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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State vs John G. Wise and Cynthia Wolf (10/14/2005) sp-5948

State vs John G. Wise and Cynthia Wolf (10/14/2005) sp-5948

     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- 11656
CHILD SUPPORT SERVICES )
DIVISION, ) Superior Court No. 3AN-87-3637 CI
)
Appellant, )
) O P I N I O N
v. )
) [No. 5948 - October 14, 2005]
JOHN G. WISE and )
CYNTHIA WOLF, )
)
Appellees. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial    District,    Anchorage,    Morgan
          Christen, Judge.

          Appearances:   Anne   E.  Bandle,   Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellant.   John G. Wise, pro se, Anchorage,
          Appellee.  No appearance by Appellee Wolf.

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

          PER CURIAM.

I.   INTRODUCTION
          Cynthia  Wolf asked the Child Support Services Division
to  modify  John  Wises child support for their son,  Cory.   The
division  sent both parents a notice of petition for modification
of  child support and, after examination of Wises finances, moved
the  superior  court to increase Wises child  support.   After  a
hearing,  the  superior court modified the child  support  order,
making  the new order effective from the date the division  filed
its  motion to modify, rather than from the date that  it  served
the  parents the notice of petition.  The only reason  given  for
this was the length of the divisions administrative review.   The
division appeals.  Because an administrative delay of nine months
is  not  a  sufficient  reason to diverge  from  the  presumptive
effective date for the modification of a child support order,  we
reverse.
II.  FACTS AND PROCEEDINGS
          John  Wise  and Cynthia Wolf are the parents  of  Cory,
born  August 3, 1986. In 1992 the superior court ordered Wise  to
make  child support payments of $130 per month.  In October  2002
Wolf asked the Child Support Services Division for a modification
of  the  order and the division sent Wise and Wolf  a  Notice  of
Petition  for Modification of Judicial Support Order on  November
1,  2002.   That notice requested information about  the  parties
incomes.
          After  Wise  responded  to this  initial  request,  the
division  sought further information on two subsequent  occasions
April  2,  2003  and June 4, 2003.  Wise provided  the  requested
information  and documentation.  Although the Master subsequently
found that Wise had cooperated with the investigation, the review
of his file took nine months and it was not until August 1, 2003,
that  the  division  filed a Motion to Modify  Support  with  the
superior  court.   The motion asked that Wises child  support  be
increased to $547 per month, effective December 1, 2002.
          Wise  requested a hearing, which was held  in  February
2004.   The  Masters  report  found  that  Wise  was  voluntarily
underemployed  and imputed income to him based on  his  part-time
participation in a family rental business and on thirty  hours  a
week   of   minimum-wage  work,  increasing  his  child   support
obligation  to  $272.47 per month.  The Master  recommended  that
this  increase be effective from September 1, 2003,  noting  that
the order should be entered for the first of the month after CSED
filed  the  motion  in court (rather than the lengthy  period  of
administrative review).
          The   division  filed  an  objection  to  the   Masters
recommendations,  arguing that there was  insufficient  basis  to
delay  the effective modification date from December 1,  2002  to
September 1, 2003.  Wise filed an opposition, arguing that he had
been  unable  to  save  any  money  during  the  period  of   the
administrative  review  and  would  not  receive  any  undeserved
benefit  from the Masters proposed effective date.  The  superior
court issued the order for modification of child support with the
September   1,  2003  date,  summarily  approving   the   Masters
recommendations.  The state appeals.
III. DISCUSSION
          We review a trial courts decision on a motion to modify
child support under the abuse of discretion standard.1
          Alaska  Civil  Rule  90.3(h)(2)  prohibits  retroactive
modification of a child support order.  It provides:
          Child  support arrearage may not be  modified
          retroactively . . . . A modification which is
          effective on or after the date that a  motion
          for modification, or a notice of petition for
          modification by the Child Support Enforcement
          Division, is served on the opposing party  is
          not considered a retroactive modification.[2]
          
Although the text of the rule expresses no preference as  to  the
most  appropriate effective date for a modification order so long
as  it  does not predate notice to the obligor, in Boone v. Boone
we  established that the presumptive effective date should be the
motion service date.3  We explained that this date best reflected
the  needs of the child, holding that [d]elays in resolving  such
disputes should not disadvantage parties entitled to relief.4  In
State  v.  Dillon, we expanded this holding to include  cases  in
which a request for modification was filed with CSED rather  than
the  superior  court.5  We held that the  date  of  a  Notice  of
Petition to Modify Child Support was the presumptive date that  a
subsequent  modified order would take effect.6  We  reasoned:  In
both  situations, allowing modified child support orders to  take
effect  upon  receipt  of the initial notice adequately  protects
noncustodial parents against prejudice, while both increasing the
likelihood  that  their  payments will accurately  reflect  their
ability  to  pay and depriving them of incentives  to  engage  in
tactical delay.7
          Nevertheless,  we  have recognized that  there  may  be
occasions  when a different date is appropriate and the  superior
court  may  order a different effective date when it  finds  good
cause  to do so.8  But this is not such an occasion.  In  Dillon,
the father argued that the modified order should not be effective
from  the  date  of  the Notice of Petition because  he  had  not
received a copy of the actual motion filed by the division.9  But
we held that a parent who did not receive a copy of the motion to
modify because the division failed to keep his address up-to-date
was  not  entitled to a later effective date because  he  was  on
notice  that his support obligation might change, having received
a Notice of Petition.10
          Thus,  Dillon  stands for the proposition  that  absent
good  cause,  a modified child support order should be  effective
from  the date the parent receives notice that a modification  is
being  considered.  And Dillon controls here.  Wise was on notice
that  his child support obligation might change after he received
the  Notice of Petition in November 2002.  We fail to see  why  a
delay  of  nine  months  while  the division  gathered  financial
information  from  Wise is good cause to change  the  presumptive
effective date of the modified child support order.  The  Masters
recommendation  provides  no other justification  for  the  later
date, nor is one apparent from the record.
          In Boone, we held that service of the motion [or notice
of  petition]  gives the opposing party both  fair  warning  that
support  may  change and an opportunity to reassess, even  before
the  court rules, the correct amount of support.  This  gives  an
opportunity  to  adjust consumption patterns in  anticipation  of
modification, and thus minimize prejudice when relief is  granted
          effective as of the service date.11  Wise contends that he did not
change  his spending habits after getting notice of the divisions
intent to request a modification, because he did not believe that
he was underemployed and did not expect his obligation to change.
But  a non-custodial parents excessive optimism in assessing  the
likelihood that his obligation will increase cannot be sufficient
cause  to  delay the effective date for such an increase  without
sabotag[ing] the efficacy of Rule 90.3.12  Therefore, we hold that
it  was  an abuse of discretion for the superior court to diverge
from the presumptive effective date for the modification of child
support  order simply because of the length of the administrative
review.
IV.  CONCLUSION
          Because a lengthy administrative delay by itself is not
good  cause to diverge from the presumptive effective date for  a
child  support modification order, we REVERSE and REMAND  to  the
superior  court  for entry of the modified child  support  order,
effective from December 1, 2002.
_______________________________
     1    Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998).

     2    The Child Support Enforcement Division is now the Child
Support  Services  Division and the text of Rule  90.3(h)(2)  has
been changed to reflect this, but this is the version of the rule
in effect when this case came before the superior court.

     3     960  P.2d 579, 585 (Alaska 1998) (The rules text  does
not  express  a  preference or presumption  that  a  modification
become effective on the motion service date, and does not prevent
the superior court from exercising its discretion and selecting a
later effective date.  But we are nonetheless persuaded that  the
motion service date should be the preferred effective date.).

     4    Id.

     5    977 P.2d 118, 120 (Alaska 1999).

     6     Id.  at  118  (Under Alaska Civil Rule  90.3(h)(2),  a
revised child support order presumptively relates back to  notice
of  a  petition for modification.  Absent good cause for a  later
effective date, this presumptive date must govern.).

     7    Id. at 120.

     8    See, e.g., Boone, 960 P.2d at 585 ([T]he superior court
should exercise its discretion in selecting a different effective
date only if it finds good cause for doing so.).

     9    977 P.2d at 119.

     10    Id. at 120.

     11    960 P.2d at 585-86.

     12    Id. at 586.