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Paxton v. Gavlak (10/15/2004) sp-5839
Paxton v. Gavlak (10/15/2004) sp-5839
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID E. PAXTON, )
) Supreme Court No. S-10607
Appellant, )
) Superior Court No. 4FA-89-911
CI
v. )
) O P I N I O N
DEBRA M. BATES GAVLAK, )
) [No. 5839 - October 15, 2004]
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: David E. Paxton, pro se,
Decorah, Iowa. Debra M. Bates Gavlak, pro
se, Fairbanks. Pamela Hartnell, Assistant
Attorney General, Fairbanks, and Gregg D.
Renkes, Attorney General, Juneau, for State
of Alaska, Department of Revenue, Child
Support Enforcement Division.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
A 1989 court order required David Paxton to pay
substantial monthly child support. He accrued large arrearages,
and the Alaska Child Support Enforcement Division (CSED) sought
consolidation of his debt into a single judgment. In January
1997 CSED began an administrative review of his financial
circumstances, and he provided CSED with information that, if
correct, required a substantial reduction in his monthly
obligation. In November 1999 he asked the superior court to
reduce his payments. The court reduced his payments, but only
from November 1999 forward. The primary question here is
whether it would violate the prohibition on retroactive
modification of court-ordered child support to consider his
financial circumstances as of January 1997. Because CSED never
closed its administrative file with a final, appealable decision
denying Paxton relief before November 1999, we conclude that
modification as of January 1997 would not be retroactive. We
therefore remand for consideration of Paxtons financial
circumstances from that date onward. We affirm the superior
courts modification of the support order from November 1999
forward.
II. FACTS AND PROCEEDINGS
David Paxton and Debra Bates Gavlak are the parents of
Megan Paxton, born in August 1983. Paxton and Gavlak divorced in
1989, and the superior court entered an order in November 1989
requiring Paxton to pay $328 per month for child support. The
order also called for automatic child support increases of $100
per month as of September 1, 1993 and $200 per month as of
September 1, 1998. Paxton did not appeal entry of this order.
Gavlak applied in December 1989 for CSEDs help in
collecting payments from Paxton. She withdrew from CSED services
in July 1990, and CSED closed its case.
Paxton and Gavlak agree that Megan lived with Paxton
from July 1994 to July 1995. Paxton began receiving grants of
Aid to Families with Dependent Children (AFDC) for Megan while
she was living with him starting in July 1994, and he stopped
receiving the grants in September 1995. He again began receiving
AFDC grants for Megan in August 1996 and stopped receiving them
in January 1997.
Gavlak wrote to Paxton in August 1996 stating that she
could not dismiss the issue of [M]egs support any longer, because
she could no longer . . . take care of Megan without Paxtons
help. She also wrote that she realized the amount in the support
order was not a viable figure today, and she requested child
support payments of $200 per month starting September 1996.
Gavlak reapplied for CSED services in October 1996.
Paxton, Gavlak, or both asked CSED in January 1997 to
review the child support amount in the support order, and CSED
began to review the support amount. CSED on January 22 mailed to
both Paxton and Gavlak a notice of petition for modification of
judicial support order and requested financial information.1
Paxton promptly sent CSED child support guidelines affidavits
stating that his net income was $990 in 1995 and $1,030 in 1996;
CSED sent a letter to Paxton dated April 4, 1997 stating that he
was not in substantial compliance with his child support order,
but on May 6 it informed him that he was in substantial
compliance with his child support order.
Paxton filed a superior court motion to modify on May
13, 1997.
While this court proceeding was still in progress,
CSED wrote Paxton on May 19, stating that it intended to close
its case, because [t]here is no longer a current support order,
and arrears are less than $500.00 or unenforceable under State
law. Another CSED letter of the same date similarly stated that
the case has been closed. In fact, it appears that there was
still a current support order, and that Paxtons arrearages
actually were then very substantial, perhaps as much as $33,364.
The superior court denied Paxtons modification motion
in June 1997. The court did not send the notice of denial to
Paxtons correct post office box; he therefore did not receive it.
CSED informed Paxton on November 5, 1998 that it had
ceased the modification review. The appellate record contains no
documents between June 1997, when the superior court denied
Paxtons modification motion, and November 5, 1998, when CSED
sent this cessation letter to Paxton.
After misinforming Paxton in May 1997 of the status of
his support obligation, CSED did not give Paxton notice of any
child support obligation until November 9, 1998, when it informed
him that he had a monthly obligation of $628. Its letter of
December 6, 1998 informed him his arrearages totaled $10,211.86.
Paxton filed a superior court motion to modify child
custody on September 9, 1999. The superior court issued a new
child custody and support order on October 11, 1999. The order
granted legal and primary physical custody to Paxton and ordered
Gavlak to pay $495 per month for child support, beginning
September 1999. This order stated that Paxton was to deduct
[this amount] from back child support due Gavlak. Another
October 11 order stated that no additional child support shall be
calculated against [Paxton] as of 9/1/99.
A week later Paxton filed a motion to modify child
support owed. CSED and Gavlak both opposed this motion. The
court denied this motion in early November 1999.
Paxton moved on November 13, 1999 for prospective
modification of the 1989 child support order. In March 2000 the
court entered an order modifying child support, granting primary
physical custody to Gavlak, and reducing Paxtons monthly child
support obligation to $50 effective November 1999. On March 27,
2001 the court signed an order ending Paxtons monthly child
support obligation as of January 1, 2001.
CSED filed a motion to consolidate child support
arrearages in a single judgment in February 2002. It contended
that Paxtons total arrearages, including interest, were
$70,833.04 as of January 2002.
In February 2002 Paxton asked the court to adjust his
child support arrearages in a final judgment and to modify his
support obligation from 1990 to January 2001. His main argument
was that his income had changed, but he also pointed out that
Gavlak had withdrawn from, and reapplied for, CSEDs services
several times. CSED opposed this motion.
The superior court granted CSEDs motion to consolidate
Paxtons support arrearages in April 2002. It denied Paxtons
motion to adjust his child support from July 1990 forward.
Paxton requested reconsideration. The court denied Paxtons
request for reconsideration in April 2002, and it did not use
Paxtons proposed order denying CSEDs motion to consolidate
support arrearages to a single judgment. Paxton appeals these
decisions.
III. DISCUSSION
A. Standard of Review
We apply our independent judgment when reviewing a
lower courts interpretation of statutes and other related legal
questions,2 and when determining whether a partys procedural due
process rights have been violated.3 When construing the meaning
of a statute under this standard, we look to the meaning of the
language, the legislative history, and the purpose of the statute 4
and adopt the rule of law that is most persuasive in light of
precedent, reason, and policy. 5 We review fact findings under
the clearly erroneous standard.6 A finding is clearly erroneous
if it leaves the court with a definite and firm conviction on the
entire record that a mistake has been made.7
B. Modifying Paxtons Obligation as of January 1997, when
CSED Issued Its Notice of Petition for Modification,
Would Not Be Retroactive Modification.
Because it is essentially undisputed that the child
support Paxton was ordered to pay was excessive given the amount
of his income, the primary question is when reduction should have
taken effect, without violating the prohibition on retroactive
modification.
Alaska Rule of Civil Procedure 90.3(h)(2) states in
part that [c]hild support arrearage may not be modified
retroactively, except as allowed by AS 25.27.166(d) [question of
paternity].8 No party questions this fundamental concept. But
they disagree about whether modification effective before Paxton
filed his superior court October 1999 modification motion should
be considered retroactive.
Paxton points out that in January 1997 CSED issued a
notice of petition for modification of judicial support order and
that both parents submitted the paperwork needed to calculate his
obligation. He claims that under Rule 90.3(h)(2) this triggered
the modification process, and that modifying child support
effective the date of the notice of petition is not retroactive
modification. Paxton also argues that CSED failed to afford him
a full and fair hearing to present evidence of his actual income.
He argues the superior court ignored his income information,
denying him due process. His appellate briefs do not state when
he believes the prospective modification should have started, but
in his superior court memorandum he requested the court to adjust
his child support obligation as per Civil Rule 90.3 from 1990 to
January 2001.
CSED responds that it properly terminated its
administrative review of the case in 1997 and notified both
parents of the termination. It argues that it cannot
administratively modify a court order; it can only review a court
order and file a motion if it determines the order should be
modified.9 It argues that Paxtons May 1997 motion in the
superior court to modify the 1989 order made CSEDs administrative
review redundant. It asserts that a parent must choose either to
proceed through the administrative review process or to file his
own motion in court, because AS 25.27.135 discourages
simultaneous proceedings.10 CSED argues that Paxton is really
requesting retroactive modification of his child support
arrearages, namely those accumulating from 1990 to January 2001,
which had already become individual judgments per AS 25.27.225.
Rule 90.3(h)(2) states in part that [a] modification
which is effective on or after the date that a motion for
modification, or a notice of petition for modification by the
Child Support Enforcement Division, is served on the opposing
party is not considered a retroactive modification. We have held
that this rule clearly provides that a modification order made
effective on the date the original motion was served is not
retroactive.11 The same rule applies to service of a CSED notice
of petition for modification upon the noncustodial parent.12 We
therefore turn to the issue of when Paxton first requested a
modification of his child support obligation.
CSED began reviewing the November 1989 child support
order in January 1997. It mailed both Paxton and Gavlak a notice
of petition for modification of judicial support order and
requested financial information. Paxton promptly submitted child
support guidelines affidavits stating that his net income was
$990 in 1995 and $1,030 in 1996. Thus, by early 1997 CSED knew
that Paxtons income, if correctly stated by him, could not
possibly justify the child support obligation prescribed by the
1989 order.
Paxtons May 1997 motion to modify asked the superior
court to modify the existing Child Support Agreement to allow
joint custody. It is unclear from the record whether this motion
expressly, or impliedly, asked the superior court to consider his
financial circumstances. The excerpt of record contains a
photocopy of the motion; on it is a photocopied and handwritten
and between Child Support Agreement and to allow. It is unclear
who made this change or when it was made. The original motion,
filed in the superior court and found in the appellate record,
lacks this interlineation. Without giving reasons, the superior
court denied the motion in June 1997. This handwritten and makes
it unclear whether Paxton raised the issue of changed financial
circumstances in the superior court before it denied his motion.
In any event, the change in the childs custody was the main
reason Paxtons May 1997 motion gave as justification for
modifying support. It would have been difficult for the superior
court to have considered Paxtons changed financial situation
then, given the lack of evidence before the court on that issue.
While Paxtons superior court modification motion was
still pending, CSED informed Paxton in a letter dated May 19,
1997 that the modification review for this case was scheduled in
error, and is now ceased. The case has been closed, and the
custodial parent has not re-applied for services. This letter
did not state that this closure was CSEDs final decision in the
matter or that Paxton had thirty days to appeal it.
Nearly eighteen months later CSED sent Paxton a letter
dated November 5, 1998 stating that CSED had ceased the
modification review, because Paxton had filed directly in Court
for a modification of [his] child support. This letter did not
state that it was a final administrative decision or that Paxton
had thirty days to appeal CSEDs action.
Alaska Rule of Appellate Procedure 602(a)(2) states, in
part, that an appeal may be taken to the superior court from an
administrative agency within 30 days from the date that the
decision appealed from is mailed or otherwise distributed to the
appellant. Rule 602(a)(2) also states that the thirty-day period
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. [W]here an administrative agencys
decision is communicated in a letter that fails to do either of
these things, it is an abuse of discretion not to relax Rule
602(a)(2)s thirty-day appeal deadline.13
CSEDs May 19, 1997 and November 5, 1998 letters to
Paxton did not meet the requirements of Rule 602(a)(2).
Consequently, CSEDs review file had not been closed in a manner
satisfying Rule 602(a)(2) as of 1999, when he again sought
judicial modification.
CSED also sent letters containing dramatically
erroneous information to Paxton. CSED wrote him on May 6, 1997,
stating that he was in substantial compliance with his child
support order. CSED also wrote him on May 19, stating that it
intended to close its case, because [t]here is no longer a
current support order, and arrears are less than $500.00 or
unenforceable under State law. These letters could have only
reinforced Paxtons belief that he did not need to pursue
modification in the superior court. CSED also did not inform
Paxton until November 1998 that it would not proceed with the
administrative review so long as the superior court change of
custody case remained open.
At oral argument before us CSED argued that it did not
need to proceed with the changed financial circumstances issue,
because a change in custody would have resulted in a new child
support arrangement, thereby superseding this issue. Yet Gavlak
ultimately retained custody of Megan; thus, Paxtons change in
financial circumstances remained a key issue, and CSED never told
Paxton he should raise that issue in the superior court. Nor did
CSED reinstate its own review after the superior court denied
Paxtons modification motion in June 1997.
Paxtons October 19, 1999 superior court motion asked
the court to reduce his child support obligation from December
1998 thru August 1999 from $628.00 per month to $50.00 per month
to accurately reflect Paxtons earnings during that time. This
appears to be the first time that Paxton directly asked the
superior court to reduce his child support by reason of reduced
income. The court denied this motion on November 8, 1999.
We conclude that CSEDs failure to send Paxton a closure
letter satisfying Appellate Rule 602 had the consequence of
keeping its review file open. Per Civil Rule 90.3(h)(2),
modification effective as of January 22, 1997, when CSED issued
its notice of petition, would not have been a retroactive
modification.14 Paxtons submission to CSED of financial
information demonstrated at least prima facie justification for
substantially reducing his child support obligation. Because the
administrative file remained open, judicial modification
effective as of January 1997 would not be retroactive. We
remand to the superior court to consider Paxtons financial
situation as of January 1997.
We also note that reduction of Paxtons child support
obligation after January 1997 will affect the interest owed on
any arrearages.
C. CSED Made Accounting Mistakes.
CSED conceded at oral argument before us that it erred
in calculating Paxtons child support obligation by failing to
credit Paxton for the payments of $495 that Gavlak was to pay him
in September and October of 1999 per the October 1999 support
order. To correct this error, CSED should submit to the superior
court a revised accounting statement with the September and
October credits subtracted from the principal Paxton owes, with
appropriate reduction in the interest he owes.
D. Paxtons Other Arguments Lack Merit.
Paxton raises several other arguments. He asserts that
Gavlak dismissed child support between July 1990 and October 1996
because she waived it in the August 1996 letter she wrote to him
and because she had withdrawn from CSED services during that
time. He asserts that CSED may not collect the public assistance
granted to him when Megan was living with him, because his
liability may not exceed the amount provided for in the support
order.15 He argues that because the December 1998 arrearages
statement did not include arrearages from July 1990 to January
1997, CSED is deemed to have waived this amount. He argues that
CSED filed its motion in the wrong case, thereby violating his
right to due process. Finally, he argues that enforcing this
child support obligation would be cruel and unusual punishment.16
These arguments are without merit. A parent may not
waive past-due court-ordered child support.17 Similarly, a
custodial parents conduct cannot amount to an estoppel or waiver
altering the obligation to pay child support. This follows from
the rule that parties cannot by agreement alter a noncustodial
parents obligation to pay child support without court approval.18
Therefore, neither Gavlaks August 1996 letter to Paxton nor her
withdrawal from CSEDs services modified Paxtons court-ordered
child support obligation. Paxton is liable for any AFDC grants
that he received, although this amount may not exceed the amount
he owed under the support order.19 CSEDs balance sheet takes the
AFDC grants to Paxton into account, and limits his total
obligation to the amount in the support order. CSED may not
waive, and is not estopped from collecting, support that the
obligor owes to the child, because the right to support is the
childs, not CSEDs.20 CSEDs failure to file its motion in the
right case, if it was error, is harmless.21 Finally, Paxtons
claim of cruel and unusual punishment lacks merit, because child
support is not bail, a fine, or punishment,22 and Article I,
section 12 of the Alaska Constitution only applies to criminal
matters.
IV. CONCLUSION
We VACATE the November 8, 1999 order to the extent it
precluded a potential change in Paxtons child support payments as
of January 1997. We likewise VACATE any other superior court
order to the extent it may have that effect. We REMAND for
consideration of Paxtons financial circumstances from January
1997 forward, and for correction of the arithmetic error noted
above. We AFFIRM the superior courts March 20, 2000 order
prospectively modifying Paxtons child support obligation.
_______________________________
1 CSED mailed a notice of right to request a review of
support order to Paxton on January 8, 1997, requesting similar
documents. It is unclear whether Paxton responded, although in a
letter to CSED dated January 27, 1997 he claims he did.
Regardless, Paxtons request for modification and CSEDs sending of
notices to both Paxton and Gavlak occurred in January 1997.
2 Cook Inlet Keeper v. State, 46 P.3d 957, 961 (Alaska
2002); Fancyboy v. Alaska Vill. Elec. Co-op., Inc., 984 P.2d
1128, 1132 (Alaska 1999).
3 Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska
1998).
4 Fancyboy, 984 P.2d at 1132 (quoting Muller v. BP
Exploration (Alaska), Inc., 923 P.2d 783, 787 (Alaska 1996)).
5 Enders v. Parker, 66 P.3d 11, 14 (Alaska 2003) (quoting
Fancyboy, 984 P.2d at 1132).
6 Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998).
7 Id. (quoting R.F. v. S.S., 928 P.2d 1194, 1196 n.2
(Alaska 1996)).
8 See also Wright v. Wright, 22 P.3d 875, 878 (Alaska
2001) (Retroactive modification of a child support arrearage is
prohibited.); State, Dept of Revenue, Child Support Enforcement
Div. ex rel. Husa v. Schofield, 993 P.2d 405, 407-08 (Alaska
1999) (Both federal and Alaska law prohibit, with few exceptions,
retroactive modification of child support obligations, whether
the change is an increase or a decrease in the parents
obligation.).
9 15 Alaska Administrative Code 125.326 (2003).
10 AS 25.27.135 provides: If the same causes of action
concerning a duty of child support are pending concurrently in
court and before [CSED], the second action filed may be abated
upon the motion of a party or [CSED].
11 Epperson v. Epperson, 835 P.2d 451, 453 (Alaska 1992);
see also Boone v. Boone, 960 P.2d 579, 585 (Alaska 1998) (The
rule implicitly permits a court to modify child support effective
the date the opposing party was served.).
12 State, Dept of Revenue, Child Support Enforcement Div.
v. Dillon, 977 P.2d 118, 120 (Alaska 1999).
13 Skudrzyk v. Reynolds, 856 P.2d 462, 463 (Alaska 1993).
14 Civil Rule 90.3(h)(2) states that a modification
effective on or after the date of a CSED notice of petition for
modification is not a retroactive modification.
15 AS 25.27.120.
16 Paxton cites Amendment VIII of the United States
Constitution. He does not cite the corresponding provision in
the Alaska Constitution, article I, section 12.
17 In Murphy v. Newlynn, 34 P.3d 331, 333 (Alaska 2001)
(citations omitted), we stated:
[A]greements to waive child support are not
valid until a court has reviewed and approved
the waivers substantive adequacy under Rule
90.3, and even a court-approved waiver will
be given only prospective effect. . . . Under
this courts precedent, [the former spouses]
alleged waiver thus cannot relieve [the
obligor] from his obligation to make his past
due child support payments.
See also Nix v. Nix, 855 P.2d 1332, 1334 (Alaska 1993) ([A] child
support waiver is not valid and enforceable until a court has
reviewed and approved the waivers substantive adequacy under Rule
90.3.) (original emphasis).
18 State, Dept of Revenue, Child Support Enforcement Div.
ex rel. Hawthorne v. Rios, 938 P.2d 1013, 1017 n.8 (Alaska 1997).
19 AS 25.27.120(a); see also State, Dept of Revenue, Child
Support Enforcement Div. v. Green, 983 P.2d 1249, 1253, 1256
(Alaska 1999).
20 Murphy, 34 P.3d at 333 n.7; State, Dept of Revenue,
Child Support Enforcement Div. ex rel. Gause v. Gause, 967 P.2d
599, 604 (Alaska 1998); State, Dept of Revenue, Child Support
Enforcement Div. ex rel. Valdez v. Valdez, 941 P.2d 144, 154 n.14
(Alaska 1997).
21 Alaska R. Civ. P. 61.
22 Cf. U.S. Const. amend. VIII.
