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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kyte v. Stallings (9/19/2014) sp-6956

Kyte v. Stallings (9/19/2014) sp-6956

         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  



THOMAS E. KYTE,                                       )  

                                                      )        Supreme Court No. S-14492  

                           Appellant,                 )  

                                                      )        Superior Court No. 3AN-03-12844 CI  

                  v.                                  )  

                                                      )        O P I N I O N  

DEIDRE L. STALLINGS AND                               )  

STATE OF ALASKA,                                      )        No. 6956 - September 19, 2014  

                                 

DEPARTMENT OF REVENUE,                                )  

CHILD SUPPORT SERVICES                                )  

            

DIVISION,                                             )  

                                                      )  

                           Appellees.                 )  

                                                      )  



                  Appeal from the Superior Court of the State of Alaska, Third  

                                                                                  

                                                               

                  Judicial District, Anchorage, Alex Swiderski, Judge pro tem.  

                                                          



                  Appearances:            Rhonda   F.   Butterfield,   Anchorage,   for  

                  Appellant.  Susan L. Daniels, Assistant Attorney General,  

                  Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                  Juneau,  for  Appellee  State  of  Alaska.    No  appearance  by  

                                                             

                  Appellee Deidre L. Stallings.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                                  

                  Bolger, Justices.   



                  MAASSEN, Justice.  


----------------------- Page 2-----------------------

I.        INTRODUCTION
  



                   In  this  appeal,  a  father  argues  that  he  was  entitled  to  a  retroactive  

                                                                           



modification  of  his  child  support  obligations.    He  contends  that  a  request  for  



modification he filed in 2008 with the Child Support Services Division (CSSD) was   



never resolved by a final, appealable  decision as required by Alaska Appellate Rule 602;  



that  the  request  was  therefore  still  pending  in  2011  when  he  filed  a  motion  for  



modification in superior court; and that modification to the date of his 2008 request  



                                                                                                 

would not be unlawfully retroactive.  We conclude, however, that CSSD's decision of  



the father's 2008 request was an appealable final order satisfying Appellate Rule 602,  



                                                      

and we therefore affirm the superior court's conclusion that the father is not entitled to  



a retroactive modification of child support.  



II.       FACTS AND PROCEEDINGS  



                                         

                   Thomas Kyte and Deidre Stallings are the parents of a daughter, born in  



2002.  CSSD entered an administrative order in 2005 requiring Kyte to pay child support  



of $576 per month, based on his estimated annual income.  Stallings later moved that  



child  support  be  made  retroactive  to  2002,  and  Kyte  moved  for  a  prospective  



                                                                                  

modification; the superior court denied both motions in a 2007 order that maintained the  



monthly amount set by the earlier administrative order.   



                                             

                   In  January  2008  Kyte  filed  with  CSSD  a  form  request  for  review  and  



                                                                                   

modification of the 2007 order.  A few weeks later CSSD sent Kyte and Stallings notice  



                             

that the request had been filed, describing the review process and asking both parents to  



submit income affidavits, tax records, pay stubs, and proof of health insurance.    



                                                                                                     

                   The next document in the record is central to this appeal. It is a notice from  



CSSD  to  Kyte  dated  May  8,  2008,  captioned  in  bold  letters:    "Notice  of  Denial  of  



Modification Review ."  The body of the notice reads:  



                                                           - 2 -                                                     6956
  


----------------------- Page 3-----------------------

                    We reviewed the request for a modification on May 8, 2008.
  

                                                                  

                    We  will  not  go  forward  with  the  modification  for  the
  

                                               

                    following reason(s):
  

                    . . . . 
 

                    (X)	        OTHER:    Requesting  party  (non-custodial  

                              parent)       did     not     provide        Child       Support  

                              Guidelines Affidavits, IRS returns, W-2's, pay  

                              stubs or proof of insurance.  



                    If you disagree with this decision, you must file an appeal in  

                                                         

                    an Alaska court within 30 days of the date this Notice was  

                    mailed.  There is no administrative appeal process for this  

                    decision.   



The notice is signed by a CSSD child support manager.  Nothing in the record indicates  

                                                



a response to this notice from either party.  



                    Over three years later, in June  2011, Kyte filed a motion in superior court,  

                                              



seeking  to  modify  his  child  support  obligation  because  of  a  serious  hip  injury  and  

                                            



consequent reduction in his income.  He asked for modification both prospectively and  

                                                                            



retroactively to March 2008.  Recognizing that retroactive child support modifications  



are generally not allowed, Kyte asserted in his motion that his January 2008 request for  

                                                                      



modification still remained open; he contended that CSSD's notice of denial did not  

                                                    

constitute a valid final order under Alaska Appellate Rule 602(a)(2).1  

                                                                                                       CSSD intervened  



                                               

in the court proceeding in order to address the issue of retroactive modification; Stallings  



did not participate.  



                    The  superior  court  denied  Kyte's  request  for  retroactive  modification,  



                                

finding that CSSD's May 2008 denial notice was a final order from which Kyte could  



                                                                                           

have appealed.  Kyte appeals from the superior court's order.  CSSD again intervenes as  



an appellee; Stallings again does not participate.  



          1  

                                                                  

                    The modification Kyte sought in his January 2008 request would have had  

an effective date of March 1, 2008, had it been granted.  



                                                             - 3 -	                                                         6956  


----------------------- Page 4-----------------------

III.       STANDARD OF REVIEW
  



                                                                                         2  

                     "We interpret Appellate Rule 602 de novo."   In so doing "[w]e adopt 'the  



                                                                                                                3  

rule of law most persuasive in light of precedent, reason, and policy.' "   



IV.        DISCUSSION  



                                                                         

                     Alaska law prohibits retroactive modification of child support orders; the  

                                                                                      4  Accordingly, a court may not  

                                                                                          

parent's obligation can be changed only prospectively.  



modify a child support order retroactively to any date before the day a motion to modify  

                                                                                               

the order was filed.5  

                                   



                     Kyte's appeal relies on a narrow exception to this rule derived from the  



language of Appellate Rule 602(a).  The rule addresses the time for taking appeals;  



discussing  appeals  from  the  decisions  of  administrative  agencies  specifically,  Rule  



602(a)(2) provides in relevant part that "[t]he 30-day period for taking an appeal does   



not begin to run until the agency has issued a decision that                               clearly states that it is a final  



                                   

decision and that the claimant has thirty days to appeal." (Emphasis added.)  In Paxton  



v.  Gavlak,  we  held  that  once  CSSD  had  commenced  a  review  of  the  father's  child  



                                                                                                                 

support obligations, the agency's "failure to send [the father] a closure letter satisfying  



                                                                                                                       6  

Appellate Rule 602 had the consequence of keeping its review file open."   Because  



CSSD failed to close the file with a final, appealable decision denying relief, the father's  



           2         State, Dep't of Natural Res. v. Nondalton Tribal Council, 268 P.3d 293, 299  



(Alaska 2012) (citing Stone v. State, 255 P.3d 979, 982 (Alaska 2011)).  



          3          Stone, 255 P.3d at 982 (quoting                      Jacob v. State, Dep't of Health & Soc.  



Servs., Office of Children's Servs., 177 P.3d 1181, 1184 (Alaska 2008)).  



          4          Alaska  R.  Civ.  P.  90.3(h)(2);  Swaney  v.  Granger,  297  P.3d  132,  136  

                                                                       

(Alaska 2013); see also 42 U.S.C.  666(a)(9) (2012).  



           5         Alaska R. Civ. P. 90.3(h)(2); see Swaney, 297 P.3d at 136.  



           6         100 P.3d 7, 12 (Alaska 2004).  



                                                                 - 4 -                                                          6956
  


----------------------- Page 5-----------------------

child support  modification request in superior court could relate back to the date of his             



                                                                                7  

earlier agency petition - still technically pending.    



                     Kyte argues that the same rule governs his case.   He argues that CSSD  

                                                                                                      



never closed the file on his January 2008 modification request with a final, appealable  

                                            



order  that  satisfied  Appellate  Rule  602(a)(2),  and  that  he  should  be  permitted  a  



modification  of  child  support  retroactive  to  March  2008,  resulting  in  a  significant  



reduction in the past-due amounts he owes under the 2007 order.    



                     We  reject  Kyte's  argument,  concluding,  as  the  superior  court  did,  that  



                                                                                                             

CSSD's notice satisfied Appellate Rule 602(a)(2).  To be effective as a final order, a  



                     

notice  must  "clearly  indicate"  both  requirements  identified  in  the  rule:    (1)  that  the  



                                                                                                         8  

                                                                                                            We have held that  

decision is final and (2) that an appeal must be filed within 30 days. 



"where an administrative agency's decision is communicated in a letter that fails to do  

                                                                          



either of these things, it is an abuse of discretion not to relax Rule 602(a)(2)'s thirty-day  

                                                                            

appeal deadline."9  



                     In Paxton , letters issued by the agency failed to meet either requirement.10  

                                                                                                



Not only did they fail to inform the father that the agency had made its final decision or  

                                                                                                                        



that he had 30 days to appeal, they also contained "dramatically erroneous information,"  

                                                                              

including notice that he was "in substantial compliance with his child support order."11  

                                              



We concluded that the father's confusion and his failure to timely appeal to the superior  

                                                                                                                   



           7         Id.
  



           8         Skudrzyk v. Reynolds, 856 P.2d 462, 463 (Alaska 1993).
  



           9
        Paxton , 100 P.3d at 12 (quoting id.) (internal quotation marks and alteration  



omitted).  



           10        Id.
  



           11
       Id. (internal quotation marks omitted).  



                                                                 - 5 -                                                          6956
  


----------------------- Page 6-----------------------

                                                                              12  

court were reasonable under the circumstances.                                    We held that a modification of his  



child support obligation to the date CSSD issued its notice of petition would not be  

                                                                                                        

retroactive.13  



                                                                   

                     Unlike the father in Paxton , Kyte necessarily concedes that he was notified  



of his 30 days to appeal, as that fact is  expressly stated in the closing paragraph of  



                         14  

CSSD's notice.                He argues, however, that the letter failed to satisfy the first, more  



                                                                          

fundamental requirement of Rule 602 - that it clearly convey that the agency decision  



                                                                                                    

is final.  Kyte's main quarrel with the letter is that it does not include the word "final"  



or a synonym of it.  But while use of the word "final" may well add clarity, we have  



                                                                                                                       15  

never required the word itself, only that finality be "clearly indicate[d]."                                               Rule 602  



                                                                                                                       16  

                                                                                                                           Although  

requires that the agency notice "clearly state[] that it is a final decision." 



                                                                                                                    

form is important, whether a decision clearly is final depends more on its "substance and  



                                                                                                                  17  

                                                                                                                        There  is  no  

effect,"  as  shown  by  "the  operational  or  decretal  language"  it  uses. 



question here that CSSD was giving Kyte notice of its final decision.  



                                                                                            

                      The notice is clear, written in non-technical language, and contains at least  



                       

three express indications of finality.  First, the notice is captioned, "Notice of Denial of  



Modification Review," clearly stating in bold letters that the agency has decided to deny  



           12        Id.  



           13        Id.  



           14         The letter's last paragraph includes this line:  "If you disagree with this   



decision, you must file an appeal in an Alaska court within 30 days of the date this  

Notice was mailed."  



           15        Skudrzyk v. Reynolds, 856 P.2d 462, 463 (Alaska 1993).  



           16        Alaska R. App. P. 602(a)(2).  



           17        Matanuska Maid, Inc. v. State , 620 P.2d 182, 184-85 (Alaska 1980).  



                                                                  - 6 -                                                            6956
  


----------------------- Page 7-----------------------

                            

Kyte's  request.             Second,  the  notice  states,  "We  will  not  go  forward  with  the  



                                                            

modification," giving its reasons (here, a lack of supporting documentation).  Finally, the  



           

notice concludes by informing Kyte that "[t]here is no administrative appeal process for  



                                     

this decision," and that if he disagrees with it he "must file an appeal in an Alaska court  



                 

within 30 days of the date this Notice was mailed."  Taken as a whole, CSSD's notice  



                                                                                                               

clearly conveys to a reasonable reader that the agency's involvement with Kyte's request  



                                             

for modification is done - final - and any further action, such as "an appeal in an  



Alaska court," is up to him.  



                                                                                          18  

                                                                                              The import of the agency  

                    The cases on which Kyte relies are inapposite. 



                                                                                 

notice in this case was unmistakable:  CSSD's denial of his request for modification was  



                                                                           

its final action, and any further review had to be pursued in court within 30 days.  The  



                                                                    

superior court correctly ruled that Kyte was not entitled to a retroactive modification of  



his child support obligations based on his 2008 request.  



V.        CONCLUSION  



                    We AFFIRM the order of the superior court.  



          18  

                    Carlson  v.  Renkes,  113  P.3d  638,  642   (Alaska  2005)  (holding 30-day   

appeal period had not begun to run where letter did not state that it was a final decision          

or advise Carlson of his right to   appeal   within 30 days);  Skudrzyk, 856 P.2d at 463  

(relaxing  30-day  appeal  requirement  where  the  letter  "neither  indicated   that  [the]  

decision was the final order in Skudrzyk's tenure review nor advised Skudrzyk that he         

had thirty days to appeal"); Manning v. Alaska R.R. Corp. , 853 P.2d 1120, 1124 (Alaska  

1993) (relaxing 30-day appeal requirement where it was possible Manning had never  

received the decision letter, and "[t]he letter did not indicate it was an order, or that it was  

                                                                                                    

a final order, or that Manning had only thirty days to appeal from it"); Owsichek v. State,  

                                                            

Guide Licensing & Control Bd., 627 P.2d 616, 622 (Alaska 1981) (allowing delay in  

                                                                   

filing where Owsichek was not notified by the agency "that the letter was its final order  

                                                                                                          

and that he could appeal from it, but only if he did so within the next thirty days").  



                                                               - 7 -                                                            6956  

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