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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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.