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Nix. v. Nix (7/23/93), 855 P 2d 1332
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
DEBBIE M. NIX, )
) Supreme Court No. S-4916
) Superior Court No.
v. ) 3AN 89-10288 Civil
DANIEL L. NIX, ) O P I N I O N
______________________________) [No. 3984 - July 23, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Elaine M. Andrews, Judge.
Appearances: Maryann E. Foley,
Anchorage, for Appellant. Allen M. Bailey,
Law Offices of Allen M. Bailey, Anchorage,
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Debbie and Daniel Nix were married in 1984 and have one
child, born in 1986. Debbie and Daniel petitioned for
dissolution of their marriage and the superior court entered a
decree of dissolution in February 1990. The decree required
Daniel to pay Debbie monthly child support in the amount of $936.
A letter written sometime after the hearing on their
petition for dissolution,1 signed only by Debbie, states her
agreement to reduce the child support payments to $300 per month
until such time that Debbie asks Daniel to increase the amount
back to $936 per month. Daniel acknowledges that Debbie
eventually exercised this right. He then increased the child
support payment to the full $936 per month. After a period of
time, the Child Support Enforcement Division (CSED) claimed that
Daniel was $8,841.54 in arrears on his child support payments.
These arrearages accrued because Daniel had reduced his child
support payments to $300 per month in accordance with the letter.
When presented with the letter, the CSED did not recognize its
effect and continued to consider Daniel in arrears.
After the CSED's claim of arrearages, Daniel filed a
motion to vacate the child support arrears with the superior
court. In an order dated November 22, 1991, the superior court
granted Daniel's motion without any accompanying explanation.
Debbie raises two main arguments against the validity
and effect of the letter. First, she argues that a child support
waiver, to be valid, must be presented to the court for approval
at or prior to the time the court enters its decree. Absent such
initial judicial approval, Debbie argues that a child support
waiver cannot be given binding effect. Second, Debbie argues
that even if pre-decree judicial approval is not required, a
child support waiver is not valid until given judicial approval.
In other words, a child support waiver is only valid
prospectively, i.e., from the date of judicial approval. We
rejected both arguments under similar facts in Malekos v. Yin,
655 P.2d 728 (Alaska 1982). Since Malekos, however, AS 25.27.0652
and Alaska Civil Rule 90.3 have come into being. The question,
then, is how these subsequent developments change the results
otherwise dictated by Malekos.
We have previously explained the history and intended
effect of Rule 90.3, as well as its interplay with AS 25.27.065.
Cox v. Cox, 776 P.2d 1045 (Alaska 1989). As noted in Cox, Rule
90.3 grew out of the Federal Child Support Enforcement Amendments
of 1984.3 The federal act sought to push states towards "greater
consistency and predictability in awarding child support." Id.
at 1047. The federal measure reflected Congress' belief that
"child support is often set at inadequate levels." Id. at 1048.
In response to the federal act, Rule 90.3 was developed. Whereas
Malekos accorded the parents a measure of freedom in bargaining
away child support, Rule 90.3's "guidelines reflect a
paternalistic view toward child support agreements." Id. Thus,
a court may deviate from the Rule 90.3 child support schedule
only upon "good cause"and a court is "not required to find that
good cause existed merely because the parties had reached an
agreement." Id. at 1049.
Given Rule 90.3's negative view of party autonomy con
cerning child support, AS 25.27.065's provision for child support
waivers could have proved troublesome. As we noted, "it is
reasonably arguable that the legislature in enacting [AS
25.27.065] intended a positive declaration that signed, written
waivers of child support would be effective where the custodial
parent could support the needs of the child adequately." Id. at
1048 n.6. We declined to so hold, however, because:
The legislative findings accompanying
the enactment [of as 25.27.065] speak of
enhancing the efforts of those who are
seeking to enforce the payment of child
support obligations, the hardship experienced
by children and families who must rely on
support from a non-custodial parent, and the
cost that must be borne by the general public
because of inadequate child support from non-
custodial parents. No mention is made of the
benefits which might flow from allowing
parents to enter into agreements waiving
child support. Thus, the mere fact that an
agreement may comply with this statute does
not mean that it is free from the operation
and effect of Rule 90.3. Our holding that
the parties cannot by contract evade the
operation of Rule 90.3 therefore does not
conflict with this statute.
Id. (emphasis added).
Cox, then, established that no parental agreement
regarding child support is valid until it receives judicial
scrutiny under Rule 90.3. This principle leads us to three
conclusions relevant to the present case. First, a child support
waiver is not valid and enforceable until a court has reviewed
and approved the waiver's substantive adequacy under Rule 90.3.
Second, where a child support award has been established through
an initial dissolution proceeding, any subsequent proposed waiver
must be presented to the court for review under the modification
procedures provided for in Rule 90.3(h)(1).4 Third, a child
support waiver presented after the initial dissolution proceeding
will be given only prospective effect from the date of judicial
Our first and third conclusions above dispose of the
present case. Under the first and third conclusions, the child
support waiver at issue in this case could only receive
prospective effect from the date of the superior court's order.
Daniel admits, however, that Debbie has validly revoked the
waiver as to any future child support. Thus, the letter of
waiver had no effect. For this reason, we REVERSE the order of
the superior court and REMAND for further proceedings.
1 The letter is dated February 1, 1989. Both parties agree,
however, that the date "1989"was incorrect and that the letter
was actually written and signed after the dissolution hearing,
but before entry of the decree, in 1990.
2 (a) . . . An agreement to waive past or
future child support, made between an obligor
and a person who is entitled to receive
support on behalf of an obligee, is not
(1) the agreement is put in writing
at the time the agreement is made; and
(2) the agreement is signed at the
time it is made by both the obligor and the
person acting for the obligee.
. . . .
(c) In a separation, dissolution,
or divorce proceeding, a court may not accept
a waiver of support by a custodial parent
without proof that the custodial parent can
support the needs of the child adequately.
AS 25.27.065(a), (c) (emphasis added).
3 Pub. L. No. 98-378, 18(a), 98 Stat. 1321 (1984)
(codified at 42 U.S.C. 667 (Supp. 1987)).
4 Civil Rule 90.3(h)(1) provides:
A final child support award may be
modified if allowed by federal law or upon a
showing of a material change of circumstances
as provided by state law. A material change
of circumstances will be presumed if support
as calculated under this rule is more than 15
percent greater or less than the outstanding
5 This result flows from Rule 90.3(h)(2)'s prohibition
against retroactive modification of child support arrearages.