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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Murphy v Newlynn (11/02/2001) sp-5494

Murphy v Newlynn (11/02/2001) sp-5494

     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


JAMES A. MURPHY,              )
                              )    Supreme Court No. S-9655
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3PA-85-534 DR
                              )
RANE S. NEWLYNN,              )    O P I N I O N
                              )
             Appellee.        )    [No. 5494 - November 2, 2001]
______________________________)


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
                      Eric B. Smith, Judge.


          Appearances:  Nancy J. Driscoll, Tull &
Associates, Palmer, for Appellant.  Dennis F. Principe, Principe
Law Office, Palmer, for Appellee.


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


          MATTHEWS, Justice.


I.   INTRODUCTION
          Alaska Civil Rule 90.3(h)(2) generally prohibits the
retroactive modification of child support arrearages, but
subsection (h)(3) authorizes courts to find that an obligee parent
is precluded from collecting arrearages that accumulate for a
period of nine months or more while the obligor parent is
exercising de facto primary custody "of the children."  The main
question presented here is whether subsection (h)(3) can apply
where the obligor parent has de facto primary custody of one, but
not all, of the children who are the subject of a support order. 
Because it would be of no benefit to the affected child for the
parent with de facto custody to make payments to the obligee
parent, and because such payments would provide a windfall to the
obligee parent, we conclude that Rule 90.3(h)(3)'s preclusion
provision can apply in such a case. 
II.  FACTS AND PROCEEDINGS
          James Murphy and Rane Newlynn married in 1977 and had two
daughters:  Briana, born in November 1980, and Lauren, born in
November 1982.  When Murphy and Newlynn's marriage was dissolved in
1985, the couple retained joint legal custody of the two children,
but the details of physical custody were unspecified.  Murphy was
required to pay Newlynn $400 a month in child support. 
          In 1990 the parties accepted a series of stipulated
modifications to the 1985 dissolution decree.  Murphy and Newlynn
retained joint legal custody of the two children, but divided
physical custody.  Newlynn received primary physical custody of
Briana and Lauren; Murphy was to have physical custody of the two
children every summer between July 1 and August 15.  The 1990
modification to the dissolution decree did not change Murphy's
child support obligations. 
          In 1993 Superior Court Judge Beverly W. Cutler issued an
order increasing Murphy's child support obligations to $635 a
month, with automatic increases to reflect increases in the
Consumer Price Index.  Judge Cutler also granted Murphy a fifty
percent extended summer visitation credit.  The 1993 order did not
change the parties' physical custody arrangements.
          In May 1998 Murphy and Newlynn agreed between themselves
to alter their custody and child support arrangements.  Murphy was
to assume primary physical custody of Briana during the 1998-99
school year, while Lauren remained with Newlynn.  Because Murphy
would have physical custody of both children during the summers,
and would also be supporting one child during the school year,
Newlynn agreed to waive Murphy's child support obligations from
June 1, 1998, through August 15, 1999, and Murphy agreed not to
seek support from Newlynn for this period. 
          Because the Child Support Enforcement Division ("CSED")
was deducting Murphy's child support payments from his paycheck, 
Murphy asked CSED how to give effect to Newlynn's waiver of child
support.  Murphy was told that he needed to obtain Newlynn's
signature on a "Withdrawal of Services" form to stop CSED's
garnishment.  Misinterpreting CSED's advice, Murphy mistakenly
believed that Newlynn's signature on the "Withdrawal of Services"
form would end his actual child support obligations, rather than
just terminating CSED's deductions.  Newlynn signed the "Withdrawal
of Services" form on May 30, 1998, and CSED stopped garnishing
Murphy's wages after approximately June 30, 1998.  Murphy did not,
however, seek a court order embodying the parties' agreement. 
          Murphy assumed physical custody of Briana in early June
1998.  Briana turned eighteen in November 1998, but continued
living with Murphy until May 1999, when she graduated from high
school.  
          Newlynn reapplied for CSED services in the summer of
1999, when Lauren was scheduled to return from summer visitation
with Murphy.  When the case was reopened, CSED determined that
Murphy had accrued a child support obligation of $8,184.44 as of
August 1, 1999.  
          After being notified that he was in arrears, Murphy filed
a "Motion to Modify Custody and Child Support Orders" on August 17,
1999, seeking to have his child support obligations to Newlynn
waived as of June 1998. [Fn. 1]  In January 2000 Murphy filed a
related motion, seeking to preclude Newlynn from collecting any
child support arrears that had accumulated after June 1, 1998.
          Relying on the Commentary to Rule 90.3, Superior Court
Judge Eric B. Smith held that Newlynn could not be precluded from
collecting child support arrears because Murphy did not have
primary custody of both of the parties' children during the same
nine-month period.  Judge Smith thus denied Murphy's motion for
preclusion.  Murphy appeals.
III. STANDARD OF REVIEW
          This court will generally not disturb a trial court's
decision on a motion for child support unless the trial court
abused its discretion. [Fn. 2]  We will set aside a lower court's
factual findings only when they are clearly erroneous. [Fn. 3]
          However, whether the trial court used the correct method
of calculating child support is a matter of law. [Fn. 4]  This
court will apply de novo review to questions of law, adopting the
rule of law most persuasive in light of precedent, reason, and
policy. [Fn. 5]
IV.  DISCUSSION
     A.   Is Newlynn's Alleged Waiver Enforceable?
          As an initial matter, Murphy argues that he should not be
required to make any child support payments that accrued between
June 1, 1998, and August 15, 1999, because Newlynn agreed to waive
his child support obligations for that period.  But agreements to
waive child support are not valid until a court has reviewed and
approved the waiver's substantive adequacy under Rule 90.3, and
even a court-approved waiver will be given only prospective effect.
[Fn. 6]  Not only has no court ever reviewed and approved the
substantive adequacy of Newlynn's alleged waiver, but Murphy seeks
retroactive modification of his previously accrued child support
obligations.  Under this court's precedent, Newlynn's alleged
waiver thus cannot relieve Murphy from his obligation to make his
past due child support payments. [Fn. 7]
     B.   Can Newlynn Be Precluded from Collecting Murphy's Child
Support Arrears under Civil Rule 90.3?

          Murphy also argues that Rule 90.3's preclusion provision
excuses him from paying his child support arrearages, as Newlynn
acquiesced to his exercising primary custody over Briana for a
period exceeding nine months.  In response, Newlynn contends that
because the Commentary to Rule 90.3 only permits preclusion when
the obligor parent exercises primary custody over all of the
children on whom a support obligation is based, she should be
allowed to collect arrearages from Murphy because he never had
primary custody over all of the couple's children during the same
nine-month period. 
          Civil Rule 90.3(h)(2) bars the retroactive modification
of child support arrearages, except as allowed by statute. [Fn. 8] 
But this strict rule is mitigated by Civil Rule 90.3(h)(3), which
states:
          The court may find that a parent and a
parent's assignee are precluded from collecting arrearages for
support of children that accumulated during a time period exceeding
nine months for which the parent agreed or acquiesced to the
obligor exercising primary custody of the children.  A finding that
preclusion is a defense must be based on clear and convincing
evidence.

Newlynn does not deny that Murphy had primary custody of Briana for
more than nine months. [Fn. 9]  But it is also undisputed that
Murphy did not have primary custody of both children during the
same nine-month period.   
          Although Rule 90.3(h)(3) applies to "arrearages for
support of children" and "primary custody of the children," the
Rule's use of the plural term does not necessarily exclude the
singular. [Fn. 10]  The Commentary to Rule 90.3, however, states
that "preclusion would apply, as equitable estoppel does in
Illinois, only when the obligor assume[s] primary custody of all
the children on which the support obligation is based." [Fn. 11] 
In support of her assertion that Murphy should fall outside the
protection of Rule 90.3(h)(3) because he never had custody of all
of the parties' children for a nine-month period, Newlynn does no
more than point to the relevant provision of the Commentary. 
          The issue of preclusion received comparatively little
attention during the proceedings before the superior court, which
were primarily devoted to the waiver issue.  The court accurately
noted that the Commentary to Rule 90.3 explicitly bars preclusion
in a case such as this, where the obligor parent does not assume
primary physical custody of all of the children who are the subject
of a support order.  And the court was correct in noting that
although this court has not adopted or approved the Commentary, we
have often relied upon it "for guidance in child support matters."
[Fn. 12]  Although Murphy's counsel stated that she disagreed with
the Commentary and preserved the issue for appeal, she did not
present the superior court with any legal authority that directly
challenged the Commentary's restrictive interpretation of the
preclusion provision.  Under those circumstances, the court's
reliance upon the Commentary was understandable.
          Although this court has frequently relied on the
Commentary for guidance, we have also rejected it in some instances
and authorized support calculations that conflict with it. [Fn. 13] 
In this case, we conclude that the Commentary's limitation on
preclusion must be rejected if it is justified by nothing more than
Illinois precedent, because Illinois does not, in fact, limit the
application of equitable estoppel to cases in which the obligor
parent has primary custody of all of the children upon whom the
support obligation is based. [Fn. 14]  Instead, an obligor parent
who assumes primary custody of only one of the children upon whom
a support obligation is based can escape responsibility for paying
support for that child, but will not escape responsibility for
paying support for any children over whom he does not assume
physical custody. [Fn. 15]  If Rule 90.3(h)(3) is interpreted in
accordance with Illinois precedent, Murphy could be relieved of his
obligation to pay past due child support for Briana, but would
still be required to pay past due child support for Lauren.
          Should we follow Illinois precedent, and extend the
protection of Rule 90.3(h)(3) to obligor parents who assume primary
custody of only some of their children?  We have previously held
that "[c]hild support awards, by their very definition, are
intended to benefit the child, not provide a windfall to a parent."
[Fn. 16]  We thus concluded in Bennett v. Bennett that it was error
for the trial judge to grant retroactive child support to a parent
with de jure custody of a child, where the parent had relinquished
de facto custody of the child and no longer provided the child with
any financial support. [Fn. 17]  Murphy had de facto custody of
Briana, and there is no evidence in the record that Newlynn
continued to provide Briana with any financial support.  So long as
Murphy was fulfilling his obligation to support Lauren, to require
Murphy to also pay child support for Briana would not benefit
Briana and would provide Newlynn with an undeserved windfall. 
Applying Rule 90.3(h)(3)'s preclusion provision to cases like
Murphy's is thus supported by the rationale behind Alaska's child
support laws.
          Moreover, to apply Rule 90.3(h)(3) to de facto custody
changes of fewer than all children would not work a substantial
change in the law.  Alaska Statute 25.27.020(b) already directs
CSED, "[i]n determining the amount of money an obligor must pay to
satisfy the obligor's immediate duty of support," to "consider all
payments made by the obligor directly to the obligee or to the
obligee's custodian before the time the obligor is ordered to make
payments to the agency." [Fn. 18]  Even the Commentary to Rule
90.3(h)(3) acknowledges that, as an alternative to preclusion, AS
25.27.020(b) might allow a "reduction of support owed . . . when
the obligor assumes custody of one or more of the children." 
Murphy's direct support of Briana was the effective equivalent of
payments "directly to the obligee or to the obligee's custodian."
[Fn. 19]  Precluding Newlynn from collecting child support arrears
accrued for Briana's care, under Civil Rule 90.3(h)(3), would thus
be functionally similar to giving Murphy credit for all payments
made directly for Briana's support, under AS 25.27.020(b).
          Precedent, reason, and policy thus all support the
application of Rule 90.3(h)(3)'s preclusion provision to cases like
Murphy's.  If on remand the trial court finds preclusion to be
established as a defense by clear and convincing evidence, we
conclude that Rule 90.3(h)(3) would preclude Newlynn from
collecting arrearages that had accumulated for Briana's support,
although Murphy would still be required to pay the arrearages that
had accumulated for Lauren's support.  
V.   CONCLUSION
          Because a waiver of child support is invalid until
reviewed and approved by a court, and because even a court-approved
waiver will be given only prospective effect, we agree with the
superior court that Newlynn's waiver did not prevent her from
collecting child support arrearages from Murphy.  As a matter of
law, however, we conclude that Rule 90.3(h)(3) could preclude the
collection of child support arrearages accumulated for the support
of fewer than all of the children who are the subject of a support
order.  We thus REVERSE the order denying Murphy's motion for
preclusion, and REMAND for further proceedings consistent with this
opinion. 


                            FOOTNOTES


Footnote 1:

     Murphy's motion also sought a modification of Lauren's
custodial arrangement, and consequent modification of support
payments for her.  Murphy and Newlynn ultimately agreed that Lauren
would reside with each parent for six months.  Murphy was ordered
to pay $17.75 a month in child support for Lauren, retroactive to
August 17, 1999, and Newlynn was ordered to reimburse Murphy for
the excess child support paid by him after August 17, 1999.  The
only child support payments at issue in this case are Murphy's
arrearages as of August 15, 1999.


Footnote 2:

     See Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).


Footnote 3:

     See id.


Footnote 4:

     See id.


Footnote 5:

     See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 6:

     See Nix v. Nix, 855 P.2d 1332, 1334 (Alaska 1993).


Footnote 7:

     Murphy also argues that he should be excused from paying his
child support arrearages because he was prejudiced by CSED's
failure to inform him that he needed to file a motion with the
court to put Newlynn's waiver into effect.  But where CSED is
collecting child support on behalf of the custodial parent, its
actions cannot amount to waiver or estoppel because it has no power
to waive a child's right to support.  See State, Dep't of Revenue,
Child Support Enforcement Div. v. Valdez, 941 P.2d 144, 154 n.14
(Alaska 1997).


Footnote 8:

     See also Hendren v. State, Dep't of Revenue, Child Support
Enforcement Div., 957 P.2d 1350, 1353 (Alaska 1998).


Footnote 9:

     Briana was in Murphy's custody from approximately May 1998 to
June 1999.  Although Briana turned eighteen in November 1998,
Murphy's obligation to support her continued until she graduated
from high school in May 1999. 


Footnote 10:

     Cf. AS 01.10.050(b) (In the construction of Alaska statutes
and regulations, "[w]ords in the singular number include the
plural, and words in the plural number include the singular.").


Footnote 11:

     Alaska R. Civ. P. 90.3, Commentary X.C.


Footnote 12:

     See State, Child Support Enforcement Div. v. Bromley, 987 P.2d
183, 194 (Alaska 1999) (quoting Bunn v. House, 934 P.2d 753, 755
n.7 (Alaska 1997)); Alaska R. Civ. P. 90.3, Commentary I.A.


Footnote 13:

     See Bunn, 934 P.2d at 755 n.7; Eagley v. Eagley, 849 P.2d 777,
781 (Alaska 1993).


Footnote 14:

     See Johnston v. Johnston, 553 N.E.2d 93, 96-97 (Ill. App.
1990) (cited by Alaska R. Civ. P. 90.3, Commentary X.C.). 


Footnote 15:

     See id.


Footnote 16:

     Bennett v. Bennett, 6 P.3d 724, 727 (Alaska 2000).


Footnote 17:

     See id. at 727.  


Footnote 18:

     Cf. State, Dep't of Revenue, Child Support Enforcement Div. v.
Gause, 967 P.2d 599, 603-04 n.33 (Alaska 1998) (encouraging the
superior court to consider whether parent should receive child
support arrearages credit under AS 25.27.020(b) for months youngest
daughter resided with him).


Footnote 19:

     AS 25.27.020(b).