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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ray v. Ray (07/01/2005) sp-5918

Ray v. Ray (07/01/2005) sp-5918

     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


JAMES DWAYNE RAY,        		)
                              			)    Supreme Court No. S-11269
             Appellant,            		)
                              			)    Superior Court No. 3AN-92-2426CI
     v.                       			)
                              			)    O P I N I O N
MARGARET ETTA RAY,       		)
                              			)    [No. 5918 - July 1, 2005]
             Appellee.             		)
                              			)



          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Suddock, Judge.

          Appearances:    Justin  R.  Eschbacher,   Law
          Offices  of  G.R. Eschbacher, Anchorage,  for
          Appellant.   Leroy  K. Latta  Jr.,  Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellee,  State  of  Alaska,  Child  Support
          Enforcement Division.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

          James  Ray argues that because the superior court found

in  1993  that James was not the father of C.R., the  1995  order

requiring him to pay child support for C.R. was void for lack  of

subject  matter jurisdiction.  He therefore argues that  when  he

moved  in 2003 for relief from the 1995 order, Alaska Civil  Rule

60(b)(4)  entitled  him  to retroactive relief.   We  affirm  the

denial  of  his  motion  for  retroactive  relief.   Even   after

biological  paternity was disestablished in 1993, the  court  had

subject  matter  jurisdiction to enter the  1995  support  order.

James   raises  no  other  theory  that  would  entitle  him   to

retroactive relief.

II.  FACTS AND PROCEEDINGS

          Margaret  Ray  gave birth to four children  during  her

marriage  to  James Ray. James Rays March 1992 divorce  complaint

alleged  that  the youngest child, C.R., was not  his  biological

son, but that he love[d] and treat[ed] the child as [his] natural

child.  His  supporting affidavit stated:  I . .  .  am  not  the

natural  father of [C.R.] although I do love the child  and  have

treated  him  as my own and as part of the family.  On  April  1,

1992 Superior Court Judge Elaine M. Andrews awarded James interim

custody of all four children.  Master Andrew Brown heard evidence

and  argument  on  May 3, 1993 concerning the divorce  and  child

custody,  and  issued a report containing proposed  findings  and

conclusions.   The  report found that C.R. was  a  child  of  the

marriage, but it also contained this passage concerning C.R.:

          At  the  May 3, 1993 hearing, Ms. Ray  raised
          the  allegation that [C.R.] might not be  Mr.
          Rays  child.   However,  this  is  a  default
          judgment  case due to the fact that  Ms.  Ray
          did  not  file an answer, so she may not  now
          raise  any  legal issue of paternity.   Also,
          the  evidence shows that Mr. Ray has been the
          only  father figure in [C.R.s] life,  whether
          or not he is the childs biological father.
          
          The  superior  court approved the report and  dissolved

the marriage on June 4, 1993.

          By agreement approved by the superior court, custody of

all four children was transferred to Margaret on August 30, 1993.

The  court  required James to pay child support totaling  $900  a

month  but  did  not  explain  how  it  derived  that  figure  or

specifically whether that figure included support for  C.R.1   On

December  23,  1993,  Superior Court  Judge  Peter  A.  Michalski

entered  findings and a custody and visitation order that  stated

that  both parties acknowledge that James Dwayne Ray is  not  the

          biological father of [C.R.].  The courts order also found that a

father-son  relationship  does  exist  and  the  child  shall  be

included  as  a  child of the parties marriage  for  purposes  of

custody  and  visitation.  These findings were incorporated  into

the courts final divorce decree of December 23, 1993.

          In late 1994 James Ray, through counsel, filed a motion

asking  the  court  to  establish his child  support  obligation.

James  also  submitted a child support guidelines affidavit  that

stated that he owed $539.52 a month for support of four children.

Jamess  application for the services of the Alaska Child  Support

Enforcement Division (CSED) stated that he was the father of C.R.

In  early 1995 Superior Court Judge Rene J. Gonzalez entered  the

child  custody and support order that James had proposed.   There

was no objection to or appeal from this order.

          On  May  13,  2003, James Ray filed a pro  se  superior

court   motion   seeking  a  change  of  custody,  support,   and

visitation, a combined affidavit and memorandum, and  a  proposed

order.  His motion asked the court to stop all child support  for

C.R.  retroactive to the date of the divorce and stated that C.R.

was  not  his  biological or adopted son.  James alleged  in  his

motion  that  he had not been given visitation rights  as  court-

ordered and that he had been allowed to see C.R. only three times

since  the  divorce.   His  supporting affidavit  and  memorandum

alleged  that C.R. was included in the divorce order  because  it

had  been  determined  that  there  was  an  existing  father-son

relationship.   Jamess affidavit also stated that the  father-son

relationship  was  stopped when [C.R.s  mother]  left  the  state

within  a  week  of divorce and never allowed me visitation  with

[C.R.].    [C.R.s] father-son relationship was at  the  time  and

still  is  with  Leo Pettit.  Jamess proposed order  stated  that

James  Dwayne  Ray  is not the biological father  of  [C.R.].   A

father-son relationship does not exist.

          CSED  argued  in opposition that laches  barred  Jamess

motion  and  that  he had not shown a right to relief  under  any

subsection  of  Civil Rule 60(b).  CSED also  contended  that  if

James  were  to prevail, he would still owe arrearages  and  that

only prospective relief would be available to him.

          Superior Court Judge John Suddock denied Jamess  motion

for the reasons set forth in CSEDs opposition and commented:

          A  stepfather who agrees to pay support for a
          stepchild is subject to Alaska Rule of  Civil
          Procedure 90.3.  Plaintiff has shown no basis
          under  that rule for a modification of  child
          support.   A parent cannot simply  abandon  a
          child,   even   if  the  parent   is   denied
          visitation.  Mr. Rays remedy if he  wants  to
          visit  with the child is to make a Motion  to
          Enforce  the  prior visitation order,  or  to
          enter   a  new  order  in  light  of  changed
          circumstances.[2]
          
          James,  by now again represented by counsel, moved  for

reconsideration, alleging that he was entitled to relief  because

the  1995  child  support  order was void.   The  state  opposed,

arguing  both  that there is no evidence that Mr. Rays  paternity

has  ever been disestablished and that the support order was  not

void  because he had sought the order and did not appeal when  it

was  entered.  James replied through counsel, claiming that Judge

Michalskis  1993  order made it clear that James  was  not  C.R.s

biological father.  He also argued that his request for  a  child

support   order  was  at  most  based  on  a  promise  that   was

unenforceable  for lack of consideration.  Judge  Suddock  denied

reconsideration, reasoning:

          A  child  born during a marriage is  presumed
          the  child  of the husband.  The Court  never
          established as a matter of fact that this was
          not  the  case, even though the parties  took
          that  position.   Such  a  determination  was
          irrelevant,  because Mr.  Ray  wished  to  be
          deemed the father, with rights of visitation.
          He   affirmatively  moved  to  have  a  child
          support  order  put in place, and  raised  no
          objection  to  inclusion of [C.R.]  with  the
          three undisputed children of the marriage.
          
The  court  instructed James to have a DNA test if he  wished  to

disestablish  paternity; he could then move to terminate  support

prospectively.

          James appeals.

III. STANDARD OF REVIEW

          Because  the legal effect of a courts findings of  fact

is  a question of law, we review de novo the question whether the

superior  courts 1993 findings regarding custody  and  visitation

was  sufficient to disestablish Jamess paternity of C.R.3  Denial

of  an Alaska Civil Rule 60(b) motion and denial of a motion  for

reconsideration  will only be disturbed if the court  has  abused

its discretion.4  A superior court abuses its discretion when  we

are  left with a definite and firm conviction on the whole record

that the trial judge has made a mistake.5  Whether a judgment  is

void under Alaska Civil Rule 60(b)(4) is a question of law.6   In

resolving a question of law, we exercise our independent judgment

and  adopt  the rule of law that is most persuasive in  light  of

precedent, reason, and policy.7

IV.  DISCUSSION

     A.   Whether Biological Paternity Was Disestablished  Before
          Entry of the Support Order
          
          James  contends  that  he was entitled  to  retroactive

relief from the 1995 support order because it is void for lack of

subject  matter  jurisdiction.  He bases this contention  on  the

1993 order which, he claims, disestablished his paternity of C.R.

and  consequently deprived the superior court of jurisdiction  to

require him to pay child support for C.R.  We first consider  his

underlying assertion, that paternity was disestablished in 1993.

          Although the husband of a married woman is presumed  to

be the father of any child born to the wife during the marriage,8

this   presumption  can  be  overcome  by  clear  and  convincing

evidence.9  James was presumed to be C.R.s father because he  was

married  to  C.R.s  mother when C.R. was  born.   Jamess  divorce

complaint  and supporting affidavit stated that he  was  not  the

natural father of [C.R.].  The courts 1993 findings and order  on

custody  and  visitation found that [t]hree minor  children  were

born  to  the  parties of the marriage10 and  that  both  parties

          acknowledge that James Dwayne Ray is not the biological father of

[C.R.].   These  1993  findings were sufficient  to  disestablish

Jamess biological paternity with regard to C.R.  At no subsequent

time  did  the superior court enter a finding that re-established

Jamess biological paternity of C.R.

          It  was therefore technically incorrect to hold in 2003

that the superior court had never established as a matter of fact

that James Ray was not C.R.s father.  Likewise, the order denying

reconsideration  incorrectly stated that  James  was  deemed  the

father  in  fact, until he successfully disestablishes  paternity

with a DNA test.11

     B.    The  Superior Court Had Authority To  Enter  the  1995

Support Order.

          Having  concluded that Jamess biological  paternity  of

C.R. was disestablished in 1993, we next consider Jamess argument

that  disestablishment ended any duty to support C.R.,  entitling

him  to  Alaska  Civil Rule 60(b) relief from  the  1995  support

order.12

          James argues that he may have mistakenly thought he had

a  duty  to  support  C.R.,  that his  prior  attorney  may  have

mistakenly included C.R. on the child support order, and that  he

may  simply have wanted to place in writing a promise to  support

C.R.  We do not know what motivated James to include C.R. in  his

1995  motion  to establish child support.  If any of his  present

explanations  is  correct, James had ample  opportunity  to  seek

correction  of  his mistake after entry of the support  order  in

1995.   Rule  60(b)(1)  allows relief from a  judgment  based  on

mistake,  inadvertence,  surprise or  excusable  neglect  if  the

motion for relief is filed not more than one year after the  date

of  notice  of the judgment or orders.  But James never  filed  a

timely  motion for relief under Rule 60(b)(1) and  he  filed  his

2003 motion long after the one-year deadline had passed.13

          Jamess main argument is that the 1995 support order was

void.   He  reasons that the disestablishment order deprived  the

          court of subject matter jurisdiction to enter an order requiring

James  to support C.R.  Alaska Civil Rule 60(b)(4) permits relief

from  a  void judgment if the issuing court lacked subject matter

jurisdiction  or violated due process.14  Void judgments  may  be

attacked at any time.15

          James  reasons  that  because his  paternity  had  been

disestablished,  the  superior court had no  authority  under  AS

25.24.160(a) to impose a support order for C.R.16  Although it is

true that the language of this statute only explicitly authorizes

entry  of   support  orders for children  of  the  two  divorcing

parties,  we  have previously enforced support orders  that  fall

outside the statutes plain language.17

          We  have  already rejected a nearly identical argument.

In  J.C.  v.  M.L.C., the non-biological father argued  that  the

superior court did not have subject matter jurisdiction to  enter

a  support order because the child was not of the marriage.18  We

held  that,  because the parties are residents of  the  State  of

Alaska  and  the  superior court is competent to render  judgment

concerning child custody and support, the superior court did  not

lack subject matter jurisdiction.19

          In late 1994 James voluntarily filed documents with the

superior  court  listing C.R. as his child.   The  child  support

guidelines affidavit he filed with his motion to establish  child

support  asked  the  court  to impose  a  monthly  obligation  of

$539.52.   This amount was calculated by multiplying Jamess  1993

income  by  0.36,  the multiplier that applies  when  support  is

calculated for four children.20  As we said in J.C., Jamess motion

could  be  interpreted  as  an agreement  to  support  the  child

regardless  of  its  paternity.  We know of  no  reason  why  the

superior court would lack authority to enforce such an agreement.21

          We therefore reject Jamess contention that it was error

to deny him relief under Rule 60(b)(4).

     C.   We  Need  Not Consider Jamess Pro Se Claim  of  Changed
          Circumstances.
          
          At  oral argument we were told that the superior  court

          granted James relief after a genetic paternity test established

that  he  was not C.R.s biological father.  The appellate  record

does  not  contain the order; it was apparently entered  sometime

after  James  served his pro se modification motion  on  May  13,

2003.  If so, it potentially raises a  question of whether relief

should  have  become effective as of the service date  of  Jamess

motion.   Relief from that date forward would not  have  violated

the  prohibition  on retroactive modification  of  child  support

orders.22

          But  James does not argue on appeal that the change-of-

circumstances  grounds cited in his May 13, 2003 motion  entitled

him to relief; he has therefore waived any such issue.

          Moreover,  such  an argument would be  meritless.   His

2003 motion papers alleged that the 1995 support order should  be

modified  because he was denied visitation with  C.R.   But  they

also stated that his relationship with C.R. changed within a week

of  the  divorce, long before the support order  was  entered  in

early  1995.   Jamess 2003 motion therefore did not allege  facts

establishing that circumstances changed after entry of  the  1995

support order.23

V.   CONCLUSION

          Because  the superior court had jurisdiction  to  enter

the  1995  child  support order, it was not void.   The  superior

court  therefore correctly denied Jamess request for  retroactive

relief.  AFFIRMED.

_______________________________
     1     Judge Andrews based her support order on Master Browns
oral  recommendation.   It appears that  Master  Brown  used  the
multiplier  for four children rather than for three to  calculate
Jamess $900-a-month support payment.  This suggests that C.R. was
included in the support award.

     2     Civil  Rule 90.3 governs the procedure for imposing  a
child  support  award  on a non-custodial parent.   Rule  90.3(h)
dictates  when an existing child support award can  be  modified.
This subpart states:

          (1)   Material  Change of  Circumstances.   A
          final  child  support award may  be  modified
          upon  a  showing  of  a  material  change  of
          circumstances as provided by  state  law.   A
          material  change  of  circumstances  will  be
          presumed if support as calculated under  this
          rule  is more than 15 percent greater or less
          than the outstanding support order. . . .
          (2)    No  Retroactive  Modification.   Child
          support   arrearage  may  not   be   modified
          retroactively,  except  as  allowed   by   AS
          25.27.166(d). . . .
          
     3    State v. Wetherelt, 931 P.2d 383, 387 (Alaska 1997).

     4     Dewey  v.  Dewey (Dewey I), 886 P.2d 623, 626  (Alaska
1994).   See  also  Neal & Co., Inc. v. Assn.  of  Vill.  Council
Presidents Regl Hous. Auth., 895 P.2d 497, 506 (Alaska 1995).

     5    Jensen v. Froissart, 982 P.2d 263, 266 (Alaska 1999).

     6    Id.

     7    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     8    AS 18.50.160(d) provides:

          If  the  mother  was married  at  conception,
          during  the pregnancy, or at birth, the  name
          of  the  husband  shall  be  entered  on  the
          certificate as the father of the child unless
          (1)   paternity has been lawfully  determined
          otherwise  by a tribunal, in which  case  the
          name  of  the  father,  if  determined  by  a
          tribunal, shall be entered; or
          (2)   both  the  mother and  mothers  husband
          execute affidavits attesting that the husband
          is not the father and that another man is the
          father,  and  the mother and  the  other  man
          execute  affidavits attesting that the  other
          man is the father . . . .
          
     9     Wetherelt, 931 P.2d at 387; Smith v. Smith,  845  P.2d
1090, 1092 (Alaska 1993).

     10    Neither party disputed the paternity of the other three
children born during the marriage.

     11    We have been informed that a DNA test was subsequently
performed,  and that the superior court relied on  that  test  in
granting James prospective relief from the 1995 support order.

     12    Civil Rule 60(b) states:

          On  motion  and upon such terms as are  just,
          the  court  may relieve a party or  a  partys
          legal  representative from a final  judgment,
          order,   or   proceeding  for  the  following
          reasons:     (1)     mistake,   inadvertence,
          surprise or excusable neglect;
               (2)  newly discovered evidence which  by
          due  diligence could not have been discovered
          in  time  to move for a new trial under  Rule
          59(b);      (3)   fraud  (whether  heretofore
          denominated    intrinsic    or    extrinsic),
          misrepresentation, or other misconduct of  an
          adverse  party;  (4)  the judgment  is  void;
          (5)    the   judgment  has  been   satisfied,
          released, or discharged, or a prior  judgment
          upon  which it is based has been reversed  or
          otherwise   vacated,  or  it  is  no   longer
          equitable  that  the  judgment  should   have
          prospective application; or   (6)  any  other
          reason  justifying relief from the  operation
          of  the  judgment.The motion  shall  be  made
          within  a  reasonable time, and  for  reasons
          (1), (2) and (3) not more than one year after
          the  date of notice of the judgment or orders
          as defined in Civil Rule 58.1(c). . . .
          
     13    His 2003 pro se motion papers cited no rule in support;
his  lawyers motion for reconsideration characterized the pro  se
motion as having sought relief under Civil Rule 60(b)(4), on  the
theory   the  support  order  was  void,  and  seems  to  disavow
requesting relief under any other Rule 60(b) subpart.

     14    State v. Maxwell, 6 P.3d 733, 736 (Alaska 2000).  James
does  not argue that the superior court violated his due  process
rights.

     15     Dewey  v.  Dewey (Dewey II), 969 P.2d  1154,  1159-60
(Alaska 1999).

     16    AS 25.24.160(a) states:

          In  a  judgment in an action for  divorce  or
          action  declaring a marriage void or  at  any
          time after judgment, the court may provide
            (1)  for  the  payment by  either  or  both
          parties  of an amount of money or  goods,  in
          gross  or installments that may include cost-
          of-living  adjustments, as may  be  just  and
          proper  for the parties to contribute  toward
          the  nurture and education of their children,
          and  the  court  may  order  the  parties  to
          arrange with their employers for an automatic
          payroll  deduction  each month  or  each  pay
          period,  if the period is other than monthly,
          of  the  amount  of the installment;  if  the
          employer  agrees,  the installment  shall  be
          forwarded by the employer to the clerk of the
          superior  court that entered the judgment  or
          to  the court trustee, and the amount of  the
          installment is exempt from execution . . . .
          
     17     See  Dewey II, 969 P.2d at 1160 (enforcing  voluntary
agreement to support stepchild).  See also T.P.D. v. A.C.D.,  981
P.2d  116,  121  (Alaska 1999) (acknowledging that  paternity  by
estoppel can give rise to duty to support non-biological  child);
J.C.  v.  M.L.C.,  668 P.2d 1351, 1353 (Alaska  1983)  (upholding
agreement to support non-biological child).

     18    J.C. v. M.L.C., 668 P.2d 1351, 1353 (Alaska 1983).

     19    Id.

     20     Alaska Civil Rule 90.3(a) provides that the amount of
the child support award is:

          the   adjusted  annual  income  of  the  non-
          custodial  parent multiplied by a percentage.
          . . .
          (2)    The  percentage  by  which  the   non-
          custodial  parents adjusted  income  must  be
          multiplied  in order to calculate  the  child
          support award is:
          (A)  20% (.20) for one child;
          (B)  27% (.27) for two children;
          (C)  33% (.33) for three children; and
          (D)   an  extra 3% (.03) for each  additional
          child.
          
     21    J.C., 668 P.2d at 1353.

     22    Alaska R. Civ. P. 90.3(h)(2).

     23     See  Bunn  v. House, 934 P.2d 753, 758 (Alaska  1997)
(listing  factual situations that satisfy the material change  in
circumstances  requirement of Civil Rule 90.3); Arndt  v.  Arndt,
777  P.2d  668,  670  (Alaska  1989) (considering  alteration  in
custody   arrangement   in  material  change   of   circumstances
analysis).