

     The superior court also ended Jeffrey's ongoing child support
obligation when it disestablished his paternity of T.W.  CSED does
not appeal that aspect of the superior court's judgment.


Footnote 6:

     Cf. Dewey v. Dewey, 969 P.2d 1154, 1157 (Alaska 1999)
(reviewing de novo subject matter jurisdiction under Civil Rule
60(b)(4) (citations omitted)).


Footnote 7:

     State, CSED v. Kovac, 984 P.2d 1109, 1111 (Alaska 1999)
(citation omitted); Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979).


Footnote 8:

     See Pierce v. Pierce, 949 P.2d 498, 500 (Alaska 1997).


Footnote 9:

     See AS 25.27.225; Ferguson v. State, CSED, ex rel. P.G., 977
P.2d 95, 100 (Alaska 1999) ("[E]ach child support payment, as it
becomes due, is a final judgment in its own right." (citations
omitted)).


Footnote 10:

     See AS 25.27.170(b).


Footnote 11:

     AS 25.27.225 provides:

          A support order ordering a noncustodial parent
obligor to make periodic support payments to the custodian of a
child is a judgment that becomes vested when each payment becomes
due and unpaid.  The custodian of the child, or the agency on
behalf of that person, may take legal action under AS 25.27.226 to
establish a judgment for support payments ordered by a court of
this state that are delinquent.


Footnote 12:

     We have previously applied other civil rules by analogy in
appropriate cases.  See e.g., Pioneer Const. v. Conlon, 780 P.2d
995, 1001 (Alaska 1989) (awarding attorney's fees under AS
23.30.145(c) by analogy to Civil Rule 82); State v. Thompson, 612
P.2d 1015, 1017 (Alaska 1980) (applying procedural Civil Rules by
analogy to administrative proceedings); Ketchikan Retail Liquor
Dealers Ass'n v. State, Alcoholic Beverage Control Bd., 602 P.2d
434, 439 n.16 (Alaska 1979) (applying former Appellate Rule 9(d) by
analogy to Civil Rule 37(b)(2)(A), which authorizes the imposition
of a similar sanction for failure to make discovery).


Footnote 13:

     983 P.2d 729 (Alaska 1999).


Footnote 14:

     Id. at 732-33.


Footnote 15:

     See Dixon v. Pouncy, 979 P.2d 520, 525 (Alaska 1999) (citing
Perry v. Newkirk, 871 P.2d 1150, 1153, 1157 n.5 (Alaska 1994));
Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1354 (Alaska 1974).


Footnote 16:

     See Kennecorp Mortgage & Equities, Inc. v. First Nat'l Bank of
Fairbanks, 685 P.2d 1232, 1236 (Alaska 1984) (citation omitted). 


Footnote 17:

     See AS 25.27.225.


Footnote 18:

     We observed in In re Hanson, 532 P.2d 303 (Alaska 1975), that:
          In determining whether due process has been
observed by an administrative agency of the State of Alaska, this
court reviews the proceedings of the administrative body to assure
that the trier of fact was an impartial tribunal, that no findings
were made except on due notice and opportunity to be heard, that
the procedure at the hearing was consistent with a fair trial, and
that the hearing was conducted in such a way that there is an
opportunity for a court to ascertain whether the applicable rules
of law and procedure were observed.

Id. at 305 (internal indentation omitted) (quoting K & L Distribs.,
Inc. v. Murkowski, 486 P.2d 351, 357 (Alaska 1971)).  As such, a
failure on the part of CSED to provide Jeffrey with a fair and
impartial hearing would violate Jeffrey's due process rights.


Footnote 19:

     See T.P.D. v. A.C.D., 981 P.2d 116, 119 (Alaska 1999) ("A
child born to a married woman is presumed to be the offspring of
her husband." (citation omitted)).


Footnote 20:

     See Alaska R. Evid. 301(a).


Footnote 21:

     See Black's Law Dictionary 646 (7th ed. 1999) (defining
"finding of fact").


Footnote 22:

     See T.P.D., 981 P.2d at 119 (citation omitted).


Footnote 23:

     See Morris v. Morris, 908 P.2d 425, 429 (Alaska 1995) (noting
that Civil Rule 60 is not a substitute for failing to file a timely
appeal or a vehicle for relitigating issues that have been resolved
by a prior judgment (quoting Burrell v. Burrell, 696 P.2d 157, 163
(Alaska 1984)).


Footnote 24:

     See Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353
(Alaska 1988).


Footnote 25:

     The parties dispute the proper effective date of the refund
order.  CSED argues that the date on which Jeffrey Maxwell moved to
disestablish paternity (December 18, 1997) is the proper date. 
Maxwell argues that the date on which Kurt Walker moved to
establish his own paternity (February 8, 1997) is the proper date. 
The superior court utilized the earlier date, reasoning that
because a child may have only one father the date of Kurt Walker's
establishment of paternity must necessarily end Jeffrey Maxwell's
obligation to provide support.  The superior court did not err in
this conclusion.


Footnote 26:

     930 P.2d 1284 (Alaska 1997).  


Footnote 27:

     See id. at 1289-90.


Footnote 28:

     See id. at 1290.