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M. Dewey v. H. Dewey (11/25/94), 886 P 2d 623
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Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL A. DEWEY, )
) Supreme Court No. S-5572
Appellant, )
) Superior Court No.
v. ) 1PE-85-04 DR
)
HELEN K. DEWEY (ROBERTS), ) O P I N I O N
)
Appellee. ) [No. 4149 - November 25, 1994]
______________________________)
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Petersburg,
Thomas M. Jahnke,
Judge.
Appearances: Fred W. Triem, Petersburg,
for Appellant. Charles A. Winegarden,
Kodiak, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice, pro tem.*
MOORE, Chief Justice.
BRYNER, Justice, pro tem., dissenting.
I. INTRODUCTION
Michael Dewey (Michael) was divorced from Helen Dewey
(Helen), now Helen Roberts, in 1985. Michael agreed to pay child
support for both their son, born during the marriage, and
Michael's stepdaughter, born to Helen before the marriage. In
1992, Michael filed a motion for relief from judgment, in which
he sought to terminate the support obligation for his
stepdaughter. This case requires us to determine whether Michael
is obligated under the original agreement to support his
stepchild, and, if so, whether Michael has made a sufficient
showing to terminate his obligation. We hold that Michael
remains obligated under the agreement.
II. FACTS AND PROCEEDINGS
This case concerns the obligations of Michael Dewey to
support Tisha Melovidov.1 Tisha was born on February 1, 1979.
The portion of her birth certificate that lists her father's name
is left blank. Tisha's natural father is Jack Fox. Michael
married Helen Melovidov (later Dewey) on July 29, 1979, six
months after Tisha's birth. It is undisputed that Michael is not
Tisha's natural father. During the six years in which he was
married to Helen, Michael did not adopt Tisha or legitimate her
pursuant to AS 25.20.050.
Michael and Helen subsequently petitioned for
dissolution of their marriage, and a decree of dissolution was
granted in February 1985. The parties were not represented by
attorneys when they obtained their dissolution. Since 1985, the
parties have not seen each other, nor has Michael seen either his
son Robert or his stepdaughter Tisha. Helen Dewey has since
remarried and is now known as Helen Roberts. She currently
resides in Kodiak, while Michael lives in Missouri.
Because of the accrual of a large arrearage in child
support, Michael's wages have been garnished, and his federal tax
refunds have been seized. Michael filed a motion for relief from
judgment pursuant to Alaska Civil Rule 60(b) and to AS 25.24.170
on July 16, 1992. The superior court denied this motion by
memorandum and order of December 24, 1992. Michael filed a
motion to reconsider, which the trial court denied. Michael
appeals the denial of his motion for relief from judgment.
III. DISCUSSION
A. Validity of Stepparent's Agreement to Support Stepchild2
"At common law, a stepparent-stepchild relationship
imposes no obligations and confers no benefits on either the
stepparent or the child." Burgess v. Burgess, 710 P.2d 417, 422
(Alaska 1985). While some states impose a duty on the stepparent
to support the stepchild as long as the stepparent is married to
that child's natural parent,3 no such duty exists in Alaska. Id.
at 422 n.10. Thus, while married to Helen, Michael had no duty
to support Tisha. Furthermore, even in those states where the
stepparent does have a support obligation while married to the
natural parent, such obligation terminates upon the divorce of
the stepparent from the natural parent. See, e.g., Wash. Rev.
Code 26.16.205 (West 1986 and Supp. 1994); see generally David
V. Sweet, Annotation, Stepparent's Postdivorce Duty to Support
Stepchild, 44 A.L.R.4th 520, 531-39 (1986) ("a stepparent has no
postdivorce duty to support a stepchild").
However, there are certain exceptions which may cause a
court to impose a continuing support obligation on the
stepparent. One exception occurs where the stepparent has made
an express written or oral agreement to support the stepchild,
where such agreement is enforceable under state law. See, e.g.,
Brown v. Brown, 412 A.2d 396, 402 (Md. 1980). There are other
possible exceptions based on equitable principles, such as
promissory estoppel, equitable estoppel or equitable adoption.
In this case, Michael explicitly agreed to support
Tisha in the Petition for Dissolution of Marriage. This
agreement is enforceable under Alaska law, and therefore an
exception to the general rule that no post-divorce support
requirement exists here. While there is no Alaska case directly
on point, we have held that parties are bound by settlement
stipulations in the same manner as they would be bound by
contract. Godfrey v. Hemenway, 617 P.2d 3, 8 (Alaska 1980);
Kimball v. First Nat'l Bank, 455 P.2d 894, 898 (Alaska 1969).
"The courts look with favor on stipulations designed to simplify,
shorten or settle litigation. . . ." Godfrey, 617 P.2d at 8.
Absent a showing of a cognizable contract defense, such as fraud,
we hold parties to their voluntary bargains.4 See also, Carter
v. Brodrick, 644 P.2d 850, 851-2, 855 (Alaska 1982) (indicating
that Alaska would enforce a stepparent's right to visitation
where parental agreement, negotiated by the parties and
incorporated into the divorce decree, clearly indicates
stepparent has assumed in loco parentis status).5
At least one other jurisdiction has explicitly
recognized that a stepparent can create a contractual right to
support a stepchild. In Brown v. Brown, 412 A.2d 396 (Md. 1980),
the Court of Appeals of Maryland held that a stepparent was
liable for support for a stepchild under a separation agreement
incorporated into the divorce decree, but because the stepfather
had no underlying legal duty of support, he was
unconstitutionally jailed for contempt in an attempt to enforce
the agreement. The separation agreement explicitly provided that
the stepfather would pay $30 per week support for the stepchild
until majority. Id. at 397. The stepfather fell behind in
payments and was imprisoned for contempt of the court decree.
Id. at 397-98. The Maryland Constitution prohibited imprisonment
for non-payment of a "debt." Id. at 398. The court held that a
decree providing for support of dependent children would not
constitute "debt" for this purpose. Id. at 401. However,
because the legal duty to support did not ordinarily encompass
stepchildren, the stepfather's obligation in this case was merely
"contractual,"and it created nothing more than a debt for which
the constitution afforded him immunity from imprisonment. Id. at
402. The court noted that the trial court had a wide array of
other enforcement tools available. Id. at 404. The court thus
recognized an enforceable contractual obligation based on an
agreement by the stepparent similar to Michael's agreement. We
agree that a stepparent can assume a contractual obligation to
support his stepchild.
Helen also asserts that Michael is liable for Tisha's
support on promissory estoppel and equitable estoppel grounds.
Because Michael was bound by an express written agreement to
support Tisha, we need not address these arguments.
B. Modification of Stepparent's Child Support Obligation
1. Civil Rule 60(b)
Michael moved for relief from judgment pursuant to
Civil Rules 60(b)(5) and 60(b)(6) and AS 25.24.170. Civil Rule
60(b) provides, in relevant part:
[T]he court may relieve a party . . .
from a final judgment, order, or proceeding
for the following reasons:
(1) mistake, inadvertence, surprise or
excusable neglect;
. . . .
(5) the judgment has been satisfied,
released, or discharged, . . . or it is no
longer equitable that the judgment should
have prospective application; or
(6) any other reason justifying relief
from the operation of the judgment.
The motion shall be made within a
reasonable time, and for reasons (1), (2),
and (3) not more than one year after the date
of notice of the judgment . . . .
Alaska R. Civ. P. 60(b). This court will not overturn the
superior court's denial of a Rule 60(b) motion absent an abuse of
discretion. Hartland v. Hartland, 777 P.2d 636, 645 (Alaska
1989).
Michael argued below for relief from judgment under
Civil Rule 60(b)(5) because "it is no longer equitable that the
judgment should have prospective application."6 Wright and
Miller state that this provision requires "some change in
conditions that makes continued enforcement inequitable." 11
Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure 2863, at 207 (1973). Additionally, some courts have
held that the change in conditions must not have been reasonably
foreseeable when the judgment was entered. See, e.g., Public
Serv. Comm'n v. Schaller, Inc., 299 N.E.2d 625, 630 (Ind. App.
1973). While "the rule should be liberally construed to achieve
substantial justice," "final judgments should not be lightly
disturbed." Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th
Cir. 1981) (citing 7 Moore's Federal Practice 60.19, at 237-
39). In Humble Oil & Ref. Co. v. American Oil Co., 405 F.2d 803
(8th Cir.), cert. denied, 395 U.S. 905 (1969), then-Judge
Blackmun wrote:
[M]odification is only cautiously to be
granted; . . . some change is not enough; . .
. the dangers which the decree was meant to
foreclose must almost have disappeared; . . .
hardship and oppression, extreme and
unexpected, are significant; and . . . the
movant's task is to provide close to an
unanswerable case. To repeat: caution,
substantial change, unforeseenness,
oppressive hardship, and a clear showing are
the requirements.
Id. at 813.
Michael alleges several changed circumstances. First,
his affidavit states that "[s]ince the time of the dissolution,
my income has changed drastically and I have not been able to
afford to pay child support for both Tisha and Robert." While a
drastic change in income may qualify as a substantial change in
circumstances, Michael provides no supporting evidence of such a
change. He states in his reply brief that when he was
transferred from Alaska he lost his 25% tax-free COLA and his
"generous"Alaska living allowance. He also states that he has
remarried and has two children born of this second marriage.
However, he does not make any specific showings of the extent to
which his income has decreased in relation to his expenses. He
simply did not provide the trial court with sufficient evidence
of changed economic conditions to warrant modifying his support
obligation.7
Michael also points to Helen's remarriage to Mr.
Roberts as a substantial change in circumstances. He argues that
"[s]ince 1988, she has had another source of support for Tisha."
Again, Michael fails to provide any specific evidence
demonstrating how much Helen's situation has improved, if at all,
and how much Tisha's need for child support has decreased.8
Furthermore, under the general rule in Alaska regarding
stepparents, as provided in Burgess, Mr. Roberts would be under
no obligation to support Tisha.9
Michael further points to his inability to claim Tisha
as a dependent for tax purposes since 1989 as a change in
circumstances. However, this inability is merely another symptom
of his admitted arrearages on his support obligation. Michael
has simply not provided sufficient evidence of inequity in the
judgment's prospective effect to warrant relief under 60(b)(5).
Relief under Civil Rule 60(b)(6) is inappropriate when
a party takes a deliberate action that he later regrets as a
mistake. Hartland, 777 P.2d at 645. Here, Michael deliberately
agreed to support Tisha but now regrets the consequences.
Furthermore, this court has held that "clause (6) is reserved for
extraordinary circumstances not governed by the preceding
clauses," and that "[t]ime-barred relief under the first five
clauses is not allowed under clause (6)." Id. In this case,
Michael is essentially alleging a "mistake."10 Post-judgment
relief for a mistake is governed by Civil Rule 60(b)(1), and is
time-barred if not brought within one year. Michael cannot
assert 60(b)(6) as a means of avoiding this time limitation.11
In Lowe v. Lowe, 817 P.2d 453 (Alaska 1991), this court
identified four factors, in the context of a property division,
which constitute "extraordinary circumstances" justifying relief
under Rule 60(b)(6):
(1) the fundamental, underlying
assumption of the dissolution agreement has
been destroyed; (2) the parties' property
division was poorly thought out; (3) the
property division was reached without the
benefit of counsel; and (4) [the asset in
controversy] was the parties' principal
asset.
Id. at 458-59 (citing Schofield v. Schofield, 777 P.2d 197, 202
(Alaska 1989)). This court granted relief under 60(b)(6) in Lowe
because the dissolution petition provided that the husband would
have primary custody of the children, when in fact the wife had
primary custody after the dissolution.
There is no such destruction of an underlying
assumption of the dissolution petition in this case. The parties
contemplated that Helen would have custody and Michael would have
visitation rights and pay child support. Nowhere in his briefs
does Michael argue that the fundamental assumptions have changed.
He argued below that the Schofield factors apply in this case
because, had the parties consulted with counsel, he would not
have agreed to support Tisha. Even if this were true, it would
not evidence the destruction of a fundamental assumption. As
Wright & Miller state: "The broad power granted by clause (6) is
not for the purpose of relieving a party from free, calculated,
and deliberate choices he has made. A party remains under a duty
to take legal steps to protect his own interests." Wright &
Miller, 2864, at 214.
It is true that the parties were not represented by
counsel. If, as Michael alleges, he would not have agreed to
support Tisha if he had known he was under no legal obligation to
do so, then this factor is relevant. However, Michael did not
convince the superior court that he was in fact mistaken as to
his legal obligation. Furthermore, even if he were mistaken, the
failure to hire counsel by itself would not cause us to grant
relief under 60(b)(6). See Fackrell v. Fackrell, 740 P.2d 1318
(Utah 1987) (father's pro se status in trial court did not
warrant relief from child support obligation under Utah R. Civ.
P. 60(b)(7), the equivalent of Alaska R. Civ. P. 60(b)(6)).
A further reason for denying relief here is that the
court must "consider[] whether relief under clause (6) will
further justice without affecting substantial rights of the
parties." Wright & Miller, 2864, at 213. Here, terminating
Michael's support obligation would substantially affect Tisha's
rights. Michael has not shown that, when his interests are
balanced against the interests of the child, it is not
inequitable for him to continue paying child support.
Finally, motions under either 60(b)(5) or 60(b)(6) must
be made within a "reasonable time." Here, there is no indication
that Michael moved for relief from judgment within a reasonable
time. Michael simply gives no reason for his seven year delay in
filing a Civil Rule 60(b) motion other than an unsubstantiated
claim of a decrease in his income. There is no evidence of
circumstances beyond his control which prevented him from asking
for relief. Cf. Propst v. Propst, 776 P.2d 780 (Alaska 1989)
(reversing a denial of 60(b)(5) relief where husband's delay in
seeking relief was based on wife's agreement not to raise passage
of time to defeat a motion to modify child support award, and
where the Child Support Enforcement Division falsely represented
that it would not enforce the order).
In a similar factual situation, the Indiana Court of
Appeals reached a similar holding regarding postjudgment relief.
Toller v. Toller, 375 N.E.2d 263 (Ind. App. 1978). In Toller,
the stepfather made no express agreement to support his
stepchild, but he was present at a hearing before the order
requiring him to support his stepchild was entered. Id. at 264.
The stepfather failed to object to the court order. Over two
years after the date of the dissolution, he filed a 60(b) motion
for relief from judgment. The court found that the stepfather
did not file this motion within a "reasonable time" under the
circumstances, and therefore affirmed the denial of the motion.
Id. at 265. Cf. Gill v. Gill, 211 N.W.2d 374 (N.D. 1973)
(indicating that Rule 60(b) relief may be appropriate where a
support order against a stepfather is obtained by fraud or
deceit).
For the foregoing reasons, we find that the superior
court did not abuse its discretion by denying Michael's motion
for relief under Civil Rule 60(b).
2. Alaska Statute 25.24.170
Alaska Statute 25.24.170 allows for modification or
termination of child support.12 This court has held that the
moving party must show that a modification or termination of
child support is justified by a material and substantial change
in circumstances occurring subsequent to the original order.
Curley v. Curley, 588 P.2d 289, 291 (Alaska 1979). The movant
must make this showing by a preponderance of the evidence. Id.
at 292 n.9. The court must consider both the needs of the
children as well as the needs and financial abilities of both
parents. Id. at 292. A child support order may be modified
notwithstanding the fact that it was based on a separation
agreement or stipulation signed by the parties. Id. at 291-92.
The question whether to modify an existing child support order
rests in the sound discretion of the superior court. Propst, 776
P.2d at 782.
As discussed with respect to Rule 60(b), Michael has
failed to demonstrate changed circumstances in this case. He has
not made a specific showing of how much his income has decreased
in relationship to his expenses, nor has he shown how much, if
any, Tisha's need for his support has decreased. Cf. Curley, 588
P.2d at 292-93 (holding it was not an abuse of discretion to
refuse to reduce the amount of support from $200 to $100 per
month per child, where the husband's income declined from $1,815
to $1,400 per month.).
Another shortcoming in Michael's evidence is that he
fails to show why the alleged change in financial circumstances
justifies modification of his support obligation to Tisha but not
to Robert.13 The fact that Michael seeks relief from only his
support for Tisha indicates that his motion is based more on a
desire for relief from his allegedly contractual obligation than
on any material change in circumstances. Because he has not met
his burden of proving a material change in circumstances, Michael
is not entitled to modification of the child support award under
AS 25.24.170.14
IV. CONCLUSION
Michael entered into an enforceable contractual
obligation to support Tisha, which was incorporated into the
divorce decree. His possible mistake as to his legal obligation
at the time does not warrant modification under the circumstances
of this case. He has not provided sufficient evidence of a
substantial and material change in circumstances to justify
modifying the child support obligation under AS 25.24.170.
Therefore, the decision of the trial court denying Michael's
motion for relief is AFFIRMED.
Bryner, Justice, pro tem, dissenting.
In my view, Michael Dewey made a sufficient showing
below to preclude summary denial of his Motion for Relief from
Judgment.
In denying Michael's motion summarily, the superior
court expressed the view that the entry of the dissolution decree
effectively precluded Michael from challenging the support
obligation. The court stated, in relevant part, that, "with the
entry of the order of support, [Michael] lost the right to
unilaterally sever"his in loco parentis relationship with Tisha.
This conclusion is incorrect as a matter of law: "The mere
agreement by an adult to pay money to or for a minor does not,
without more, create an in loco parentis relationship. . . ."
Brown v. Brown, 412 A.2d 396, 403 n.8 (Md. 1980).
As a separate basis for denying relief, the superior
court further found, as a factual matter, that Michael had failed
to establish the nature of the mistake that formed the basis for
his motion for relief from judgment. My review of the record
convinces me that the superior court was clearly erroneous in
finding Michael's allegation of mistake inadequate. In his
affidavit, Michael asserted that, "[a]t the time of the
dissolution, I mistakenly agreed to pay child support for Tisha
Melovidov and for Robert Dewey even though Tisha Melovidov is not
my child. I did so without legal advice; I did not get an
attorney to counsel me." Reading this statement in a reasonable
and common sense manner, I think the core allegation set forth
therein is abundantly clear: Michael asserts that, at the time of
the dissolution, he mistakenly believed that he was legally
obligated to make support payments for Tisha, even though she was
not his child and he had never adopted her.15
Although this would at first blush appear to be an
assertion of unilateral mistake of law, closer examination of the
record discloses otherwise. Helen's response to Michael's motion
provides no information to refute, and in fact does not even
specifically deny, Michael's claim that his agreement to pay
support was premised on the mistaken belief that he had a legal
duty to provide continuing support for Tisha. In her response,
Helen characterizes Michael's promise to pay support for Tisha as
having been voluntarily made; Helen asserts that she had offered
to accept fifty dollars per month in support payments for Tisha
but that Michael had insisted on paying her two hundred dollars
monthly.
Helen's assertion falls short of the mark. Michael's
offer to pay more for Tisha's support than Helen demanded
certainly establishes that Michael made no mistake about the
amount of support he agreed to pay. Yet Michael is not asserting
a mistake as to the amount he agreed to pay; he is claiming a
mistake as to his legal obligation to pay any money at all.
Michael's commendable willingness to pay a generous amount of
child support has no logical bearing on, and wholly fails to
negate, Michael's core claim of mistake: that the source of his
generosity lay in his mistaken understanding of his legal duty
toward Tisha.
Indeed, Helen's asserted willingness to accept monthly
child support in the amount of fifty dollars for Tisha provides
strong corroboration for Michael's claim of mistake and a strong
indication that this mistake was not unilateral -- that Michael
and Helen shared the view that Michael was legally bound to pay
at least some amount for Tisha's support. Helen presumably would
not have proposed even a minimal payment of fifty dollars per
month unless she believed that Michael had a legal duty to
support Tisha.
Notably, by asserting in her response to Michael's
motion for relief from judgment that the in loco parentis
doctrine obligated Michael to provide for Tisha's continued
support upon dissolution of the parties' marriage, Helen reveals
her continuing belief that Michael was legally obligated to
provide ongoing support for Tisha by virtue of his marriage to
Helen, and not merely as a result of his willingness to undertake
a contractual support obligation. This legal view is correctly
rejected by the majority opinion in this case. And it is
precisely the type of mistaken legal belief that, according to
Michael, prompted his own decision to agree to pay child support
for Tisha.
Scrutiny of the original dissolution paperwork,
attached as an exhibit to Michael's motion for relief from
judgment, lends further credence to Michael's assertion of
mistake. In the original Petition for Dissolution of Marriage
form that was filed by the parties in this case and certified as
true by both Michael and Helen, both Tisha and Robert Dewey are
listed as "children born of the marriage or adopted." The Child
Support Order form, which appears to have been filled in and
submitted by the parties, lists Michael as the father of Tisha,
not as Tisha's custodian. The Child Support Order purports to
require payment of child support based on Michael's status as
father, not based on the existence of an underlying agreement or
contract to pay support for a child that was neither fathered nor
adopted by Michael. Likewise, the Decree of Dissolution itself
describes child support as an obligation of "the father."
In short, the record, taken as a whole, strongly
suggests that the parties in this case entered into an
uncounseled child support agreement in the mistaken belief that
Michael's legal status was essentially indistinguishable from
that of a natural parent: that the law imposed upon Michael the
same duties and obligations upon dissolution that would have been
imposed on him had he been Tisha's biological or adoptive father.
The record further suggests that in approving the dissolution and
ordering support, the superior court acted upon the mistaken
premise that Michael was Tisha's biological father.
Accepting as true those allegations that remain
uncontroverted in Michael's motion for relief from judgment, the
record supports the conclusion that "the fundamental, underlying
assumption of the dissolution agreement has been destroyed,"
Lowe v. Lowe, 817 P.2d 453, 458 (Alaska 1991), and that relief in
at least limited form,16 would be appropriate under Alaska Civil
Rule 60(b)(1) or (b)(6). Under these circumstances, I believe
that summary denial of Michael's motion for relief from judgment
was improper. Absent an affirmative evidentiary showing that the
support order in this case was not in fact based on the parties'
mutually mistaken assumptions as to Michael's legal obligations
or on the court's mistaken assumption that Michael was in fact
Tisha's biological father, I would find error and remand this
case for an evidentiary hearing to determine the underlying basis
for the original support agreement.
I have no quarrel with the majority's holding that a
knowing and voluntary agreement between divorcing parents for
child support payments is enforceable on contractual grounds,
regardless of the obligor parent's preexisting legal duty to pay
support. A purely contractual duty to pay support, however,
could arise only upon the showing of a valid contract -- one
reflecting the informed agreement of both parties. In my view, a
contract based on mutual mistake as to the obligor parent's
preexisting legal duty to pay support could not be deemed a valid
contract. In affirming the superior court's denial of relief,
the majority of the court simply assumes that a valid contract
was formed in this case. In the face of Michael's claim of
mistake, Helen's failure to expressly deny the mistake, and the
strong suggestion in the original dissolution paperwork that both
parties misunderstood the legal duties applicable in their
situation, the majority's willingness to assume the existence of
a valid contract seems unrealistic and unjustified.
Accordingly, I dissent from the court's decision
affirming the superior court's order denying relief.
_______________________________
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 Michael and Helen had one child born to the marriage:
Robert Dewey, who was born January 29, 1980. Michael Dewey does
not contest his duty to pay support for Robert because Michael is
Robert's biological father.
2 This issue presents a question of law, which we review
de novo. We "adopt the rule of law that is most persuasive in
light of precedent, reason and policy." In re K.L.J., 813 P.2d
276, 278 n.1 (Alaska 1991).
3 See, e.g., Wash. Rev. Code 26.16.205 (West 1986 and
Supp. 1994).
4 In Cox v. Cox, 776 P.2d 1045 (Alaska 1989), this court
held that parents may not make a child support agreement which is
not subject to Civil Rule 90.3. The court recognized that the
new child support guidelines adopted in Civil Rule 90.3 "reflect
a paternalistic view toward child support agreement which
conflicts with the freedom of contract attitude exemplified by
[Malekos v. Yin, 655 P.2d 728 (Alaska 1982)]." Id. at 1048.
However, the Deweys' agreement occurred in February 1985, two and
a half years before Civil Rule 90.3 became effective on August 1,
1987. Therefore, their freedom to enter into a contract for
child support was not restricted by Civil Rule 90.3. We need not
address whether a contract to support a stepchild entered into
after the effective date of Civil Rule 90.3 would be enforced.
5 Michael argues that "[t]he contract theory . . . fails
for want of consideration." This argument fails because there is
ample evidence of consideration here. In exchange for agreeing
to pay child support, Michael received the right to claim Tisha
as a dependent for tax purposes, and he also received visitation
rights.
6 We note that Michael's opening brief in this appeal
does not mention Civil Rules 60(b)(5) or 60(b)(6). His reply
brief mentions them, but provides no argument as to why they are
applicable here. While we are tempted to consider his arguments
waived, we note that Helen's brief addressed the 60(b)(5) and
60(b)(6) issues, and therefore she was not overly prejudiced by
Michael's failure to raise the arguments in his opening brief.
7 There is evidence in the record that Michael's income
tax refund was seized and that his wages have been garnished
since 1992. Michael argues that this is evidence of his
"poverty." However, it is merely evidence that he has not been
paying his child support obligation.
8 We recognized in Propst v. Propst, 776 P.2d 780, 783
(Alaska 1989), that "a motion for relief from judgment should be
denied if granting the relief would inequitably disturb an
interest of reliance on the judgment." Whether there is such a
reliance interest in this case has not been demonstrated.
9 In Voyles v. Voyles, 644 P.2d 847 (Alaska 1982), this
court held that the remarriage of a former spouse constitutes a
substantial change of circumstances requiring the termination of
alimony as a matter of law. However, the court held that "this
rule does not apply where 'alimony' is in fact intended to
provide child support, which is a continuing obligation" Id. at
849-50. Therefore, it is clear that remarriage does not by
itself constitute a substantial change in circumstances that
would require a modification of a child support order.
10 Michael's memorandum to the trial court stated that
"Mr. Dewey's reason for agreeing to pay support may simply have
been an ignorant belief that he was required to furnish her
support because Helen had no other means of support for either
child." (Emphasis added.) Michael's affidavit states that "I
mistakenly agreed to pay child support for Tisha Melovidov . . .
even though [she] is not my child. I did so without legal
advice; I did not get an attorney to counsel me." As the
superior court judge noted, Michael did not specify whether he
made a legal mistake, a financial mistake, or some other error.
The reference to not having a lawyer implies that he is arguing
that he made a legal mistake. However, Helen's affidavit claims
that "Michael A. Dewey did not have a mistaken belief that he had
to pay child support for TISHA. He wanted to maintain a
relationship with TISHA and wanted to support her as his child."
Given the conflicting evidence, the superior court's conclusion
that Michael's mistake argument was not supported by the record
was not an abuse of discretion.
11 In his reply brief, Michael raises the possibility that
Civil Rule 60(b)(1), allowing relief due to mistake, applies to
the child support obligations which came due within one year
preceding his July 1992 motion for relief. This court has
indicated in dicta that child support payments become judgments
once they are due and owing. Young v. Williams, 583 P.2d 201,
205 n.11 (Alaska 1978). According to Michael, Young indicates
that he could seek relief under Civil Rule 60(b)(1) for all
support obligations that became due between July 1991 to June
1992. But see Propst v. Propst, 776 P.2d 780, 783 (Alaska 1989)
(Civil Rule 60(b)(5) motion seeking prospective relief from child
support order which requires monthly payments must be brought
within a reasonable time). Regardless of the merits of this
argument, we consider it waived because it was not raised in
either the superior court or the opening brief. See Gates v.
City of Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991) (new
matters, whether new issues or new theories, presented for the
first time on appeal will not be considered); Braun v. Alaska
Commercial Fishing & Agric. Bank, 816 P.2d 140, 144-45 (Alaska
1991) (insufficient briefing in the opening brief cannot be
resuscitated by attention to issues in the reply brief).
12 AS 25.24.170 provides in relevant part:
(a) Subject to AS 25.20.110, any time
after judgment the court, upon the motion of
either party, may set aside, alter, or modify
so much of the judgment as may provide for .
. . the appointment of trustees for the care
and custody of the minor children or for
their nurture and education . . . .
13 The superior court tangentially addressed this issue by
stating that
[i]t would also be against the best
interests of the children to divide them into
two classes within a single family, one class
containing Robert entitled to receive monthly
child support, and a second class containing
Robert's half sister Tisha entitled to no
support; such a distinction might well foster
sibling rivalry, different treatment by
caretakers, and emotional stress within the
family.
14 Michael is entitled to utilize Civil Rule 90.3(h) to
seek to modify his obligation as to both children. Under this
rule a material change of circumstances is presumed if support as
calculated under the rule is more than fifteen percent greater or
less than the outstanding support order.
15 The affidavit is admittedly sparse on details and may
not be a model of specificity, but few pleadings are drafted so
artfully as to be ironclad. I believe that, for purposes of
determining whether summary disposition of Michael's motion was
appropriate, the superior court should have read Michael's
pleadings in a common sense manner and resolved any ambiguity in
Michael's favor. At the very least, the court should have called
on Michael to submit a supplemental affidavit more particularly
describing the mistake that led him to enter into the support
agreement.
16 I agree with the majority of the court that Michael has
failed to allege or prove circumstances sufficient to excuse his
delay in seeking relief from the original judgment. This
failure, in my view, would at most preclude Michael's effort to
obtain retroactive modification of the support decree. The delay
cannot justify denying Michael's request for relief as to
payments that have not yet become due, cf. AS 25.27.225 (court
order for support payment becomes a judgment once the payment is
due and owing), or that became due within one year of Michael's
motion for relief from judgment -- the period of delay deemed
presumptively reasonable under Civil Rule 60(b)(1) for motions
seeking relief due to a mistake.
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