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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Allen v. State; Dept of Revenue, Child Support Enforcement Div. (12/15/00) sp-5342

Allen v. State; Dept of Revenue, Child Support Enforcement Div. (12/15/00) sp-5342

     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


LLOYD C. ALLEN,               )
                              )    Supreme Court No. S-9247
               Appellant,     )  
                              )    Superior Court No.
     v.                       )    3AN-99-3369 CI
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF REVENUE, CHILD SUPPORT     )
ENFORCEMENT DIVISION,         )    [No. 5342 - December 15, 2000]
                              )     
               Appellee.      )
______________________________)    


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
               Sigurd E. Murphy, Judge pro tem.


          Appearances:  Lloyd C. Allen, pro se,
Anchorage.  Rhonda F. Butterfield, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee. 


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


          BRYNER, Justice.

  
I.   INTRODUCTION
          Lloyd Allen filed an appeal in superior court, seeking
review of two decisions by the Child Support Enforcement Division
(CSED).  The superior court dismissed Allen's appeal as untimely. 
Allen appeals.  Although CSED now acknowledges that Allen did file
his appeal within the time limit prescribed by Alaska Appellate
Rule 602(a), it argues that the superior court's dismissal should
stand because one of Allen's claims challenges an unreviewable CSED
order and the other has been rendered moot by a subsequent
intermediate appeal.  We hold that the superior court erred in
dismissing the appeal as untimely and reverse as to one of Allen's
claims; as to the other, we hold that this error was harmless.  
II.  FACTS AND PROCEEDINGS
          Allen is the obligor parent under a 1988 superior court
child support order.  In October 1997 he informally requested CSED
to seek a superior court order reducing his support obligation.
Under 15 Alaska Administrative Code (AAC) 125.316 and .326, CSED
has authority to seek judicial modification of a child support
order if recalculation under the child support guidelines set out
in Alaska Rule of Civil Procedure 90.3 would yield current payments
that differ by more than fifteen percent from payments required
under the existing order.  In response to Allen's request, CSED
sent Allen a form entitled "Petition for Modification of Judicial
Support Order."
          Allen submitted his completed petition to CSED on
February 3, 1998.  On February 11 CSED sent Allen and the child's
mother notices acknowledging its receipt of the petition and
explaining that any modification resulting from Allen's petition
would apply retroactively as of "the 1st day of the month after the
person who does not request the review receives the Notice of
Petition for Modification."  The notice also stated that CSED would
review Allen's proposed petition for modification on March 12,
1998.
          CSED failed to complete its review until November 17,
1998.  Meanwhile, Allen tried twice to spur the agency to action. 
First, he wrote to ascertain the status of his case.  On August 5,
1998, CSED responded that its delay was attributable to a backlog
of claims:
          Due to the volume of Reviews requested and

scheduled, CSED is experiencing a severe backlog in their
accomplishment.  Currently, CSED is working Modification Reviews
scheduled for May of 1997.  It will be several months before the
review for this case will be worked. 
          Soon after receiving this response, Allen moved to compel
CSED to review his petition.  The superior court denied Allen's
motion but noted that "Mr. Allen may move to compel again, if CSED
does not review his obligation within 60 days" of September 14,
1998.
          Two months passed without CSED action.  Then, on
November 17, 1998, CSED issued a form letter "Response to Request
for Modification Review."  The letter explained that Allen's review
had been "Ceased/Denied" because his "Petition failed to make a
showing of good cause and material change in circumstances
sufficient to justify proceeding with the Review. (No 15% change in
the amount.)"  The letter concluded:  "If you believe the decision
is an error of fact, please explain in detail below and return this
form to CSED." 
          Two days later, Allen wrote CSED that "[y]our decision to
deny my Petition for Modification of Administrative/Judicial Child
Support Order based on your finding that there is no 15% change in
amounts of income is in error."  CSED never responded to this
letter.  Allen waited four months.  Then, on April 5, 1999, he
filed a notice of appeal in superior court, seeking review of
CSED's refusal to process and pursue his petition for modification. 
          In the same appeal, Allen also sought review of a
separate CSED decision relating to Allen's child support arrears.
On February 26, 1998, CSED had sent Allen notice that he was
"delinquent in child support payments in the amount of $11,127.11"
and that his "name and payment information [would] be reported
. . . to consumer reporting agencies." [Fn. 1]  On March 3, 1998,
Allen wrote back, claiming that in 1995 the superior court had
issued a ruling that created a payment plan for his arrearage;
according to Allen, he had never missed a required payment under
this plan.  Based on Allen's response, CSED took no immediate
action on its threat to report his delinquent status; the matter
appears to have lain dormant until Allen's April 5, 1999, notice of
appeal to the superior court.   
          The superior court refused to consider either of the
issues raised in Allen's appeal.  Finding that the "appeal was
filed outside the 30 day requirement," the court dismissed the
appeal as untimely.  Allen filed a motion to reconsider, which the
court denied.  Next, he filed a "Motion for Explicit Findings and
Conclusions," which the court returned with this explanation: 
          Rule 602(a)(2) applies - The original decision

of 2/26/98 [sic] was not submitted and is assumed to have put Allen
on notice of appeal rights -- The appeal was filed late more than
30 day[s].  It is untimely and dismissed. 
Finally, he filed a motion to reconsider these findings and
conclusions.  After the superior court denied this motion for
reconsideration, Allen filed the present appeal.
          Between Allen's notice of appeal and the filing of
briefs, the parties took additional actions that bear on our
decision.  On July 22, 1999, CSED issued Allen a second notice of
its intention to report his arrears to credit bureaus, which he
appealed administratively.  CSED denied the administrative appeal
and notified Allen of his right to file an appeal to the superior
court within thirty days of the agency's decision.  Allen filed a
timely appeal.  By then, Allen's earlier superior court appeal had
been dismissed, and his present appeal to this court had already
been filed.  His new superior court appeal was stayed pending our
decision here. 
III. DISCUSSION
          Alaska Appellate Rule 602(a)(2) requires appeals from
administrative agencies to be filed "within 30 days from the date
that the decision appealed from is mailed or otherwise
distributed."   But the rule further provides that this thirty-day
period begins to run only when the agency provides clear notice
that its decision is final and that the claimant must appeal within
the thirty-day limit:
          The 30-day period for taking an appeal does
not begin to run until the agency has issued a decision that
clearly states that it is a final decision and that the claimant
has thirty days to appeal.[ [Fn. 2]] 
          Here, Allen filed his notice of appeal on April 5, 1999,
which is 402 days after the agency's last decision regarding credit
reporting and 145 days after it refused to seek modification of his
child support order.  If CSED's decisions were final agency
actions, then they were ripe for appeal and were properly rejected
unless the agency failed to give Allen notice of their finality.  
          CSED admits that it failed to notify Allen that its two
decisions were final.  But the agency claims that the order
dismissing Allen's appeal should nonetheless be affirmed.  As to
Allen's attempt to challenge CSED's refusal to pursue his petition
for modification, CSED contends that the refusal never ripened into
an appealable final decision, because Allen did not need to act
through CSED and could have filed a petition for modification
directly with the superior court.  As to Allen's request for review
of CSED's initial notice of intent to report his delinquent payment
status to collection agencies, CSED argues that the issue is moot;
CSED claims that Allen's more recent appeal of CSED's second notice
of intent to report his arrears covers the same issue, is still
pending, and cures any procedural error arising from its failure to
notify Allen of his appeal rights after the first decision.  We
consider these arguments in turn.
     A.   Refusal to Seek Modification Is an Appealable Action.
          CSED admits that the superior court was incorrect in
refusing to hear Allen's modification appeal based on untimeliness. 
Instead, the agency contends that its letter refusing further
action on Allen's request for modification did not "dispose[] of
the entire case and end[] the litigation on the merits," and was
therefore neither final nor appealable under our decision in Denali
Federal Credit Union v. Lange. [Fn. 3]  CSED reasons that because
Allen always had (and still has) the option of seeking modification
of his child support order directly -- by petitioning the superior
court himself -- an agency decision refusing to seek modification
did not end litigation on the merits of this case.
          This argument mistakes the substantive relief that Allen
seeks for the pathway he chose to follow in seeking that relief. 
As we explained in State, Department of Fish and Game, Sport Fish
Division v. Meyer, a final agency ruling that blocks access to an
agency-sponsored process is an appealable decision, even when a
claimant has the right to assert the same substantive claim
independently in a direct superior court action. [Fn. 4] 
          In Meyer, an employee of the Department of Fish and Game
petitioned the State Commission for Human Rights to act against the
department for employment discrimination. [Fn. 5]  After conducting
an investigation and reinvestigation, the commission closed Meyer's
case and notified her of her right to appeal to the superior court.
[Fn. 6]  Meyer appealed to superior court, which reviewed the
commission's ruling and issued an order remanding the case for
further proceedings. [Fn. 7]  But the Department of Fish and Game
petitioned for review of the superior court's remand order,
arguing, as CSED does here, that the commission's decision to close
Meyer's case was not a reviewable final order, because Meyer had
the "ability to file a separate superior court discrimination
claim." [Fn. 8]  
          We rejected that argument, explaining that an
administrative decision "is reviewable in superior court where
there is no more time to submit evidence or alter the decision
through administrative means." [Fn. 9]   In doing so, we recognized
that there were significant differences between the administrative
relief Meyer sought before the commission and the relief that she
could receive through a direct discrimination claim in the superior
court.  Therefore, we upheld appellate review of the administrative
decision, observing that the benefit of the commission's
"aggressive mandate" and its arsenal of formal and informal methods
for curing discrimination cannot be unreasonably or unlawfully
withheld. [Fn. 10]
          Here, CSED's decision not to pursue modification of
Allen's child support order parallels the human rights commission's
decision not to pursue Meyer's discrimination claim.  Although CSED
characterizes its modification review as an unnecessary step along
the way to an ultimate superior court decision on child support
modification, the agency's refusal to sponsor a modification motion
denies Allen benefits.  This denial prejudices Allen in several
ways.  First, when CSED seeks modification, an attorney brings the
motion.  Representation might have helped Allen avoid procedural
pitfalls. [Fn. 11]  Second, child support modification orders
stemming from CSED modification petitions apply retroactively to
the first day of the month after the non-requesting party received
the petition for modification.  In contrast, as CSED explained to
Allen, a trial court might, but might not, permit Allen to use that
date if he filed a direct superior court action on his own behalf.
[Fn. 12]  Finally, CSED tries to resolve modifications by consent
order and would act as an intermediary between Allen and the
child's mother.  In contrast, if Allen sought modification in
superior court, he and the child's mother would be in direct,
personal conflict.  
          To the extent Allen lost these advantages when CSED
refused to pursue his case, he was prejudiced by that decision and
is entitled to appellate review.
          Our holding in this case is in harmony with our decisions
in Denali Federal Credit Union v. Lange [Fn. 13] and Far North
Sanitation, Inc. v. Alaska Public Utilities Commission, [Fn. 14]
the cases cited by CSED to support its position.  Denali addressed
the finality of superior court review rather than administrative
review.  Nevertheless, our holding in Denali -- that appellate
review is available from adjudications that dispose of a case on
its merits -- applies here. [Fn. 15]  CSED's decision not to pursue
modification of Allen's child support order was the agency's final
disposition of that petition.  CSED's attempt to characterize its
decision as a mere intermediate step rather than a final
disposition is unavailing.  As we explained in Meyer, Allen's
ability to seek substantive relief through a separate judicial
process does not diminish his right to fair application of
regulations that would lead CSED to bring a modification proceeding
in his case.  Thus, a decision ending the possibility of CSED
sponsoring modification proceedings in court is the final
disposition of an action seeking such sponsorship.
          Unlike Denali, Far North Sanitation did review an
administrative decision, but its holding does not support CSED's
case.  In Far North Sanitation, we held that an "interim order" was
not a final, appealable order where the Alaska Public Utility
Commission (APUC) allowed a sanitation company to submit additional
information supporting collection rates after the APUC issued the
interim order. [Fn. 16]  Thus, as seen through our decision in
Meyer, the interim order left "time to submit evidence or alter the
decision through administrative means." [Fn. 17]  But here, CSED
points to nothing that Allen could have done to alter its decision
not to pursue his proposed petition for modification.
          In light of Meyer, we hold that CSED's decision not to
seek modification of Allen's child support order was a final,
reviewable agency action.  Since CSED never gave Allen notice of
the thirty-day window for appeal, the superior court should have
accepted Allen's appeal as timely under Rule 602(a)(2).  
          We recognize, however, that an appeal seeking review of
a CSED decision declining to take action on a proposed petition for
modification often covers the same ground that a motion for
modification filed directly in superior court would cover, albeit
without CSED participation.  In such cases, it is well within the
superior court's discretion to treat an appeal as a direct action
and to address the merits of the petitioner's underlying claim.  On
the other hand, in cases where the administrative appeal is driven
by flawed or incomplete administrative procedure, or where CSED's
experience and expertise would provide an advantage, the superior
court should proceed with appellate review, correcting procedural
and legal errors and remanding to CSED, as necessary, to take
further action.
          But we emphasize that, in either event, when a party
appeals CSED's refusal to petition for modification of court-
ordered child support, judicial economy and continuity of judicial
process strongly favor a policy of assigning the appeal to the
judge who issued the original support order.  Routine assignment to
the original judge will discourage litigants from attempting to
misuse the appellate process for forum shopping.  It will also
ensure appellate review by a judge who knows the litigation's
history and is capable of evaluating the appeal against the
procedural backdrop of the existing domestic action. 
     B.   Allen's Credit Bureau Reporting Appeals
          CSED failed to notify Allen that its February 26, 1998,
decision to report his arrears to credit bureaus was final.  Since
the thirty-day clock for appeals of administrative decisions does
not begin to run until an agency gives such notice, the court below
erred by denying Allen's appeal as untimely. [Fn. 18] 
Nevertheless, we see no reason to remand this aspect of the
superior court's decision; another court has taken up Allen's
appeal of this issue, rendering any error moot.
          After the court below handed down its final decision
refusing to hear Allen's case, CSED sent Allen a letter in response
to his "request for an administrative review of [his] case."  That
letter was accompanied by the CSED "Consumer Reporting
Administrative Review Decision" form, which denied Allen's
administrative appeal.  The last sentence of the form reads, "If
you disagree with this decision, you will need to file an appeal
within 30 days from the date of the Administrative Decision in an
Alaskan Court as there is no further administrative [process]." 
Allen filed a timely appeal of the agency's second credit reporting
decision, which is now stayed before another judge, pending our
decision in this case.
          Allen presents no persuasive reason why this second
appeal cannot afford him the relief, if any, to which he is
entitled.  Thus, because Allen's substantive rights will not be
affected by the superior court's error, we deem the error in
dismissing this aspect of Allen's appeal to be harmless. [Fn. 19]
IV.  CONCLUSION
          The decision of the court below dismissing Allen's appeal
of CSED's refusal to pursue modification of his child support order
is REVERSED and REMANDED. [Fn. 20]


                            FOOTNOTES


Footnote 1:

     The letter explained that CSED would be acting as authorized
by AS 25.27.273 and Former 15 AAC 125.155.


Footnote 2:

     Alaska R. App. P. 602(a)(2).


Footnote 3:

     924 P.2d 429, 431 (Alaska 1996) (quoting Borg-Warner Corp. v.
Arco Corp., 850 P.2d 628, 634 (Alaska 1993)).


Footnote 4:

     906 P.2d 1365 (Alaska 1995).


Footnote 5:

     See id. at 1367.


Footnote 6:

     See id.  The commission's ultimate order concluded:

          A person dissatisfied with a Commission Order
dismissing the complaint may obtain judicial review by Superior
Court in accordance with AS 44.62.560-44.62.570.  An aggrieved
person must file an appeal with the Superior Court within 30 days
of the issuance of the Order of the Commission.
Id. 


Footnote 7:

     See id. at 1367-68.


Footnote 8:

     Id. at 1370.


Footnote 9:

     Id. at 1371 (citing Ostman v. State, Commercial Fisheries
Entry Comm'n, 678 P.2d 1323, 1326-28 (Alaska 1984)).


Footnote 10:

     Id. at 1372.


Footnote 11:

     Allen has represented himself throughout these proceedings
with little success.


Footnote 12:

     In its letter notifying Allen that review of his case would
take many months, CSED mentioned that he had the option to bring
suit independently and suggested that if Allen filed his own
motion, he "may wish to consider asking the Judge to honor the
effective date of the Notice of Petition for Modification mailed to
both parties in February of 1998.  The effective date would be
February 1, 1998.  The judge may agree to use that effective date." 
Given this equivocal prediction that retroactive date would apply,
it is not surprising Allen pursued CSED review.


Footnote 13:

     924 P.2d 429, 431 (Alaska 1996).


Footnote 14:

     825 P.2d 867, 869-70 (Alaska 1992) (quoting Mukluk Freight
Lines, Inc. v. Nabors Alaska Drilling, Inc., 516 P.2d 408, 411
(Alaska 1973)).


Footnote 15:

     See Lange, 924 P.2d at 431.


Footnote 16:

     Far North Sanitation, 825 P.2d at 870.


Footnote 17:

     State, Dep't of Fish & Game, Sport Fish Div. v. Meyer, 906
P.2d 1365, 1371 (Alaska 1995).


Footnote 18:

     Alaska R. App. P. 602(a).


Footnote 19:

     See Alaska R. Civ. P. 61.


Footnote 20:

     Allen's brief "seeks adjudication" of myriad other claims
unrelated to the superior court's refusal to hear his appeal.
Because Allen did not present those claims to the superior court
and failed to argue them on appeal, he has waived them.  See State,
Dep't of Revenue, Child Support Enforcement Div. ex rel. P. M. v.
Mitchell, 930 P.2d 1284, 1288 & n.8 (Alaska 1997).