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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wright v Wright (05/11/2001) sp-5405

Wright v Wright (05/11/2001) sp-5405

     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
                                 


MARK E. WRIGHT,               )
                              )    Supreme Court No. S-9450
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-10667 CI
                              )
TRACY S. WRIGHT,              )    O P I N I O N
                              )
             Appellee.        )    [No. 5405 - May 11, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      John E. Reese, Judge.


          Appearances: Mark E. Wright, pro se,
Anchorage.  Peggy A. Roston, Law Office of Peggy A. Roston,
Anchorage, and Mary A. Gilson, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee.


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


          CARPENETI, Justice.


I.   INTRODUCTION
          This child support dispute arises from Mark Wright's 1999
"Motion to Retroactively Modify Child Support," in which he asked
the superior court to modify his obligation under a child support
order that was in effect from June 1988 until May 1996.  The
superior court concluded that retroactive modification of his child
support obligation was prohibited and that no grounds existed to
set aside the 1988 order.  We affirm.
II.  FACTS AND PROCEEDINGS
     A.   Background of the Wrights' Dissolution
          In April 1988 Superior Court Judge Mary Greene signed the
decree of dissolution of the marriage of Mark and Tracy Wright. 
Prior to the dissolution, Mark and Tracy had entered into a joint
custody agreement in which they agreed that Mark would have primary
physical custody of the parties' four children and Tracy would pay
child support.  The terms of the child support payments required
that Tracy pay $10 per month per child or thirty-three percent of
her net income if her annual income rose above $12,000. [Fn. 1] 
          On June 6, 1988 the parties agreed to a modification of
their dissolution decree based on Mark's imminent loss of
employment with the Army and a pending move away from Alaska.  On
June 7 the superior court granted the request to modify the decree
of dissolution.  The modification granted primary physical custody
of the children to Tracy.  The dissolution decree appears to have
incorporated the parties' custody agreement:  Section 7 of the
agreement, entitled "Other relief" states that "[a]mendment to the
decree affords same conditions (to mother) of this document as she
assumed physical custody on 10 July 1988."  Reading the
modification order and the dissolution decree together with the
parties' custody agreement, it appears that the modification
required Mark to pay child support in accordance with the parties'
original child custody agreement. 
          On June 7, 1988, the day after Tracy agreed to the
modification of the dissolution decree, she applied for public
assistance and assigned her rights to child support to the Child
Support Enforcement Division (CSED).  Mark was notified that his
children were receiving public assistance and that the state would
seek reimbursement from him.  He was also advised that agreements
between the parties to waive past or future child support would
have no legal effect while the children received public assistance
"unless . . . specifically adopted as an administrative order by
[CSED]." 
          On October 13, 1988 the state sought modification of the
child support agreement.  The state notes that although that motion
was titled "Motion for Retroactive Modification of Child Support,"
it was actually a motion to set a specific dollar amount for Mark's
child support obligation. [Fn. 2]  Mark was served with this motion
but he did not file a response.  The court entered an order on
November 1  setting Mark's monthly support for the four children at
$1,188, effective June 7, 1988.  This amount was based on CSED's
calculation of thirty-six percent of Mark's adjusted annual income
of $39,601, as required by the version of Alaska Rule of Civil
Procedure 90.3 in effect in 1988. 
          Mark did not appeal the order even though his impending
release from the military resulted in a lower adjusted annual
income than that used by CSED to calculate the child support
obligation.  However, following the entry of the order modifying
child support, Mark did contact CSED on two occasions about the
error in the support calculation.  CSED informed Mark that once a
court order had been entered, CSED could not initiate an action for
reconsideration of support for twelve months.  Mark was told that
such an administrative action would require him to submit his
financial information to CSED.  CSED also informed Mark that if he
wanted the matter considered sooner he would have to "motion the
court for a new hearing" to have the amount reconsidered. 
          On December 28, 1988 Mark filed a motion to modify his
child support obligation.  However, due to defects in the motion
and the lack of service on either CSED or Tracy, the court rejected
the motion and informed him what was required before the court
could consider the motion.  Mark did not follow up on the court's
suggestions.  Sometime after his discharge from the Army in
December 1988, Mark moved to Ohio to attend college. 
          In October 1992 Mark filed another motion to modify child
support, which was also defective.  The superior court again
informed Mark of the defects and what he needed to do to have the
motion properly before the court.  The superior court also
suggested that he contact an attorney if he had any questions. 
Again, Mark did not act on the court's suggestions.
          On October 2, 1992 Tracy wrote a notarized letter
(directed to "To Whom It May Concern") stating that she released
CSED from its obligation to collect child support because she had
forgiven any arrearage or support owed.  It is unclear who received
this letter, although it appears that CSED may have received notice
of it. 
          In 1996 CSED undertook a review of the child support
order at Tracy's request.  Notice of the review was sent to both
Tracy and Mark.  An order modifying child support was entered on
January 30, 1997, effective May 1, 1996, which reduced Mark's child
support obligation to $391 per month for four children, or $358 for
three children. [Fn. 3] 
          In December 1997 Mark, through counsel, filed a motion to
modify child support, seeking to reduce his obligation to $50 per
month.  Litigation over numerous issues related to child support
and custody ensued over the next year and a half, but Mark did not,
during that time, file a motion regarding the arrears accrued under
the 1988 order.  A trial on custody was held in February 1999.  The
trial court found that it was in the best interest of the three
remaining children to be in the sole legal custody of Tracy, with
reasonable visitation awarded to Mark.  The court concluded that
child support was to be set in accordance with Rule 90.3, but it
did not set the amount of support at that time. 
          B.   Proceedings at Issue in this Appeal
          In July 1999 Mark filed a pro se "Motion for Retroactive
Modification of Child Support" in which he argued that the 1988
order erroneously calculated his annual income and thus his child
support obligation.  Mark had accrued approximately $150,000 of
unpaid support, interest, and penalties.  He asked the superior
court to recalculate his obligation for the time period in which
the 1988 order was effective (June 7, 1988 through May 1, 1996), to
reflect his actual earnings from that time period.  CSED and Tracy
opposed the motion arguing that retroactive modification of child
support is prohibited under Rule 90.3(h) and federal law.  They
both adverted to the grounds provided in Alaska Rule of Civil
Procedure 60(b) for setting aside court orders, even though this
was not mentioned by Mark in his motion. [Fn. 4] 
          Superior Court Judge John E. Reese denied Mark's motion
on November 17, 1999, noting that retroactive modification of child
support is prohibited under Rule 90.3(h) and finding that no
grounds had been raised to support setting aside the order under
Rule 60(b). 
          Mark appeals. 
III. STANDARD OF REVIEW
          We review orders granting or denying modification of
child support orders for abuse of discretion. [Fn. 5]  A trial
court's denial of a Rule 60(b) motion will not be disturbed except
upon a showing of abuse of discretion. [Fn. 6]  An abuse of
discretion is found if we are "left with the definite and firm
conviction on the whole record that a mistake has been made." [Fn.
7]
IV.  DISCUSSION
     A.   The Superior Court Did Not Abuse Its Discretion by
Concluding that Retroactive Modification of the 1988 Child Support
Order Is Prohibited under Alaska Rule of Civil Procedure 90.3(h).
          Mark argues that even though retroactive modification of
child support arrears is precluded under federal and state law, the
circumstances of this case warrant such action.  He contends that
the October 1988 order was itself a retroactive modification of a
child support order because it modified the agreement that he and
Tracy had made in March 1988.  And he concludes that because
modification is permitted for a period during which there is a
pending motion for modification, his December 1988 motion suffices
to keep alive his ability to modify the 1988 order. 
          CSED and Tracy [Fn. 8] argue that Mark's motion was
properly denied by virtue of the provisions of Rule 90.3(h)
prohibiting retroactive modification of child support arrears. 
          Modification of a final child support award is allowed
"upon a showing of a material change of circumstances." [Fn. 9] 
Retroactive modification of a child support arrearage is
prohibited. [Fn. 10]  However, modification of child support "is
effective on or after the date that a notice for modification, or
a notice of petition for modification by [CSED], is served on the
opposing party." [Fn. 11]  
          Rule 90.3 "provides a process that parents must follow in
order to modify their statutory obligations." [Fn. 12]  We have
made it clear that parties must strictly adhere to Rule 90.3's
procedural requirements. [Fn. 13]  Even when CSED and the obligor
agree that the child support obligation is incorrect, Civil Rule
90.3 prohibits retroactive modification of the obligation without
a motion to modify child support. [Fn. 14]  The only documents that
satisfy the requirements of Rule 90.3 are motions or petitions for
modification; [Fn. 15] these establish the date from which a
modification can be made. [Fn. 16]
          The prohibition on retroactive modification of child
support arrears precludes the possibility of modifying Mark's
obligation under the 1988 order.  First, the 1988 order was not an
invalid retroactive modification of child support, as Mark
contends.  Although CSED's 1988 motion was entitled a "Motion for
Retroactive Modification of Child Support," CSED sought to
establish an exact dollar figure owed by Mark from the date public
assistance was sought, based on the parties' own agreement to
modify their dissolution decree.  The 1988 order is not rendered
invalid by bringing it into compliance with the requirements of
Rule 90.3. [Fn. 17] 
          Second, while Mark twice attempted to commence the
process of modifying the 1988 child support order, he never
successfully accomplished this.  Even after explicit direction by
the court, he failed to correct the deficiencies in his motions. 
Without a valid motion before the court, a modification of child
support would be retroactive and thus prohibited.  Mark's
accumulated debt cannot be changed at this stage through a motion
to modify child support.  The superior court did not abuse its
discretion in denying Mark's motion.
     B.   The 1988 Child Support Obligation Cannot Be Varied under
Rule 90.3(c)(1)(A).
          Mark briefly argues that the child support award should
be varied under Rule 90.3(c)(1)(A) because of unusual
circumstances. [Fn. 18]  This argument is meritless.  Rule
90.3(c)(1) allows variance of child support in accordance with the
other provisions of Rule 90.3.  We decline to allow a retroactive
variance while at the same time prohibiting retroactive
modification of child support or arrears under Rule 90.3(h). 
     C.   No Grounds Exist To Set Aside the 1988 Order under Rule
60(b).
          Under certain circumstances provided for in Rule 60, a
party may seek relief from a judgment or order. [Fn. 19]  At issue
here are the provisions of Rule 60(b)(1), which provide relief from
a court order for mistake, inadvertence, surprise, or excusable
neglect, and Rule 60(b)(6), which allows the same relief for "any
other reason justifying relief from the operation of the judgment."
[Fn. 20]  Mark argues that the 1988 order should be set aside under
Rule 60(b).  Specifically, he contends that the mistake or neglect
provisions of Rule 60(b)(1) are not applicable and that Rule
60(b)(6) should be used in this case to set aside the 1988 order
because reasons exist to justify such relief.  We disagree.
          1.   Civil Rule 60(b)(1) applies.
          Mark seeks relief from the 1988 order under Rule
60(b)(6).  But the reasons he sets forth for why he did not file a
timely motion to modify convince us that subsection (b)(1) is
applicable in this case.  Relief may be granted under Rule 60(b)(1)
where mistake, inadvertence, surprise, or excusable neglect exist.
[Fn. 21]  In such a case, the court may "relieve a party . . . from
a final judgment [or] order." [Fn. 22]  However, this may only be
done when a party has filed a motion for relief under Rule 60(b)(1)
within one year from the date of the judgment or order from which
relief is sought. [Fn. 23]  
          Mark argues that the 1988 order should be set aside
because of: his lack of understanding of the court process; his
belief that CSED would do something to correct the calculation; 
his reliance on Tracy's statement that she would forgive the
arrears and support obligation; and his feeling that instructions
in the 1988 order regarding what needed to happen in the event of
a financial change were vague.  These reasons can only be
classified under the provisions of subsection (b)(1).  Mark's
motion to set aside the 1988 order is therefore time-barred as a
matter of law because he brought it eleven years after issuance of
the order he sought to have set aside and modified retroactively.
[Fn. 24]
          Although we have "allowed pro se litigants certain
latitude . . . , we have never relaxed the substantive requirements
of Civil Rule 60(b) because of a litigant's pro se status." [Fn.
25]  Mark did attempt to file a motion to modify the 1988 order on
two occasions and was given explicit instructions by the courts on
how to remedy the defects in his motions.  And CSED informed him as
to the agency's inability to reconsider the court order until
twelve months after issuance and that he needed to go to court if
he wanted it considered sooner.  Mark was on notice that his
motions required additional action and his reasons for failure to
act are based in mistake and neglect.  The superior court did not
abuse its discretion in finding no grounds to set aside the 1988
order under this rule.
          2.   Civil Rule 60(b)(6) does not apply.
          We explained in O'Link v. O'Link, that "[c]lause 6 and
the first five clauses of Rule 60(b) are mutually exclusive." [Fn.
26]  Even though clause six is a "catch-all" provision, "relief
under clause six is not available unless the other clauses are
inapplicable.  The fact that relief under one of the first five
clauses is time-barred does not render it allowable under clause
six." [Fn. 27]  Because we conclude that Rule 60(b)(1) is
applicable,  relief under subsection (b)(6) is not available. [Fn.
28]
V.   CONCLUSION
          The superior court did not abuse its discretion when it
denied Mark's motion to retroactively modify child support and no
circumstances exist to set aside the 1988 order under Rule 60(b). 
The denial of Mark's motion to retroactively modify the 1988 child
support order is therefore AFFIRMED.


                            FOOTNOTES


Footnote 1:

     The parties' agreement did not comport with the requirements
of the version of Alaska Rule of Civil Procedure 90.3 in effect in
1988, which required that the non-custodial parent pay thirty-six
percent of adjusted annual income for four children.  See infra
note 17.


Footnote 2:

     The parties' original agreement specified Tracy's child
support obligation as a specific dollar amount, if she earned less
than $12,000 annually, or as a percentage of her annual salary, if
she earned more than $12,000.  Because Mark earned more than
$12,000 annually, his child support obligation under the agreement
would be a percentage of his annual salary, not a specific dollar
amount.


Footnote 3:

     In 1995 the parties' son, Patrick, was diagnosed with terminal
cancer.  Patrick passed away in June 1997. 


Footnote 4:

     CSED also noted that it can, in some cases, settle child
support debts that are owed to the state, for less than the stated
arrears. 


Footnote 5:

     See State, Dep't of Revenue, Child Support Enforcement Div.,
ex rel. Husa v. Schofield, 993 P.2d 405, 407 (Alaska 1999);
Robinson v. Robinson, 953 P.2d 880, 888 n.4 (Alaska 1998).


Footnote 6:

     See Stinson v. Holder, 996 P.2d 1238, 1242 (Alaska 2000).


Footnote 7:

     Id.


Footnote 8:

     Tracy incorporates and adopts the CSED brief.


Footnote 9:

     Alaska R. Civ. P. 90.3(h)(1).


Footnote 10:

     The only exception to the prohibition on retroactive
modification occurs in disestablishment of paternity.  See Alaska
R. Civ. P. 90.3(h)(2); AS 25.27.166(d).


Footnote 11:

     Alaska R. Civ. P. 90.3(h)(2).


Footnote 12:

     Schofield, 993 P.2d at 408.


Footnote 13:

     See id.


Footnote 14:

     See id.


Footnote 15:

     See id.


Footnote 16:

     Alaska R. Civ. P. 90.3(h)(2).


Footnote 17:

     Former Alaska R. Civ. P. 90.3 (1988) provided:

          (a) Guidelines.  A child support award in a
case in which one parent is awarded sole or primary physical
custody will be calculated as an amount equal to the adjusted
annual income of the non-custodial parent multiplied by a
percentage specified in subparagraph (a)(2).
               . . . .
               (2) The percentage by which the non-
          custodial parent's adjusted income must be
multiplied in order to calculate the child support award is:
               (A) 20% (.20) for one child;
               (B) 27% (.27) for two children;
               (C) 33% (.33) for three children; and
               (D) an extra 3% (.03) for each additional
child.


Footnote 18:

     Alaska R. Civ. P. 90.3(c) provides in part that:

          (1)  The court may vary the child support
award as calculated under the other provisions of this rule for
good cause. . . .  Good cause may include a finding:
               (A)  that unusual circumstances exist
which require variation of the award.


Footnote 19:

     Alaska R. Civ. P. 60.


Footnote 20:

     Alaska R. Civ. P. 60(b)(1), (6).


Footnote 21:

     Alaska R. Civ. P. 60(b)(1).


Footnote 22:

     Alaska R. Civ. P. 60(b).


Footnote 23:

     Id.


Footnote 24:

     See, e.g., Dixon v. Pouncy, 979 P.2d 520, 525 (Alaska 1999).


Footnote 25:

     Ghete v. Anchorage, 948 P.2d 973, 975-76 (Alaska 1997).


Footnote 26:

     632 P.2d 225, 229 (Alaska 1981).


Footnote 27:

     Williams v. Crawford, 982 P.2d 250, 255 n.16 (Alaska 1999)
(citations omitted); see also Dixon, 979 P.2d at 526 n.8; Hartland
v. Hartland, 777 P.2d 636, 645 (Alaska 1989).


Footnote 28:

     See O'Link, 632 P.2d at 229.