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Perry v. Madlock (4/8/94), 871 P 2d 1150
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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
WALTER DOUGLAS PERRY, )
) Supreme Court Nos. S-
5161/5168
Appellant/ )
Cross-Appellee, ) Superior Court No.
) 3AN-85-5589 CI
v. )
)
KELLI BRIDGETT NEWKIRK, n.k.a. ) O P I N I O N
KELLI BRIDGETT MADLOCK, )
)
Appellee/ )
Cross-Appellant. ) [No. 4072 - April 8, 1994]
___________________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Elaine Andrews,
Judge.
Appearances: Sharon L. Gleason, Rice,
Volland and Gleason, P.C., Anchorage, for
Appellant/Cross-Appellee. William T. Ford,
Anchorage, for Appellee/Cross-Appellant.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
[Burke, Justice, not participating.]
MATTHEWS, Justice.
I. FACTS AND PROCEEDINGS
Walter Douglas Perry (Doug) and Kelli Newkirk began
living together in 1979. In 1980 their daughter Amanda was born.
The parties continued to live together with Amanda until 1984,
when they separated. Doug and Kelli never married.
Doug filed a domestic relations complaint in 1985
seeking joint custody of Amanda and a determination that neither
party should pay child support. Kelli counterclaimed seeking
full custody of Amanda and increased child support. In the
course of the litigation an interim order was entered granting
sole custody of Amanda to Kelli and requiring Doug to pay $800
per month in child support.
The superior court next ordered a custody invest
igation. The custody investigator recommended that Kelli retain
sole legal custody of Amanda. Two weeks later Doug and Kelli
signed a stipulation which purported to terminate Doug's parental
rights concerning Amanda and to relieve Doug prospectively of his
obligation to pay child support. The custody investigator
recommended approval of this stipulation and Judge Victor Carlson
approved it on January 30, 1986.
Five years later, on June 3, 1991, Kelli filed a motion
for child support for Amanda. Doug opposed the motion on the
grounds that his parental rights and obligations were terminated
in 1986. The motion was heard before the probate master. The
master characterized Kelli's motion as a Civil Rule 60(b) motion
to set aside the termination order and recommended denial of the
motion on the basis that it was not brought within a reasonable
time. Kelli filed objections to the report and a hearing
followed before Judge Elaine Andrews.
Judge Andrews set aside the termination order and
ordered Doug to pay child support. Doug appeals, claiming: (1)
the trial court erroneously set aside the 1986 termination order;
and (2) the trial court erred computing child support. Kelli
filed a cross-appeal, also claiming that the trial court erred in
computing child support.
II. DISCUSSION
A. The Termination Order
Concerning the termination order, Doug makes two
points. First, he argues that Judge Carlson's order giving
effect to his voluntary relinquishment of parental rights was
lawful. Second, he argues that even if Judge Carlson's order
approving the stipulation under which he voluntarily relinquished
his parental rights was unlawful, it had become unchallengeable
by 1991, as a matter of procedure. We now turn to the first of
these contentions.
1. The validity of the termination order.
In 1986 the Alaska Statutes provided for the
termination of parental rights only in the context of child in
need of aid proceedings under AS 47.10.080 and adoption
proceedings under AS 25.23.180.1 Our focus in the present case
is on AS 25.23.180. The language of subsection (c) is
dispositive of the present issue. Courts may terminate the
parent and child relationship either "in connection with an
adoption proceeding under this chapter"or in "a proceeding under
AS 47.10," the child in need of aid chapter. Since this was
neither an adoption proceeding nor a child in need of aid
proceeding, the termination order was not authorized by statute.2
Parental termination proceedings were unknown at common
law. Stephen B. Presser, The Historical Background of the
American Law of Adoption, 11 J. Fam. L. 443 (1972). This means
that in the absence of statutory authorization there can be no
termination of parental rights and obligations.3 It follows that
the 1986 termination order was erroneously entered since it was
not authorized by statute.
2. Is the termination order subject to
attack under Civil Rule 60(b)?
a. Kelli argues that the termination order was
not only invalid but void as beyond the subject matter
jurisdiction of the trial court. She contends that therefore the
trial court was authorized to set aside the order under Civil
Rule 60(b)(4), noting that void judgments may be attacked
independent of the one-year and the reasonable time requirements
of the final paragraph of Civil Rule 60(b).4 As authority for
the proposition that the judgment is void, Kelli relies on the
case of Fauver v. Hansen, 803 P.2d 1275 (Utah App. 1990).
In Fauver, unmarried parents agreed to a stipulation
under which the father's parental rights and obligations were
terminated. The stipulation was approved by court order. Some
two years later, the child through a guardian ad litem filed an
action seeking child support from the father, contending that the
order approving the stipulation for termination of parental
rights and obligations was void. The trial court found that the
original order was not void. The court of appeals reversed,
finding that the trial court lacked subject matter jurisdiction
which it defined as "the power and authority of the court to
determine a controversy and without which it cannot proceed."
Id. at 1276 n.3. The court held that termination jurisdiction
existed under Utah law only in proceedings in juvenile court or
in the context of an adoption.
Doug acknowledges in his reply brief that a judgment
may be considered void under Civil Rule 60(b)(4) if the court
that rendered it lacked subject matter jurisdiction.5 He argues,
however, that the trial court did not lack subject matter juris
diction as the superior court is the court of general
jurisdiction in this state with authority in all civil and
criminal matters. AS 22.10.020(a). Doug also specifically
relies on the case of Carroll County Dep't of Social Servs. v.
Edelmann, 577 A.2d 14 (Md. 1990).
Edelmann is another case involving unmarried parents
where the father was initially permitted, with the consent of the
mother, to relinquish his parental rights and responsibilities.
On appeal, the Court of Appeals of Maryland reversed, holding, as
we do today, that "[a]bsent specific statutory authorization
which does not now exist in this State"the trial court of
general jurisdiction lacked authority to terminate the parental
relationship. Id. at 26. The Maryland court also observed that
this lack of authority did not amount to a failure of subject
matter jurisdiction, which it defined as "the power to render a
judgment over that class of cases within which a particular one
falls . . . ." Id. at 23. Observing that "application of this
principle depends on how one defines the generic 'class of
cases,'"the Maryland court concluded that the trial court's lack
of statutory authority did not rise to a failure of subject
matter jurisdiction.6 Id.
Two additional cases support the proposition that the
judgment is void. In Fleming v. Brown, 581 So.2d 202, 203 (Fla.
App. 1991), a decree terminating parental rights based on a
stipulation entered in child support enforcement proceedings was
held to be unauthorized by statute and therefore void for lack of
jurisdiction. Similarly, in Patrick v. Patrick, 374 N.E.2d 1084
(Ill. App. 1978), an order terminating parental rights entered in
post-divorce decree litigation based on a stipulation was held to
be beyond the trial court's subject matter jurisdiction. The
court went on to hold that the order should be construed to be an
order prohibiting visitation -- a lesser-included characteristic
of an order terminating parental rights. Id. at 1085. As so
limited the order was not invalid but was subject to modification
at any time based on a material change in circumstances. See
also In re Marriage of Goodarzirad, 230 Cal. Rptr. 203 (5th Dist.
1986) (holding that court acted in excess of jurisdiction when it
approved agreement absolving father of duty to pay child support
in exchange for his agreement to terminate parental rights).
b. Our view is that a statutorily unauthorized
decree terminating parental rights and obligations is beyond the
subject matter jurisdiction of the court. Our reasons follow.
Regarding subject matter jurisdiction, the Restatement
(Second) of Judgments states: "A judgment may properly be
rendered against a party only if the court has authority to
adjudicate the type of controversy involved in the action."
Restatement (Second) of Judgments 11 (1982). This definition
is not especially helpful, for much depends on how the term "type
of controversy" is defined. If the term applies to "orders
terminating parental rights and obligations" in general, then
subject matter jurisdiction in the superior court would be found
to exist. If, on the other hand, greater detail is employed and
the type of controversy is defined as "orders terminating
parental rights and obligations in divorce, custody and child
support proceedings,"then subject matter jurisdiction does not
exist.
The commentary to the Restatement suggests that this is
not an area where a verbal formulation is likely to be of much
use and that case matching may be a more valuable tool. The
commentary states, after giving a number of illustrations: "In
all such situations, the matter in question can plausibly be
characterized either as going to subject matter jurisdiction or
as being one of merits or procedure. The line between the
categories is not established through refinement of terminology
but through the cumulation of categorizing decisions into a
pattern." Id. 11 cmt. e.
The commentary also suggests that there is a policy
choice involved in "how far to go in the direction of policing
the boundaries of a court's subject matter jurisdiction"when the
cost is to allow a "belated attack after [a case] has gone to
judgment." Id. In making this choice, the commentary refers to
section 12 of the Restatement, which deals generally with the
subject of when the question of whether one forum lacked subject
matter jurisdiction can be contested in another forum. The
commentary to section 12 states, relevant to the present case,
that interests of society external to the parties may play an
important role:
The interests primarily at stake in
resolving this question are governmental and
societal, not those of the parties. By
hypothesis the parties had earlier
opportunity to litigate the question of
jurisdiction and thereby to protect their
interests in the observance of the rules
governing competency. They also had their
day on the merits, even if before a body
whose authority is now in doubt. To allow
one of them to raise the question of subject
matter jurisdiction after judgment is in the
effect to make him a public agent for
enforcing the rules of jurisdiction. . . .
The question therefore is whether
the public interest in observance of the
particular jurisdictional rule is
sufficiently strong to permit a possibly
superfluous vindication of the rule by a
litigant who is undeserving of the
accompanying benefit that will redound to
him. The public interest is of that strength
only if the tribunal's excess of authority
was plain or has seriously disturbed the
distribution of governmental powers or has
infringed a fundamental constitutional
protection.
Id. 12 cmt. d.
The strong public interest in having parents support
and nurture their children, and the third-party interest which
children have in receiving support and nurture from their parents
are reasons for enforcing the rules of jurisdiction in the
present case.7 Further, as noted above, most courts which have
been presented with cases like this have found that a parental
termination order as a solution to a custody or child support
dispute is a remedy beyond the subject matter jurisdiction of the
court and therefore void. The categorization approach advocated
in the Restatement commentary suggests that we should align our
court with those authorities. Thus we hold that the superior
court's order purporting to terminate Doug's parental rights and
obligations is void for want of subject matter jurisdiction and
therefore subject to attack under Civil Rule 60(b)(4).
c. Shorn of its parental termination aspect the
order may be seen as an order relieving Doug of his
responsibility to support his child and his right to visit her.
See Patrick, 374 N.E.2d at 1085. As such, the order would not be
void for want of jurisdiction. With respect to the question of
support, we held in Malekos v. Yin, 655 P.2d 728 (Alaska 1982),
that agreements between divorced parents to waive the child
support obligation of one of the parents were valid and
enforceable, but retractable prospectively at the option of the
custodial parent. In Cox v. Cox, 776 P.2d 1045 (Alaska 1989), we
held that the parties' freedom to waive child support as
reflected in Malekos had been superseded by the promulgation of
the child support guidelines rule, Alaska Civil Rule 90.3, in
1987.
Considering the 1986 order to be an order reflecting
the parties' agreement that Doug would not have to pay child
support, the agreement was retractable at the option of Kelli.
It was also reviewable by the court at any time upon a showing of
a substantial change of circumstances. AS 25.24.170. Adoption
of the child support guidelines rule was itself a substantial
change in circumstances. AS 25.24.170(b); Charlesworth v. Child
Support Enforcement Div., 779 P.2d 792 (Alaska 1989); see Alaska
R. Civ. P. 90.3(h)(1). Thus, the question of child support was
properly reopened by Kelli's motion of June 3, 1991, either under
a retraction theory, following Malekos, or based on the
substantial change in circumstances reflected by the promulgation
of the child support guidelines.
We turn now to the question of whether the child
support award entered by Judge Andrews should be upheld.
B. The Child Support Award
Judge Andrews awarded Kelli child support to be paid by
Doug in the sum of $470.30 per month from January 1, 1992, until
September 1, 1993. At that point, when Doug's other child was to
enter first grade, Doug's obligation to pay child support for
Amanda would increase to $627.06 per month. Judge Andrews ruled
that no retroactive child support would be awarded. Doug's
adjusted annual income for Civil Rule 90.3 purposes was
calculated to be $47,030. If the formula set forth in Civil Rule
90.3(a)(2)(A) for the child support of one child were applied to
this income, a monthly award of $783.83 would be called for.
Judge Andrews found that Doug's justifiable reliance on the court
order constituted good cause to deviate from the formula.8 She
did not, however, hold an evidentiary hearing at which questions
relating to good cause could be litigated.
Both parties contend that the child support award
should be vacated and that this case should be remanded for an
evidentiary hearing on the facts relevant to a good cause
determination. We agree that such a hearing is required since
there appear to be genuine issues of material fact. At the
evidentiary hearing the parties should be allowed to present
evidence on the issues related to good cause and present their
arguments based on the evidence which is adduced. We make no
comment on the present record as to either Doug's or Kelli's
arguments concerning the existence of good cause.
In addition, Kelli, on cross-appeal, contends that the
trial court erred in not ordering child support retroactive to at
least August 1, 1987, when Civil Rule 90.3 was promulgated. She
also argues that since she did not ask for back child support
Judge Andrews should not have ruled on the question at all.
While Kelli is correct that she did not ask that child
support begin before June 1, 1991, Judge Andrews ordered that
this issue be addressed by the parties. At the argument before
the court, Kelli's counsel stated that she did not seek past
child support "at this point,"but indicated that she did not
wish to waive her right to claim past due child support at some
future point. Her counsel also argued that the concepts of
laches and estoppel would not apply to past due child support,
contending that these are equitable defenses which do not apply
to the legal requirement to pay child support.
In our view, Judge Andrews did not err in injecting the
issue of child support arrearages into the case. The claim for
arrearages was closely related to the claim for prospective child
support. On the merits of whether Judge Andrews erred in ruling
that child support arrearages would not be awarded, arrearages
prior to Kelli's motion of June 3, 1991, would not have been
appropriate. As noted above, the 1986 order was void as a termin
ation of parental rights and obligations, but was neither void
nor invalid as an order approving the parties' agreement that
Doug would not have to pay child support. As so limited, the
order was subject to modification, but only from the time of the
motion. Malekos; see also Civil Rule 90.3.9 On remand, Judge
Andrews should either enter an order requiring Doug's child
support to begin when Doug was served with the motion, or enter
findings and conclusions as to why such a commencement point
should not be used.
III. CONCLUSION
Insofar as the 1986 order purported to terminate Doug's
parental rights and obligations, it was void for want of subject
matter jurisdiction and was therefore properly set aside under
Civil Rule 60(b)(4). Insofar as the 1986 order merely approved
the parties' agreement that Doug would not have to pay child
support the order was valid, but subject to modification. The
child support award entered by the trial court is VACATED and
this case is REMANDED to the trial court for an evidentiary
hearing concerning whether good cause exists for not following
the child support formula of Civil Rule 90.3, and for further
action in accordance with this opinion.
_______________________________
1 AS 47.10.080(c)(3) states that if the court finds a
minor to be a child in need of aid, it shall
(3) by order, upon a showing in the
adjudication by clear and convincing evidence
that there is a child in need of aid under AS
47.10.010(a)(2) as a result of parental
conduct and upon a showing in the disposition
by clear and convincing evidence that the
parental conduct is likely to continue to
exist if there is no termination of parental
rights, terminate parental rights and
responsibilities of one or both parents and
commit the child to the department or to a
legally appointed guardian of the person of
the child . . . .
AS 25.23.180 as it existed in 1986 provided:
(a) The rights of a parent with
reference to a child, including parental
right to control the child or to withhold
consent to an adoption, may be relinquished
and the relationship of parent and child
terminated in or before an adoption
proceeding as provided in this section.
(b) All rights of a parent with
reference to a child, including the right to
receive notice of a hearing on a petition for
adoption, may be relinquished and the
relationship of parent and child terminated
by a writing, signed by the parent,
regardless of the age of the parent, a copy
of which shall be given to the parent,
(1) in the presence of a
representative of an agency taking custody of
the child, whether the agency is within or
outside of the state or in the presence and
with the approval of a court within or
outside of this state in which the minor was
present or in which the parent resided at the
time it was signed, which relinquishment may
be withdrawn within 10 days after it is
signed or the child is born, whichever is
later; and the relinquishment is invalid
unless it states that the parent has this
right of withdrawal; or
(2) in any other situation if the
petitioner has had custody of the minor for
two years, but only if notice of the adoption
proceeding has been given to the parent and
the court finds, after considering the
circumstances of the relinquishment and the
long continued custody by the petitioner,
that the best interest of the child requires
the granting of adoption.
(c) The relationship of parent and
child may be terminated by a court order
issued in connection with an adoption
proceeding under this chapter or a proceeding
under AS 47.10:
(1) on the grounds specified in AS
47.10.080(c)(3); or
(2) on the grounds that a parent
who does not have custody is unreasonably
withholding consent to adoption, contrary to
the best interest of the minor child.
(d) For the purpose of an adoption
proceeding under this chapter, a decree
issued by a court of competent jurisdiction
in this or another state terminating all
rights of a parent with reference to a child
or the relationship of parent and child
dispenses with the required
(1) consent by that parent to an
adoption of that child; and
(2) notice of a proceeding to that
parent unless otherwise required by this
section.
(e) A petition for termination of
the relationship of parent and child made in
connection with an adoption proceeding may be
made by
(1) either parent if termination of
the relationship is sought with respect to
the other parent;
(2) the petitioner for adoption,
the guardian of the person, the legal
custodian of the child, or the individual
standing in parental relationship to the
child;
(3) an agency; or
(4) any other person having a
legitimate interest in the matter.
(f) Before the petition is heard,
notice of the hearing on the petition and
opportunity to be heard shall be given the
parents of the child, the guardian of the
person of the child, the person having legal
custody of the child, and, in the discretion
of the court, a person appointed to represent
any party.
(g) Notwithstanding the provisions
of (b) of this section, a relinquishment of
parental rights with respect to a child,
executed under this section, may be withdrawn
by the parent, and a decree of a court
terminating the parent and child relationship
under this section may be vacated by the
court upon motion of the parent, if the child
is not on placement for adoption and the
person having custody of the child consents
in writing to the withdrawal or vacation of
the decree.
2 Doug argues that subsection (g) of section 180, which
allows a relinquishment to be withdrawn and a decree of
termination to be vacated if the child is not "on placement for
adoption," implies that a voluntary termination of parental
rights outside of an adoption is contemplated. He argues: "By
making a specific provision in this subsection for situations
where a child is not on placement for adoption, the
relinquishment statute clearly contemplates that a voluntary
relinquishment may be taken even when an adoption is not
imminent." In our view this reads too much into subsection (g).
The circumstances under which the relationship of parent and
child may be terminated are defined under subsection (c).
Structurally, subsection (g) does not purport to modify or expand
these circumstances. Subsection (g) can be read in a manner
consistent with subsection (c) if (g) is taken to relate to
situations where "in connection with an adoption proceeding" a
child has not yet been placed, or a placement has been revoked.
3 Courts of other jurisdictions have reached this
conclusion in similar circumstances. See Carroll County Dep't of
Social Servs. v. Edelmann, 577 A.2d 14, 26 (Md. 1990); Fauver v.
Hansen, 803 P.2d 1275, 1277, 1278 (Utah App. 1990); Fleming v.
Brown, 581 So.2d 202, 203 (Fla. Dist. Ct. App. 1991); Patrick v.
Patrick, 374 N.E.2d 1084 (Ill. App. 1978); cf., S.J. v. L.T., 727
P.2d 789, 795 (Alaska 1986) (holding involuntary termination of
parental rights absent statutory authorization unlawful).
4 Concerning the inapplicability of time limits to void
judgments, Kelli cites Burrell v. Burrell, 696 P.2d 157, 163 n.11
(Alaska 1984), where we stated that Rule 60(b)(4) motions "would
not be subject to the same time constraints as a motion made
under 60(b)(5) or 60(b)(6). . . . '[A] motion under this part of
the rule differs markedly from motions under the other clauses of
Rule 60(b). . . . [T]here is no time limit on an attack on a
judgment as void.'" (Quoting 11 Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure, 2862 at 197 (1973)).
5 In his initial brief, Doug cited Aguchak v. Montgomery
Ward Co., 520 P.2d 1352, 1354 (Alaska 1974), for the proposition
that "[a] judgment is void only where the court lacked personal
jurisdiction over the defendant or if the court acted in a manner
inconsistent with due process of law." While this statement is
an accurate summary of the language used in the Aguchak opinion,
that language was underinclusive. Voidness under 60(b)(4) also
encompasses the concept of lack of subject matter jurisdiction
or, to use the earlier term for the same concept, lack of
"competency." See Holt v. Powell, 420 P.2d 468, 471 (Alaska
1966); Restatement of Judgments 7 (1943); Restatement (Second)
of Judgments 11 reporter's note (1982).
6 The court's conclusion in Edelmann that there was not a
lack of subject matter jurisdiction was dictum as the case was
presented on direct appeal. The error was reviewable whether or
not it amounted to a failure of subject matter jurisdiction.
7 This state's public policy is to hold every parent
financially responsible for his or her children. See Civil Rule
90.3; Matthews v. Matthews, 739 P.2d 1298 (Alaska 1987) (stating
that parent is obligated by statute and at common law to support
his or her children); Malekos v. Yin, 655 P.2d 728 (Alaska 1982)
(same). In addition, a fundamental public policy concern in this
area is the best interest of the child. An order terminating one
parent's rights and obligations outside of child in need of aid
or adoption contexts may sacrifice the child's long-term needs
for financial and moral support to advance the parents'
litigation goals.
8 Civil Rule 90.3(c)(1) states: "The court may vary the
child support award as calculated under the other provisions of
this rule for good cause upon proof by clear and convincing
evidence that manifest injustice would result if the support
award were not varied." When good cause is found, the same
subsection requires the court to "specify in writing the reason
for the variation, [and] the amount of support which would have
been required but for the variation . . . ."
9 Civil Rule 90.3(h)(2) states: "Child support
arrearages may not be modified retroactively. A modification
which is effective on or after the date that a motion for
modification is served on the opposing party is not considered a
retroactive modification." Although this language literally
speaks only to arrearages, the commentary suggests that child
support may not be modified retroactively: "The prohibition
against retroactive modification limits both requested decreases
and increases in child support. Thus, either the custodial or
the obligor parent should promptly apply for a modification of
child support when a material change in circumstances occurs."
Cmt. x. We interpret the rule in this way.
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