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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. or subject indices. Atcherian v. State; Dept of Revenue, Child Support Enforcement Div. (12/22/00) sp-5350

Atcherian v. State; Dept of Revenue, Child Support Enforcement Div. (12/22/00) sp-5350

     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.


                              )    Supreme Court No. S-8468
               Appellant,     )
                              )    Superior Court No.
          v.                  )    4BE-90-159 CI
ENFORCEMENT DIVISION,         )    [No. 5350 - December 22, 2000]
               Appellee.      )   

          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Bethel,
                      Dale O. Curda, Judge.

          Appearances:  Jody Davis and Andrew
Harrington, Alaska Legal Services Corporation, Fairbanks, for
Appellant.  Terisia K. Chleborad, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for

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

          BRYNER, Justice.

          In 1991 a default judgment of paternity was entered
against Michael Atcherian, and CSED began collecting child support.
Within a year of that default judgment, Atcherian became suspicious
that he was not the child's father.  But it was five years before
Atcherian obtained a paternity test definitively excluding him as
the biological father.  Atcherian then moved to vacate his
paternity judgment and support obligation under Alaska Civil Rule
60(b)(6), based on the mother's misrepresentation that he was the
father and his genetic test results.  The superior court vacated
the default judgment, and on reconsideration held that Atcherian
was not entitled to full restitution, but only to a refund of child
support collected on or after July 23, 1996, the date he filed his
motion to vacate.  Because CSED engaged in no fraud or other
misconduct, we agree that full restitution is inappropriate.  We
thus affirm the court's order.
          Theresa Chimeralrea gave birth to H.A. on January 1,
1989.  As required to receive public assistance, Chimeralrea
assigned her right to collect child support to CSED and completed
a paternity affidavit naming Michael Atcherian as the father. 
Chimeralrea and Atcherian had engaged in sexual relations but were
not married.  Chimeralrea indicated in her affidavit that she had
not had sex with any other men during the period of H.A.'s
          Based on Chimeralrea's affidavit, CSED filed a complaint
against Atcherian in Bethel superior court to establish his
paternity and duty of support.  Atcherian received a copy of the
complaint with the affidavit attached, but failed to file an answer
or responsive pleading.  CSED then filed an application for entry
of a default judgment of paternity, which the court granted on
February 18, 1991.  Two months later, CSED administratively ordered
Atcherian to pay $792.00 per month in child support, and
established support arrears of $17,248.00.  CSED began collecting
this support by garnishing Atcherian's wages, permanent fund
dividends, and tax refunds.
          Soon thereafter, Atcherian became suspicious that he was
not H.A.'s father, because a cousin told him that another man had
claimed H.A. as his child.  Within a year of the default judgment,
Atcherian, his wife, and the state Office of the Ombudsman all
contacted CSED to dispute H.A.'s paternity.  CSED consistently
responded that Atcherian would have to obtain a genetic test on his
own and, if the test excluded him as the father, petition the
superior court to overturn his judgment of paternity.
          Atcherian made efforts to retain an attorney, but failed.
Eventually, in 1994, he arranged for genetic testing through Chevak
tribal court to determine H.A.'s paternity.  Atcherian paid for the
tests.  In January 1996 he received the results, which proved that
he was not H.A.'s father. 
          Six months later Atcherian, now represented by Alaska
Legal Services, moved for an order vacating the 1991 judgment of
paternity and duty of support under Alaska Civil Rule 60(b)(6).
Atcherian claimed that he did not contest CSED's original paternity
action because he had believed, based on Chimeralrea's statements
and her paternity affidavit, that he actually was H.A.'s father. 
He also stated that he had misplaced the paperwork in the case and
that he had not wanted to pay the cost of paternity testing.
          The superior court concluded that justice required it to
vacate the judgment because Atcherian was not H.A.'s father and
because Chimeralrea had knowingly misrepresented to Atcherian that
he was the only potential father.  By then, CSED had garnished
$28,916.39 from Atcherian to reimburse the state for public
assistance it had paid on behalf of H.A., and $4,716.01 in child
support that it had paid to Chimeralrea as H.A.'s custodian.  The
court initially ordered CSED to reimburse Atcherian all this money
except the funds that had been disbursed to Chimeralrea.  But in
response to CSED's motion for reconsideration, the court set aside
the portion of its order requiring CSED to reimburse Atcherian for
funds collected before July 23, 1996, the date Atcherian moved to
vacate his paternity judgment. [Fn. 1]  
          Atcherian appeals.
          A.   Standard of Review
          We do not disturb the superior court's grant of a
Rule 60(b) motion except upon a showing of an abuse of discretion.
[Fn. 2]  However, we substitute our independent judgment in
determining whether the superior court "'applied the appropriate
legal standard in exercising this broad discretion.'" [Fn. 3] 
Likewise, while the trial court has broad discretion to determine
if restitution is equitable, [Fn. 4] the underlying issue of
whether restitution should be granted when a judgment is set aside
is a question of law that we review de novo. [Fn. 5]  Because the
Alaska Statutes treat CSED's support orders as judgments for
certain purposes, the superior court may grant relief from support
orders by analogy to Civil Rule 60(b) upon a showing of grounds
that would justify relief under that rule. [Fn. 6]    
     B.   Atcherian Has Established a Basis for Restitution from
the Mother, But Not from CSED.

          Atcherian argues that the superior court erred in setting
aside his paternity judgment and support obligation under Rule
60(b)(6) without ordering full restitution, because CSED has not
shown that restitution would be inequitable.  Atcherian relies on
the Restatement of Restitution:
          A person who has conferred a benefit upon
another in compliance with a judgment . . . is entitled to
restitution if the judgment is reversed or set aside, unless
restitution would be inequitable . . . .[ [Fn. 7]]

          CSED counters that restitution should never be permitted
in a child support case when the underlying paternity judgment is
set aside because restitution will always be inequitable to the
child and to CSED.  CSED also argues that Atcherian did not
establish grounds for retroactive relief under Rule 60(b)(6) and
that we should therefore affirm the court's order as a grant of
prospective relief under Rule 60(b)(5). [Fn. 8]
          Clause (6) of Rule 60(b) [Fn. 9] is reserved for
"extraordinary circumstances" not covered by the preceding clauses
of the rule. [Fn. 10]  It is a catch-all provision that permits
relief from judgment for "any other reason justifying relief from
the operation of the judgment" as long as the party moves for
relief "within a reasonable time." [Fn. 11]  We liberally construe
Rule 60(b)(6) to enable courts to vacate judgments whenever such
action is necessary to accomplish justice. [Fn. 12]  The rationale
for this liberal construction is strongest when a Rule 60(b) motion
challenges a default judgment. [Fn. 13]  In general, relief is
available under clause (6) where "'the judgment was obtained by the
improper conduct of the party in whose favor it was rendered or the
judgment resulted from the excusable [neglect] of the party against
whom it was directed under circumstances going beyond earlier
clauses of the rule . . . .'" [Fn. 14]  But relief under Rule
60(b)(6) is not appropriate "when a party takes deliberate action
that he later regrets as a mistake." [Fn. 15] 
          The superior court set aside Atcherian's paternity
judgment and support obligation under Rule 60(b)(6) because it
concluded that "justice does not allow the default judgment to
stand" given that the judgment was based on the mother's knowing
misrepresentation regarding H.A.'s paternity, which Atcherian
initially relied on but eventually disproved. [Fn. 16]  The
superior court did not clearly err in reaching this decision. 
Atcherian's duty of support was originally based solely on
information in Chimeralrea's affidavit, including her fraudulent
representations that Atcherian was H.A.'s biological father and
that she had not had sex with any other men during the period of
H.A.'s conception. [Fn. 17]  Atcherian's reasonable initial
reliance on these false representations, coupled with CSED's
subsequent refusals to assist him, despite his persistent efforts
to reopen the paternity issue, led to substantial delay in his
ability to conclusively establish that he is not H.A.'s biological
father.  These circumstances provide sufficient grounds to support
the superior court's exercise of discretion in granting partially
retroactive relief under Rule 60(b)(6). [Fn. 18]
          Atcherian asks us to go further by ruling that the
circumstances of his case compelled full reimbursement from CSED of
all child-support debt that the agency had ever collected,
including funds that CSED had already paid to the mother as child
support or to the state as reimbursement for public assistance.  We
recently recognized in State, Department of Revenue, CSED v.
Maxwell [Fn. 19] that, when a non-biological father who has
disestablished paternity makes a sufficient showing of equitable
grounds under Rule 60(b), the superior court has discretion to
order CSED to reimburse all previously collected funds it retained
when the disestablishment action was filed. [Fn. 20]  But we also
recognized that -- barring impropriety by CSED in establishing or
collecting the support obligation -- a newly disestablished father
cannot require the agency to repay funds that it has already
disbursed. [Fn. 21]  
          We have never entirely foreclosed the possibility that
CSED might be required to pay full restitution in truly exceptional
situations. [Fn. 22]  But the right to such a recovery necessarily
presupposes agency misconduct or impropriety sufficiently egregious
to justify holding CSED directly liable for fulfilling its
statutory duty to act on behalf of mothers and children by
establishing paternity and collecting child support debts from
putative fathers.  Here, Atcherian has advanced no compelling
reason to hold CSED directly liable for undertaking legally
authorized collection efforts. 
          Atcherian argues that he is entitled to restitution from
CSED because it breached an unwritten policy to perform genetic
testing on putative fathers who contest their paternity within a
year of a default judgment.  But the superior court rejected this
description of events, and Atcherian has failed to demonstrate that
the court's finding is clearly erroneous.  As CSED points out,
evidence that its internal policy was in effect when Atcherian
challenged his paternity is, at best, equivocal.  Though CSED
conceded in 1996 that this policy had been in effect for "many
years," Atcherian presented no evidence regarding whether, where,
and to what extent CSED adhered to this policy in the year
immediately following Atcherian's February 1991 default judgment. 
Nor has Atcherian cited any persuasive authority for the
proposition that CSED would be bound by the kind of informal,
unwritten policy that he alleges the agency had adopted. 
Accordingly, we affirm the superior court's order on
reconsideration, which refused to make CSED return funds already
collected and spent on H.A.'s behalf. [Fn. 23]
     C.   The Superior Court's Order on Reconsideration Bars CSED
From Collecting Support That Accrued Before Atcherian Filed His
Motion to Vacate.
          Our decision to affirm the order on reconsideration does
not resolve this appeal, however, since the parties disagree over
the scope of the reconsideration order.  Their disagreement
requires us to determine the order's meaning. [Fn. 24]  The court's
order on reconsideration provides:
          [T]he portion of the court's [original order]
which requires "CSED to reimburse Michael [Atcherian] for any
amounts retained by the State" is hereby VACATED.  The order shall
remain in effect in all other respects, i.e., the default judgment
of paternity entered against Michael Atcherian is vacated, and he
is granted relief from the judgment prospectively from July 23,
1996, the date of filing his motion to vacate judgment.  Michael
Atcherian is not entitled to reimbursement of any support collected
by CSED prior to July 23, 1996, pursuant to the validly entered
default judgment of paternity.  Michael Atcherian is entitled to
reimbursement of any support collected on or after July 23, 1997,
and retained by CSED because such support, if any, constitutes
unjust enrichment.

          Atcherian argues that this order bars CSED from
collecting or retaining any child support collected or accruing on
or after July 23, 1996, the date he filed his motion to
disestablish paternity.  In contrast, CSED reads the order as
granting Atcherian purely prospective relief from his support
obligation, leaving him liable for all arrears that accrued before
July 23, 1996.
          We agree with Atcherian's reading of the court's order. 
This interpretation finds support in the superior court's reliance
on our decision in State, Department of Revenue, CSED v. Wetherelt.
[Fn. 25]  The only child support payments at issue in Wetherelt
were uncollected arrears. [Fn. 26]  We held that the doctrine of
unjust enrichment did not entitle Wetherelt to reimbursement of the
support that CSED collected before he filed his motion, since CSED
had already spent the funds on the child to whom Wetherelt owed a
legal duty of support when the agency collected and disbursed the
money. [Fn. 27]  But we nevertheless ordered CSED to refund all
post-filing wages it garnished, even though those garnished wages
applied to pre-filing arrears. [Fn. 28]  Since this is exactly what
the reconsideration order appears to do here -- and since the
superior court expressly relied on Wetherelt in entering the order
-- CSED's interpretation of the court's order is unpersuasive.  
          Our recent decision in Maxwell confirms this conclusion.
[Fn. 29]  Although the specific grounds for vacating CSED's support
order in Maxwell differed from the grounds involved here, our
decision in Maxwell validates the general principle implicit in
Wetherelt: that when paternity is disestablished and a support
obligation vacated on a ground that would warrant relief under Rule
60(b), CSED ordinarily will be required to reimburse all funds in
its possession when the paternity action was filed, as well as any
additional funds it collects thereafter, regardless of whether
those funds reflect child support debt accruing before or after the
date of filing. [Fn. 30]
          The superior court's order on reconsideration vacating
its grant of restitution, but relieving Atcherian of uncollected
arrears and entitling him to a refund of support payments collected
and retained by CSED on or after July 23, 1996, is AFFIRMED.


Footnote 1:

     Although the superior court's order on reconsideration
indicates that Atcherian is entitled to reimbursement of any
support collected on or after July 23, 1997, this is apparently a
clerical error, as Atcherian's motion to vacate was filed on
July 23, 1996.  The superior court may correct this error under
Alaska Rule of Civil Procedure 60(a).

Footnote 2:

     See Gravel v. Alaskan Village, Inc., 423 P.2d 273, 277 (Alaska

Footnote 3:

     Lowe v. Lowe, 944 P.2d 29, 31 (Alaska 1997) (quoting Laing v.
Laing, 741 P.2d 649, 651 (Alaska 1987)).

Footnote 4:

     Cf. State, Dep't of Revenue, CSED v. Wetherelt, 931 P.2d 383,
390 n.11 (Alaska 1997).

Footnote 5:

     See State, Dep't of Revenue, CSED v. Mitchell, 930 P.2d 1284,
1287 & n.6 (Alaska 1997).

Footnote 6:

     See State, Dep't of Revenue, CSED v. Maxwell, 6 P.3d 733, 736
& n.12 (Alaska 2000).

Footnote 7:

     Restatement of Restitution sec. 74 (1937).

Footnote 8:

     We may affirm a superior court's decision on any legal ground
that appears in the record, even if the superior court did not
consider the alternative ground.  See Northern Lights Motel, Inc.
v. Sweaney, 563 P.2d 256, 257 (Alaska 1977) (citing Fireman's Fund
Am. Ins. Cos. v. Gomes, 544 P.2d 1013, 1017 n.12 (Alaska 1976);
Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961)).

          CSED additionally suggests that, because the superior
court's order on reconsideration granted only prospective relief,
it should be characterized as a grant of relief under Rule
60(b)(5), under which retrospective relief would be categorically
impermissible.  See Ferguson v. State, Dep't of Revenue, CSED, 977
P.2d 95, 101 (Alaska 1999) (relief under Rule 60(b)(5) is available
against only the prospective aspects of a paternity judgment).  But
the court explicitly grounded its original order on Rule 60(b)(6),
and its order on reconsideration vacated only that portion of the
original order requiring CSED to refund Atcherian money it
retained.  The court made clear that the original order "shall
remain in effect in all other respects." Thus, CSED's
characterization of the order on reconsideration is inaccurate.

Footnote 9:

     Alaska Civil Rule 60(b) provides in part that:

               On motion and upon such terms as are
just, the court may relieve a party or a party's legal
representative from a final judgment, order, or proceeding for the
following reasons:

               (1) mistake, inadvertence, surprise or
excusable neglect;

               (2) newly discovered evidence which by
due diligence could not have been discovered in time to move for a
new trial under Rule 59(b);

               (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other misconduct of
an adverse party;

               (4)  the judgment is void;

               (5)  the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or

               (6)  any other reason justifying relief
from the operation of the judgment.

               The motion shall be made within a
reasonable time, and for reasons (1),(2) and (3) not more than one
year after the date of notice of the judgment or orders as defined
in Civil Rule 58.1(c).

(Emphasis added.)

Footnote 10:

     O'Link v. O'Link, 632 P.2d 225, 230 (Alaska 1981).

Footnote 11:

     Alaska R. Civ. P. 60(b)(6).  In this case, the state did not
contest the timeliness of Atcherian's motion.

Footnote 12:

     See O'Link, 632 P.2d at 230.

Footnote 13:

     Accord Charles Alan Wright and Arthur R. Miller, Federal
Practice and Procedure: Civil 2d sec. 2857, at 257-58 (1995)
is much more reason for liberality in reopening a judgment when the
merits of the case never have been considered than there is when
the judgment comes after a full trial on the merits.); see also 
Livingston v. Livingston, 572 P.2d 79, 85 & n.13 (Alaska 1977)
(recognizing this rule).

Footnote 14:

     Lacher v. Lacher, 993 P.2d 413, 419 (Alaska 1999) (quoting
O'Link, 632 P.2d at 229).

Footnote 15:

     Dewey v. Dewey, 969 P.2d 1154, 1159 (Alaska 1999).

Footnote 16:

     Normally, a putative father must move for relief from judgment
based on the mother's misrepresentation of paternity within a year
of entry of judgment under Rule 60(b)(3).  Accord Mr. G. v. Mrs.
G., 465 S.E.2d 101, 102-03 (S.C. App. 1995); State, Dep't of Family
Servs. v. PAJ, 934 P.2d 1257, 1261-62 (Wyo. 1997).  Claims may be
brought under Rule 60(b)(6) only if relief is unavailable under
clauses (1)-(5).  See Lacher, 993 P.2d at 419; Village of Chefornak
v. Hooper Bay Constr. Co., 758 P.2d 1266, 1270 (Alaska 1988);
O'Link, 632 P.2d at 229.  Atcherian argued below that Chimeralrea
was a third-party witness, not a real party in interest, and that
relief was thus unavailable under Rule 60(b)(3). The superior court
did not reach this issue because it found that relief was justified
under Rule 60(b)(6) because "justice so requires." 

Footnote 17:

     CSED suggests that Chimeralrea simply made a mistake about the
child's conception date.  But CSED does not appeal the court's
factual finding of fraud, nor does it offer specific evidence
suggesting that this finding was clearly erroneous.  There was
ample testimony by Chimeralrea to support the court's finding of
knowing misrepresentation.  We defer to the trial court's
determination on this credibility issue.  See Grober v. State,
Dep't of Revenue, CSED, 956 P.2d 1230, 1234 n.9, 1236 (Alaska

Footnote 18:

     Our conclusion that the totality of these circumstances
supports relief under Rule 60(b)(6) makes it unnecessary to
determine whether Chimeralrea's status as a third-party witness
would have precluded relief under Rule 60(b)(3), thereby allowing
relief under Rule 60(b)(6) based solely on Chimeralrea's
misrepresentation.  Because Atcherian did not name Chimeralrea as
a party, we also need not determine whether Atcherian could seek
full restitution in a direct action for reimbursement against

Footnote 19:

     6 P.3d 733 (Alaska 2000).

Footnote 20:

     See id. at 738.

Footnote 21:

     See id.; see also State, Dep't of Revenue, CSED v. Mitchell,
930 P.2d 1284, 1289-90 (Alaska 1997) (court may not order a refund
as to funds collected by CSED but passed through to another entity
where CSED had no knowledge of the putative father's right to

Footnote 22:

     See Maxwell, 6 P.3d at 738 (holding, in the absence of
misconduct by CSED, that a disestablished father whose support
obligation has been vacated under Rule 60(b) is entitled only to a
refund of funds still retained by the CSED); Kilpper v. State,
Dep't of Revenue, CSED, 983 P.2d 727, 732-33 (Alaska 1999) (noting
that relief from child support arrears might be available upon
proof of grounds that would warrant retrospective relief from
judgment under Alaska Civil Rule 60(b), or if an obligor raises
defenses of estoppel and waiver against CSED when it seeks to
collect arrears on an assigned claim for public assistance);
Ferguson v. State, Dep't of Revenue, CSED, 977 P.2d 95, 101 (Alaska
1999) (holding that a disestablished father was entitled to
prospective relief only under Rule 60(b)(5), but noting that "we
need not consider whether more comprehensive relief might have been
granted under some other part of Rule 60(b)"); State, Dep't of
Revenue, CSED v. Wetherelt, 931 P.2d 383, 390-91 & n.14 (Alaska
1997) (holding that CSED was not required to refund support
collected from a disestablished father prior to the date he filed
his motion because that money had been spent for public assistance
payments on the child's behalf and CSED was not unjustly enriched).

Footnote 23:

     Accord Smith v. Ohio Dep't of Human Servs., 658 N.E.2d 1100,
1101 (Ohio App. 1995) (vacating arrears based on putative father's
disestablishment of paternity, but denying restitution in the
absence of fraud on the part of the state, which was merely
collecting child support pursuant to its statutory obligation). 

Footnote 24:

     "The legal effect of a court order is a question of law, which
[we] review[ ] de novo."  Wetherelt, 931 P.2d at 387 n.4.

Footnote 25:

     931 P.2d 383 (Alaska 1997).

Footnote 26:

     See id. at 385-86. 

Footnote 27:

     See id. at 390-91.

Footnote 28:

     See id. at 391 n.15.

Footnote 29:

     See 6 P.3d 733 (Alaska 2000).

Footnote 30:

     See id. at 737.  It follows that CSED's reimbursement duty in
this case should extend to any funds collected before the motion
but disbursed after CSED received notice of the motion.