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S. Hertz v. A. Hertz (2/19/93), 847 P 2d 71
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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
SIDNEY R. HERTZ, )
) Supreme Court No. S-4781
Appellant, )
) Trial Court No.
v. ) 4BE-83-0008 Civil
)
ANESIA HERTZ, ) O P I N I O N
)
Appellee. )
______________________________) [No. 3934 - February 19, 1993]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Bethel,
Dale O. Curda, Judge.
Appearances: Sidney R. Hertz, pro per,
Seward, Alaska. Terri Spigelmyer, Assistant
Attorney General, Bethel, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
Justices.
PER CURIAM.
Sidney Hertz, pro se, appeals the trial court's
decision to deny his motion to rescind or suspend his
child support arrearage. Hertz further requests this
court to hold the trial court erred because 1) it never
adjudicated his Complaint for Declaratory Judgment and
Injunctive Relief from Breach of Contract; 2) it failed
to hold the Child Support Enforcement Division in
contempt of Judge Richard D. Savell's Amended Order of
November 21, 1990; 3) its rulings on his motions were
late. We affirm and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 1983, Hertz was divorced and a child support
obligation of $200 per month was imposed upon him. The
payments were to be made to the Child Support
Enforcement Division (CSED). Hertz was awarded
"reasonable rights of visitation"with his daughter.
In October Hertz was jailed. He later was convicted of
murder in the second degree and sentenced to 40 years
imprisonment, with parole eligibility in 20 years.
CSED attempted to enforce the child support order.
Hertz filed a Motion to Suspend Child Support
Obligation, which was denied. Hertz appealed. Hertz
and CSED then stipulated to a dismissal of the appeal
"for the reason that the State has agreed not to pursue
any enforcement action against [Hertz] for any amounts
of child support due during the period of time in which
[Hertz] remains indigent, without assets, and
incarcerated under the present incarceration which
began in October 1983."
In September 1988, Hertz received a letter from CSED
stating that while the stipulation suspended any
enforcement action, Hertz's child support obligation
would continue to accrue at a rate of $200 per month
while he was incarcerated. Hertz filed a Motion for
Clarification of Child Support Agreement, which the
trial court deemed a Motion to Modify the Child Support
Decree. In time, the trial court ordered that
Hertz was relieved of his child support obligation from
the date the stipulation was entered until August 1,
1987, the effective date of Civil Rule 90.3. Civil
Rule 90.3(c)(1)(B) imposes a minimum child support
obligation of $40 per month, regardless of indigency or
incarceration. Pursuant to Civil Rule 90.3, Hertz was
ordered to pay $40 per month in child support from
August 1, 1987 until his release from prison.
Hertz appealed. We held that the terms of the
stipulation relieved Hertz of his child support
obligation from the date of his incarceration until
August 1, 1987. Following Cox v. Cox, 776 P.2d 1045
(Alaska 1989), we affirmed the application of Civil
Rule 90.3 to Hertz. We rejected Hertz's argument that
its application to him violated constitutional
prohibitions against ex post facto laws. On November
21, 1990, the trial court amended its order in
accordance with our opinion.
Hertz next filed a Complaint for Declaratory Judgment
and Injunctive Relief from Breach of Contract. Hertz
later filed a motion for summary judgment. His
"complaint," as well as all other documents filed to
date, bear the same docket number as his prior divorce
proceeding. He asked the trial court to "order CSED to
absorb all child support obligations from August 1st,
1987 until 90 days after Hertz's release from prison on
the present offense or as an alternative, suspend all
child support obligation . . . ."
CSED then sent the Department of Corrections an Order
to Withhold and Deliver Property belonging to Hertz.
The property and money collected was to be used to pay
off child support arrearages which had accumulated.
Hertz protested the order in several documents filed
with the court. CSED received $56.28 as a result of
the order.
In a Supplement to Complaint for Declaratory Judgment
and Injunctive Relief from Breach of Contract, Hertz
requested that the court note that "CSED is also in
contempt of [the trial] Court's order #1 of November
23rd, 1990 [sic] since CSED has failed and/or refused
to remove the alleged arrearages of child support from
October, 1983 to March, 1985 . . . ." Hertz repeated
this request in several documents and in two letters to
the Clerk of Court.
Hertz also filed a Motion to Rescind or Suspend Any
Alleged Child Support Obligation Arrearage. He
requested the court to suspend all arrearages, since
CSED had allegedly concealed the location of his
children since 1987. CSED filed an opposition.
Judge Dale O. Curda denied Hertz's Motion to Rescind or
Suspend Any Alleged Child Support Obligation Arrearage.
Hertz appeals. In addition to appealing that decision,
Hertz appeals the court's failure to adjudicate his
Complaint for Declaratory Judgment and Injunctive
Relief from Breach of Contract, and its failure to rule
that CSED was in contempt of the amended order of
November 21, 1990.
After the appeal was filed, Hertz filed a Motion for
Preliminary and/or Permanent Injunction, which was
denied. He has supplemented this appeal with a claim
that the trial court failed to rule on his motions in a
timely manner.
II. DISCUSSION
A. COMPLAINT FOR DECLARATORY JUDGMENT AND
INJUNCTIVE RELIEF FROM BREACH OF CONTRACT
We dismiss several issues on appeal since they were
never adjudicated by the trial court, leaving this
court without jurisdiction. "An appeal may be taken to
the supreme court from a final judgment entered by the
superior court . . . ." Alaska R. App. P. 202(a).
This court has no jurisdiction over the appeal
addressed to Hertz's Complaint for Declaratory Judgment
and Injunctive Relief from Breach of Contract. The
trial court never adjudicated Hertz's complaint or
motion for summary judgment. Therefore, there is no
final judgment from which an appeal may be taken.
B. ORDER TO WITHHOLD AND DELIVER
Hertz also argues that CSED is illegally using an
"order to withhold and deliver property." CSED issued
the order pursuant to AS 25.27.250.1 The order stated
that Hertz "was served a Notice of Liability in
accordance with AS 25.27.150 on or before September 26,
1984."2 Hertz contends that the required notice was
"never served,"since an appeal was pending. Further,
the 1985 stipulation nullified the notice. The notice
is not in the record.
To obtain judicial review of CSED's order, Hertz was
required to file "a notice of appeal in accordance with
the applicable rules of court governing appeals in
civil matters." AS 44.62.560; Alaska R. App. P. 602.
Hertz has not done so. The superior court, sitting as
an intermediate appellate court, has no appeal before
it on which to rule. As there is no final judgment,
this court lacks jurisdiction.3
C. CONTEMPT OF AMENDED ORDER OF NOVEMBER 21, 1990
Hertz requested the court to note that CSED was in
contempt, because it failed to remove the arrearages as
ordered by Judge Savell on November 21, 1990. Hertz
should have filed a motion for an order to show cause
pursuant to Alaska R. Civ. P. 77. There is no final
judgment from which Hertz may appeal this issue. This
court lacks jurisdiction.4
D. FAILURE TO RESCIND AND/OR SUSPEND ALLEGED
CHILD SUPPORT OBLIGATION
Hertz claims that his child support obligation should
be rescinded because his ex-wife and CSED, "under its
Agency's arbitrary and obnoxious rules and regulations
are `concealing the location of Hertz's children.'"
Judge Curda denied Hertz's motion. Federal
regulations specifically limit the disclosure of
information regarding recipients of support enforcement
services. 45 C.F.R. 303.21.5 Alaska Statute 47.05.030
makes the disclosure
of information regarding welfare recipients unlawful.6
Under AS 25.27.275, CSED "shall release information
concerning the location of children to whom a duty of
support is owed if the obligor has paid all support
payments that are due and there is a visitation . . .
order in effect." Since Hertz is in arrears, CSED has
no apparent obligation to provide Hertz with
information concerning the whereabouts of his children.
Hertz has given no reason why the condition on
releasing information should not apply to him. The
trial court's ruling is affirmed.
E. REMOVAL OF JUDGE CURDA
Hertz requests this court to reassign this case to
Judge Savell, because Judge Curda either failed to rule
or did not timely rule on Hertz's motions. Hertz has
never moved to disqualify Judge Curda. Since there is
no order denying disqualification to appeal, this court
lacks jurisdiction.
Hertz further claims that Judge Curda's failure to rule
timely is a violation of AS 22.10.190(b) and Alaska
Administrative Rule 3(e). Hertz filed a "complaint"on
November 29, 1990, as well as several supplements. He
filed a Motion for Summary Judgment on January 16,
1991, and a supplement on February 12. The record does
not show a ruling on the summary judgment motion or the
"complaint."
Alaska Statute 22.10.190(b) provides that "[a] salary
warrant may not be issued to a superior court judge
until the judge has filed . . . an affidavit that no
matter has been uncompleted or undecided by the judge
for a period of more than six months." Administrative
Rule 3(e) requires judges having a motion under
advisement more than ten days from the date submitted
to explain in writing to the presiding judge the
reasons for the delay and the date on or before which
the motion will be decided. Since neither the statute
nor the rule is directly enforceable by private
citizens, Hertz has no judicial remedy for Judge
Curda's failure to rule timely.
The decision of the superior court is AFFIRMED and
REMANDED for further proceedings consistent with this
opinion.
_______________________________
1. AS 25.27.250(a) provides:
At the expiration of 30 days from
the date of service of notice under AS
25.27.150, . . . the agency may issue to any
person, political subdivision, or department
of the state an order to withhold and deliver
property.
2. AS 25.27.150 provides:
(a) Action to enforce a support order
administratively under [AS 25.27.250] is
initiated by the agency serving a notice on
the obligor of the obligor's liability under
the support order. . . .
(b) Notice served under (a) of this
section must state the amount of the
obligor's liability under the support order
and that the property of the obligor is
subject to execution in that amount in
accordance with the procedures prescribed in
[AS 25.27.250]. . . .
3. On remand the trial court may treat Hertz's
protestations as a notice of appeal of CSED's order.
4. On remand the trial court may treat Hertz's requests as
a motion for an order to show cause.
5. 45 C.F.R. 303.21(a) states:
Under State statute which imposes legal
sanctions, the use or disclosure of
information concerning applicants or
recipients of support enforcement services is
limited to purposes directly connected with:
(1) The administration of the plan
or program . . .
(2) Any investigations,
prosecution or . . . proceeding conducted in
connection with the administration of any
such plan or program; and
(3) The administration of any
other Federal . . . program which provides
assistance . . . .
6. AS 47.05.030 states:
Except for purposes directly connected
with the administration of general
assistance, . . . and in accordance with the
regulations of the department, a person may
not solicit, disclose, receive, make use of,
or authorize, . . . the use of, a list of or
names of, or information concerning, persons
applying for or receiving the assistance . .
. .
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