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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dobrova v. State, Dept of Revenue, Child Support Services Division (11/09/2007) sp-6195

Dobrova v. State, Dept of Revenue, Child Support Services Division (11/09/2007) sp-6195, 171 P3d 152

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA
                    
SHABAN DOBROVA, )
) Supreme Court No. S- 12272
Appellant, )
) Superior Court No. 3AN-06-4696 CI
v. )
)
STATE OF ALASKA, )
DEPARTMENT OF REVENUE, ) O P I N I O N
CHILD SUPPORT SERVICES )
DIVISION, ) No. 6195 November 9, 2007
)
Appellee. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial    District,    Anchorage,    Morgan
          Christen, Judge.

          Appearances:  Kenneth C. Kirk, Kenneth Kirk &
          Associates, Anchorage, for Appellant.   Julia
          B.   Bockmon,  Assistant  Attorney   General,
          Anchorage,  and  David W.  M rquez,  Attorney
          General, Juneau, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.
                    
          BRYNER, Justice.

I.   INTRODUCTION
          Shaban Dobrova was ordered to pay child support for his
daughter.  He  appealed the child-support order to  the  superior
court,  which remanded the case to the administrative  law  judge
for  further findings and a new order.  A new child-support order
was  issued  on remand, but Dobrova failed to appeal  within  the
thirty-day period allowed by Alaska law.  About five months after
the order on remand was issued, Dobrova filed a motion asking the
superior court to accept a late appeal from the order on  remand.
The   motion  suggested  that Dobrovas former  attorney  had  not
received  the new order and had been unaware of it  until  a  few
weeks  before Dobrova moved to accept the late appeal.  The state
opposed Dobrovas motion, contending that copies of the new  order
on  remand  had  been faxed to Dobrovas former  attorney  on  two
occasions, both more than thirty days before Dobrova first sought
leave  to  file his late appeal.  The superior court  denied  the
motion.   Dobrova  appealed the superior courts  ruling  to  this
court  and then successfully moved for a superior court order  to
supplement the appellate record with documents from his  original
administrative  appeal,  which support his  contention  that  his
former  attorney was not properly notified of the order on remand
and delayed filing an appeal because of confusion over the status
of  the administrative proceedings on remand.           Given the
limited information available to the superior court when it ruled
on  Dobrovas  motion to accept his late appeal, we conclude  that
the  court  did  not  abuse its discretion  in  denying  Dobrovas
motion; but in light of the supplemental information added to the
record  after  Dobrova  filed  this  appeal,  we  hold  that  the
interests  of  justice require a remand to reconsider  whether  a
late appeal should be granted.
II.  FACTS AND PROCEEDINGS
          Shaban Dobrova was ordered to pay child support for his
child  who was born in 1998.  In November 2001 the Child  Support
Services Division (CSSD)1 issued an administrative order  setting
his monthly child support at $849 effective December 1, 2001, and
establishing  child-support arrears of $28,335 from October  1998
through  November  2001.   Dobrova  requested  an  administrative
review;  after  the review, CSSD amended its order, significantly
increasing   Dobrovas  child-support  obligation   and   arrears.
Dobrova then asked for a formal hearing; Administrative Law Judge
Mark T. Handley conducted a hearing and issued a decision setting
Dobrovas child support at the maximum amount then allowable under
Alaska  Civil  Rule  90.3(c)(2)  $1,400 per month   with  arrears
dating back to the childs birth.
          Dobrova  appealed  to  the  superior  court.   In   the
superior   court  proceedings,  attorney  Dan  OPhelan   replaced
Dobrovas  original  attorney, Swan Ching.  Superior  Court  Judge
Joel H. Bolger issued a decision affirming the administrative law
judges findings in part, but vacated the administrative order and
remanded  the case for supplemental findings and entry of  a  new
child-support order in light of those findings.
          The  superior courts order remanding the case  did  not
require  further hearings; on August 26, 2005, the administrative
law  judge  issued  a decision on remand, again setting  Dobrovas
support  obligation  at  $1,400 per month and  making  additional
findings in support of that determination.
          Because   attorney   OPhelan  had  never   entered   an
appearance as Dobrovas counsel at the administrative level of the
proceedings, the August 26 order on remand was sent  to  Dobrovas
original  counsel, Swan Ching.  Four days later,  on  August  30,
2005,  Stacy  Steinberg, the assistant attorney general  handling
          the case for CSSD, noticed the mistake and faxed a copy of the
decision   to   OPhelans  office.   Steinbergs  fax  transmission
included a cover sheet stating, in relevant part:
               DanI  dont  know if you ever entered  an
          appearance  in the CSSD administrative  case.
          The  administrative law judge just issued his
          opinion  pursuant  to  the  remand   by   the
          superior  court.  Mr. Dobrovas copy was  sent
          to his previous attorney who was the attorney
          of  record  in the administrative proceeding.
          Attached  is a copy for your files.   I  dont
          know  if you are representing Mr. Dobrova  in
          this administrative case.
Steinbergs  fax  transmission report  showed  that  the  fax  was
successfully received.
          On   September  8,  2005,  CSSD  mailed  a  Notice   of
Adjustment  to  Dobrovas  home address, informing  him  that  his
account  has been adjusted in the total amount of $92,266.42  for
the  period  10/01/1998 through 9/08/2005.   The  notice  further
stated  that  the  adjustment had been entered  because  a  Child
Support  Decision and Order on Remand from Court, dated 08/26/05,
orders  Mr.  Dobrova  to  pay child  support  in  the  amount  of
$1,400.00  per month, from 10/98 forward.  The notice then  added
that  [a]ll  payments must be made to the Child Support  Services
Division.   If  you  have any questions or  concerns  about  this
action, please contact [CSSD].
          OPhelan  failed to file a timely appeal  on  behalf  of
Dobrova  and  evidently took no further action until  CSSD  began
enforcing  the  new child-support order.  On November  16,  2005,
OPhelan  filed  a motion with the superior court under  the  case
number  assigned to Dobrovas original appeal.  That motion  asked
the  court  to  bar  CSSD from enforcing the  administrative  law
judges  2003 child-support order, arguing in part that the  order
had  been  vacated  by the superior court.   Among  the  exhibits
attached  to  the  motion, OPhelan included the  CSSD  Notice  of
Adjustment,  which expressly referred to CSSDs  August  26,  2005
order on remand.
          On  December  15,  2005, after receiving  Dobrovas  new
motion, Steinberg again faxed a copy of the August 26, 2005 order
on remand to OPhelan, together with a copy of the cover sheet she
had included with her original fax transmission on August 30.  As
before,  Steinbergs fax transmission report showed that  the  fax
was successfully received.
          On  January  10,  2006, Judge Bolger entered  an  order
denying Dobrovas motion to preclude CSSD from collecting Dobrovas
child-support  obligation.  Judge Bolgers order noted  that  CSSD
was  enforcing  the August 26 order on remand, not  its  original
order, and that Dobrova had not appealed the August 26 order.
          Several days before Judge Bolger entered the January 10
order,  OPhelan,  with  Dobrovas  consent,  signed  a  motion  to
withdraw  as  Dobrovas superior court attorney, claiming  that  a
conflict  of interest concerning an unrelated matter  had  arisen
between  Dobrova  and  OPhelan and that  OPhelan  had  moved  his
practice to Hawaii and was no longer taking Alaska clients.   The
motion was filed on January 13, and the superior court granted it
on February 2, 2006.
          On  January  24, 2006, attorney Kenneth Kirk  filed  an
entry  of  appearance  as Dobrovas new counsel  in  the  superior
court;  Kirk also filed a notice of appeal from CSSDs August  26,
2005  decision on remand, together with a sworn motion to  accept
the  late-filed appeal.  Kirks motion alleged good cause to relax
the  usual  thirty-day deadline for filing the  appeal.   In  his
motion,  Kirk  acknowledged  that the administrative  law  judges
decision  on  remand  was distributed on August  26,  2005,  thus
making an appeal due by September 26, 2005.  But Kirk pointed out
that  the  certificate of service for the order on remand  showed
that  it  had  been  sent  to  Dobrovas  original  administrative
attorney,  Swan Ching, instead of to OPhelan.  Kirk alleged  that
CSSDs  enforcement of the order occurred to Mr. Dobrovas apparent
surprise.  Kirk also represented that, in December 2005,  OPhelan
had  filed   motions in the previous  appeal case,  asking  Judge
Bolger   to   stay   CSSD  from  enforcement.   Without   further
explanation,  Kirk asserted these motions made it quite  apparent
.  .  . that he [OPhelan] did not know a subsequent decision  had
been  issued.   While  acknowledging  that  CSSDs  attorney   had
apparently  sent a copy of the decision on remand to  OPhelan  by
fax  on  August  30,  2005,  Kirk also asserted   again,  without
further explanation  that, [n]onetheless, Mr. OPhelan claimed not
to have seen it.
          Kirks  January 25 motion to accept Dobrovas late appeal
was  filed  without  any supporting affidavits  from  Dobrova  or
OPhelan  and  without any other documents or exhibits  besides  a
copy  of  CSSDs  August  26  order on remand,  which  accompanied
Dobrovas proposed notice on appeal.
          Assistant  Attorney General Steinberg opposed  Dobrovas
motion  for  late  filing,  insisting that  Dobrovas  appeal  was
untimely and that he had failed to establish good cause  for  the
delay.   Steinberg  stated  that the only  justification  Dobrova
advanced for filing his appeal late was that his former attorney,
Mr.  OPhelan,  did  not  receive the supplemental  child  support
decision  from  the administrative law judge, and  thus  was  not
aware  of  the  time  for filing.  Steinberg insisted  that  this
argument lacked merit for several reasons.
          First,  Steinberg noted, OPhelan apparently  had  never
entered  an  appearance as Dobrovas counsel in the administrative
proceedings, so the agency properly sent the decision  on  remand
to  Swan Ching, who was still Dobrovas attorney of record at  the
administrative level.  Furthermore, Steinberg noted that Dobrovas
motion  failed  to provide any sworn testimony from  Mr.  OPhelan
concerning  the reasons for his failure to file a  timely  appeal
and emphasized that the court was required to ignore the entirely
hearsay statements made in Appellants Motion for Late Filing that
are attributed to Mr. OPhelan.
          In  addition, Steinbergs affidavit informed  the  court
that  she had personally faxed copies of CSSDs decision on remand
directly to OPhelans office on two occasions  once on August  30,
2004,  just  four  days after the decision was  issued,  and  the
second  time  on December 15, 2004, soon after Steinberg  learned
that  OPhelan  had filed a motion in the original superior  court
appeal  asking Judge Bolger to stay CSSDs efforts to enforce  its
original  administrative  order.   Steinberg  pointed  out   that
Dobrovas  motion  to accept his untimely appeal did  not  dispute
OPhelans  receipt of the December 15 fax.  Even using this  date,
December 15, 2005, Steinberg  argued, the appeal is untimely.
          In  support of her opposition and affidavit,  Steinberg
submitted   copies   of  the  faxes  (and  cover   sheets,   with
transmission  reports)  she had sent to  OPhelan  in  August  and
December 2005.
          When  Dobrova  filed  the motion  to  accept  his  late
appeal,  the superior court opened a new appellate case file  and
gave the appeal a new case number.  Dobrovas motion to accept his
late filing was assigned to Superior Court Judge Morgan Christen.
Based  on  Dobrovas motion, the states opposition,  the  proposed
notice  of appeal, and other paperwork accompanying the  proposed
notice,  Judge  Christen  entered an  order  on  March  5,  2006,
summarily rejecting Dobrovas late appeal.
          Dobrova then filed a timely notice of appeal with  this
court,  challenging the superior courts order denying his  motion
to  accept  his untimely filing there.  After filing his  supreme
court  appeal,  Dobrova  evidently filed  a  new  motion  in  the
superior court, asking to supplement the appellate record for his
pending supreme court appeal to include documents from his  first
superior  court appellate case file.  Namely, Dobrova  sought  to
include paperwork relating to his November 2005 motion, which had
asked  Judge  Bolger  to  bar CSSD from  enforcing  its  original
administrative child-support order.  Because these documents  had
not  been filed with the superior court in his second appeal  but
were  relevant  to Dobrovas claim of good cause for  filing  that
appeal  late,  Dobrova argued that they should be  added  to  the
appellate record so that the supreme court could consider them in
reviewing Judge Christens order declining his late appeal.
          Dobrovas  motion to supplement the record was  assigned
to  Superior Court Judge Fred Torrisi; Judge Torrisi granted  the
motion  on  July  7,  2006, commenting that  the  documents  from
Dobrovas original appeal may be of some help to the supreme court
in understanding what happened in this case.
III. DISCUSSION
     A.   Superior Court Order Denying Leave To File Late Appeal
          Dobrova  argues  that the superior  court  should  have
granted  his  motion  to accept his late appeal  from  the  CSSDs
August  26,  2005  order  on remand. Under  both  Appellate  Rule
602(a)(2) and AS 25.27.210(a), Dobrova was required to appeal the
administrative decision setting child support within thirty  days
of  its  distribution.2   But Appellate  Rule  502(b)  gives  the
superior  court  broad discretion to relax the  usual  thirty-day
limit  if Dobrova established good cause to accept his late-filed
notice.3   We review for abuse of discretion the superior  courts
decision  to waive procedural rules and accept a partys  untimely
appeal.4   The superior court abuses its discretion  only  if  it
issues  a  decision  which is arbitrary,  capricious,  manifestly
unreasonable, or which stems from an improper motive.5
          In contending that Judge Christen abused her discretion
          by denying his motion to accept his late appeal, Dobrova relies
heavily  on  the  November 16, 2005 motion filed  by  his  former
attorney, OPhelan.  That motion sought to bar CSSD from enforcing
its  administrative  order  establishing  Dobrovas  child-support
arrears.  Statements  made in the motion strongly  suggest  that,
when   OPhelan   filed  it,  he  was  still  unaware   that   the
administrative law judge had issued a new child-support order  on
remand  in  August.   Given  the November  2005  motion,  Dobrova
insists that [i]t is quite apparent, from the actions Mr. OPhelan
took  .  .  . that he did not at that time know that the decision
had been issued.  Dobrova further asserts that, once he found out
about  the  order on remand, he promptly retained a new  attorney
and  appealed  to the superior court. Dobrova contends  that  his
proposed  late-filed appeal would cause no prejudice to CSSD;  he
points  out  that  the agency would remain free  to  enforce  the
current   child-support  order  while  his  appeal  is   pending.
Analogizing  his  case to the ones we considered  in  Sheehan  v.
University  of  Alaska6 and Metcalf v. Felec  Services,7  Dobrova
also  faults  the  superior court for rejecting his  late  appeal
without explaining and justifying its ruling.
          Dobrovas arguments are problematic.  Initially, we note
that  the  soundness of the superior courts discretionary  ruling
must  be judged by the pleadings and arguments before that  court
at the time of its ruling.8
          As  we  have  already pointed out in the  statement  of
facts,  when Judge Christen denied Dobrovas motion to accept  his
late  appeal, the superior court file in the new appeal  did  not
include  Dobrovas  November 16, 2005  motion  to  bar  CSSD  from
enforcing its administrative support order  a motion that OPhelan
had  filed  in  Dobrovas first superior court appeal,  which  was
assigned to Judge Bolger.  Nor did Dobrova attach a copy  of  his
earlier  motion in the first appeal to his motion to  accept  his
untimely second appeal.  Thus, at the time Judge Christen  denied
Dobrovas  motion  to  accept  his  untimely  second  appeal,  the
superior  courts file in the new appeal contained  nothing  about
Dobrovas  motion  in the first appeal except the information  set
out  in his motion to accept the second appeal.  That information
consisted  of  a  single,  conclusory  assertion:  regarding  the
earlier  motion,  Dobrova simply alleged that Mr.  OPhelan  filed
motions in the previous appeal case, asking Judge Bolger to  stay
CSSD from enforcement.  It is quite apparent from his motion that
he did not know a subsequent decision had been issued.
          As  we have also pointed out above, the state countered
this  argument  by  producing solid  evidence  that  OPhelan  had
received  actual  notice of the order on remand  well  before  he
sought  to  appeal  it.  Specifically, CSSDs counsel,  Steinberg,
established  that she had successfully faxed copies  of  the  new
order directly to OPhelans office on two separate occasions, both
well over thirty days before Dobrovas January 24, 2006 motion  to
accept his late appeal.  Dobrovas motion did not dispute the fact
that  these  faxes had been sent and received; and apart  from  a
cryptic  assertion that OPhelan claimed not to have seen the  fax
Steinberg sent on August 30, Dobrova provided no support for  his
claim  that OPhelan failed to learn of the order on remand  until
          early January 2006.  As Steinberg aptly noted in opposing
Dobrovas  motion for late filing below, even using  December  15,
2005,  the  date  of her second successful fax  to  OPhelan,  the
appeal is untimely.
          In  short, the pleadings and documents in the  superior
court  file  when  Judge Christen denied  the  motion  to  accept
Dobrovas untimely second appeal unequivocally showed that OPhelan
received  actual notice of the order on remand more  than  thirty
days  before Dobrova sought to file his untimely appeal from that
order;  and  Dobrova failed to advance any facts to dispute  this
showing  or to justify his delay after receiving the notice.   As
Dobrova himself acknowledges, inexcusable neglect would not be  a
basis  for  relief; to prevail on his motion for  leave  to  file
late,  Appellate Rule 502 requires Dobrova to bear the burden  of
establishing good cause or, at a minimum, excusable  neglect  for
not  filing sooner.9  Under the circumstances presented here,  we
are  unable  to say that the superior court abused its discretion
in finding that Dobrova failed to meet this burden.
          Nor  do the circumstances of this case support Dobrovas
claim  that  Sheehan and Metcalf required the superior  court  to
make findings to justify refusing Dobrovas untimely appeal.  Both
cases  involved  situations in which  appellants  who  had  filed
timely appeals later neglected to pursue them in a timely manner,
thus  prompting the trial courts to order dismissals for  failure
to prosecute the appeals.10  Likening the dismissals to litigation-
ending  sanctions,  we held in both cases that  the  trial  court
should have made specific findings justifying the need for such a
drastic measure.11  Here, by contrast, the superior courts  order
denying  Dobrovas motion cannot be likened to a dismissal entered
as  a  litigation-ending sanction, for Dobrova had never properly
commenced the appeal he sought leave to pursue.  And the superior
courts  order denying Dobrovas motion did not dismiss  a  pending
action;  it  merely preserved the status quo.  In this situation,
Dobrova  bore the burden of establishing good cause or  excusable
neglect as a condition of commencing his untimely appeal;  if  he
failed  to do so, the superior court had no obligation  to  apply
the standards governing a litigation-ending sanction.12
          Accordingly,  we  reject Dobrovas contention  that  the
superior  court  entered  inadequate  findings  to  justify   its
rulings.   Based  on  the  arguments and information  before  the
superior  court  when it ruled, we hold that the  court  did  not
abuse  its discretion in denying Dobrovas motion to file  a  late
appeal.
     B.    Post-Appeal Superior Court Proceedings  To  Supplement
the Record
          As  already mentioned above, after Dobrovas  appeal  to
this court had already been filed, Dobrova filed a superior court
motion to supplement the appellate record with documents from his
original  administrative  appeal; this  motion  was  assigned  to
Superior  Court  Judge Fred Torrisi, who granted  it,  commenting
that  the  supplemental documents may be  of  some  help  to  the
supreme court in understanding what happened in this case.13  Now
that the record has been supplemented, Dobrova relies heavily  on
the  November  16,  2005  motion filed by  his  former  attorney,
OPhelan.  That motion sought to bar CSSD from its renewed efforts
to  enforce its administrative order establishing Dobrovas child-
support  arrears.  Statements made by OPhelan in support  of  the
motion   strongly  establish  that  he  was  unaware   that   the
administrative law judge had issued a new child-support order  on
remand in August; OPhelans statements further suggest that  CSSDs
confusion  over the status of his case may have led  Dobrova  and
OPhelan  to  believe that the agencys recent enforcement  efforts
inexplicably  violated  an  earlier  commitment   to   drop   the
administrative  proceedings.   The  supplemental  documents  also
strongly  suggest  that  OPhelans  misunderstanding  likely   was
influenced by a convergence of unfortunate circumstances: on  the
one  hand,  OPhelan  had relocated his practice  from  Alaska  to
Hawaii  and  lacked immediate access to Dobrovas  files;  on  the
other, Dobrova was experiencing stress from the recent loss of  a
family  member, so OPhelan felt that the timing was not right  to
try  to  figure out why [Dobrova] was sent the [CSSD]  Notice  of
Adjustment.
          In  addition,  the supplemental documents suggest  that
CSSD  bore the responsibility for mistakenly sending the  hearing
officers order on remand to Dobrovas original attorney instead of
serving  it  on  OPhelan:  although the state  asserts  that  the
misdirected service occurred because of OPhelans failure to  file
a  notice of appearance informing the agency that he had replaced
Dobrovas   original  attorney,  documents  accompanying  OPhelans
November 16 motion establish that OPhelan had personally  engaged
in  extensive  communications with CSSD on Dobrovas behalf  after
Judge Bolger remanded the case to the agency.
          Finally, although Kirk undeniably failed to call  these
documents to Judge Christens attention in his January 2006 motion
to  accept  Dobrovas late appeal, the record indicates that  Kirk
may  not  have  had  access to or awareness  of  the  information
contained  in  the supplemental documents when he filed  Dobrovas
January   2006   motion.   The  circumstances   supporting   this
conclusion  include  the complexity of the  prior  administrative
proceedings, the prior documents location in a separate  superior
court  case  file,  the recency of Kirks entry of  appearance  as
Dobrovas attorney, and OPhelans absence from Alaska.
          Viewing the totality of these circumstances against the
backdrop  of  the supplemental documents, it appears that,  while
OPhelans  November 16 motion was formally filed as  a  motion  to
stay  further  CSSD  enforcement efforts, it actually  challenged
actions  taken by CSSD in light of the hearing officers order  on
remand.   In  substance  if not in form, the  motion  appears  to
qualify  as  an  attempt to appeal the order  on  remand.   At  a
minimum,  then, we think that the timeliness of Dobrovas  efforts
to appeal the order on remand should be evaluated in light of the
delay  occurring  between  September  25,  2005   the  thirty-day
deadline for appealing the hearing officers August 26, 2005 order
on  remand  and November 16, the date of OPhelans motion.  And if
it  appears that CSSDs mistakes substantially contributed to this
          period of delay, we further believe that it would be an abuse of
discretion to deny Dobrovas motion to accept his late appeal.
          Although  we  realize that Dobrova did not seek  relief
based  on  this theory below and has not argued it on appeal,  we
have previously recognized that we will notice a claim not raised
in  the  trial  court if necessary to prevent  a  miscarriage  of
justice.14  In our view, Dobrovas situation falls within the ambit
of this exception.
IV.  CONCLUSION
          For  these  reasons,  although  we  find  no  abuse  of
discretion  in  the superior courts order denying the  motion  to
accept  Dobrovas late-filed appeal, we REMAND in the interest  of
justice to allow reconsideration of that ruling in light  of  the
circumstances revealed in the supplemental record.
_______________________________
     1     In  the  early stages of this proceeding ,  the  Child
Support  Services  Division agency was named  the  Child  Support
Enforcement Division, which was commonly shortened to CSED.   For
simplicity  we  refer  to the division by its  current  name  and
acronym.

     2    Appellate Rule 602(a)(2) provides in part:

          An  appeal may be taken to the superior court
          from  an administrative agency within 30 days
          from the date that the decision appealed from
          is  mailed  or otherwise distributed  to  the
          appellant.
          
A similar thirty-day deadline applies under AS 25.27.210(a).

     3    Appellate Rule 502(b) provides in part:

          When  by  these  rules or by a  notice  given
          thereunder or by order of the appellate court
          an  act is required or allowed to be done  at
          or  within  a  specified time, the  appellate
          court may in its discretion, either on motion
          of  a  party,  showing  good  cause,  or  sua
          sponte:
          
               (1)  Extend the time period, either
               before or after its expiration or
               
               (2)  Validate an act done after the
               expiration of the time period.
               
     4     Nw. Med. Imaging, Inc. v. State, Dept of Revenue,  151
P.3d  434,  438 (Alaska 2006) (citing Commercial Fisheries  Entry
Commn v. Apokedak, 606 P.2d 1255, 1258 (Alaska 1980)).

     5    Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1297 (Alaska
1985).

     6    Sheehan, 700 P.2d at 1295.

     7    Metcalf v. Felec Servs., 938 P.2d 1023 (Alaska 1997).

     8     See  Alaska R. App. P. 604(b)(1)(A) (record on  appeal
from  administrative agency consists of papers and exhibits filed
with agency).

     9     Cf.,  e.g., Harland v. Harland, 777 P.2d  636,  644-45
(Alaska  1989) (showing of excusable neglect required to  warrant
relief under Alaska Civil Rule 60(b)).

     10     Sheehan, 700 P.2d at 1296 n.1; Metcalf, 938  P.2d  at
1024.

     11    Sheehan, 700 P.2d at 1297; Metcalf, 938 P.2d at 1025.

     12     See, e.g., Beavers v. Alaska Constr., Inc., 787  P.2d
643, 644 (Alaska 1990).

     13     We note that, despite the superior courts order,  the
appellate record apparently was not actually supplemented.  As it
currently stands, our record includes neither Dobrovas motion  to
supplement the record nor the supplemental documents requested in
his  motion; these documents have been made available to us  only
in form of copies included in Dobrovas excerpt of the record.  We
further  note, as a technical matter, that, under Appellate  Rule
203,   the   superior  court  probably  lacked  jurisdiction   to
supplement the appellate record after Dobrova filed his notice of
appeal with this court.  The better course in these circumstances
might  have  been to request a stay of the pending appeal  and  a
remand  of jurisdiction to the superior court in order  to  allow
Dobrova  to address the supplemental records by filing  a  motion
for relief from judgment under Civil Rule 60(b).

     14     Municipality of Anchorage v. Sisters of Providence in
Washington,  Inc., 628 P.2d 22, 34 n.14 (Alaska  1981)  (internal
citation omitted).

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