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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Webb v. State, Dept. of Revenue, CSED (09/09/2005) sp-5941

Webb v. State, Dept. of Revenue, CSED (09/09/2005) sp-5941

     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


GARY E. WEBB, )
) Supreme Court No. S- 11160
Appellant, )
) Superior Court No.
v. ) 1KE-01-00504 CI
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF REVENUE, )
CHILD SUPPORT ) [No. 5941 - September 9, 2005]
ENFORCEMENT DIVISION )
ex rel. MICHELLE WEBB, )
n/k/a MICHELLE KEY, )
)
Appellee. )
)


          Appeal  from the Superior Court of the  State
          of    Alaska,   First   Judicial    District,
          Ketchikan, Trevor N. Stephens, Judge.

          Appearances:  Bryan T. Schulz, Ketchikan, for
          Appellant.    Susan  L.  Daniels,   Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellee.

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

          FABE, Justice.

I.   INTRODUCTION
          Gary  Webb, a father of two children, did not pay child
support during a period when his children were in the custody  of
their grandmothers.  He claims that the childrens mother, to whom
he  owed  the  support payments, is precluded  under  Civil  Rule
90.3(h)(3)  from collecting the arrears accumulated  during  that
time.   The  superior court disagreed with Webb, concluding  that
Rule  90.3(h)(3)  provides for preclusion only when  the  obligor
parent  has primary physical custody of the children.   We  agree
with the superior court and affirm.
II.  FACTS AND PROCEEDINGS
     A.   Factual History
          Gary  Webb  and  Michele Key were married  January  29,
1988.  They had two daughters, Megan, born on April 21, 1988  and
Sarah,  born  on March 11, 1989.  The marriage was  dissolved  on
April  12,  1990.   Key  was granted legal and  primary  physical
custody of the children and Webb was ordered to pay $418 a  month
in child support.  At the time of their divorce, the parties were
living  on  Fort Richardson.  Key later moved to Maine  and  Webb
moved  to  Ward  Cove.   Courts  in  Maine  later  appointed  the
daughters grandmothers as guardians in two separate proceedings.1
Roberta  Webb, Garys mother, was made guardian of Sarah in  1993,
an arrangement which lasted until the guardianship was terminated
in  2001.  Sarah then returned to living with Key.  In 1995 Megan
was  placed in the guardianship of Sheila Smith, Keys mother, who
also resides in Maine.  A petition to terminate this guardianship
was  filed in Maine in 1997.  Although the termination was  never
issued,  it is undisputed that  Megan returned to live with  Key.
Thus,  between  1993  and 2001, Key never  had  custody  of  both
daughters at once, and between 1995 and 1997, she had custody  of
neither of them.
          According  to  the  Child Support Enforcement  Division
(CSED),  Webb made no child support payments to Key between  1993
and  2001.  He made some payments to his mother, Sarahs guardian,
which CSED eventually credited against his arrears.2
     B.   Procedural History
          On  October 24, 2001, when both children were  back  in
Keys custody, Webb, acting pro se, moved to modify the amount  of
arrears he owed, claiming that he should not have to pay for  the
period in which both children were in their grandmothers custody.
The  superior court read his motion as requesting relief for  the
years  1993  through 1997, which included a period of  time  when
Megan  was  still living with Key.  In response, CSED  calculated
that  Webb  owed  $6,001.53 in arrears.  Webb  assented  to  that
figure and the superior court approved it.
          CSED  later returned to court, moving under Civil  Rule
60(b)(1)  to set aside the arrears order because of an  error  in
its  calculation.   The agency claimed that  Webb  in  fact  owed
$72,105.22  but allowed that Webb might be able to show  that  he
had  made  more  payments than had been accounted  for.   In  his
opposition  to  the  motion, Webb renewed his  argument  that  he
should  not  have to pay arrears for the period when  both  girls
were  with their grandmothers and should only have to pay reduced
arrears  for  the time when Megan was living with Key.   At  this
time, Webb was represented by counsel and argued that Civil  Rule
90.3(h)(3)  precluded the collection of these arrears.   He  also
claimed that he had made payments that CSED failed to credit when
          it computed the arrears.  After an evidentiary hearing apparently
resolved  the question of credit due to Webb, the superior  court
decided  that Civil Rule 90.3(h)(3) did not apply and  that  CSED
was  therefore  not  precluded from collecting  arrears  for  the
challenged  period.  The court entered a final order setting  the
amount owed at $51,058.14.
          Webb appeals.
III. STANDARD OF REVIEW
          The  question whether preclusion applies in  this  case
depends  on  the application of a court rule that determines  the
correct  method  of  calculating child  support;  it  is  thus  a
question of law we review de novo.3   We will adopt the  rule  of
law most persuasive in light of precedent, reason, and policy.4
IV.  DISCUSSION
     A.   Rule  90.3(h)(2)  Does Not Preclude an  Obligee  Parent
          from  Collecting Arrears Accumulated While the Children
          Are  in  the  Custody of a Third Party Who Is  Not  the
          Obligor Parent.
          Webb  seeks  a  retroactive modification of  his  child
support  obligation  and  asks us to eliminate  or  significantly
reduce his liability for the child support debt that accrued over
a  period  of  101 months when one or both of his daughters  were
living   with  their  grandmothers.   In  general,   Civil   Rule
90.3(h)(2) bars retroactive modification.  It is subject  to  two
exceptions,  one  of  which  is  relevant  here.5    Civil   Rule
90.3(h)(3) provides in relevant part:
          Preclusion.  The court may find that a parent
          and  a  parents  assignee are precluded  from
          collecting arrearages for support of children
          that   accumulated  during  a   time   period
          exceeding  nine months for which  the  parent
          agreed   or   acquiesced   to   the   obligor
          exercising  primary custody of the  children.
          A  finding that preclusion is a defense  must
          be based on clear and convincing evidence.[6]
          
Under  this rule, if the child or children7 live with the obligor
parent,  with  the consent of the obligee parent,  for  a  period
greater  than nine months, and the obligor parent does  not  make
support  payments during that time, then the obligee  parent  may
not  collect  the  arrears.8  Webb claims that this  rule  should
preclude  Key from collecting the arrears accumulated  while  the
daughters were living with their grandmothers.  We disagree.
          1.   The  plain  language and policy of Rule 90.3(h)(3)
               do not support preclusion in this case.
               
        A  prerequisite for any interpretation of  a  court  rule

is  that  it  have  a basis in the rules text.9   Webbs  proposed

interpretation of Civil Rule 90.3(h)(3), to allow preclusion  for

a  period when the children are in the custody of a third  party,

is  not permitted by the language of the rule.  The rule provides

for  preclusion  when the children have lived with  the  obligor.

Thus,  the  plain  language of the rule does  not  support  Webbs

interpretation.   Rule 90.3(h)(3) only allows preclusion  in  one

situation: when the children have lived with the parent who  owes

child support.  Megan and Sarah never lived with Webb.  Under the

plain  language  of the rule, there is no basis to  preclude  Key

from collecting support.10

          We  have  previously stated that when a straightforward

application of [a court] rule yields [an] extreme or absurd . . .

result, it may require us to bend the plain language of the rule.11

But requiring Webb to pay the child support he owes does not lead

to an extreme or absurd result.  First, when children live with a

third party, both parents have the duty to support the children.12

Thus,  Webb  was not absolved of a duty to support  his  children

merely  by  their  living with a third party  rather  than  their

mother.  And although it is true that Key will be compensated  by

Webb  for past child support expenses that were actually paid  by

the  grandmothers, any windfall to Key might be temporary, as the

grandmothers  will  be able to seek reimbursement  from  Key  for

child  support received for the period of time the children  were

in the grandmothers care.13  Finally, Key is currently caring for

the  children,  who  are the beneficiaries of the  child  support

order.14  In the event either of the grandmothers chooses not  to

pursue  compensation from Key, the children should  benefit  from

Webbs  payment  of  child support arrears to Key,  their  primary

custodian,  for  obligee parents are required by the  statute  to

administer support funds on the childrens behalf.15

          Retroactively  modifying the  child  support  order  to

permit  Webb to evade his child support obligations would  result

in  a windfall to Webb and deprive the children of funds to which

they   are  entitled.   Child  support  awards,  by  their   very

definition,  are  intended to benefit the child,  not  provide  a

windfall  to  the parent.16  During the years that Webb  was  not

meeting  his  obligations, his daughters were not  receiving  the

benefit  the support order was designed to provide.  We therefore

conclude  there is no reason to go beyond the words of  the  rule

and allow preclusion.17

          2.   Absent  a  modification of the support order,  the

               original order is enforceable.

               

          We  agree  that Webb could have sought modification  of

the  support order given that there was a change in the  physical

custody  of  the  children.   But he  chose  to  wait  until  his

daughters had returned to live with Key before seeking to  modify

child  support.  As we previously held in Karpuleon v. Karpuleon,

the  burden  is on the parents to promptly apply for modification

when  a  child changes residency.18  If the parties do not follow

the  custody  order,  they should ask the court  to  enforce  the

custody order or should move to modify the child support order.19

Court-ordered child support may only be modified or terminated by

          the court; a child support order does not automatically terminate
simply  because a third party assumes custody of the  children.20
The  obligation to pay child support pursuant to  a  court  order
generally  continues until the child reaches age 18 or until  the
happening of any contingency specified in the court order.21  And
several  courts have concluded that the death of a  non-custodial
parent, the death of a custodial parent, the emancipation of  the
child,  or  the  appointment  of a third  party  as  a  temporary
conservator  for  the  child  does  not  terminate  the   support
obligation.22  Thus, a court-ordered change of custody arising out
of   a  guardianship  proceeding,  as  in  this  case,  does  not
automatically extinguish a valid support order.
          Webb  did not petition the court to change the existing
child  support  order throughout the eight-year period  when  his
daughters  were living with their grandmothers in  Maine.   Webbs
failure to seek modification of the support order may not now  be
used to contest the child support arrears he owes.23  Webb relies
on  Turinsky  v. Long24 and Bennett v. Bennett25  to  argue  that
support  orders  have  no  effect when custody  of  the  children
changes.   But  in  Turinsky, we explained that  [c]hild  support
awards should be based on a custody and visitation order, not  on
the  visitation actually exercised.26  This language supports the
States  position that retroactive modification is not permissible
and  that the superior court must always look to the most  recent
child  support  order.   And Bennett reiterates  our  holding  in
Turinsky  and  explains  that  this  principle  was  intended  to
encourage parents to either comply with court orders or  move  to
modify them in a timely manner.27
V.   CONCLUSION
          Because the language of Civil Rule 90.3(h)(3) does  not
permit  preclusion when the obligor parent did not have  physical
custody of the children, we AFFIRM the superior courts decision.
_______________________________
     1     Both parties agree that the State of Maine paid public
assistance on behalf of the children from 1991 through  1993  but
was  reimbursed in full for this amount by Webb.  Maine  has  not
requested  additional enforcement services from  Alaska  and  has
sought no further reimbursement from Webb.

     2     Civil Rule 90.3(h)(3) uses the term arrearages.   This
court  has  used both arrearages and arrears.  Compare  Cline  v.
Cline, 90 P.3d 147, 151 (Alaska 2004) with Murphy v. Newlynn,  34
P.3d 331, 333 (Alaska 2001).

     3    Murphy, 34 P.3d at 333.

     4    Id.

     5     Alaska Civil Rule 90.3(h)(2) provides:  No Retroactive
Modification.   Child  support  arrearage  may  not  be  modified
retroactively,   except  as  allowed  by  AS  25.27.166(d).    AS
25.27.166(d)  permits retroactive modification  if  paternity  is
disestablished.

     6     In a technical sense, this provision does not permit a
retroactive  modification of the child support award  because  it
does  not extinguish the child support debt.  It simply bars  the
creditor  from  collecting the debt.  In terms of  pleading,  the
rule  provides a defense to collection, rather than  a  means  of
disproving the debt.

     7    See Murphy, 34 P.3d at 335 (allowing partial preclusion
when only one of two children lived with obligor parent).

     8     See  Alaska Civil Rule 90.3(h)(3); Murphy, 34 P.3d  at
335.

     9     ska  Civil  Rule 90.3(h)(3).Mundt v. Northwest  Explor
ations, Inc., 963 P.2d 265, 270 (Alaska 1998).See M

     10    Alaska Civil Rule 90.3(h)(3).

     11     Mundt v. Northwest Explorations, Inc., 963 P.2d  265,
270 (Alaska 1998).

     12     See Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska
1987)  (superseded on other grounds by Civil Rule 90.3 and Vachon
v.  Pugliese,  931 P.2d 371 (Alaska 1996)) (explaining  that  [a]
parents  duty  of  support encompasses a duty to reimburse  other
persons  who  provide  the  support the  parent  owes)  (citation
omitted).

     13    Id. (noting that [a] claim for reimbursement belongs to
whomever  supported the children, and is simply an  action  on  a
debt).

     14     See State, Dept of Revenue, Child Support Enforcement
Div.  ex.  rel. Valdez v. Valdez, 941 P.2d 144, 154 n.14  (Alaska
1997) (The right to support is that of the child . . . .).

     15    See AS 25.27.060(a) ([A]n order of support establishes
a  relationship  by  which the custodian  of  the  child  is  the
administrator for the purposes of administrating child support on
behalf of the child.).

     16    Bennett v. Bennett, 6 P.3d 724, 727 (Alaska 2000).

     17    Webb relies on our decision in Murphy, 34 P.3d at 331,
to  argue  that  Rule  90.3(h)(2) should be extended  beyond  its
language.   In  Murphy,  we  held that  the  obligee  parent  was
precluded  from collecting arrears for the child who  lived  with
the  obligor, reasoning in part that requiring the obligor parent
to  pay child support while he was actually supporting the  child
would  not  benefit  [the child] and would provide  [the  obligee
parent]  with an undeserved windfall.  Id. at 335.  As an initial
matter,  we  note an essential factual difference between  Murphy
and  this  case:  in Murphy, the obligor parent contested  paying
child  support because he had primary physical custody of one  of
the  children.   Id. at 332-33.  Webb never had primary  physical
custody of either of his children nor does he claim to have  been
actually  supporting either child during this period.   Moreover,
our decision in Murphy relied on the principle that child support
awards  .  .  . are intended to benefit the child.   Id.  at  335
(quoting  Bennett,  6 P.3d at 727).  And here,  as  we  clarified
above,  any  windfall  to  Key would  be  temporary  because  the
grandmothers  have  a  legal right to the  support  arrears.   On
remand,  the  superior court has the discretion to structure  its
order  to  ensure  that the arrears are spent for  the  childrens
benefit.  See, e.g., State, Dept of Soc. Servs., Cedar County  ex
rel.   Brecht  v.  Brecht,  255  N.W.2d  342,  345  (Iowa   1977)
(Reasonable and adequate safeguards should be imposed upon [child
support]  lump sum payments to assure their eventual and  orderly
distribution for the needs of the children.).

     18    881 P.2d 318, 320 (Alaska 1994).

     19     Turinsky  v.  Long, 910 P.2d 590, 595  (Alaska  1996)
(holding  child  support arrears should be  based  on  the  valid
custody  and  visitation order issued by the court,  not  on  the
amount of visitation actually exercised).

     20    See In re Marriage of Gregory, 281 Cal. Rptr. 188, 190
(Cal.  App.  1991)  (a parent must look for assistance  from  the
courts  in order to modify or terminate a support order);  Abrams
v.  Connolly, 781 P.2d 651, 656 (Colo. 1989) (even following  the
death  of  the  custodial parent, the non-custodial  parent  must
resort  to  the  court if modification of the  support  award  is
justified).

     21     In  re  Marriage of Gregory, 281 Cal.  Rptr.  at  190
(concluding  that  the  death of the custodial  parent  does  not
terminate  the child support order); see also OBrien  v.  OBrien,
766  A.2d  211, 215 (Md. Spec. App. 2001, revd on other  grounds,
790 A.2d 1 (Md. 2002) (same).

     22    See, e.g., Stein v. Hubbard, 102 Cal. Rptr. 303, 303-04
(Cal.  App. 1972) (court-ordered child support survives death  of
non-custodial parent); In re Marriage of Gregory; 281 Cal.  Rptr.
at  190  (death  of  custodial parent does not terminate  support
order); In re Marriage of Beilock, 146 Cal. Rptr. 675, 730  (Cal.
App.  1972)  (emancipation does not automatically  terminate  the
parents obligation of support) (internal quotations and citations
omitted);  Matter of Marriage of Henick, 865 P.2d  1336,  1337-38
(Or. App. 1993) (appointment of temporary conservator did not end
fathers obligation to provide support).

     23    We also note that the child support order in this case
imposes  a  support obligation on Webb; it does not specify  that
this  support  obligation is to be paid only to Key.   The  order
would therefore permit CSED to substitute a third-party custodian
as payee.  The support order in this case provides for support to
continue  until  each  child reaches  the  age  of  eighteen,  is
otherwise legally emancipated or dies.

     24    910 P.2d at 590.

     25    6 P.3d at 724.

     26    910 P.2d at 595.

     27     Bennett, 6 P.3d at 727 (citing Turinsky, 910 P.2d  at
594-95).