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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fowler v. State, Dept. of Revenue, Child Support Services Division (10/12/2007) sp-6174

Fowler v. State, Dept. of Revenue, Child Support Services Division (10/12/2007) sp-6174, 168 P3d 870

     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

DAVID B. FOWLER, )
) Supreme Court No. S- 12314
Appellant, )
) Superior Court No. 1SI-06-8 CI
v. )
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF REVENUE, )
CHILD SUPPORT SERVICES ) No. 6174 October 12, 2007
DIVISION, )
)
Appellee. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  First
          Judicial  District, Sitka, Larry  C.  Zervos,
          Judge.

          Appearances:  David  A.  Graham,  Graham  Law
          Firm,  Sitka, for Appellant.  Karen W.  Ince,
          Assistant  Attorney General,  Anchorage,  and
          Talis  J. Colberg, Attorney General,  Juneau,
          for Appellee.

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

          BRYNER, Justice.

I.   INTRODUCTION
          The Idaho Department of Health and Welfare served David
Fowler  with notice of a paternity suit, Fowler filed  an  answer
without a filing fee in the Idaho court, and the court entered  a
default judgment against him for failure to pay the fee.   Fowler
received  notice  of the departments intent  to  seek  a  default
judgment  and  the default judgment itself.  He  filed  pleadings
with  the  court  challenging its entry  of  default,  which  the
department moved to strike.  The Idaho court set a hearing on the
departments motion, which Fowler did not attend.
          Sometime  after the proceedings ended in Idaho,  Fowler
relocated to Alaska.  The Alaska Child Support Services  Division
sought  to register and enforce the Idaho judgment against Fowler
under  Alaskas  Uniform Interstate Family Support  Act1  and  the
Federal  Full  Faith  and Credit for Child Support  Orders  Act.2
Fowler  appeared in court in Alaska to challenge registration  of
the  order, asserting that he was denied due process in the Idaho
proceedings.   The superior court rejected Fowlers challenge  and
registered  the order without issuing a written decision.   After
Fowler  moved  for  reconsideration, the court issued  a  written
decision explaining its reasons for rejecting Fowlers due process
argument.
          Fowler appeals, renewing his due process claim.  Having
reviewed the parties briefing, the superior courts order, and the
record,   we   conclude  that  the  superior  courts   order   on
reconsideration  accurately  describes  the  relevant  facts  and
correctly applies the governing law.  Accordingly, we set out the
courts  order below and adopt it as the basis for our  resolution
of Fowlers appeal.3
                 ORDER ON MOTION TO RECONSIDER
     
               David  Fowler  moves the court to  reconsider
     the  order allowing an Idaho child support order to  be
     registered  in  this state.  He argues that  the  Idaho
     court  violated his due process rights by entering  the
     support order.  Mr. Fowler made a very similar argument
     at  a hearing held on March 8, 2006.  This court denies
     his  motion to reconsider for the same reason that  the
     court rejected his due process argument at the hearing.
     
     I.   FACTS
     
               On January 19, 2006, the Alaska Child Support
     Services   Division  petitioned  the  court  under   AS
     25.25.602  to register a child support order  from  the
     Idaho  District  Court.   Mr. Fowler  objected  to  the
     registration because he claimed the Idaho court did not
     provide  him with due process before the court  entered
     the  order.   He argued that Alaska could not  register
     the order and he requested a hearing.
     
               At  the hearing, Mr. Fowler testified that he
     was  served  with a summons and complaint in  2002  and
     that  he filed an answer.  According to Mr. Fowler  the
     clerk  accepted the answer for filing and did not  tell
     him there was a filing fee.
     
               But  on  May 6, 2002, the Idaho court entered
     default  against Mr. Fowler because he did not pay  the
     filing fee.  Mr. Fowler said he received a copy of  the
     default  child support order.  He also testified,  when
     shown  a  document that included a notice of intent  to
     enter  default for failure to file an answer,  that  he
     did not recall receiving this notice, but added that if
     he  did receive such a notice, he would have ignored it
     because he already filed an answer.
     
               In  response to the default order, Mr. Fowler
     said  he  filed an opposition to the order and asserted
     what  appear to be claims against the clerk  of  court.
     He  filed those pleadings on May 13, 2002 and  paid  an
     $8.00 filing fee.
     
               After  he  filed his response, the Plaintiff,
     the  Idaho Department of Health and Welfare, moved  the
     court  for an order striking the pleadings.  Mr. Fowler
     admitted  that  he received the Departments  motion  to
     strike.   He also said it included a notice that  there
     would  be a hearing.  Mr. Fowler testified that he  did
     not  attend  the hearing because he did not  think  the
     hearing required his attendance.  He felt this way,  he
     said,  because  he  filed  his  response  already,  and
     because  if  they  were  going  to  just  strike  [his]
     pleadings, that was one thing, but [his] defense was in
     there,  too,  and  that was the important  thing;  they
     didnt say they were going to strike [his] defense.
     
               Finally  Mr. Fowler admitted that he received
     the order striking his pleadings.  That order stated in
     part  that  Mr.  Fowler received prior  notice  of  the
     hearing but did not attend.
     
               At the conclusion of the evidence, Mr. Fowler
     argued  that  the Idaho court violated his due  process
     rights  by not considering his answer.  He argued  that
     the  Idaho  court did not notify him that it would  not
     consider the answer nor did it notify him that  he  had
     to  pay  a filing fee.  Mr. Fowler maintained that  the
     Idaho  court  violated his due process rights  when  it
     rejected  his  answer because he did not pay  a  filing
     fee.   And  he argued that the hearing held  after  the
     default judgment did not cure the violation because the
     hearing did not address his answer, and in any case, he
     asserted that in Alaska an order entered by a court  in
     violation of a partys procedural due process rights  is
     void.
     
               The   Division  responded  that  Mr.   Fowler
     received a copy of the default judgment against him, so
     he knew the court did not consider his answer, and that
     is  why he filed the responsive pleadings on May  13th.
     Therefore,  according  to the  Division,  a  reasonable
     person would have attended the hearing scheduled by the
     court.
     
               This  court held that it may or may not  have
     been  a  due  process  violation to  refuse  a  pro  se
     litigants  pleadings for failure to pay a  filing  fee,
     but in looking at the full picture of what happened  in
     Idaho,  no due process violation occurred.  Mr.  Fowler
     had  notice of the claim and he learned that his answer
     was not considered.  He filed a responsive pleading and
     was  given a hearing.  He knew when the hearing was but
     chose not to attend.  After the hearing, and after  Mr.
     Fowler  did  not  appear, the Idaho court  granted  the
     motion  to strike and the default judgment remained  in
     effect.  Mr. Fowler did not appeal the judgment or file
     a  motion  to set aside the judgment.  Instead  he  did
     nothing.
     
     II.  MR. FOWLERS ARGUMENT THAT THE POST-DEFAULT HEARING
          DID NOT CURE THE DUE PROCESS VIOLATION
          
               Mr.   Fowler  argues that the  Idaho  hearing
     scheduled  after  the default is not a  remedy  because
     neither  his subsequent acts nor his omissions  to  act
     can   revive  a  void  judgment.   In  support  of  his
     statement,  Mr. Fowler relies on State,  Department  of
     Revenue, CSED v. Maxwell.1
     
               In  Maxwell,  the Alaska Supreme  Court  held
     that a void judgment cannot gain validity simply by the
     passage of time.2  Also Mr. Fowler correctly points out
     that  he can attack a void judgment at any time.3  But,
     of  course,  the  question here is  whether  the  Idaho
     judgment is void.
     
               Mr.  Fowler contends that the Idaho  judgment
     is  void  based  on  the  reasoning  he  found  in  two
     Washington state cases.  But the first case stands  for
     a  proposition  that  is not in dispute.   In  Allstate
     Insurance  Co.  v.  Khani,4  the  Washington  Court  of
     Appeals  determined that service on the  defendant  was
     defective   and  therefore  the  judgment  entered   in
     reliance  on  the  defective service  was  void.5   The
     appellate  court also pointed out that the  passage  of
     time did not bar a motion to vacate a void judgment.6
     
               But  unlike the Khani case, there is no issue
     of  defective service in this case.  The issue here  is
     the same issue raised by Mr. Fowler at the hearing  was
     he afforded due process by the Idaho court.
     
               And   that   leads  to  Mr.  Fowlers   second
     Washington case.  In R.R. Gable, Inc. v. Burrows,7  the
     defendants, a couple living in Washington,  received  a
     summons  and  complaint  filed in  Los  Angeles  County
     court.8  The Burrows exchanged several letters with the
     clerk of the California court seeking an exemption from
     the  courts filing fees and the requirement  that  they
     file  their pleadings on special pleading paper.9   The
     clerk  refused to waive the requirements, did not  file
     the  answer  and  never notified  the  Burrows  of  the
     decisions not to waive the requirements and not to file
     the answer.10
     
               The California court entered default judgment
     against  the Burrows without notifying them that  entry
     of  a default judgment had been requested.11  After the
     default judgment was granted, the plaintiff, R.R. Gable
     Inc.,   tried  to  register  the  judgment   with   the
     Washington trial court.12  The Burrows filed  a  motion
     to  vacate the filing and the court granted it  because
     of  the  California courts refusal to waive the special
     pleading paper requirements and because that court  did
     not  notify  the Burrows of the request for  a  default
     judgment.13
     
               On  appeal,  the Washington Court of  Appeals
     acknowledged that a court can enter a default  judgment
     against a defendant who does not answer, and may do  so
     without additional notice on the theory that a properly
     served  defendant  has been given  adequate  notice  to
     allow  an intelligent decision on whether to appear  or
               default.14  But the court found that rule inapplicable
     because  the  [Burrows]  took  action  to  contest  the
     complaint and were denied notice of the refusal to file
     their   answer   and  were  not  given   a   meaningful
     opportunity to be heard.15  Because of this, the  court
     agreed  with  the  lower court  that  the  Burrows  due
     process rights were violated.16
     
               There  is  a  parallel  course  between   the
     Burrows  case  and  Mr. Fowlers in  that  the  original
     courts in both cases refused to consider the defendants
     answers.  But there the similarity ends.
     
               When  Mr. Fowler was notified that his answer
     had  not  been  accepted, he was told why  it  was  not
     accepted.  He was notified that a default judgment  had
     been  entered and he filed an opposition to the default
     and  he  filed what appear to be several claims against
     the  clerk  of court.  In response to these  pleadings,
     the  Department moved to strike his opposition and  his
     claims and the court set on a hearing.  Mr. Fowler knew
     about the date and time of the hearing, but decided not
     to attend.
     
               His  excuse  for not attending  is  not  very
     convincing.  He says that he did not attend because the
     hearing  was  about  the motion  to  strike.   He  also
     asserts  that it did not matter to him whether his  May
     13th  pleadings were stricken because he had previously
     filed his answer.  The problem with this after-the-fact
     excuse  is that Mr. Fowlers May 13th pleadings  contain
     his  argument  as  to why his answer should  have  been
     accepted  and  why the default was wrongfully  granted.
     His  pleadings also created factual questions about the
     clerks actions and statements and about what the  clerk
     and  court  did with his answer.  By not attending  the
     hearing he forfeited his opportunity to establish under
     oath what he claims the clerk told him and why he filed
     his  answer  in  the manner he did.  Not attending  the
     hearing   guaranteed  that  any  error  by  the   clerk
     concerning  the  filing fee or  by  the  court  in  not
     accepting the answer would never be addressed.  It also
     assured that his pleadings would be stricken.
     
               Mr.  Fowler  had  notice of the  default  and
     notice  of  the  reasons why it was  entered.   He  had
     notice  of  the  hearing on the motion  to  strike  his
     opposition  to  the default.  He had an opportunity  to
     attend  the hearing to explain what the clerk said  and
     to  explain why he did what he did with his answer.  In
     other words, he had notice and a meaningful opportunity
     to be heard.17
     
     III. CONCLUSION
     
               Viewing   the   complete   history   of   the
     proceedings  in Idaho, the court concludes  again  that
     there  was  no due process violation. The court  denies
     the  motion  to  reconsider.   Because  the  motion  to
     reconsider  is denied, Mr. Fowlers motion  to  stay  is
     moot.
     
     ______________________

     17   Id.



II.  CONCLUSION
          For  the reasons set out by the superior court  in  its
order reprinted above, we AFFIRM the superior courts registration
of the Idaho child support order in all respects.
_______________________________
     1    AS 25.25.10125.25.903.

     2    28 U.S.C.  1738B (2006).

     3    We have edited the order to conform to this courts
style and formatting requirements and have omitted internal
citations.

     1     State, Dept of Revenue, CSED v. Maxwell,  6  P.3d
     733 (Alaska 2000).
     
2    Id. at 736.

     3     In  re  Marriage of Leslie, 772 P.2d  1013,  1017
     (Wash.  1989); Falkner v. Amerifirst Fed. Sav.  &  Loan
     Assn, 489 So.2d 758, 759 (Fla. Dist. Ct. App. 1986).
     
     4    Allstate Ins. Co. v. Khani, 877 P.2d 724 (Wash.
     App. 1994).
     
     5    Id. at 728.
     
     6    Id.
     
     7    R.R. Gable, Inc. v. Burrows, 649 P.2d 177 (Wash.
     App. 1982).
     
     8    Id. at 178.

     9    Id. at 178-79.
     
     10   Id. at 179.
     
     11   Id.
     
     12   Id.
     
     13   Id.
     
     14   Id. at 180.
     
     15   Id.
     
     16   Id.
     
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