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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lawson v. Lawson (03/11/2005) sp-5876

Lawson v. Lawson (03/11/2005) sp-5876

     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


LEE LAWSON,                   )
                              )    Supreme Court No. S-11260
             Appellant,            )
                              )    Superior Court No.
     v.                       )    1SI-95-00225 CI
                              )
VALERIE LAWSON,               )    O P I N I O N
                              )
              Appellee.              )    [No. 5876 -  March  11,
2005]
                              )




          Appeal  from the Superior Court of the  State
          of  Alaska,  First Judicial District,  Sitka,
          Larry C. Zervos, Judge.

          Appearances:   Lee  Lawson,  pro   se,   Port
          Alexander,   Appellant.   No  appearance   by
          Appellee.

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

          FABE, Justice.


I.   INTRODUCTION

          Lee  Lawson appeals a superior court order denying  his

request  to  modify his child support obligation.  Lee challenges

the  constitutionality of Alaska Civil Rule 90.3 on  the  grounds

that:   (1)  this  court lacks the authority to  create  a  child

support rule; (2) Rule 90.3 is vague and overbroad; and (3)  Rule

90.3s financial disclosure requirements violate his rights to due

process and privacy and his right against self-incrimination.  We

affirm the decision of the superior court and hold that Rule 90.3

is constitutional.

II.  FACTS AND PROCEEDINGS

          Lee  Lawson and Valerie Lawson were living together  in

Sitka  in  February 1994 when their son, Kevin, was  born.   They

moved to Sacramento, California in October 1994 and continued  to

live  together until August 1995.  Valerie then decided to return

to Sitka with Kevin.  Lee came back to Alaska in the fall of 1995

and currently resides in Port Alexander.

          Superior  Court Judge Larry C. Zervos issued a judgment

in  July  1996 determining that Lee was Kevins biological  father

and  that he owed Kevin a duty of support.  On December 23, 1996,

Valerie  was  awarded legal and physical custody  of  Kevin;  Lee

received visitation rights.  On August 19, 1997, Lee was  ordered

to  pay $200 a month in child support, retroactive to January  1,

1997.   This  amount  was  increased  to  $311.01  per  month  on

September  15,  1998.   Lee requested multiple  modifications  of

child support between 1999 and 2000, but he failed to produce the

requisite documentation to support modification.  On October  12,

2000,   the   superior  court  again  denied  his   request   for

modification, finding that there was no evidence to support  that

he  was  involuntarily unemployed.  Child support was reduced  to

$218.68 in June 2001 but was increased in October 2002 to $439.10

when  Lee  found employment.  Support was revisited  in  June  of

2003;  the  superior  court reduced Lees  obligation  to  $217.88

following notice of his voluntary unemployment status.   On  July

7,  2003,  Lee submitted a motion requesting that he  be  excused

from  paying child support, but he offered no evidence  that  his

situation had changed since the courts last action in June  2003.

The superior court denied this motion on September 18, 2003.

          Lee had previously challenged the constitutionality  of

Rule 90.3 in June 2002.  Judge Zervos denied this challenge in  a

July  2002 order, relying on our decision in Coghill v. Coghill.1

Judge  Zervos reiterated this ruling in his September 2003 order.

Lee now appeals this order.2

III. STANDARDS OF REVIEW

          Constitutional questions and other questions of law are

reviewed de novo.3  Our duty is to adopt the rule of law that  is

most persuasive in light of precedent, reason, and policy.4

IV.  DISCUSSION

          Lee  raises seven issues on appeal that can be  grouped

into three challenges to the constitutionality of Rule 90.3 and a

request  that  we  overrule Coghill.  He  does  not  dispute  any

specific factual findings of the superior court.

     A.   There Is No Valid Ground To Overturn Coghill.

          In  Coghill, we addressed many of the issues raised  by

Lee  in  this appeal.  There we held that promulgation  of  Civil

Rule 90.3 did not violate the separation of powers doctrine.5  We

also  concluded  that  Civil  Rule  90.3  is  not  arbitrary  and

capricious,  and  does not violate either due  process  or  equal

protection   by  creating  a  presumption  against  non-custodial

parents.6   Lee now asks us to overrule our decision in  Coghill.

As  we  explained most recently in State v. Semancik,  [w]e  will

only  overrule a prior decision when clearly convinced  that  the

rule  was  originally erroneous or is no longer sound because  of

changed  conditions, and that more good than  harm  would  result

from  a  departure from precedent. 7  We conclude  that  Lee  has

failed to meet his burden of establishing either of the necessary

elements that would justify overruling Coghill.

          1.   Rule 90.3 is neither vague nor overbroad.

          Lee  argues  that  the  best  interests  of  the  child

provisions  of  Rule  90.3  are  unconstitutionally  vague.8   He

maintains  that [t]here is no statutory definition for  The  Best

Interest  of  the  Child and therefore it is  broad,  vague,  and

opinionated which makes the application of this phrase in a court

of law unconstitutional.  He also argues that  the term gives the

courts unrestricted power over the family unit.  We considered  a

similar  vagueness challenge to the child support  guidelines  in

Coghill and held that so long as judges and hearing commissioners

          continue to exercise their discretion to achieve equitable

results  consistent  with existing case law there  should  be  no

vagueness concern.9  The term best interests of the child  is  no

more  general  than  the terms good cause and manifest  injustice

that  survived a vagueness challenge in Coghill.10  Lee fails  to

demonstrate  how  the superior courts exercise of  discretion  in

this  case  was  unfair or inequitable, nor does  he  distinguish

Coghill.   We therefore conclude that Rule 90.3 is not vague  and

that our previous holding in Coghill was not clearly erroneous.

          2.   Rule 90.3 does not violate equal protection.

          Lee also contends that the sole purpose of Rule 90.3 is

for  the State to collect monies . . . .  He further argues  that

the  federal  child support scheme, 42 U.S.C.   658,  creates  an

incentive  and  rewards state [j]udges for taking  children  away

from  perfectly fit parents by telling [s]tate [j]udges that  the

[f]ederal government will pay the [s]tate 6% of what the  [j]udge

orders  the non-custodial parent to pay the custodial  parent  in

child  support.   Lee  classifies these  arguments  as  vagueness

challenges, but he does not point to language in the rule that is

unclear  or  overbroad.   Rather,  he  seems  to  object  to  the

classification  of  custodial  and  non-custodial  parents  as  a

violation of equal protection.

          We  have considered equal protection challenges to Rule

90.3 on previous occasions and have held each time that custodial

and non-custodial parents are not similarly situated for purposes

of child support.11  As we explained in Coghill, the commentary to

Rule  90.3  is  explicit  as to why non-custodial  and  custodial

parents  must be examined differently:  Applications of the  rule

should result in a non-custodial parent paying approximately what

the  parent  would have spent on the children if the  family  was

intact.   Integral  to  the  rule is  the  expectation  that  the

custodial parent will contribute at least the same percentage  of

income  to support the children.12  We see no reason to  conclude

that  our previous holding that the percentage of income approach

          has a fair and substantial relationship to the goals of Civil

Rule  90.313 was clearly erroneous or will cause more  harm  than

good.

          3.   Rule  90.3  does not violate the Fourth Amendment,
               Fifth  Amendment, or Alaskas constitutional  right
               to privacy.
               
          Lees  third challenge to the constitutionality of  Rule

90.3 concerns the requirement that a non-custodial parent provide

financial  documentation to the court.   He  contends  that  this

requirement violates his Fourth Amendment right to be  free  from

unreasonable searches;14 his Fifth Amendment right  to  not  give

testimony against himself;15 and his right to privacy as protected

by  the  Alaska Constitution.16  Lee fails to provide  any  legal

authority to support his claims.

          The United States Supreme Court has held that the chief

evil  the  Fourth Amendment is directed at preventing is physical

entry of the home.17  The Fourth Amendment is usually applied  in

cases  involving  police  searches made either  without  a  valid

warrant,18 without probable cause,19 or with excessive force.20  In

this  instance, Lee is asked to comply with a court order, not  a

police  investigation or search.  And the courts order  requiring

financial  information  is  designed  to  assist  the  court   in

establishing a non-custodial parents adjusted income in order  to

calculate the appropriate amount of child support as required  by

Rule 90.3.21  We conclude this does not constitute a search within

the meaning of the Fourth Amendment.

          The  core protection afforded by the self-incrimination

clause  of  the Fifth Amendment is a prohibition on compelling  a

criminal  defendant to testify against himself at  trial.22   Lee

fails  to  raise any argument to support a claim that  the  Fifth

Amendment   should   be  extended  to  child  support   financial

affidavits.   We  need not decide the precise boundaries  of  the

Fifth  Amendment  in  this case in order  to  conclude  that  the

submission of financial documentation does not violate the  Fifth

Amendment.

           Lees final argument is that his right to privacy under

the  Alaska  Constitution is violated by Rule  90.3s  requirement

that  he  disclose his income.  We rely on a three-part  test  to

determine  whether a persons privacy rights have  been  violated:

(1)   whether  a  party  seeking  protection  has  a   legitimate

expectation that materials or information will not be  disclosed;

(2)  whether  disclosure  is  nonetheless  required  to  serve  a

compelling state interest; and (3) if so, whether disclosure will

occur in the least-intrusive manner with respect to the right  to

privacy.23  Lee presents no evidence or arguments to indicate how

his right to privacy is violated under this test.  The purpose of

Rule 90.3s guidelines is to ensure that child support orders  are

adequate to meet the needs of children . . . .24  As noted in the

commentary  to  Rule  90.3,  [t]he obligation  to  provide  child

support  is  more important than the obligation to  fulfill  most

other  obligations.25  We explained in Koller v. Reft that  if  a

parent  who shares physical custody of a child could stop working

and  claim that his or her income could not be imputed . . . then

no  support would be provided for that child.  This result  would

be contrary to the very purpose of the Rule 90.3 guidelines.26  We

conclude  that the state has a compelling interest in  supporting

children.  Non-custodial parents are required to supply financial

information because it is necessary for the courts to  have  this

information  in order to calculate adequate child support.27   We

therefore  conclude that the disclosure of financial  information

does not violate Alaskas constitutional right to privacy.

          Lee  has  not  demonstrated that  Coghill  was  clearly

erroneous  when it was decided or that more good than harm  would

result from a departure from established precedent.  Lee has also

not  advanced  a  single  argument to  demonstrate  that  changed

conditions  exist  since Coghill that would  justify  overturning

established precedent.  We therefore are not persuaded to  depart

from principles of stare decisis and abandon our prior holding in

Coghill.

     B.   Rule 90.3 Does Not Violate Separation of Powers.

          Lee also argues that this court lacks the authority  to

promulgate  Rule  90.3 or require non-custodial  parents  to  pay

child  support.   He questions whether we have the  authority  to

write  a rule, apply it as law, and decide its constitutionality.

We  answered this contention in Coghill.  We held that Civil Rule

90.3  was  an  interpretative rule promulgated under article  IV,

section 1 of the Alaska Constitution, vesting the judicial  power

of  the state in this court.28  Inherent in the judicial power is

the  authority  to make rules of interpretation that  govern  how

courts   interpret  constitutional,  statutory,  or  common   law

requirements.29  We explained in Coghill that

          Alaska Statute 25.24.160 allows courts to set
          child  support  awards as  may  be  just  and
          proper  for the parties to contribute  toward
          the  nurture and education of their children.
          Civil  Rule 90.3 interprets this statute  and
          establishes  guidelines to enable  courts  to
          determine   what   is  a  just   and   proper
          contribution.   Establishing such  guidelines
          recognizes  the  need for  uniformity  across
          income levels;  however, the guidelines  also
          recognize  that  unique  circumstances  might
          require variance from the guidelines.[30]
          
Similarly,  in  Koss  v. Koss, we cited language  from  the  1977

session laws that enacted the Child Support Enforcement Act31  as

additional   evidence   that  the  legislature   authorized   the

enforcement  of child support obligations by the  courts.32   The

legislature  stated  that  the common  law  and  Alaska  statutes

pertaining  to  the establishment and enforcement  of  the  child

support obligations shall be augmented by additional remedies  in

order to meet the needs of minor children.33

          Lee  relies  on  Justice Burkes dissent in  Coghill  as

support  for his argument that the creation of Rule 90.3  was  an

exercise of legislative power by the courts.34  But the rationale

of the dissent in Coghill was fully addressed and rejected by the

majority  opinion in that case.  Further, the Alaska  Legislature

has  on  multiple  occasions since our 1992  holding  in  Coghill

          ratified the courts child support enforcement powers.  For

example, the legislature has amended Rule 90.3 a number of  times

since  1995, including most recently in 2004.35  Each  time,  the

legislature  had the ability to alter or supersede provisions  of

Rule  90.3  via legislation, but at no point did the  legislature

question  this courts ability to order child support.  Additional

statutory  authority for court-ordered child support is evidenced

in AS 25.27.060,36 AS 25.27.070,37 and AS 25.27.080.38  Lee presents

no  basis for us to overrule our previous holding in Coghill that

Rule 90.3 does not violate separation of powers.

V.   CONCLUSION

          Because Rule 90.3 is constitutional and Lee has  failed

to provide any evidence or arguments that warrant reconsideration

of our established precedent, we AFFIRM the superior courts order

in its entirety.

_______________________________
     1    836 P.2d 921, 927-30 (Alaska 1992).

     2     Valerie  filed  a  notice of  non-participation  under
Alaska Appellate Rule 204.

     3    See, e.g., Langdon v. Champion, 745 P.2d 1371, 1372 n.2
(Alaska 1987).

     4    Id.

     5    836 P.2d at 928.

     6    Id. at 928-30.

     7     99  P.3d  538,  540 (Alaska 2004)  (quoting  State  v.
Fremgen, 914 P.2d 1244, 1245 (Alaska 1996)).

     8    The two provisions of Civil Rule 90.3 that mention best
interests of the child are:

               (c)(3)  In addition to ordering a parent
          to pay child support as calculated under this
          rule,   the   court   may,   in   appropriate
          circumstances, order one or more grandparents
          of  a  child  to  pay  child  support  to  an
          appropriate person in an amount determined by
          the  court to serve the best interests of the
          child.
          
               . . . .

               (k)   .  . . The court may allocate  the
          dependent   tax  deduction  for  each   child
          between the parties as is just and proper and
          in the childs best interests.
          
     9     Coghill,  836  P.2d  at  929  (quoting  Fitzgerald  v.
Fitzgerald, 566 A.2d 719, 732 (D.C. App. 1989)).

     10     Id.; see also Williams v. State, Dept of Revenue, 895
P.2d  99,  105-06  (Alaska 1995) (extraordinary and  unusual  not
vague);  R.C.  v. State, Dept of Health & Soc. Servs.,  760  P.2d
501,  506  (Alaska  1988)  (citing  other  cases  finding  unfit,
improper,  neglected, basic, essential and necessary  needs,  and
reasonable parental care not vague); Storrs v. State Medical Bd.,
664 P.2d 547, 549-50 (Alaska 1983) (professional incompetence not
vague).

     11     Arnesen v. Anchorage Refuse, Inc., 925 P.2d 661,  668
(Alaska  1996)  (holding  [c]ustodial  parents  qualify  for  the
personal  exemption because they care for the  children  for  the
better  part  of  the  year) (citing Coghill,  836  P.2d  at  929
(finding  child support only implicates an economic interest  and
the  rule satisfies rational basis review)).  Cf. State, Dept  of
Revenue,  Child Support Enforcement Div. v. Beans, 965 P.2d  725,
729   (Alaska   1998)  (holding  child  support  obligors   equal
protection   rights  were  not  violated  by   statute   allowing
suspension of license for failure to pay child support).

     12     Alaska  Civil  Rule  90.3, Commentary  II;  see  also
Coghill, 836 P.2d at 930 (quoting Commentary to Rule 90.3).

     13    Coghill, 836 P.2d at 930.

     14     The Fourth Amendment states:  The right of the people
to  be  secure  in  their persons, houses, papers,  and  effects,
against  unreasonable  searches  and  seizures,  shall   not   be
violated,  and no Warrants shall issue, but upon probable  cause,
supported by Oath or affirmation, and particularly describing the
place  to  be searched, and the persons or things to  be  seized.
U.S. Const. amend. IV.

     15     The Fifth Amendment guarantees that no person .  .  .
shall  be compelled in any criminal case to be a witness  against
himself . . . .  U.S. Const. amend. V.

     16     The Alaska Constitution was amended in 1972 to  read:
Right  of  Privacy.   The  right of  the  people  to  privacy  is
recognized  and  shall not be infringed.  Alaska Const.  art.  I,
22.

     17    See Payton v. New York, 445 U.S. 573, 585 (1980).

     18    See, e.g., Groh v. Ramirez, 540 U.S. 551, 555-56 (2004)
(explaining  that  Fourth Amendment requires particularity  in  a
warrant for it to be facially valid).

     19    See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318,
354  (2001) (If an officer has probable cause to believe that  an
individual  has committed even a very minor criminal  offense  in
his  presence,  he  may, without violating the Fourth  Amendment,
arrest the offender.).

     20     See, e.g., Graham v. Connor, 490 U.S. 386, 388 (1989)
(holding  that  excessive  force claim  properly  analyzed  under
Fourth Amendment).

     21    Civil Rule 90.3(a) states:  A child support award in a
case in which one parent is awarded primary physical custody .  .
.  will  be calculated as an amount equal to the adjusted  annual
income  of  the non-custodial parent multiplied by  a  percentage
specified in subparagraph (a)(2).

     22    United States v. Patane, 124 S. Ct. 2620, 2626 (2004).

     23     Alaska  Wildlife Alliance v. Rue, 948 P.2d  976,  980
(Alaska  1997)  (citing  Jones v. Jennings,  788  P.2d  732,  738
(Alaska 1990)).

     24    Koller v. Reft, 71 P.3d 800, 806 (Alaska 2003) (quoting
Alaska Rule 90.3 Commentary II.B)).

     25    Alaska Civil Rule 90.3 Commentary VI.B(4).

     26    71 P.3d at 806.

     27     Moreover,  a non-custodial parent is always  free  to
request  that confidential financial records such as tax  returns
be  placed  in  a  confidential envelope in the  court  file  and
withheld from the public record.

     28    Coghill, 836 P.2d at 927.

     29    Id.

     30    Id. (citations omitted); AS 25.24.160(a)(1).

     31    Ch. 126,  1, SLA 1997.

     32     Koss v. Koss, 981 P.2d 106, 108 & n.13 (Alaska  1999)
(discussing  how  the Child Support Enforcement  Division  (CSED)
supplements judicial powers of enforcement); see also Anderson v.
Anderson, 736 P.2d 320, 323 n.2 (Alaska 1987).

     33     See  Anderson, 736 P.2d at 323 n.2 (quoting  language
from ch. 126,  1, SLA 1977).

     34    See Coghill, 836 P.2d at 930 (Burke, J., dissenting).

     35    The 1995 amendment to AS 25.27.166(d) amends Rule 90.3
by  allowing retroactive modification of child support  arrearage
under  certain circumstances.  See Alaska Civil Rule  90.3  note.
The  1996  amendment to AS 25.27.195 amends the rule by  allowing
CSED to retroactively modify an obligors arrearages when an order
is  vacated  because it was not based on an obligors  ability  to
pay.   See  id.   The  1997 amendment to AS 25.24.170(b)  amended
Civil   Rule   90.3   by  altering  the  standard   for   certain
modifications  of  a  support order.  See  id.   Support  may  be
modified  without a showing of a material change in circumstances
as  necessary to comply with federal law.  The 2000 amendment  to
AS  25.20.050 amends the rule by requiring the court to  issue  a
temporary  child support order in a paternity action where  there
is  a showing of paternity by clear and convincing evidence.  See
id.   In  2004 several amendments were made to the child  support
statutes,   including  a  provision  altering  the  grounds   for
modifying a support order.  See id.

     36     AS 25.27.060, entitled Order of support, details when
an  order for child support may be issued by a court and  what  a
court should consider when issuing such an order.

     37     AS  25.27.070,  entitled Order to  assign  wages  for
support,  authorizes a court on its own motion or the  motion  of
either  party to assign a portion of the salary of either  parent
in order to pay the amount ordered by the court for support.

     38      AS   25.27.080,  entitled  Enforcement  of   support
orders,authorizes the child support enforcement  agency  to  take
all  necessary  action  permitted by law  to  enforce  the  child
support  orders so entered, including petitioning the  court  for
orders to aid in the enforcement of child support.