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State, Dept. of Revenue, Child Support Enforcement Div. v. DeLeon (12/17/2004) sp-5853
State, Dept. of Revenue, Child Support Enforcement Div. v. DeLeon (12/17/2004) sp-5853
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
STATE OF ALASKA, )
DEPARTMENT OF REVENUE, ) Supreme Court No. S-11219
CHILD SUPPORT ENFORCEMENT )
DIVISION, ) Superior Court No. 3KO-98-0009
CI
)
Appellant, ) O P I N I O N
)
v. ) [No. 5853 - December 17, 2004]
)
LISA SUE DELEON and EDY )
GUADALUP DELEON, )
)
Appellees. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kodiak,
Dan Hensley, Judge.
Appearances: Diane L. Wendlandt, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellant.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
I. This appeal raises the question whether the superior
court has the authority to order a delinquent parent to apply for
a permanent fund dividend to pay court-ordered child support.
The Alaska Child Support Enforcement Division (CSED) filed a
motion asking the superior court to order Edy DeLeon to apply for
a permanent fund dividend each year he is eligible. The superior
court denied the motion on the ground no statutory or case
authority gave it the power to issue the order. CSED appeals on
the merits and on procedural due process grounds. Holding that
the superior court has both express statutory authority and
inherent authority to issue such an order, we reverse and remand.
II. FACTS AND PROCEEDINGS
In 1998 the superior court ordered Edy DeLeon to pay
$600 per month in child support for his minor child. Edy has not
consistently made the payments the order requires. His child
support arrearages were $31,883.63 as of April 30, 2003.
Although it appears that Edy is eligible to receive an Alaska
Permanent Fund Dividend (PFD), he has not applied for a dividend
since 2000.
CSED filed a motion in 2003 asking the superior court
to order Edy to apply for a permanent fund dividend each year he
is eligible to do so until his child support obligation is fully
paid. The motion asserted that CSED could seize each annual
dividend and apply it to Edys child support obligation. Edy and
the custodial parent, Lisa DeLeon, were served with the motion.
Neither parent responded. Standing Master Anna Moran recommended
the motion for approval, but the superior court denied the motion
by order of July 1, 2003. CSED moved for reconsideration under
Alaska Civil Rule 77(k). Because the superior court did not rule
on the reconsideration motion, it was deemed denied as of August
9, 2003 per Civil Rule 77(k)(4). CSED appeals.
III. DISCUSSION
A. Standard of Review
No facts are disputed in this appeal. The question
whether the superior court has the authority to order a
delinquent parent to apply for a permanent fund dividend to
enforce a child support order is a question of law. We review
questions of law de novo.1
B. The Superior Court Has Express and Inherent Authority
To Order Edy To Apply for a Permanent Fund Dividend for
Payment of Child Support.
The order denying CSEDs motion states:
CSED has submitted no statutory or case
authority which gives the court the power to
force an obligor parent to apply for the
permanent fund dividend. (Contra Criminal
Rule 39(c)(1)(A) which specifically empowers
the court to order a defendant to apply for
the PFD if he or she is appointed counsel).
CSEDs motion for reconsideration pointed to sources of express
and inherent authority that, it argued, empowered the court to
issue the requested order.
Upon review, we hold that the superior court has both
express authority under AS 22.10.020 and inherent equitable
authority to order a delinquent parent to either apply for a
permanent fund dividend or demonstrate his or her ineligibility
for a dividend.
Alaska Statute 22.10.020(c) gives the superior court
authority to issue injunctions, writs of review, mandamus,
prohibition, habeas corpus, and all other writs necessary or
proper to the complete exercise of its jurisdiction. The statute
authorizes the issuance of orders needed to prevent the
frustration of orders the superior court has previously issued in
its exercise of jurisdiction.2
The superior court previously issued an order in 1998
requiring Edy to pay child support of $600 per month. Edy has
not consistently complied with that order; his child support
arrearages totaled more than $30,000 as of April 2003. Per AS
22.10.020(c), the superior court was therefore authorized to
issue orders, such as the one CSED requested, necessary to
enforce its 1998 child support order. Indeed, AS 25.27.080(b)
expressly permits CSED to petition the court for orders to aid in
the enforcement of child support.
The superior court also had inherent authority to
enforce its decrees.3 In Johnson v. Johnson, we upheld the
superior courts modification of a divorce decree under the courts
inherent power to enforce its judgments.4 Even though the
modification included changes not requested by the parties, we
held that the inherent power to enforce its decrees may at times
justify the court to go beyond the parties requests. There is
particular justification for such action by a court when
necessary to preserve the rights of children.5 We noted that
[a] court not only has the right, but it is its duty to make its
decrees effective and to prevent evasions thereof. 6 The
superior court was therefore authorized to make alterations
necessary to obtain a result altogether consistent with the
original decree.7
In Horchover v. Field, we determined that the superior
courts inherent power to enforce its divorce decrees authorized
it to order the appellant to provide an accounting of his assets
even though the accounting was not part of the property
settlement agreement incorporated into the divorce decree.8
Because it appeared that the appellant had failed to pay the
appellee her share of the marital assets, as the settlement
agreement required, the superior court ordered the accounting to
determine whether the appellant had violated the divorce decree.9
The superior courts inherent power to enforce its
decrees authorizes it to order Edy to apply for the dividend.
Edy has not satisfied the 1998 child support order. Although
ordering obligor parents to apply for their permanent fund
dividends is more unusual and perhaps more burdensome than
ordering an accounting of assets, the circumstances may warrant
it. Whether willful or negligent, Edys failure to perform the
minor administrative tasks necessary to obtain the dividend or to
inform CSED of his ineligibility suggests an indifference to the
legal force of the support order that the superior court should
not tolerate.
The order denying CSEDs motion cited to Criminal Rule
39(c)(1)(A), which states in part:
Upon conviction of an offense, revocation of
probation, denial of a motion to withdraw
plea, and denial of a motion brought under
Criminal Rule 35.1, the court shall prepare a
notice of intent to enter judgment for the
cost of appointed counsel in accordance with
paragraph (d) of this rule, provide a copy of
the notice to the defendant, and order the
defendant to apply for permanent fund
dividends every year in which the defendant
qualifies for a dividend until the judgment
is paid in full.
The order pointed out that Criminal Rule 39(c)(1)(A)
specifically empowers the court to order a defendant to apply for
the PFD if he or she is appointed counsel. Although it is not
clear why the order cited Criminal Rule 39(c)(1)(A), the use of
our rule-making power to authorize courts to order a defendant to
apply for a PFD in some criminal cases does not imply that the
superior court lacks discretion to enter such an order in a civil
case when necessary to enforce a judgment. We could not adopt a
procedural rule extending that authority in the criminal context
unless there were some source of that authority impliedly or
explicitly stated elsewhere. As CSED observes, [t]he rule is not
evidence that the court must have an express grant of authority
to issue similar orders in civil cases. Rather, it directs the
court in the specific use of its existing statutory and inherent
authority.
Furthermore, the statutory scheme for child support
does not preclude the superior court from exercising its inherent
authority to issue such an order. Alaska Statute 25.27 has the
purpose of ensuring that parents meet their support obligations.10
Toward that end, the legislature expressly authorized the
superior court or CSED to enforce child support orders by various
means, including income withholding orders,11 wage assignments,12
liens upon the delinquent parents real or personal property,13 and
adverse actions against the parents occupational and drivers
licenses.14
But the express authorization to take the specified
measures to enforce child support orders does not imply that
other measures, such as the relief CSED requested here, are
foreclosed. The principle of expressio unius est exclusio
alterius directs the court to presume that a statute designating
only certain powers excludes those not specifically designated,15
but the expressio unius maxim will not apply if contrary to the
purpose of the statute.16 The purpose of AS 25.27 is to ensure
that parents meet their child support obligations. Applying the
maxim to deny the superior court the power to grant the motion
would frustrate that purpose.
Moreover, AS 25.27.080(b) authorizes CSED to take all
necessary action permitted by law to enforce child support
orders, including petitioning the court for orders to aid in the
enforcement of child support. This provision would be
superfluous if the court were authorized to issue only those
orders specified elsewhere in AS 25.27.17 We conclude therefore
that AS 25.27 does not preclude the superior court from
exercising its statutory and inherent authority to enforce its
1998 child support order decrees by ordering Edy to apply for his
permanent fund dividends.
IV. CONCLUSION
For these reasons we REVERSE the July 1, 2003 order and
REMAND for consideration of whether the circumstances warrant
issuing the requested order. Given our decision to remand, we
need not address CSEDs procedural due process arguments.
_______________________________
1 Sec. Pac. Bank, N.A. v. Haines Terminal & Highway Co.,
869 P.2d 156, 158 (Alaska 1994).
2 See Granato v. Occhipinti, 602 P.2d 442, 446 (Alaska
1979) (Boochever, J., dissenting) ([O]rdering home studies [in
private custody cases] falls within the broad scope of [the]
statutory authority under AS 22.10.020.).
3 Johnson v. Johnson, 544 P.2d 65, 72 (Alaska 1975).
4 Id.
5 Id. (footnote omitted).
6 Id. (quoting Goodsell v. Goodsell, 228 P.2d 155, 157
(Wash. 1951)).
7 Johnson, 544 P.2d at 72. See also Zito v. Zito, 969
P.2d 1144, 1146 (Alaska 1998) (holding that superior court has
inherent authority to approve post-dissolution qualified domestic
relations order to effectuate agreement incorporated in original
dissolution order to divide marital interest in retirement
benefits); Wahl v. Wahl, 945 P.2d 1229, 1232 (Alaska 1997)
(holding that it was within superior courts inherent power to
award survivor annuity to appellee where divorce agreement
entitled her to part of appellants entire retirement annuity).
8 Horchover v. Field, 964 P.2d 1278, 1285 (Alaska 1998).
9 Id. at 1284.
10 See Ralston v. State, Child Support Enforcement Div.,
728 P.2d 635, 637 (Alaska 1986) (discussing predecessor AS
47.23).
11 AS 25.27.062.
12 AS 25.27.070.
13 AS 25.27.230.
14 AS 25.27.244; AS 25.27.246.
15 Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066
(Alaska 1991).
16 Ellingstad v. State, Dept of Natural Res., 979 P.2d
1000, 1006 (Alaska 1999).
17 See Fairbanks N. Star Borough v. Dena Nena Henash, 88
P.3d 124, 130 (Alaska 2004) (interpreting constitutional language
to avoid superfluity).
