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