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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dobrova v. State, Dept of Revenue, Child Support Services Division (11/09/2007) sp-6195
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
| SHABAN DOBROVA, | ) |
| ) Supreme Court No. S- 12272 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-06-4696 CI | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF REVENUE, | ) O P I N I O N |
| CHILD SUPPORT SERVICES | ) |
| DIVISION, | ) No. 6195 November 9, 2007 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Morgan
Christen, Judge.
Appearances: Kenneth C. Kirk, Kenneth Kirk &
Associates, Anchorage, for Appellant. Julia
B. Bockmon, Assistant Attorney General,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Shaban Dobrova was ordered to pay child support for his
daughter. He appealed the child-support order to the superior
court, which remanded the case to the administrative law judge
for further findings and a new order. A new child-support order
was issued on remand, but Dobrova failed to appeal within the
thirty-day period allowed by Alaska law. About five months after
the order on remand was issued, Dobrova filed a motion asking the
superior court to accept a late appeal from the order on remand.
The motion suggested that Dobrovas former attorney had not
received the new order and had been unaware of it until a few
weeks before Dobrova moved to accept the late appeal. The state
opposed Dobrovas motion, contending that copies of the new order
on remand had been faxed to Dobrovas former attorney on two
occasions, both more than thirty days before Dobrova first sought
leave to file his late appeal. The superior court denied the
motion. Dobrova appealed the superior courts ruling to this
court and then successfully moved for a superior court order to
supplement the appellate record with documents from his original
administrative appeal, which support his contention that his
former attorney was not properly notified of the order on remand
and delayed filing an appeal because of confusion over the status
of the administrative proceedings on remand. Given the
limited information available to the superior court when it ruled
on Dobrovas motion to accept his late appeal, we conclude that
the court did not abuse its discretion in denying Dobrovas
motion; but in light of the supplemental information added to the
record after Dobrova filed this appeal, we hold that the
interests of justice require a remand to reconsider whether a
late appeal should be granted.
II. FACTS AND PROCEEDINGS
Shaban Dobrova was ordered to pay child support for his
child who was born in 1998. In November 2001 the Child Support
Services Division (CSSD)1 issued an administrative order setting
his monthly child support at $849 effective December 1, 2001, and
establishing child-support arrears of $28,335 from October 1998
through November 2001. Dobrova requested an administrative
review; after the review, CSSD amended its order, significantly
increasing Dobrovas child-support obligation and arrears.
Dobrova then asked for a formal hearing; Administrative Law Judge
Mark T. Handley conducted a hearing and issued a decision setting
Dobrovas child support at the maximum amount then allowable under
Alaska Civil Rule 90.3(c)(2) $1,400 per month with arrears
dating back to the childs birth.
Dobrova appealed to the superior court. In the
superior court proceedings, attorney Dan OPhelan replaced
Dobrovas original attorney, Swan Ching. Superior Court Judge
Joel H. Bolger issued a decision affirming the administrative law
judges findings in part, but vacated the administrative order and
remanded the case for supplemental findings and entry of a new
child-support order in light of those findings.
The superior courts order remanding the case did not
require further hearings; on August 26, 2005, the administrative
law judge issued a decision on remand, again setting Dobrovas
support obligation at $1,400 per month and making additional
findings in support of that determination.
Because attorney OPhelan had never entered an
appearance as Dobrovas counsel at the administrative level of the
proceedings, the August 26 order on remand was sent to Dobrovas
original counsel, Swan Ching. Four days later, on August 30,
2005, Stacy Steinberg, the assistant attorney general handling
the case for CSSD, noticed the mistake and faxed a copy of the
decision to OPhelans office. Steinbergs fax transmission
included a cover sheet stating, in relevant part:
DanI dont know if you ever entered an
appearance in the CSSD administrative case.
The administrative law judge just issued his
opinion pursuant to the remand by the
superior court. Mr. Dobrovas copy was sent
to his previous attorney who was the attorney
of record in the administrative proceeding.
Attached is a copy for your files. I dont
know if you are representing Mr. Dobrova in
this administrative case.
Steinbergs fax transmission report showed that the fax was
successfully received.
On September 8, 2005, CSSD mailed a Notice of
Adjustment to Dobrovas home address, informing him that his
account has been adjusted in the total amount of $92,266.42 for
the period 10/01/1998 through 9/08/2005. The notice further
stated that the adjustment had been entered because a Child
Support Decision and Order on Remand from Court, dated 08/26/05,
orders Mr. Dobrova to pay child support in the amount of
$1,400.00 per month, from 10/98 forward. The notice then added
that [a]ll payments must be made to the Child Support Services
Division. If you have any questions or concerns about this
action, please contact [CSSD].
OPhelan failed to file a timely appeal on behalf of
Dobrova and evidently took no further action until CSSD began
enforcing the new child-support order. On November 16, 2005,
OPhelan filed a motion with the superior court under the case
number assigned to Dobrovas original appeal. That motion asked
the court to bar CSSD from enforcing the administrative law
judges 2003 child-support order, arguing in part that the order
had been vacated by the superior court. Among the exhibits
attached to the motion, OPhelan included the CSSD Notice of
Adjustment, which expressly referred to CSSDs August 26, 2005
order on remand.
On December 15, 2005, after receiving Dobrovas new
motion, Steinberg again faxed a copy of the August 26, 2005 order
on remand to OPhelan, together with a copy of the cover sheet she
had included with her original fax transmission on August 30. As
before, Steinbergs fax transmission report showed that the fax
was successfully received.
On January 10, 2006, Judge Bolger entered an order
denying Dobrovas motion to preclude CSSD from collecting Dobrovas
child-support obligation. Judge Bolgers order noted that CSSD
was enforcing the August 26 order on remand, not its original
order, and that Dobrova had not appealed the August 26 order.
Several days before Judge Bolger entered the January 10
order, OPhelan, with Dobrovas consent, signed a motion to
withdraw as Dobrovas superior court attorney, claiming that a
conflict of interest concerning an unrelated matter had arisen
between Dobrova and OPhelan and that OPhelan had moved his
practice to Hawaii and was no longer taking Alaska clients. The
motion was filed on January 13, and the superior court granted it
on February 2, 2006.
On January 24, 2006, attorney Kenneth Kirk filed an
entry of appearance as Dobrovas new counsel in the superior
court; Kirk also filed a notice of appeal from CSSDs August 26,
2005 decision on remand, together with a sworn motion to accept
the late-filed appeal. Kirks motion alleged good cause to relax
the usual thirty-day deadline for filing the appeal. In his
motion, Kirk acknowledged that the administrative law judges
decision on remand was distributed on August 26, 2005, thus
making an appeal due by September 26, 2005. But Kirk pointed out
that the certificate of service for the order on remand showed
that it had been sent to Dobrovas original administrative
attorney, Swan Ching, instead of to OPhelan. Kirk alleged that
CSSDs enforcement of the order occurred to Mr. Dobrovas apparent
surprise. Kirk also represented that, in December 2005, OPhelan
had filed motions in the previous appeal case, asking Judge
Bolger to stay CSSD from enforcement. Without further
explanation, Kirk asserted these motions made it quite apparent
. . . that he [OPhelan] did not know a subsequent decision had
been issued. While acknowledging that CSSDs attorney had
apparently sent a copy of the decision on remand to OPhelan by
fax on August 30, 2005, Kirk also asserted again, without
further explanation that, [n]onetheless, Mr. OPhelan claimed not
to have seen it.
Kirks January 25 motion to accept Dobrovas late appeal
was filed without any supporting affidavits from Dobrova or
OPhelan and without any other documents or exhibits besides a
copy of CSSDs August 26 order on remand, which accompanied
Dobrovas proposed notice on appeal.
Assistant Attorney General Steinberg opposed Dobrovas
motion for late filing, insisting that Dobrovas appeal was
untimely and that he had failed to establish good cause for the
delay. Steinberg stated that the only justification Dobrova
advanced for filing his appeal late was that his former attorney,
Mr. OPhelan, did not receive the supplemental child support
decision from the administrative law judge, and thus was not
aware of the time for filing. Steinberg insisted that this
argument lacked merit for several reasons.
First, Steinberg noted, OPhelan apparently had never
entered an appearance as Dobrovas counsel in the administrative
proceedings, so the agency properly sent the decision on remand
to Swan Ching, who was still Dobrovas attorney of record at the
administrative level. Furthermore, Steinberg noted that Dobrovas
motion failed to provide any sworn testimony from Mr. OPhelan
concerning the reasons for his failure to file a timely appeal
and emphasized that the court was required to ignore the entirely
hearsay statements made in Appellants Motion for Late Filing that
are attributed to Mr. OPhelan.
In addition, Steinbergs affidavit informed the court
that she had personally faxed copies of CSSDs decision on remand
directly to OPhelans office on two occasions once on August 30,
2004, just four days after the decision was issued, and the
second time on December 15, 2004, soon after Steinberg learned
that OPhelan had filed a motion in the original superior court
appeal asking Judge Bolger to stay CSSDs efforts to enforce its
original administrative order. Steinberg pointed out that
Dobrovas motion to accept his untimely appeal did not dispute
OPhelans receipt of the December 15 fax. Even using this date,
December 15, 2005, Steinberg argued, the appeal is untimely.
In support of her opposition and affidavit, Steinberg
submitted copies of the faxes (and cover sheets, with
transmission reports) she had sent to OPhelan in August and
December 2005.
When Dobrova filed the motion to accept his late
appeal, the superior court opened a new appellate case file and
gave the appeal a new case number. Dobrovas motion to accept his
late filing was assigned to Superior Court Judge Morgan Christen.
Based on Dobrovas motion, the states opposition, the proposed
notice of appeal, and other paperwork accompanying the proposed
notice, Judge Christen entered an order on March 5, 2006,
summarily rejecting Dobrovas late appeal.
Dobrova then filed a timely notice of appeal with this
court, challenging the superior courts order denying his motion
to accept his untimely filing there. After filing his supreme
court appeal, Dobrova evidently filed a new motion in the
superior court, asking to supplement the appellate record for his
pending supreme court appeal to include documents from his first
superior court appellate case file. Namely, Dobrova sought to
include paperwork relating to his November 2005 motion, which had
asked Judge Bolger to bar CSSD from enforcing its original
administrative child-support order. Because these documents had
not been filed with the superior court in his second appeal but
were relevant to Dobrovas claim of good cause for filing that
appeal late, Dobrova argued that they should be added to the
appellate record so that the supreme court could consider them in
reviewing Judge Christens order declining his late appeal.
Dobrovas motion to supplement the record was assigned
to Superior Court Judge Fred Torrisi; Judge Torrisi granted the
motion on July 7, 2006, commenting that the documents from
Dobrovas original appeal may be of some help to the supreme court
in understanding what happened in this case.
III. DISCUSSION
A. Superior Court Order Denying Leave To File Late Appeal
Dobrova argues that the superior court should have
granted his motion to accept his late appeal from the CSSDs
August 26, 2005 order on remand. Under both Appellate Rule
602(a)(2) and AS 25.27.210(a), Dobrova was required to appeal the
administrative decision setting child support within thirty days
of its distribution.2 But Appellate Rule 502(b) gives the
superior court broad discretion to relax the usual thirty-day
limit if Dobrova established good cause to accept his late-filed
notice.3 We review for abuse of discretion the superior courts
decision to waive procedural rules and accept a partys untimely
appeal.4 The superior court abuses its discretion only if it
issues a decision which is arbitrary, capricious, manifestly
unreasonable, or which stems from an improper motive.5
In contending that Judge Christen abused her discretion
by denying his motion to accept his late appeal, Dobrova relies
heavily on the November 16, 2005 motion filed by his former
attorney, OPhelan. That motion sought to bar CSSD from enforcing
its administrative order establishing Dobrovas child-support
arrears. Statements made in the motion strongly suggest that,
when OPhelan filed it, he was still unaware that the
administrative law judge had issued a new child-support order on
remand in August. Given the November 2005 motion, Dobrova
insists that [i]t is quite apparent, from the actions Mr. OPhelan
took . . . that he did not at that time know that the decision
had been issued. Dobrova further asserts that, once he found out
about the order on remand, he promptly retained a new attorney
and appealed to the superior court. Dobrova contends that his
proposed late-filed appeal would cause no prejudice to CSSD; he
points out that the agency would remain free to enforce the
current child-support order while his appeal is pending.
Analogizing his case to the ones we considered in Sheehan v.
University of Alaska6 and Metcalf v. Felec Services,7 Dobrova
also faults the superior court for rejecting his late appeal
without explaining and justifying its ruling.
Dobrovas arguments are problematic. Initially, we note
that the soundness of the superior courts discretionary ruling
must be judged by the pleadings and arguments before that court
at the time of its ruling.8
As we have already pointed out in the statement of
facts, when Judge Christen denied Dobrovas motion to accept his
late appeal, the superior court file in the new appeal did not
include Dobrovas November 16, 2005 motion to bar CSSD from
enforcing its administrative support order a motion that OPhelan
had filed in Dobrovas first superior court appeal, which was
assigned to Judge Bolger. Nor did Dobrova attach a copy of his
earlier motion in the first appeal to his motion to accept his
untimely second appeal. Thus, at the time Judge Christen denied
Dobrovas motion to accept his untimely second appeal, the
superior courts file in the new appeal contained nothing about
Dobrovas motion in the first appeal except the information set
out in his motion to accept the second appeal. That information
consisted of a single, conclusory assertion: regarding the
earlier motion, Dobrova simply alleged that Mr. OPhelan filed
motions in the previous appeal case, asking Judge Bolger to stay
CSSD from enforcement. It is quite apparent from his motion that
he did not know a subsequent decision had been issued.
As we have also pointed out above, the state countered
this argument by producing solid evidence that OPhelan had
received actual notice of the order on remand well before he
sought to appeal it. Specifically, CSSDs counsel, Steinberg,
established that she had successfully faxed copies of the new
order directly to OPhelans office on two separate occasions, both
well over thirty days before Dobrovas January 24, 2006 motion to
accept his late appeal. Dobrovas motion did not dispute the fact
that these faxes had been sent and received; and apart from a
cryptic assertion that OPhelan claimed not to have seen the fax
Steinberg sent on August 30, Dobrova provided no support for his
claim that OPhelan failed to learn of the order on remand until
early January 2006. As Steinberg aptly noted in opposing
Dobrovas motion for late filing below, even using December 15,
2005, the date of her second successful fax to OPhelan, the
appeal is untimely.
In short, the pleadings and documents in the superior
court file when Judge Christen denied the motion to accept
Dobrovas untimely second appeal unequivocally showed that OPhelan
received actual notice of the order on remand more than thirty
days before Dobrova sought to file his untimely appeal from that
order; and Dobrova failed to advance any facts to dispute this
showing or to justify his delay after receiving the notice. As
Dobrova himself acknowledges, inexcusable neglect would not be a
basis for relief; to prevail on his motion for leave to file
late, Appellate Rule 502 requires Dobrova to bear the burden of
establishing good cause or, at a minimum, excusable neglect for
not filing sooner.9 Under the circumstances presented here, we
are unable to say that the superior court abused its discretion
in finding that Dobrova failed to meet this burden.
Nor do the circumstances of this case support Dobrovas
claim that Sheehan and Metcalf required the superior court to
make findings to justify refusing Dobrovas untimely appeal. Both
cases involved situations in which appellants who had filed
timely appeals later neglected to pursue them in a timely manner,
thus prompting the trial courts to order dismissals for failure
to prosecute the appeals.10 Likening the dismissals to litigation-
ending sanctions, we held in both cases that the trial court
should have made specific findings justifying the need for such a
drastic measure.11 Here, by contrast, the superior courts order
denying Dobrovas motion cannot be likened to a dismissal entered
as a litigation-ending sanction, for Dobrova had never properly
commenced the appeal he sought leave to pursue. And the superior
courts order denying Dobrovas motion did not dismiss a pending
action; it merely preserved the status quo. In this situation,
Dobrova bore the burden of establishing good cause or excusable
neglect as a condition of commencing his untimely appeal; if he
failed to do so, the superior court had no obligation to apply
the standards governing a litigation-ending sanction.12
Accordingly, we reject Dobrovas contention that the
superior court entered inadequate findings to justify its
rulings. Based on the arguments and information before the
superior court when it ruled, we hold that the court did not
abuse its discretion in denying Dobrovas motion to file a late
appeal.
B. Post-Appeal Superior Court Proceedings To Supplement
the Record
As already mentioned above, after Dobrovas appeal to
this court had already been filed, Dobrova filed a superior court
motion to supplement the appellate record with documents from his
original administrative appeal; this motion was assigned to
Superior Court Judge Fred Torrisi, who granted it, commenting
that the supplemental documents may be of some help to the
supreme court in understanding what happened in this case.13 Now
that the record has been supplemented, Dobrova relies heavily on
the November 16, 2005 motion filed by his former attorney,
OPhelan. That motion sought to bar CSSD from its renewed efforts
to enforce its administrative order establishing Dobrovas child-
support arrears. Statements made by OPhelan in support of the
motion strongly establish that he was unaware that the
administrative law judge had issued a new child-support order on
remand in August; OPhelans statements further suggest that CSSDs
confusion over the status of his case may have led Dobrova and
OPhelan to believe that the agencys recent enforcement efforts
inexplicably violated an earlier commitment to drop the
administrative proceedings. The supplemental documents also
strongly suggest that OPhelans misunderstanding likely was
influenced by a convergence of unfortunate circumstances: on the
one hand, OPhelan had relocated his practice from Alaska to
Hawaii and lacked immediate access to Dobrovas files; on the
other, Dobrova was experiencing stress from the recent loss of a
family member, so OPhelan felt that the timing was not right to
try to figure out why [Dobrova] was sent the [CSSD] Notice of
Adjustment.
In addition, the supplemental documents suggest that
CSSD bore the responsibility for mistakenly sending the hearing
officers order on remand to Dobrovas original attorney instead of
serving it on OPhelan: although the state asserts that the
misdirected service occurred because of OPhelans failure to file
a notice of appearance informing the agency that he had replaced
Dobrovas original attorney, documents accompanying OPhelans
November 16 motion establish that OPhelan had personally engaged
in extensive communications with CSSD on Dobrovas behalf after
Judge Bolger remanded the case to the agency.
Finally, although Kirk undeniably failed to call these
documents to Judge Christens attention in his January 2006 motion
to accept Dobrovas late appeal, the record indicates that Kirk
may not have had access to or awareness of the information
contained in the supplemental documents when he filed Dobrovas
January 2006 motion. The circumstances supporting this
conclusion include the complexity of the prior administrative
proceedings, the prior documents location in a separate superior
court case file, the recency of Kirks entry of appearance as
Dobrovas attorney, and OPhelans absence from Alaska.
Viewing the totality of these circumstances against the
backdrop of the supplemental documents, it appears that, while
OPhelans November 16 motion was formally filed as a motion to
stay further CSSD enforcement efforts, it actually challenged
actions taken by CSSD in light of the hearing officers order on
remand. In substance if not in form, the motion appears to
qualify as an attempt to appeal the order on remand. At a
minimum, then, we think that the timeliness of Dobrovas efforts
to appeal the order on remand should be evaluated in light of the
delay occurring between September 25, 2005 the thirty-day
deadline for appealing the hearing officers August 26, 2005 order
on remand and November 16, the date of OPhelans motion. And if
it appears that CSSDs mistakes substantially contributed to this
period of delay, we further believe that it would be an abuse of
discretion to deny Dobrovas motion to accept his late appeal.
Although we realize that Dobrova did not seek relief
based on this theory below and has not argued it on appeal, we
have previously recognized that we will notice a claim not raised
in the trial court if necessary to prevent a miscarriage of
justice.14 In our view, Dobrovas situation falls within the ambit
of this exception.
IV. CONCLUSION
For these reasons, although we find no abuse of
discretion in the superior courts order denying the motion to
accept Dobrovas late-filed appeal, we REMAND in the interest of
justice to allow reconsideration of that ruling in light of the
circumstances revealed in the supplemental record.
_______________________________
1 In the early stages of this proceeding , the Child
Support Services Division agency was named the Child Support
Enforcement Division, which was commonly shortened to CSED. For
simplicity we refer to the division by its current name and
acronym.
2 Appellate Rule 602(a)(2) provides in part:
An appeal may be taken to the superior court
from an administrative agency within 30 days
from the date that the decision appealed from
is mailed or otherwise distributed to the
appellant.
A similar thirty-day deadline applies under AS 25.27.210(a).
3 Appellate Rule 502(b) provides in part:
When by these rules or by a notice given
thereunder or by order of the appellate court
an act is required or allowed to be done at
or within a specified time, the appellate
court may in its discretion, either on motion
of a party, showing good cause, or sua
sponte:
(1) Extend the time period, either
before or after its expiration or
(2) Validate an act done after the
expiration of the time period.
4 Nw. Med. Imaging, Inc. v. State, Dept of Revenue, 151
P.3d 434, 438 (Alaska 2006) (citing Commercial Fisheries Entry
Commn v. Apokedak, 606 P.2d 1255, 1258 (Alaska 1980)).
5 Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1297 (Alaska
1985).
6 Sheehan, 700 P.2d at 1295.
7 Metcalf v. Felec Servs., 938 P.2d 1023 (Alaska 1997).
8 See Alaska R. App. P. 604(b)(1)(A) (record on appeal
from administrative agency consists of papers and exhibits filed
with agency).
9 Cf., e.g., Harland v. Harland, 777 P.2d 636, 644-45
(Alaska 1989) (showing of excusable neglect required to warrant
relief under Alaska Civil Rule 60(b)).
10 Sheehan, 700 P.2d at 1296 n.1; Metcalf, 938 P.2d at
1024.
11 Sheehan, 700 P.2d at 1297; Metcalf, 938 P.2d at 1025.
12 See, e.g., Beavers v. Alaska Constr., Inc., 787 P.2d
643, 644 (Alaska 1990).
13 We note that, despite the superior courts order, the
appellate record apparently was not actually supplemented. As it
currently stands, our record includes neither Dobrovas motion to
supplement the record nor the supplemental documents requested in
his motion; these documents have been made available to us only
in form of copies included in Dobrovas excerpt of the record. We
further note, as a technical matter, that, under Appellate Rule
203, the superior court probably lacked jurisdiction to
supplement the appellate record after Dobrova filed his notice of
appeal with this court. The better course in these circumstances
might have been to request a stay of the pending appeal and a
remand of jurisdiction to the superior court in order to allow
Dobrova to address the supplemental records by filing a motion
for relief from judgment under Civil Rule 60(b).
14 Municipality of Anchorage v. Sisters of Providence in
Washington, Inc., 628 P.2d 22, 34 n.14 (Alaska 1981) (internal
citation omitted).
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