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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mark A. Rosenbaum v. Pamela Shaw (3/13/2020) sp-7430

Mark A. Rosenbaum v. Pamela Shaw (3/13/2020) sp-7430

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

MARK  A.  ROSENBAUM,                                             )  

                                                                  )         Supreme  Court  No.  S-17061  

                                Appellant,                       )  

                                                                  )         Superior  Court  No.  3AN-02-12127  CI  

           v.                                                     )  


                                                                  )        O P I N I O N  


PAMELA SHAW,                                                      )  


                                                                  )        No. 7430 - March 13, 2020  

                                Appellee.                         )  



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


                      Judicial District, Anchorage, Jennifer Henderson, Judge.  


                      Appearances:  Eva Gardner, Ashburn & Mason, Anchorage  


                      (limited appearance); Gavin Kentch, Law Office of Gavin  


                      Kentch,         LLC,        Anchorage,             for     Appellant;           Mark        A.  


                      Rosenbaum,  pro  se,  Delray  Beach,  Florida,  Appellant.  


                      Michael Gershel, Anchorage, for Appellee.  


                      Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  


                      and Carney, Justices.  


                      STOWERS, Justice.  


                      This case involves an obligor father who never missed a child support  


payment to the obligee mother for their minor child.   The father retired and began  


collecting Social Security retirement benefits.  As a result, the child became eligible to  


receive a derivative monthly children's insurance benefit (CIB) from the Social Security  


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


Administration (SSA).  The mother received four years of CIB payments in addition to  


regular  monthly  child  support  payments  from the  obligor;  the  law  allows  the  CIB  


payments to be credited against the child support obligation.  However, neither parent  


notified the Alaska Department of Revenue, Child Support Services Division (CSSD)  


that  they  were  receiving  CIB  payments  for  their  daughter.                                After  four  years  of  


overpayments, CSSD discovered the CIB payment from SSA and credited the father  


more than $47,000 in child support overpayment.  


                    The father filed suit, asking the superior court for a judgment against the  


mother  for  overpaid child  support.                   He also  requested reimbursement  or  credit for  


overpaid health insurancepremiums. Thesuperior court deniedreimbursementfor either  


overpayment.   The father  appeals.   We conclude that the mother should retain the  


overpayments from the father, and we affirm the superior court on this issue; we also  


affirm its ruling declining to order reimbursement or credit for overpaid health insurance  




          A.        Facts  


                    Mark  Rosenbaum  and  Pamela  Shaw  are  the  biological  parents  of  a  


daughter, born August 2002. Mark and Pamela separated before their daughter was born  


and were initially awarded joint legal and shared physical custody.   Mark has been  


paying child support to Pamela for most of the daughter's life.  Mark's child support  


payment included half of the cost of the daughter's health insurance.  Before this case  


Mark's child support payment was last modified in 2009.  


                    In 2012 Mark retired and moved to Florida; the daughter remained with  


Pamela in Alaska.  In March Mark began receiving Social Security retirement benefits.  


Because  of  this  the  daughter  became  eligible  to  receive  CIB  payments,  and  Mark  


received and retained them on her behalf until 2014. In 2014 Pamela learned of the CIB  

                                                              -2-                                                        7430

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

payments, and upon her request SSA redirected future payments to her.                                                                                                                                                                                                                                                                                                                            Mark repaid   

 SSA the money he had received on the daughter's behalf and these funds were paid to                                                                                                                                                                                                                                                                                                                                                                          


                                                                       Mark continued to pay child support while Pamela was receiving CIB                                                                                                                                                                                                                                                                                                       

payments.   He apparently was unaware that the CIB payments could be credited against                                                                                                                                                                                                                                                                                                                                              

his child support obligation until October 2016 when SSA notified CSSD of the CIB                                                                                                                                                                                                                                                                                                                                                                

payments, and CSSD contacted Mark to inform him that he had an overbalance of                                                                                                                                                                                                                                                                                                                                                                              

 $47,432.   Pamela was also apparently unaware until late 2016 that CIB payments could                                                                                                                                                                                                                                                                                                                                                    

be credited against Mark's child support obligation. Mark stopped paying child support                                                                                                                                                                                                                                                                                                                                          

 in November 2016.                                                      

                                                                       The   child   support   order   provided   that   Pamela   "must   purchase   health  

 insurance for the child because such insurance is available at reasonable cost through her                                                                                                                                                                                                                                                                                                                                                             

 employer, union or otherwise."                                                                                                                                        The insurance cost was to be divided equally between                                                                                                                                                                                                

the parties.                                                   In 2012 Pamela lost her job and was no longer able to provide health                                                                                                                                                                                                                                                                                                  

 insurance for the daughter.                                                                                                                   Under such circumstances, the child support order provides                                                                                                                                                                                                                  

that if insurance is available to one parent at a reasonable cost, that parent must purchase                                                                                                                                                                                                                                                                                                                             

health insurance for the daughter.                                                                                                                                                         Pamela asked Mark to add their daughter to his                                                                                                                                          

 insurance.    Mark did so and in January 2013 began paying a monthly premium of                                                                                                                                                                                                                                                                                                                                                                          

 $275.42 for the daughter's coverage.                                                                                                                                                               Pamela later stated that Mark never informed her                                                                                                                                                                                                   

that the daughter was on his insurance and never provided her with an insurance card for                                                                                                                                                                                                                                                                                                                                                                 

                                                                                                                                                                                                                                                                                                                                                                                                                           1  and the  

the daughter.                                                           Pamela subsequently enrolled the daughter in Denali KidCare,                                                                                                                                                                                                                                                                                                                   

 daughter was enrolled until the summer of 2017 when, according to Pamela, she learned  


                                    1                                  Denali KidCare "is an expansion of the Medicaid Program in Alaska" that                                                                                                                                                                                                                                                                                                                             

provides coverage to children and teens who meet the income guidelines.                                                                                                                                                                                                                                                                                                                                  See Denali   

KidCare Alaska's Children's Health Insurance Program                                                                                                                                                                                                                                                    , D           IV. OF HEALTH  CARE  SERVS.,  

                                                                                                                                                                                                                                                                                                                                                                                                                               , 2019).  

                                                                                                                                                                                                                              -3-                                                                                                                                                                                                               7430

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


that the daughter was covered under Mark's insurance plan.  Mark stated that he told  


Pamela in January 2013 that he added the daughter to his health insurance, and he  


claimed that since June 2013 he had received notification of 18 claims that had been  


processed for the daughter's healthcare needs.  


          B.        Proceedings  


                    In August 2017 Mark filed a motion in superior court for entry of judgment  


to recover overpaid child support and health insurance premiums.  He explained that  


CSSD had told him that it would collect the $47,432 overpayment from Pamela but  


needed a judgment from a court directing it to do so.  He also contended that he was  


entitled to repayment from Pamela for half of the $275.42 monthly health insurance  


premiums he had been paying for the daughter's coverage since January 2013 - a total  


of $7,574.05.  


                    Pamela opposed Mark's motion, arguing that the rule against retroactive  


modification of child support barred Mark's request for repayment of health insurance  


premiums.  As to the child support overpayment, Pamela acknowledged that "a child  


support obligor is entitled to a dollar-for-dollar credit for CIB paid to a child" and that  


"previously uncredited CIB payments can be retroactively credited against the obligor's  


support arrears."  But she argued that this court "has never authorized . . . an affirmative  


recovery of support payments resulting from the crediting of CIB payments."  Pamela  


urged the superior court to conclude that "the overage resulting from the CIB payments  


should not be credited against subsequent months to reduce [Mark's] future obligation"  


and that "the overage does not create a right of recovery against [Pamela]."  


                    Mark  filed  a  reply  brief  and  requested  an  evidentiary  hearing.                                Mark  


explained that he wished to call a CSSD representative to describe the mechanics of the  


relevant administrative code - 15 Alaska Administrative Code (AAC) 125.475 - that  


he argued "clearly sets out [his] right to recover his out of pocket additional child support  

                                                                -4-                                                         7430

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


payments."  Pamela disagreed that an evidentiary hearing was necessary.  The superior  


court scheduled oral argument and explained that it expected argument on the legal  


question of the "interpretation of the relevant code sections" pertaining to whether Mark  


could recover the overpayment, "not presentation of evidence."  


                    Mark moved for reconsideration, arguing that the court was overlooking  


"theprincipleofjudicialdeferenceto agencyinterpretation and applicationofthestatutes  


[the agency] operates under."  Mark again requested an evidentiary hearing to present  


his witness from CSSD.  Pamela opposed, arguing that CSSD's "view of the matter"  


should not be entitled deference and that whether Mark could recover the overpayment  


was  the  court's  decision.                In  January  2018  the  court  denied  Mark's  motion  for  


reconsideration, ruling that "[t]here is no ambiguity in 15 AAC 125.475 itself such that  


the Court requires further evidence regarding CSSD's interpretation of the code."  


                    After holdingoral argumentthecourt denied Mark'srequest forajudgment  


for recovery of health insurance premiums and for recovery of his overpayment of child  


support. The court directed CSSD to "withdraw from its accounting of the child support  


account  of  [the  daughter]  the  overpayment  credit  accorded  to  [Mark]  that  resulted  


from . . . the crediting of the CIB payments received on behalf of the minor child."  The  


court ruled that CSSD should credit Mark for "ongoing CIB payments up to the amount  


of [Mark's] monthly child support obligation."   (Emphasis in  original.)   The court  


explained that the majority approach of other state courts is not to allow recovery for past  


child support overpayments created by duplicativechild support and CIBpayments. The  


court also noted the "obvious concern surrounding an obligor parent building up a  


support  credit  to  then  subsequently  decline  to  provide  support  in  reliance  on  the  


overpayment, or to demand repayment." The court modified Mark's support obligation  


to $1,221 per month going forward based on his then-current income and purchase of  


health insurance for the daughter.  It indicated that Mark "will only be responsible for  

                                                                -5-                                                         7430

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

paying the amount by which his obligation exceeds [the daughter's] CIBpayment." This                                                               

appeal followed.                 

III.	       STANDARD OF REVIEW                

                        The question whether to allowreimbursement or credit for an overpayment                                     

resulting from duplicative child support and CIB payments is a question of law we                                                                    

review de novo.2                                                                                                                      

                                Our duty under this standard is "to adopt the rule of law that is most  



persuasive in light of precedent, reason, and policy."                                        "The proper method of calculating  



child support is a question of law, which we review de novo . . . ." 

IV.	        DISCUSSION  


            A.	         The Superior Court Did Not Err By Determining That Mark Was Not  


                        Entitled           To       Reimbursement                      Or       Credit           For       Child          Support  



                        The  main  question  presented  on  appeal  is  whether  Mark  can  recover  


through  reimbursement  or  credit  against  future  payments  a  $47,432  child  support  



                             As explained above, the superior court answered this question in the  

            2	          See  Hermosillo  v.  Hermosillo,  962  P.2d  891,  893  (Alaska   1998);  Pacana  

v.  State  of  Alaska, Dep't  of  Revenue,   Child  Support  Enf't  Div.,   941  P.2d   1263,   1264  

(Alaska   1997).  

            3	          Pacana, 941 P.2d at 1264 (quoting Barber v. Barber, 915 P.2d 1204, 1209  


n.10 (Alaska 1996)).  


            4	          Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002).  


            5           The superior court recalculated Mark's child support obligation as $1,221  


per month. Mark did not appeal this recalculation. The practical effect of allowing Mark  


to credit the $47,432 overpayment against future child support payments would be that  


Pamela would receive only $1,052 monthly in CIB payments and the additional $169 of  


Mark's monthly child support obligation ($1,221 minus $1,052 equals $169) would be  


deducted from the $47,432 credit, resulting in Pamela not receiving the additional $169  


each month.  


                                                                           -6-	                                                                  7430

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negative.   The court directed CSSD to remove the credit from Mark's account and to                                                                          

allow only future CIB payments to be credited against the child support obligation in the                                                                           

month the CIB payment is received.                                       

                          1.           Pacana v. State       

                          Mark contends that "[t]here is potentially a very simple resolution to this   

                                                                        6 and asserts that both parties and the superior court  

appeal." He points to                     Pacana v. State                                                                                                       

agreed below that Pacana answers the central question in this appeal.  He argues that  


under Pacana it has been "settled law in Alaska for at least twenty years that this type  


of overpayment is recoverable."  Mark says we need only look to Pacana to decide this  


appeal, but in the alternative he argues that "persuasive caselaw, public policy, and  


constitutional principles" support his position.  


                          In Pacana  we addressed "whether a parent can receive credit for CIB  


payments made before the parent moves to modify child support."7  We observed that  


the majority rule among other states is that "CIB payments made prior to a motion to  


                                                                                                           8   We adopted the majority rule,  

modify are credited against child support obligations."                                                                                                          


concluding that Alaska Civil Rule 90.3(h)(2), which restricts retroactive modification of  


a child support order, allows "automatic credit against child support arrearage for CIB"  


without first requiring the party to file a motion to modify.9                                                             We explained that CIB  


payments  are  different  than  most  other  nonconforming  payments  (i.e.,  voluntary  


payments such as cash gifts to children) because they are "regular monthly payments and  


             6            941 P.2d 1263.                  

             7            Id. at 1264.  


             8            Id.  at 1265.            



                          Id. at 1266.  

                                                                                  -7-                                                                           7430

----------------------- Page 8-----------------------

the custodial parent is aware of them," and "they can [therefore] be credited against a                                                              


child support obligation."                       

                       We then addressed whether overpayments -resulting fromCIBpayments  


and garnishments of Social Security disability income together totaling more than the  


parent's monthly child support obligation - could be credited against child support  


arrearages accrued after the children started receiving the CIB payments but before the  


garnishments began.11                    We concluded:  


                                   An overpayment issue is present here.  It is the result  


                       of [CSSD's] garnishments rather than any CIB payments that  


                       exceed the support order.   After approximately September  


                        1993, [CSSD] was garnishing [obligor's] disability benefits  


                       and his permanent fund dividend.   Between the garnished  


                       benefits  and  the  CIB  payments,  [obligor]  was  effectively  


                       paying his children more than $1,000per month, although the  


                       support  order  awarded  only  $750.                                   We  conclude  that  


                        [obligor's] arrearage accruing after September 1993 should  


                       be canceled. [Obligor's] overpayments after that date will  


                       offset other [post-disability] arrearages.[12]  


                       We  also  commented  in  dictum  on  what  happens  if  the  monthly  CIB  


payment alone exceeds the obligor's monthly child support obligation:  


                                   [Obligee]  claims  that  the  minority  rule  is  more  


                       equitable if monthly CIB payments exceed the awarded child  


                       support.  In this circumstance, obligor parents might wish to  


                       credit  the  overpayment  amount  against  a  future  support  


                       obligation or force the custodial parent to repay this amount.  


                       Nonetheless, most courts following the majority rule treat the  


                       excess payment during the obligor's disability as a gratuity to  


            10         Id.  

            11         Id.  at 1267.         

            12         Id.  

                                                                         -8-                                                                  7430

----------------------- Page 9-----------------------

                      the children, so that the custodial parent does not owe the                                      



                      As explained above Mark argues that we need look only to Pacana  to  


decide this appeal in his favor, as he asserts the Pacana  court determined that "an  


overpayment resulting from combined 'normal' support payments and CIB payments is  


not to be treated as a gratuity to the child."  (Emphasis in original.)  Mark's reading  


misconstrues Pacana.  In Pacana we addressed only whether overpayments resulting  


from CIB payments plus "normal" support payments can be credited against arrearages.  


We did not make a sweeping ruling as to whether overpayments resulting from CIB  


payments plus "normal" support payments are a gratuity.  While we chose not to treat  


the  overpayments  as  a  gratuity  in  Pacana,  there  is  reason  to  distinguish  between  


overpayments offsetting past arrearages, as was at issue in that case, and overpayments  


serving as a basis for future credit or reimbursement, as is requested in this case. Pacana  


therefore does not resolve the question presented by this appeal.  


                       2.         Cases from other states  


                       Mark and Pamela cite various out-of-state cases to support their positions  


on appeal.  Mark argues that "the evolving national trend in this area is toward allowing  


a trial court flexibility and discretion when ruling on support overpayment, rather than  


constraining it with a more rigid approach that does not allow consideration of case- 


specific factual and equitable factors." Mark urges us to adopt a discretionary approach  


that allows the court to consider whether reimbursement or credit for overpayment is  


warranted.  Pamela counters that the majority view favors denying reimbursement and  


that the recent trend towards reimbursement Mark points to is not as persuasive as he  


claims, both because some of the cases he cites involve different factual situations and  




                      Id. (footnotes omitted).  

                                                                       -9-                                                                    7430  

----------------------- Page 10-----------------------

because some of the cases involve courts interpreting statutes that affirmatively allow                                                                                                                    


                                  Many of the cases Mark and Pamela cite are not factually analogous to this                                                                                                    

case, as they involve situations where the obligee parents received retroactive lump-sum                                                                                                        

CIB payments because the obligor parents were approved for Social Security disability                                                                                                             

                                                                                                               14      The obligee's receipt of the lump-sum  

benefits and were paid retroactive benefits.                                                                                                                                                   

payment effectively duplicated the months of child support the obligor had been paying  


while the obligor's disability application was pending.  These cases are distinguishable  


because this case does not involvechild support payments madewhileanapplication was  


pending. Instead, in this case the obligor was making child support payments while SSA  


was providing CIB payments and the obligor did not realize that he was overpaying until  


four years later.  


                                  This case is analogous to some out-of-state cases, a number of which  


support the superior court's decision not to permit reimbursement of duplicative child  


                                                                                                                                                                                        15  the Kansas  

support and CIB payments.  In In re Marriage of Stephenson & Papineau                                                                                                                                  



 Supreme Court discussed its prior holding in Andler v. Andler .    The factual situation  


in Andler was analogous to this case; Harold Andler was making monthly child-support  


payments while the children were also receiving CIB payments due to his disability.17  


The court explained that Harold "did not have an obligation to make an additional child- 


                 14               See   Hamilton   v.   Reynolds,   5   N.E.3d   1053,  1055   (Ohio   App.   2013)  

(involving retroactive lump-sum payment of benefits that duplicated already paid child                                                                                                                       

support monies);                           In re H.J.W. &M.E.W.                                    , 302 S.W.3d 511, 513 (Tex. App. 2009) (same);                                                      

Paulhe v. Riley                        , 722 N.W.2d 155, 157-58 (Wis. App. 2006) (same).                                                                                    

                 15               358 P.3d 86, 88-90 (Kan. 2015).  


                 16               538 P.2d 649 (Kan. 1975).  


                 17               Stephenson, 358 P.3d at 88.  


                                                                                                        -10-                                                                                                 7430

----------------------- Page 11-----------------------

 support payment each month beyond the [CIB] payment because the [CIB] payment                                                              


 fulfilled his obligation in the same month the child-support obligation became due."                                                                        

The court stated that "[t]he [CIB] payment satisfied the court's child support order,  


meaning [Harold's] personal child-support payments were duplicative at the time he  


made them - and thus these additional child-support payments were truly gratuitous."19  


Accordingly, the court in Andler  did not allow recovery of the duplicative gratuitous  


payments, and the court in Stephenson reaffirmed this holding.20  


                        In  Department  of  Human  Services  v.  Austin  the  obligor  sought  credit  


 against his child support arrearages for voluntary payments he made while his child was  


 also  receiving  CIB  benefits.21                           The  Oklahoma  Court  of  Appeals  held  with  little  


 explanation  that  the  obligor  "fail[ed]  in  his  burden  to  prove  equity  entitles  him to  


additional credit by reimbursement for child support payments he voluntarily made  


during the relevant time period of the child's receipt of [CIB payments]."22  


                        In Wicker v. Hallman an obligor was overpaying his child support by $200  


                                                                                                                                               23   The  

 a month for seven years, the money being directly withheld from his paychecks.                                                                      


Alabama  Court  of  Appeals  explained  that  its  "review  of  decisions  from  other  


jurisdictions  indicates  that  the  prevailing  rule  is  that  a  parent  who  has  voluntarily  


            18          Id.  at  89.  

            19          Id.   

            20          Id.   However,  the  Kansas  Supreme  Court  refused  to  extend  the  holding  to  

 child   support   payments   made   during   the   pendency   of   a   Social  Security   disability  

 application.   Id.  at  89-90,   100.  

            21          232 P.3d 936, 938 (Okla. App. 2010).  


            22          Id. at 939 (emphasis in original).  


            23          245 So. 3d 627, 628-29 (Ala. App. 2017).  


                                                                          -11-                                                                    7430

----------------------- Page 12-----------------------

exceeded the amount of payments owed on his or her child-support obligation is not                                                                  


entitled   to   a   credit   or   setoff   against   future   child-support   payments."                                                           

                                                                                                                                          The  father  

                                                                                                                                         25  He stated  



contended that "he did not voluntarily overpay his child-support obligation." 

                                                                                                                                                  26   But  

that he believed the state was collecting the correct amount from his paychecks.                                                                        


he also testified that he knew he was supposed to be paying only $900, that $1,100 was  


being withheld from his checks, and that this went on for seven years.27                                                            In denying his  


request forreimbursement,thecourtexplained that "voluntary overpayments madeunder  


a mistaken belief as to their legal consequences cannot be used as a credit against future  


child-support payments."28  


                         Some state courts have adopted a position contrary to that of the superior  


court.  In Rathbone v. Corse the Vermont Supreme Court allowed reimbursement when  


the obligor  made child-support  payments during  a period  when the child was also  


receiving CIB payments.29                            The court explained that "[a]llowing reimbursement for  


payments during the pendency of an application would encourage obligor parents to  


                                                                                                                                                  30   The  

continue support payments as they await the outcome of their SSDI applications."                                                                        


court further reasonedthat "[t]heavailabilityofreimbursement for thesepaymentsdenies  


            24          Id.  at 630.         

            25          Id.  at 632.         

            26          Id.  at 632-33.   

            27          Id. at 633.  


            28          Id.  


            29           124 A.3d 476, 482-83 (Vt. 2015).                               

            30          Id.  at 482.   

                                                                           -12-                                                                      7430

----------------------- Page 13-----------------------

a shirking obligor the ability to use tomorrow's retroactive credit as a justification for not                                                                

meeting today's obligations."                           31  

                         In In re Marriage of Allen the Arizona Court of Appeals addressed whether  


to apply credit for both a duplicative lump-sum CIB payment and duplicative monthly  


CIB payments.32                    The court looked to the Arizona Supreme Court Guidelines used to  


determine the amount of child support appropriate in a given situation based on "all  


relevant factors."33                  In interpreting those guidelines, the court concluded that the trial  


court's determination that the obligor should receive credit for duplicative monthly  


payments was in line with the applicable guideline.34  The court remanded for the trial  

court to issue a judgment and order for the obligor's repayment if the trial court made  


requisite findings based on the consideration of "all relevant factors."35                                                              Thus the court  


allowed  the  trial  court  discretion  in  fashioning  reimbursement  or  credit  based  on  


applicable guidelines governing child support overpayments, but this result was based  


on Arizona's Supreme Court Guidelines.  We have not adopted similar guidelines for  



                         In  summary,  many  of  the  out-of-state  cases  cited  by  the  parties  are  


distinguishablefromthis casebecausethey involved retroactivelump-sumpayments that  


duplicatedchild-support payments madewhileadisability application was pending. The  


reasoning and policy cited in those cases are thus of limited use in deciding this case.  


             31          Id.  at 483.   

             32          386 P.3d 1287, 1291-92 (Ariz. App. 2016).  


             33          Id. at 1289 (quoting Ariz. Rev. Stat.  25-320(D)).  


             34          Id.  at 1291.   

             35          Id.  at 1291-92.              

                                                                              -13-                                                                        7430

----------------------- Page 14-----------------------

Of   the   factually  analogous   cases   discussed   above,   we   find   those   in   support   of   the  

superior court's ruling more persuasive.  We agree that voluntary overpayments made                                                                       

while SSA is making CIB payments cannot be used as a credit or setoff against future                                                                                               

child support payments and cannot be reimbursed.                                                                                                                                If a parent has no arrearages and                                 

makes duplicative child support payments even after SSA begins making CIB payments,                                                                                                                                                                                

we will treat those duplicative payments as a gratuity.                                                                                                                                 Such overpayments may not be                                                                        

recovered in the future.                                 

                                             3.                     Other Alaska cases                                

                                             We observe some cases that we previously decided on different grounds                                                                                                                                                       

also   support   the   general   proposition   that   voluntary   overpayments   should   not   be  

reimbursed or credited against future payments.                                                                                                                    In  Epperson v. Epperson                                                               we held that                  

the obligor's "past voluntary contributions in excess of his support obligation [did] not                                                                                                                                                                                                 


constitute good cause for reducing his future child support obligation."                                                                                                                                                                                                       

                                                                                                                                                                                                                                                      And in Ruppe  


v. Ruppe we cited Epperson  and explained, "Even if [obligor] had paid [obligee] too  


much during the interim period, it was error to credit any voluntary overpayment against  

                                                                              37       We referenced our previous holding that "it is contrary to the  


his future obligations." 

purpose of Civil Rule 90.3 to offset such contributions against future child support  


payments except in exceptional circumstances."38  



                                             4.                     Public policy  


                                             Mark also argues that "sound public policy benefits result from declining  


to treat [his] overpayment as a gratuity and rather allowing reimbursement."  

                       36                     835 P.2d 451, 453 (Alaska 1992).                                                                                    

                       37                    358 P.3d 1284, 1292 (Alaska 2015).                                                                                           



                                             Id. (quoting Epperson, 835 P.2d at 453).  

                                                                                                                                            -14-                                                                                                                                    7430

----------------------- Page 15-----------------------

 He cites the out-of-state cases involving retroactive lump-sum CIB payments in which                                                                                                                                                                                                                                                                                                       

courts concluded that it is a perverse consequence "to encourage an obligor to withhold                                                                                                                                                                                                                                                                                        

direct support for several years, in order to create an arrearage against which derivative                                                                                                                                                                                                                                                                                

benefits could later be credited, rather expressing a strong preference for continued                                                                                                                                                                                                                                                                                    

payment and later reimbursement."                                                                                                                                       Mark's comparison is inapposite.                                                                                                                                  This policy goal                                           

is relevant when dealing with retroactive lump-sum CIB payments and the period an                                                                                                                                                                                                                                                                                                                            

obligor might wait for a Social Security disability application to be processed, but is                                                                                                                                                                                                                                                                                                                          

irrelevant when an obligor makes child support payments while the obligee also receives                                                                                                                                                                                                                                                                                            

monthly CIB payments that satisfy the obligor's obligation.                                                                                                                                                                            

                                                               Pamela also makes policy arguments for why we should deny credit or                                                                                                                                                                                                                                                                             

reimbursement.   Pamela explains that "we should be hesitant to create a . . . rule that                                                                                                                                                                                                                                                                                                               

 strips the money from the child's household after the money has already been provided                                                                                                                                                                                                                                                                                         

 for the child."                                                          She further asserts that "reimbursement could wreak havoc for the                                                                                                                                                                                                                                                              

custodial household where it is allowed for payments made months or years in the past,                                                                                                                                                                                                                                                                                                              

when the CIB monies would likely have been long since budgeted and expended."                                                                                                                                                                                                                                                                                                                          We  

 find Pamela's arguments persuasive.                                                                                                                                            

                                                                5.                             Conclusion  

                                                               No Alaska statute or case law controls our resolution of this issue, and we  


recognize that there are valid arguments on both sides.  The question comes down to a  


balancing   of   competing   policies   as  articulated   by   out-of-state   cases   as   well   as   the  

 superior court and parties.                                                                                                 We determine that the policies articulated in                                                                                                                                                                        In re Marriage            

                                                                                                                               39                                                                                                                          40 

of Stephenson & Papineau                                                                                                               and Wicker v. Hallman,   as well as  Pamela's articulated  

policy argument, are more persuasive, and we conclude that it is more fair to allocate the  


                                39                              358  P.3d  86,  89-90  (Kan.  2015).   

                                40                              245  So.  3d  627,  628-29  (Ala.  App.  2017).   

                                                                                                                                                                                                    -15-                                                                                                                                                                                                                 7430  

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risk of loss to Mark.                                                  He was the parent making the overpayments, and he had every                                                                                                                                       

opportunity to notify CSSD.                                                                   And, in agreement with the superior court, we are "further                                                                                                          

mindful of obvious concern surrounding an obligor parent building up a support credit                                                                                                                                                                                     

to then subsequently decline to provide support in reliance on the overpayment, or to                                                                                                                                                                                                 

demand   repayment."     Accordingly,   we   affirm   the   superior   court's   order   regarding  


                      B.	                   The                  Superior                              Court                       Did                Not                 Err                 By              Not                 Allowing                               Mark  

                                            Reimbursement   Or   Credit   For   50%   Of   The   Daughter's  Health  

                                            Insurance Premiums.   

                                            Mark also argues that the superior court erred by refusing to order Pamela                                                                                                                                               

to reimburse him for his $7,500 overpayment in health insurance premiums for covering                                                                                                                                                                           

the daughter.                                The superior court ruled that Mark's claim for reimbursement for health                                                                                                                                                    

insurance premiums was barred by the law against retroactive modification of child                                                                                                                                                                                         

support; the court did adjust Mark's future support payments by deducting half the cost                                                                                                                                                                                         

of the health insurance he was purchasing.                                                                                                         The court explained that because health                                                                              


insurance   offsets  are   part   of   child   support,                                                                                                                                                                                                

                                                                                                                                                                Rule  90.3(h)(2)'s  bar  on  retroactive  


modification disallows Mark from receiving retroactive credit for the health insurance  

                                                                 42           The  court  found  that  Mark  had  not  "notified  CSSD  of  his  


premiums  he  paid. 

assumption of the child's health insurance cost at the time he commenced it in 2013."  


                                            The child support order states:  


                      41                    AS 25.27.900(12)(B)(ii) (" '[S]upport order' includes a judgment, decree,                                                                                                                                                

or   order   .   .   .   for   any   or   all   of   the   following   .   .   .   payment   of   health  care   costs   or  

maintenance of health insurance.").                                                                                    

                      42                    See Alaska R. Civ. P. 90.3(h)(2) ("No Retroactive Modification.   Child  


support   arrearage   may   not   be   modified   retroactively,   except   as   allowed   by  


AS 25.27.166(d) [disestablishment of paternity]."); Kyte v. Stallings, 334 P.3d 697, 699  


(Alaska 2014) ("Alaska law prohibits retroactive modification of child support orders;  


the parent's obligation can be changed only prospectively.").  


                                                                                                                                        -16-	                                                                                                                                7430

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                    If there is no health care coverage for the child and insurance  


                    becomes available to a parent at reasonable cost, that parent  


                    must purchase the insurance after giving notice to the other  


                    parent.  The cost of the insurance must be divided between  


                    the parents equally unless a different division of the cost is  


                    ordered.        Without further order of the court, the monthly  


                    child support obligation will . . . decrease by 50% of the cost  


                    of the insurance if the obligor purchases it, unless otherwise  




It is disputed whether Mark gave Pamela notice of his purchase of health insurance.  If  


Mark did give notice, then his child support obligation automatically decreased by half  


of what he was paying for the insurance when he started purchasing it; no further court  


action was necessary. His continued full payment would therefore have been a voluntary  


overpayment which, as we discussed above, is not subject to reimbursement or credit.  


The  child  support  order  does  not  address  the  situation  in  which  Mark  purchases  


insurance without giving notice to Pamela.  Notwithstanding, it would create perverse  


incentives  to  deny  reimbursement  or  credit  if  Mark  did  give  notice,  but  to  allow  


reimbursement or credit if Mark failed to give notice; Mark would receive a preferable  


outcome for failure to abide by the child support order's notice requirement. Despite the  


ambiguity of the child support order, the outcome is not dependent on whether Mark  


gave  Pamela  notice  of  the  insurance  purchase;  either  way  he  cannot  receive  


reimbursement or credit.  We affirm the superior court's denial of any health insurance  


premium reimbursement.  

V.        CONCLUSION  


                    We AFFIRM the superior court's order in all respects.  

                                                              -17-                                                         7430

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