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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Crumpler v. State, Dept. of Revenue, CSED (07/22/2005) sp-5927

Crumpler v. State, Dept. of Revenue, CSED (07/22/2005) sp-5927

     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


KELLY TODD CRUMPLER, )
) Supreme Court No. S- 11428
Appellant, )
) Superior Court No.
v. ) 3AN-03-11163 Civil
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF REVENUE, )
CHILD SUPPORT ENFORCEMENT ) [No. 5927 - July 22, 2005]
DIVISION ex rel. REBECCA C. )
ARMSTRONG, )
)
Appellee. )
)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances: D. Scott Dattan, Law  Office  of
          D.  Scott  Dattan, Anchorage, for  Appellant.
          D.   Kevin   Williams,   Assistant   Attorney
          General,  Anchorage,  and  Gregg  D.  Renkes,
          Attorney General, Juneau, for Appellee.

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

          PER CURIAM.

I.   INTRODUCTION
          The  Child  Support Enforcement Division (CSED)  sought
modification of a fathers child support obligation.  The superior
court ordered modification retroactive to the date the father was
served   with   notice  of  CSEDs  petition   for   modification.
Contending  that  he  never  received CSEDs  notice,  the  father
appeals the superior courts decision.  Because the father  failed
to  establish  good  cause  for  deviating  from  the  rule  that
modification relates back to the date of the notice, and  because
the  superior  court  made  explicit  findings  that  the  father
actually  did  receive  notice, we affirm  the  decision  of  the
superior court.
II.  FACTS AND PROCEEDINGS
          Kelly  Todd  Crumpler  married  Rebecca  Armstrong   in
Wyoming in 1984. They have two children, Kelly Todd Crumpler  II,
born September 24, 1984, and Jennifer Beth Crumpler, born January
22,  1988.  Crumpler and Armstrong divorced in Wyoming  in  1989.
The  parties stipulated that Crumpler would pay $50  a  month  of
child  support  while  he was attending college  but  that  child
support  would  increase to $100 a month after he  left  college.
This  stipulation was incorporated in the Wyoming divorce decree;
both  of these documents were registered with the Alaska superior
court on September 3, 2003.
          At some point the parties moved from Wyoming:  Crumpler
settled  in  Alaska  while Armstrong ultimately  moved  to  North
Carolina.    In  October  2002  North  Carolinas  child   support
enforcement  division requested Alaskas assistance  in  modifying
and  enforcing  the  original Wyoming enforcement  order.   North
Carolinas request listed Crumplers address as 330 Old Steese  Hwy
#721,  Fairbanks,  AK  99701.  According  to  the  request,  this
address  was  last confirmed on March 22, 2002.   On December  3,
2002,  CSED  mailed  a  notice of petition  for  modification  to
Crumplers Fairbanks address.  On January 15, 2003, CSED mailed  a
notice  of adjustment to the Fairbanks address totaling Crumplers
arrears at $24,606.87.  Crumpler maintains that he never received
either notice.  He contends that he moved to Anchorage at the end
of  2001  and  began  a new job in January 2002.   CSEDs  records
indicate that neither notice was returned as undeliverable by the
postal service.
          The  record  demonstrates that additional communication
between  CSED, Crumpler, and the superior court occurred on:  (1)
July  21,  2003,  when Crumpler called CSED to inquire  about  an
arrears  statement  he  received; (2)  August  7,  2003,  when  a
withholding notice was sent by CSED to Crumpler; (3)  August  19,
2003, when  Crumplers attorney called CSED to discuss the arrears
amount;  (4)  September 10, 2003, when the superior  court  clerk
notified  Crumpler  that  the Wyoming  child  support  order  was
registered with the Alaska superior court; and (5) September  16,
2003, when Crumpler called CSED to obtain a status report.
          On  September 26, 2003, CSED learned through  Crumplers
employer  that his mailing address had changed to an Eagle  River
address.  During this time period, Crumplers copy of the petition
to  register  the  Wyoming child support order  was  returned  as
undeliverable.  A second copy was mailed to Crumplers  new  Eagle
River  address on September 29, 2003.  On October 6, 2003,  CSED,
through  the Attorney Generals Office, filed a motion  to  modify
the  Wyoming child support order to $723 per month in  accordance
with  Alaska  Civil  Rule 90.3, effective  January  1,  2003.  An
evidentiary  hearing on the motion to modify  child  support  was
held  on January 14, 2004.  Crumpler admitted at the hearing that
he  had  not  paid  child support since July  1997,  despite  his
knowledge  of  his  obligation to pay $200 per  month.   Superior
Court Judge Sharon L. Gleason issued oral findings at the time of
the hearing, determining that CSED established by a preponderance
of  the evidence that notice was sent to Mr. Crumpler on December
3, 2002.  The superior court concluded that there was no evidence
that the notice was returned by the postal service and that there
was no statutory requirement that the notice be sent by certified
mail.
          Crumpler filed a motion for reconsideration on  January
21,  2004, asserting that service of the notice was not  actually
achieved  until after the hearing on January 15, 2004.   Crumpler
also  contended that he was living in Anchorage at the  time  the
notice  was mailed to Fairbanks.  Judge Gleason denied  Crumplers
motion  for  reconsideration  on  March  4,  2004,  finding  that
Crumpler did not present to the court as a credible witness  with
respect  to  the  issues  in dispute, including  whether  he  had
received  the  December  2002 notice.  The  superior  court  took
judicial notice that a person can receive forwarded mail  for  up
to  one year after leaving an earlier address and also recognized
that under the original divorce decree filed in Wyoming, Crumpler
had an affirmative obligation to keep that court, and thereby Ms.
Crumpler,  apprised  of his whereabouts.  The  trial  court  also
noted that Mr. Crumpler does not dispute that he failed to comply
with this provision and failed to pay child support for 6  years.
The   superior   court  recalculated  Crumplers   child   support
obligation based on new financial information and ordered him  to
pay  $611  per  month, effective January 1,  2003.   This  appeal
follows.
III. DISCUSSION
            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.1  Alaska Civil Rule  90.3(h),  however,
provides that [a] modification which is effective on or after the
date  that a . . . notice of petition for modification . .  .  is
served  on  the  opposing party is not considered  a  retroactive
modification.2   Crumpler  maintains that  modification  is  only
appropriate from the date he received the notice, which he argues
was not until the hearing on modification took place: January 14,
2004.   He  alleges  that the trial court erred  in  establishing
January 1, 2003 as the effective date for modification because he
had  no notice of CSEDs intent to modify child support.  Crumpler
complains   that   to   modify  his  child   support   obligation
retroactively without adequate service or actual notice  violates
his  right to procedural due process.  We examine each  of  these
arguments in turn.
     A.   Standards of Review
          We review a trial courts decision on a motion to modify
          child support for an abuse of discretion.3  In the event this
review  calls  for statutory interpretation, we  use  a  de  novo
standard  and  adopt  the  rule  of  law  most  consistent   with
precedent, reason, and policy.4
     B.   The  Superior  Court  Did Not Err in  Determining  that
          There  Was  Adequate Notice for Modification  of  Child
          Support.
          
          Crumpler  argues that he did not receive the notice  of
petition for modification that was mailed by CSED on December  3,
2002 and claims that the superior court abused its discretion  in
calculating  his  child support arrearage as of  that  date.   In
Boone  v. Boone, we held that absent an express finding  of  good
cause,  Civil  Rule 90.3(h) requires a trial court  to  make  its
modification order effective as of the filing date of the  motion
for  modification.5  In State v. Dillon, we extended our previous
holding  in  Boone  v. Boone to include notice of  petitions  for
modification as well as motions for modification.6  We  explained
that  absent an express finding of good cause to the contrary,  a
modification  should be deemed effective on  the  date  of  CSEDs
notice.7   [T]he  motion  service date should  be  the  preferred
effective date, and . . . the superior court should exercise  its
discretion  in selecting a different effective date  only  if  it
finds good cause for doing so.8
          The  superior  court made a number of findings  in  its
motion  for  reconsideration that demonstrate it  considered  and
rejected  Crumplers  attempts to show good cause.   The  superior
court  did  not find Crumplers testimony to be credible,  and  it
also  looked  to  Crumplers phone call to CSED in  July  2003  as
additional  evidence  that Crumpler received  the  December  2002
notice.  The superior court considered Crumplers evidence that he
moved  from  Fairbanks to Anchorage and began work at the  Alaska
Native  Medical  Center on January 14, 2002, but  noted  that  an
individual  can receive forwarded mail from a former address  for
up  to  one  year.  Moreover, it recognized that the  notice  was
never  returned to CSED, whereas later documents sent by CSED  to
Fairbanks in September 2003 were returned.  There is no  evidence
in  the  record to support Crumplers assertion that  he  did  not
establish  mail forwarding after moving from Fairbanks.   Nor  is
there any testimony to demonstrate that other mail he should have
received  following his move to Anchorage was not  received.   We
therefore conclude that it was not an abuse of discretion for the
superior court to decide there was no good cause to deviate  from
the  Dillon  rule.  The superior courts finding on a more  likely
than not basis that Mr. Crumpler did receive actual notice of the
December 2002 CSED notice at that time was not clear error.
          Under Alaska Civil Rule 5,9 service is accomplished  by
mailing  it  to  the  attorneys or partys last  known  address.10
Mailing  of a copy means mailing it by first class United  States
mail.   Service  by  mail is complete upon  mailing.11   Crumpler
argues that service should have been conducted pursuant to  Civil
Rule  4(c),  which requires direct personal service  by  a  peace
officer.12   Crumpler  argues that CSEDs notice  asserted  a  new
claim  for  relief, and hence, falls outside of Civil Rule  5(a).
          But AS 25.27.265(a) makes clear that service of a notice may be
done  under  Civil  Rule 5.13  Moreover, we held  in  Balchen  v.
Balchen that the formal complaint-summons service requirements of
Civil  Rule  4  are inappropriate in proceedings  which  seek  to
enforce  the  terms of a prior divorce decree relating  to  child
support  payments.14  Because divorce decrees may be modified  at
any  time,  we  concluded  that  Civil  Rule  5(b)  provides  the
appropriate procedure to be followed in such cases.15
          The requirements of service under Civil Rule 5 were met
in  this case.  There is no dispute that Crumpler used to live at
the  Fairbanks address where CSED sent its notice.  A certificate
of  mailing was signed by CSED on the December 2002 notice and is
sufficient  proof  to  satisfy the  requirements  of  Civil  Rule
5(f).16  Two affidavits were submitted by CSED verifying that the
notice was mailed by first-class mail to the most current mailing
address in the CSED system.
          Furthermore, as the superior court noted, Crumpler  had
an  affirmative  obligation to keep the  court  apprised  of  his
whereabouts.  This obligation arose both from the Wyoming divorce
decree,  which  required the parties to alert  the  court  within
fifteen  days  of any change in address, and from  AS  25.27.265,
which   requires   parties  to  child  support   proceedings   to
immediately notify CSED if a change in address occurs.17  Despite
his  contention  that  he began working in Anchorage  in  January
2002, Crumpler did not contact CSED to update his mailing address
until  December 9, 2003.  We conclude that it was both reasonable
and appropriate for CSED to serve Crumpler in Fairbanks via mail,
as  permitted under Civil Rule 5, especially since the  Fairbanks
address was Crumplers last known address.18
IV.  CONCLUSION
          Because   the  record  supports  the  superior   courts
findings,  we  AFFIRM the superior courts modification  of  child
support.
          In the Supreme Court of the State of Alaska


Kelly Todd Crumpler,            )
                                ) Supreme Court No. S-11428
                                   Appellant,  )
                   v.           )            Order
                                )
State of Alaska, Department of  )
Revenue, Child Support Enforcement             )
Division ex rel. Rebecca C. Armstrong,         )
                                )
                                    Appellee.   )        Date  of
Order: 7/22/05
                                )

Trial Court Case # 3AN-03-11163CI

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

     On consideration of the motion to publish Memorandum Opinion
and Judgment  No. 1213, issued on May 11, 2005,

     It is Ordered:

     1.   The motion to publish is Granted.

     2.   Memorandum Opinion and Judgment No. 1213, issued on May
          11,  2005, is withdrawn and Opinion No. 5927 is  issued
          in its place.

     Entered at the direction of the court.

                                   Clerk of the Appellate Courts

                                   
                                   Marilyn May

cc:  Supreme Court Justices
     Trial Court Judge Sharon Gleason
     Trial Court Appeals Clerk/Anchorage
     Publishers

Distribution:

                                              
                                              
     D. Scott Dattan
     Law Office of D Scott Dattan
     2600 Denali Street, Suite 460
     Anchorage AK 99503

     Kelly T. Crumpler
     P.O. Box 91745
     Anchorage AK 99509

     Stacy K. Steinberg
     Assistant Attorney General
     1031 W. 4th Ave.,  Suite 200
     Anchorage AK 99501

     Rebecca Armstrong
     c/o Wake County CSEA,
     P.O. Box 550
     Raleigh NC 27602-0550
_______________________________
     1     State, Dept of Revenue, Child Support Enforcement Div.
ex  rel.  Husa v. Schofield, 993 P.2d 405, 407-08 (Alaska  1999);
see   also  42  U.S.C.   666(a)(9)  (2000);  Alaska  Civil   Rule
90.3(h)(2).

     2     Alaska Civil Rule 90.3(h)(2); see also Rowen v. Rowen,
963 P.2d 249, 256 & n.5 (Alaska 1998).

3    Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998).

     4    Boone v. Gipson, 920 P.2d 746, 748 (Alaska 1996).

     5    Boone v. Boone, 960 P.2d 579, 585 (Alaska 1998).

     6     State, Dept of Revenue, Child Support Enforcement Div.
v. Dillon, 977 P.2d 118, 120 (Alaska 1999).

     7    Id. at 119-20.

     8    Id. at 119.

     9     Alaska  Civil  Rule 5(a) explains that every  pleading
subsequent  to the original complaint . . . every written  motion
other  than  one which may be heard ex parte, and  every  written
notice, appearance, demand, offer of judgment, and similar  paper
shall be served upon each of the parties . . . .

     10   Alaska Civil Rule 5(b).

     11   Id.

     12   Alaska Civil Rule 4(c)(1).

     13    AS  25.27.265(a)  states that  [e]xcept  as  otherwise
provided  under  this  chapter, when a notice,  paper,  or  other
document is required by this chapter to be given or served upon a
person by the agency, the notice, paper, or other document may be
served as required by Rule 5, Alaska Rules of Civil Procedure  or
any other method permitted by law.

     14   566 P.2d 1324, 1327 (Alaska 1977).

     15   Id.

     16    Alaska  Civil Rule 5(f) states that proof  of  service
must state the name of each person who has been served, must show
the  day and manner of service, and may be by certificate  of  an
attorney,  authorized agent, or any other proof  satisfactory  to
the court.

     17   See AS 25.27.265(b).

     18   Crumpler also argues that modification of child support
without actual notice violates both Article I, Section 7  of  the
Constitution of Alaska and the 14th Amendment of the Constitution
of  the  United States.  But in this instance, although  Crumpler
argued that he did not receive notice, the superior court did not
believe his testimony.  It made an express finding that on a more
likely  than  not basis, Mr. Crumpler did receive actual  notice.
We  therefore  conclude  that Crumplers  procedural  due  process
rights were not violated.