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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bartlett v. state, Department of Revenue, Child Support Enforcement Division (12/16/2005) sp-5966

Bartlett v. state, Department of Revenue, Child Support Enforcement Division (12/16/2005) sp-5966

     Notice:   This opinion is subject to correction  before
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     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


JONNA ENCELEWSKI, ) Supreme Court No. S- 11271
Appellant, ) Superior Court No.
) 3KN-85-00583 Civil
v. )
) O P I N I O N
DEPARTMENT OF REVENUE, ) [No. 5966 - December 16, 2005]
Appellee. )

          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Harold M. Brown, Judge.

          Appearances:  Mark D. Osterman, Osterman  Law
          Office, P.C., Kenai, 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.

          FABE, Justice.
          This appeal arises out of a dispute over the interstate
enforcement   of   a   child  support  order.    Arizona   denied
registration  and  enforcement of a  1993  Alaska  child  support
order,  holding that the father, Ralph Bartlett, was not properly
served  and hence Alaska lacked personal jurisdiction.  Based  on
this judgment and a petition by Alaskas Child Support Enforcement
Division  (CSED),  the  Alaska superior court  vacated  the  1993
order,  apparently  giving the Arizona  courts  order  preclusive
effect.   We  reverse the vacation order and hold, based  on  the
exception to the doctrine of collateral estoppel found in section
28(3)  of  the Restatement (Second) of Judgments, that orders  in
registration  proceedings conducted under the Uniform  Interstate
Family Support Act (UIFSA)1 should not be given preclusive effect
in the issuing state when the issuing state retains jurisdiction.
          Alaska residents Ralph Bartlett and Jonna Bartlett (now
Encelewski) divorced in 1985.  Ralph was initially ordered to pay
child support in the amount of $250 per month for their daughter,
Jenessa  Bartlett.  On August 1, 1990, this amount was raised  to
$303.60  per month.  In February 1993 CSED again reviewed  Ralphs
support obligation, asking him for updated income information  in
a  letter  sent to his last known address, a post office  box  in
Kalamazoo, Michigan.  CSED verified that Ralph received  mail  at
this  address  in August 1992 and again in October  1992.   After
Ralph  failed  to  respond, CSED sought and received  a  superior
court  order  requiring  him to submit an  income  affidavit  and
supporting financial documentation.  The motion for the order was
mailed to the Kalamazoo, Michigan address.  The order, which  was
granted  on May 28, 1993, warned Ralph that if he did not respond
the  court would impute an annual adjusted income of $60,000  and
set his child support at $1,000 per month.
          In a letter dated June 23, 1993,  Ralph objected to his
child  support being set at $1,000 per month but did not  provide
the  requested  financial information.  Ralph explained  that  he
could  not send check stubs verifying his income because  he  was
unemployed.  It was later established that Ralph was hired by the
Arizona  Public  Service on June 21, 1993, was still  living  and
employed in Arizona in 1996, and was making a gross yearly income
of  $50,112.  Ralph also admitted in later pleadings that he  had
been  in  Arizona since prior to April 23, 1993.  But the  return
address on Ralphs envelope was Wayland, Michigan; his letter  was
mailed from Arizona; and Ralph stated in the letter that his home
base  was Connecticut.  Ralph did not clarify in his letter which
address CSED should use to contact him.
          In  August  1993  CSED notified the superior  court  of
Ralphs  failure to comply with its order and requested  that  the
court  modify Ralphs child support to $1,000 per month.  Although
CSED confirmed through the postmaster that Ralph received mail at
the  Wayland address in June 1993, CSED sent a copy of the notice
of  noncompliance to Ralph at the Kalamazoo address, rather  than
the Wayland address.
          A  month  later, on September 13, 1993, Superior  Court
Judge  Charles  K. Cranston raised Ralphs support  obligation  to
$1,000  per  month based on an imputed annual income of  $60,000.
          The order listed the Kalamazoo address for Ralph.  Later that
month,  an  assistant  attorney general wrote  to  Ralph  at  the
Wayland address, advising him of the modification and telling him
that  if  he  submitted income information  the  order  could  be
adjusted to a lesser amount.
          In  August 1994 Jenessas stepfather adopted her, ending
Ralphs  support obligation.  But CSED continued to  seek  arrears
that  had accrued before the adoption.  After learning that Ralph
had  moved  to Arizona, CSED tried to register the child  support
order  in  that state under UIFSA.  Ralph petitioned the  Arizona
court  to  dismiss  the registration, arguing  that  he  was  not
properly served with the 1993 modification because CSED used  the
Kalamazoo address.
          The  Arizona  court  agreed.  At the  conclusion  of  a
December 1997 hearing, the Arizona superior court stated that  it
was denying the registration order because proper service was not
made  on the person of Mr. Bartlett.  On May 13, 1998, an  Alaska
wage  withholding  order was issued to Ralphs  employer,  Arizona
Public  Service.   On July 22, 1998, the Arizona  superior  court
quashed  this  withholding order and reiterated that  Alaska  had
failed to effectuate proper service on Ralph, rendering the  1993
child support judgment void.
          Based  on  the  Arizona courts order,  Alaska  Superior
Court  Judge Harold M. Brown vacated the 1993 support order under
Alaska Civil Rule 60(b)(4), which provides that a judgment may be
set  aside  if  it  is void.  Consequently, CSED determined  that
Ralph  had overpaid support and was owed $7,655.70, $5,545.56  of
which  CSED had not yet distributed to Jonna.  Jonna moved for  a
new trial, which the superior court denied.  Jonna then sought to
reinstate  the 1993 order under Civil Rule 60(b), asserting  that
Ralphs correspondence with CSED established that Ralph had actual
notice  of  the  1993  modification and that Ralph  intentionally
misled  CSED  about his income and ability to pay child  support.
Jonna  also alleged that CSED failed to inform the Arizona  court
of  postal  verifications in its files  that  showed  that  Ralph
received  mail  at the addresses listed and used  by  CSED.   The
superior  court  found   that Jonna had  not  proved  her  fraud,
misrepresentation   or  misconduct  assertions   by   clear   and
convincing evidence, declined to reinstate the 1993 child support
order, and concluded that the funds currently held by CSED should
be released to Ralph.  Jonna appeals.
          Despite  the  complicated procedural  history  of  this
case,  this  appeal only concerns child support for a  period  of
roughly  one year (September 1993 to August 1994) and is  limited
to  the  narrow legal question whether the doctrine of collateral
estoppel bars review of an Arizona courts determination that  the
Alaska  superior court did not have personal jurisdiction due  to
improper service.
     A.   Standard of Review
          The   applicability  of  the  doctrine  of   collateral
estoppel is a question of law subject to our independent review.2
On  questions of law, we adopt the rule of law most persuasive in
light  of precedent, reason, and policy without deferring to  the
          lower courts decision.3
     B.   Arizona Properly Considered Jurisdictional Issues Prior
          to Registering Alaskas Child Support Order Under UIFSA.
          A  complex  statutory  scheme  of  federal  legislation
exists to promote efficiency and enforcement of interstate  child
support  judgments.   The Uniform Interstate Family  Support  Act
(UIFSA)4  and the Full Faith and Credit for Child Support  Orders
Act  (FFCCSOA)5  require  states to enforce  other  states  child
support  judgments  in order to create uniformity  in  interstate
judgments.   Both Arizona and Alaska have adopted UIFSA.6   UIFSA
permits  a defendant who has not already litigated the  issue  to
contest  the  validity of the support order being  registered  by
proving  that  the issuing tribunal lacked personal  jurisdiction
over the contesting party.7  [B]efore one state court is bound by
a  judgment rendered in a court in another state, it may  inquire
into  the propriety of a foreign courts exercise of jurisdiction.
If  the  foreign court did not have jurisdiction, full faith  and
credit need not be given.8  Similarly, FFCCSOA permits a party to
challenge  the enforcement of a child support judgment  when  the
issuing   court  lacked  subject  matter  jurisdiction,  personal
jurisdiction,  or failed to provide the contesting  parties  with
reasonable notice and opportunity to be heard.9
          In  contesting CSEDs attempt to register Alaskas  child
support  order  in Arizona, Ralph argued that he  was  improperly
served  with  the 1993 modification order, and hence  the  Alaska
court  lacked  personal jurisdiction to modify his child  support
obligation.  Jonna contends that the Arizona court did  not  have
jurisdiction  to consider the validity of Alaskas  order  because
Alaska  retained exclusive jurisdiction to modify child  support,
and service was properly made on Ralph.  We disagree.
          We  have routinely stated that service of process is  a
prerequisite  to a court validly exercising personal jurisdiction
over  a party.10  In Lagerway v. Lagerway, we held that it  would
be  improper  for a court of this state to issue a  judgment  for
arrears  [on  a  foreign support order] without  first  obtaining
personal  jurisdiction  over the obligor  and  affording  him  an
opportunity  to  litigate the propriety of such a modification.11
We  further explained that the only exception to this rule occurs
when  the  foreign support order is a final judgment entitled  to
full  faith  and  credit in this state and the obligor  has  been
properly  notified  as to satisfy the due  process  clause.12   A
judgment  is  void  where  the state in which  the  judgment  was
rendered  had  no  jurisdiction to subject  the  parties  or  the
subject  matter to its control . . . . 13  In this instance,  the
Alaska  superior  court issued a default judgment  against  Ralph
following his failure to supply financial information.  Ralph did
not  litigate  the  issue  of service or  notice  in  the  Alaska
superior court, nor did he appeal Alaskas modification order.  In
the  case  of  a judgment entered by . . . default, none  of  the
issues  is  actually  litigated.14  We therefore  conclude  that,
given the provisions of UIFSA and FFCCSOA, it was proper for  the
Arizona  court  to  consider  Ralphs  contention  that   he   was
improperly served.15
          We  need  not address the merits of the Arizona  courts
determination that there was a lack of personal jurisdiction.  We
turn   instead  to  the  question  whether  the  Arizona   courts
determination bars subsequent litigation on this issue under  the
doctrine of collateral estoppel.
     C.   The Exception to the Doctrine of Collateral Estoppel in
          Section  28  of the Restatement (Second)  of  Judgments
          Applies in this Case.
          This  appeal  raises  the question  whether  collateral
estoppel   bars   Jonna  from  challenging  the  Arizona   courts
determination that the 1993 Alaska order was invalid due to  lack
of service.  Although the parties have raised questions regarding
privity  and  whether Jonna had an opportunity to contest  Ralphs
claims  before the Arizona court, we need not reach these  issues
because  we  conclude  that even if the  elements  of  collateral
estoppel were shown to be satisfied in this case, an exception to
that doctrine applies.
          The   doctrine   of  collateral  estoppel,   or   issue
preclusion,  renders an issue of fact or law  which  has  already
been decided by a court of competent jurisdiction conclusive in a
subsequent action between the same parties, whether on  the  same
or  a different claim.16  To this general rule, section 28 of the
Restatement  (Second) of Judgments sets out what  can  fairly  be
called a limited scope, limited jurisdiction exception:
          Although  an issue is actually litigated  and
          determined by a valid and final judgment, and
          the   determination  is  essential   to   the
          judgment,  relitigation of  the  issue  in  a
          subsequent action between the parties is  not
          precluded in the following circumstances:
               . . . .

               (3)  A new determination of the issue is
          warranted  by differences in the  quality  or
          extensiveness of the procedures  followed  in
          the  two courts or by factors relating to the
          allocation     of    jurisdiction     between
We  find that this exception applies in the case of child support
registration proceedings because such proceedings do diffe[r]  in
the quality [and] extensiveness of the procedures followed in the
two  courts18  and  because there are  factors  relating  to  the
allocation  of  jurisdiction19  that  strongly  warrant  granting
jurisdiction to the state issuing the child support order.
          Child  support  registration proceedings are  typically
perfunctory in the responding state and the responding  state  is
limited  in  its authority to act.  Under UIFSA and FFCCSOA,  the
registration of an out-of-state child support order  takes  place
immediately  upon filing, without further action on the  part  of
the  responding state.20  An obligor may contest registration  or
enforcement  by  the  responding  state,  but  only  on   limited
grounds.21   If  the  responding state finds  that  a  successful
          defense has been presented in a registration contest,  607(b) of
UIFSA  specifically  lists two possible  responses:   a  stay  of
enforcement of the registered order in the responding state or  a
continuance.22   The  section also authorizes  other  appropriate
orders, but this phrase should be accorded a limited construction
consistent   with   the  legislations  proclivity   toward   non-
interference  with the original order that is  evident  from  the
remedies that are specifically provided.23
          Crucial to this case, the responding state is expressly
prohibited from modifying the child support order of the  issuing
state  if either the child or the obligee continues to reside  in
the issuing state.24  The prohibition against the modification of
a  child support order is broad:   modification means a change in
a  child support order that affects the amount, scope or duration
of  the order and modifies, replaces, supersedes, or otherwise is
made  subsequent to the child support order.25   If  the  Arizona
order  in this case were given issue-preclusive effect, the  1993
Alaska  order would be modified within the meaning of  28  U.S.C.
1738B(b)  because the amount of the 1993 order would be  affected
and  the  order  would  be  replaced by the  earlier  1990  order
requiring Ralph to pay $303 per month.
          The Arizona court itself recognized that its ruling was
not  meant to be the last word on the validity of the 1993 Alaska
order.   The Arizona court in its order of July 22, 1998  (issued
some months after ruling that Ralph had not been properly served)
set  a  status  hearing for a future date to review the  progress
being  made between the Respondent and the States of Arizona  and
Alaska  as to jurisdiction on the $1,000 per month child  support
order.  This statement is consistent with the Arizona courts oral
ruling  in which, after denying registration, the court indicated
that the $1,000 per month order was still in effect in Alaska:
          [Court Addressing Ralph:]

          And  too because of what my concerns are with
          you  and  Ive voiced them here and elsewhere,
          nothing  changes.  The  Alaska  order  of   a
          thousand dollars per month, according to them
          is  still  in effect.  Youll have  to  follow
          through with that and get that taken care of.
          So  my  suggestion to you is  that  you  make
          immediate arrangements through Mr. Nelson  or
          through  an  attorney in Alaska  to  make  an
          effort to overturn the current order.
          Its a difficult situation.  Its going to take
          you  some more money to get that done, but  I
          suggest  you  change  that  thousand   dollar
          The   statutory  scheme  also  allocates   jurisdiction
between  issuing  and  responding courts in response  to  several
factors  common  to child support order proceedings.   Under  the
registration  system previous to UIFSA, whether governed  by  the
Uniform  Reciprocal Enforcement of Support Act (URESA)26  or  its
          revised version27 (RURESA), responding states were granted a
broader   authority  to   modify  child  support  degrees.28   To
accommodate  these  powers of modification, URESA  had  a  clause
stating  that  orders  entered by  a  responding  state  did  not
supersede a prior order in the initiating state29 and the revised
version  of URESA similarly provided that a support order entered
in a responding state would not nullify an order in an initiating
state unless specifically so provided.30
          In State, Department of Revenue v. Valdez, we held that
a support order entered by a responding court pursuant to a URESA
petition, which does not specifically modify an order entered  in
the  initiating  state, has no effect on  the  validity  of  that
earlier  order  and is not entitled to full faith and  credit  by
courts  of  the initiating state.  We observed that this  holding
was  consistent  with  the  intent of  URESA  to  assist  in  the
enforcement  of  support  obligation when  parents  move  to  new
jurisdictions.31   We also noted that the holding  is  consistent
with  the practicalities of interstate enforcement including  the
customary  lack of participation by the obligee and the  lack  of
information on the part of the responding court.32  We recognized
          it  would be unfair to give preclusive effect
          to   a   new  support  order  entered  in   a
          proceeding in which the obligee commonly does
          not  participate.   See  In  re  Marriage  of
          Popenhager,  160  Cal.  Rptr.  at  384   (The
          specificity . . . required for modification .
          .  .  recognizes that a reciprocal case is  a
          two-state  matter with no appearance  by  the
          obligee.   Thus,  the  responding  court  may
          frequently  lack  information   as   to   the
          obligees  testimony  or evidence  as  to  the
          obligees ability to pay.).[33]
          The same policies and practical realities that underlay
the  reluctance  to  give res judicata effect  to  child  support
orders issued by responding states under URESA also apply to  the
current UIFSA regime.  If anything, the increased restrictions on
the authority of responding states to modify child support orders
in  UIFSA  suggest that courts should be even more  reluctant  to
give preclusive effect to orders issued by responding states.  In
the  words  of  the  Restatement  (Second)  of  Judgments,  these
policies  and  practicalities are factors that suggest  that  the
proper  allocation of jurisdiction as between two  courts  should
rest with the issuing court.34
          Although  cases  under UIFSA concerning the  preclusive
effect of the responding states order on the issuing states order
are  rare, the Court of Appeals of Kansas in  Summitt v.  Summitt
has  addressed  the exact issue.35  The court there  declined  to
give  res  judicata effect to a series of orders issued by  North
Carolina that refused the registration and enforcement of  orders
of support originally issued by Kansas.  The North Carolina court
had  repeatedly found that the obligor was not in arrears on  his
support  duty.  The last such order was governed by  UIFSA.   The
          obligors argument, as summarized by the Kansas court, is very
similar to Ralphs argument in this case:
          Linda  submitted  the  matter  to  the  North
          Carolina court, which found that he  was  not
          in  arrears.  According to Danny,  the  North
          Carolina   decisions  nullified  the   Kansas
          orders, and Lindas failure to appeal  any  of
          the  North  Carolina decisions rendered  that
          courts findings res judicata as to whether he
          owed arrearages.
The Kansas court rejected this argument both as to the orders  to
which  URESA applied and as to the final order governed by UIFSA.
As  to  the UIFSA order, the court held that because under UIFSA,
North  Carolina lacked jurisdiction to nullify the Kansas orders,
the  Kansas  trial  court properly declined  to  give  preclusive
effect   to  the  North  Carolina  decisions  discussing  whether
arrearages were owed.36
          In short, the increased restrictions on the respondings
state  authority  in  the registration and enforcement  of  child
support orders under UIFSA suggest that the proceedings on  child
support  orders undertaken by the responding state are  different
in  quality  and  extensiveness from those of the issuing  state.
The   policies  and  practicalities  involved  in  child  support
proceedings,  which are ongoing and continuous  in  the  original
jurisdiction  so  long as the child or obligee still  resides  in
that   jurisdiction,  also  suggest  that   the   allocation   of
jurisdiction as between the two states should be in favor of  the
issuing  state.  Based on the limited scope, limited jurisdiction
exception  of the Restatement (Second) of Judgments, we therefore
conclude that the Arizona courts determination that Ralph was not
properly served should not be given issue preclusive effect so as
to invalidate the 1993 Alaska order.
          Because   the   limited  scope,  limited   jurisdiction
exception to the collateral estoppel doctrine applies, we REVERSE
the order vacating the 1993 order for modification and REMAND for
proceedings consistent with this opinion.
     1    9 U.L.A. 241 (2001).

2      Campion  v.  State  of  Alaska,  Dept  of  Comty.  &  Regl
Affairs, Hous. Assistance Div., 876 P.2d 1096, 1098 (Alaska 1994)
(citing Borg-Warner v. Avco Corp., 850 P.2d 628, 643 n.15 (Alaska

     3    Norcon, Inc. v. Kotowski, 971 P.2d 158, 164 n.3 (Alaska

     4     Unif. Interstate Family Support Act  603(c), 9  U.L.A.
255  (2001)  (providing  that a state asked  to  enforce  another
states  child support order shall recognize and enforce, but  may
not  modify,  a  registered  order if the  issuing  tribunal  had
jurisdiction).  42 U.S.C.  666(f) (2000) requires states to adopt

     5    28 U.S.C.  1738B (2000) states in full:

               c)     Requirements  of  child   support
          orders.   A  child support order  made  by  a
          court  of  a State is made consistently  with
          this section if
               (1)    a  court  that  makes  the  order
          pursuant  to the laws of the State  in  which
          the  court  is  located and subsections  (e),
          (f), and (g)
               (A)  has subject matter jurisdiction  to
          hear the matter and enter such an order; and
               (B)   has personal jurisdiction over the
          contestants; and
               (2)   reasonable notice and  opportunity
          to be heard is given to the contestants.
     6    AS 25.25.101 et seq.; Ariz Rev. Stat.  25-261 et seq.

     7     AS 25.25.607(a)(1); see also Wall v. Stinson, 983 P.2d
736,  737  (Alaska 1999) (explaining final judgments are entitled
to  full  faith  and credit in sister states as long  as  issuing
court  had jurisdiction over parties and subject matter);  United
States v. Bigford, 365 F.3d 859, 871 (10th Cir. 2004).

     8     Superior  Court v. Ricketts, 836 A.2d  707,  736  (Md.
Spec.  App. 2003) (quoting Imperial Hotel, Inc. v. Bell  Atlantic
Tri-Con  Leasing  Corp., 603 A.2d 1371, 1373-74 (Md.  Spec.  App.
1992)) (holding no res judicata where appellee never litigated in
California  whether California courts had jurisdiction  to  enter
two default judgments against him; circuit court was entitled  to
determine whether California exercised jurisdiction properly).

     9    28 U.S.C.  1738B (2000).

     10    See,  e.g., Beam v. Adams, 749 P.2d 366,  367  (Alaska

     11   681 P.2d 309, 312 (Alaska 1984).

     12    Id.  (citing Shaffer v. Heitner, 433 U.S. 186 (1977));
see   also   Kurtis  A.  Kemper,  Annotation,  Construction   and
Application of Uniform Interstate Family Support Act,  90  A.L.R.
5th 1,  45 (2005).

     13    DeNardo  v.  State, 740 P.2d 453,  457  (Alaska  1987)
(quoting Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966)).

     14   Campion, 876 P.2d at 1099 (quoting Restatement (Second)
of Judgments  27 cmt. e (1982)).

     15     Arizona  explicitly  found  that  it  did  not   have
jurisdiction to modify the child support order and hence, did not
improperly  impinge on Alaskas continuing exclusive  jurisdiction
in this matter, as Jonna asserts.

16     McElroy  v.  Kennedy,  74  P.3d  903,  907  (Alaska  2003)
(citing Restatement (Second) of Judgments  27 (1982)).

     17    Restatement  (Second) of Judgments  28 (Exceptions  To
The General Rule Of Issue Preclusion).

     18   Id.

     19   Id.

     20    Unif. Interstate Family Support Act  601-607, 9 U.L.A.
241 (2001).

     21   Id.

22   Section 607(b) of UIFSA provides:

          If  a party presents evidence establishing  a
          full or partial defense under subsection (a),
          a   tribunal  may  stay  enforcement  of  the
          registered order, continue the proceeding  to
          permit   production  of  additional  relevant
          evidence, and issue other appropriate orders.
          An  uncontested  portion  of  the  registered
          order   may  be  enforced  by  all   remedies
          available under the law of this state.
     23    This  interpretation entails  an  application  of  the
ejusdem  generis  principle (the general  is  controlled  by  the
particular)  in  that  when several items  in  a  list  share  an
attribute, it suggests that the general item possesses  the  same
attribute.   See  Alaska  State Employees  Assn  v.  Alaska  Pub.
Employees Assn, 825 P.2d 451, 460 (Alaska 1991).

     24   UIFSA  610-613; 28 U.S.C.  1738(B)(d)-(e).

     25   28 U.S.C.  1738B(b).

     26   9C U.L.A. 273 (2001).

27   9C U.L.A. 81 (2001).

     28    The commentary to  606(a) of UIFSA notes that UIFSA is
philosophically very different from RURESA which directed that  a
registered order shall be treated in the same manner as a support
order  issued by a court of this state. Under UIFSA a contest  of
the  fundamental  provisions  of  the  registered  order  is  not
permitted in the responding State.

     29    See URESA  30, quoted in State, Dept of Revenue, Child
Support Enforcement Div. ex rel. Valdez v. Valdez, 941 P.2d  144,
148 (Alaska 1997).

     30   RURESA  31, quoted in Valdez, 941 P.2d at 149.

     31   941 P.2d at 150.

     32   Id.

     33   Id.

     34   Restatement (Second) of Judgments  28(3).

     35   74 P.3d 584, 586-87 (Kan. App. 2003).

     36   Id. at 586.