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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.  

           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, email  

                                                                                                                           

           corrections@akcourts.us.  



                       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.  



I.         INTRODUCTION  



                      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  



premiums.  



                                 

II.       FACTS AND PROCEEDINGS  



          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                                                                                                                                                                                                                                                                                                                                                                          



 Pamela.  



                                                                       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.,  

                                                                                                                                                                                                                                                                                                                                                                                                                                       

http://dhss.alaska.gov/dhcs/Pages/denalikidcare/default.aspx(lastvisitedOct.15, 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  



                                                                                           3  

                                                                                                                                       

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



                                                                                                                      4  

                                                                                                                         

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  

                        Overpayments.  



                                                                                                                                            

                        The  main  question  presented  on  appeal  is  whether  Mark  can  recover  



                                                                                                                                            

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

overpayment.5  

                                                                                                                                                     

                             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
  


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

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.            



             9  

                                                   

                          Id. at 1266.  



                                                                                  -7-                                                                           7430
  


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

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



                                             10  

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                                      

                                    [13]  

                       obligor.                



                      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  

                                                                                                                                            



           13  

                                                                   

                      Id. (footnotes omitted).  



                                                                       -9-                                                                    7430  


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

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



reimbursement.   



                                  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                                                                                                                                  

                                                                                                                                                                 



                                                                                                                                                              16 

 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                                                              



                                                                                                                                                        18  

 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                                                                  



                                                                                                                                   24  

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  

                                                                                                                                                               



Alaska.  



                         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.              



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----------------------- 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                                                                                                                                                                                                 



                                                                                                                                                                                                                                             36  

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).                                                                                           



                       38  

                                                                                                                                                                                        

                                             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  


----------------------- Page 16-----------------------

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  



overpayment.  



                      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                                                                              



                                                                                                                                                       41  

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
  


----------------------- Page 17-----------------------

                                                                                                 

                    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  

                                  

                    ordered.  



                                                                                                                                 

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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