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Douglas v. Alaska Department of Revenue (8/5/94), 880 P 2d 113
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,
THE SUPREME COURT OF THE STATE OF ALASKA
PAULINE DOUGLAS, )
) Supreme Court No. S-5360
) Superior Court No.
v. ) 3AN-91-9553 CI
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF REVENUE, )
Appellee. ) [No. 4109 - August 5, 1994]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
J. Justin Ripley,
Appearances: James A. Gasper and Mark
P. Melchert, Jermain, Dunnagan & Owens, P.C.,
Anchorage, for Appellant. Linda L.
Kesterson, Assistant Attorney General,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice, pro tem.*
MOORE, Chief Justice.
At issue in this appeal is whether, pursuant to a
Department of Revenue (DOR) regulation adopting Alaska Civil Rule
90.3 as DOR's child support guidelines, DOR may assess a $50
monthly child support obligation against an incarcerated parent
who has no assets and earns less than $50 per month. The
superior court ruled that Pauline Douglas should be assessed
ongoing child support of $50 per month while she is incarcerated,
and that Douglas owes an accrued debt of $600 for public
assistance paid to support her minor children during the year
preceding the initiation of this action. We affirm.
The facts of this case are not in dispute. For all
times relevant to this appeal, Douglas has been incarcerated in
California for a crime unrelated to the nonpayment of child
support. Douglas' seven children are living with Douglas'
sister, who receives public assistance in the form of Aid to
Families with Dependent Children (AFDC) for the care of one or
more of the children.1
In July 1991 the Department of Revenue's Child Support
Enforcement Division (CSED) informed Douglas of its informal
conference decision (1) to impose on her a monthly child support
obligation of $50, and (2) to assess her $600 for the twelve
month period, August 1990 through July 1991, for public
assistance paid to support Douglas' children. CSED arrived at
the $50 monthly support figure under its interpretation of Rule
90.3, which DOR has adopted as its child support guidelines. 15
Alaska Administrative Code (AAC) 125.010 (1994).
Douglas appealed CSED's decision to DOR. For the
purposes of the appeal, DOR accepted Douglas' assertion that she
had no assets and an income of less than $50 per month. DOR
granted CSED's motion for summary adjudication of the case. The
superior court affirmed. Douglas appeals to this court.
The issues in this appeal present questions of law
which do not require agency expertise. Therefore, we will apply
the substitution of judgment standard of review. Tesoro Alaska
Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903-04
A. Douglas is subject to the minimum support
obligation under Civil Rule 90.3.
It is well established in this state that parents have
a duty to support their children, even in the absence of a court
order to do so. Matthews v. Matthews, 739 P.2d 1298, 1299
(Alaska 1987); AS 25.20.030. Accordingly, even while she is
incarcerated, Douglas has a common law and statutory duty to
support her children regardless of whether a court order exists.
As we stated in Matthews, "[a] parent's duty of support
encompasses a duty to reimburse other persons who provide the
support the parent owes." 739 P.2d at 1299. A claim for
reimbursement thus "belongs to whomever supported the children,
and is simply an action on a debt." Id.
Alaska Statute 25.27.120 codifies Douglas' liability to
the state for public assistance provided for her minor children.
That statute provides in part:
Obligor liable for public assistance
furnished obligee. (a) An obligor is liable
to the state in the amount of assistance
granted under [the Aid to Families with
Dependent Children Act] to a child to whom
the obligor owes a duty of support except
that if a support order has been entered, the
liability of the obligor may not exceed the
amount of support provided for in the support
Pursuant to her duty to support her children, Douglas
is an "obligor"parent. AS 25.27.900(6) ("obligor"means a
person owing a duty of child support). Moreover, as no support
order existed at the time CSED initiated the proceedings in this
case, Douglas' liability to the state was for the entire amount
of public assistance paid on her children's behalf.
To facilitate the process of pursuing the state's right
of reimbursement, DOR has adopted Civil Rule 90.3 as its child
support guidelines. 15 AAC 125.010. Pursuant to Rule
90.3(c)(1)(B), CSED determined that Douglas owes the minimum
monthly child support obligation of $50, regardless of her
incarceration and lack of income. Rule 90.3(c)(1)(B) provides
that "a parent who would be required to pay child support . . .
must be ordered to pay a minimum child support amount of no less
than $50.00 per month." The Commentary to Rule 90.3 adds: "Even
if the obligor has an income of less than the poverty level, or
no income at all, a minimum support of $50.00 per month applies.
This $50.00 minimum support applies for all children, not to each
child separately." Civil Rule 90.3 cmt. VI.C.2
Douglas argues that Rule 90.3 should not be applied in
her situation. Douglas' claim is essentially that Rule 90.3 does
not apply outside of the divorce context or other situations in
which parents have "voluntarily"separated from their children.
She contends that, by the rule's own terms, it does not pertain
to situations in which parents are "involuntarily"separated from
their children, such as in cases of incarceration. Douglas also
argues that application of Rule 90.3 in her case would not serve
the rule's primary purpose of meeting the needs of children.
We find these arguments unpersuasive, and we conclude
that Rule 90.3 was properly applied to Douglas' circumstances.
The crucial fact overlooked by Douglas' argument is that DOR
adopted Rule 90.3 to apply to situations in which it seeks
reimbursement from parents who owe a duty of child support. The
present case is such a situation. Thus, the question is not
whether Rule 90.3 independently applies to Douglas'
circumstances, but whether it may be applied in the context of a
DOR child support adjudication. There is no dispute that DOR had
the authority to adopt the rule as its support guidelines.
Douglas conceded this point at oral argument. DOR adopted Rule
90.3 to further its specific purposes, and the rule therefore may
be applied to all cases under its jurisdiction involving child
support. As a result, the rule was properly applied in this
Explicit in Rule 90.3 is language indicating that, with
very limited exceptions, every non-custodial obligor parent is
subject to a minimum support obligation of $50 per month. Civil
Rule 90.3(c)(1). The rule expressly states that a parent's
indigence does not excuse this minimum obligation. Id.; see also
Civil Rule 90.3 cmt. VI.C. This language derives from the policy
decision that all parents should be held accountable for at least
a minimal contribution to their children's care. Cf. State,
Child Support Enforcement Div. v. Gammons, 774 P.2d 181, 184
(Alaska 1989) ("[T]he fundamental public policy of this state is
that parents should bear the primary and continuing obligation to
support their children.").
Douglas nonetheless argues that her incarceration
should constitute an exception to Rule 90.3 because, unlike most
other indigent parents, she has no real capability of obtaining
employment to pay her support obligation while she is in prison.
Moreover, because Douglas is incarcerated in California, she does
not receive a permanent fund dividend from which she could pay
child support. Nor is she personally eligible for any public
assistance payments at the present time from which she could
satisfy her support obligation. Douglas therefore urges us to
interpret Rule 90.3 in a manner consistent with the outcome in
Clemans v. Collins, 679 P.2d 1041 (Alaska 1984). In Clemans,
this court stated that a "'parent is not liable for [support]
payments while incarcerated unless it is affirmatively shown that
he or she has income or assets to make such payments.'" Id. at
1041-42 (citation omitted).
We reject this argument as contrary to the express
language and purpose of Civil Rule 90.3, which superseded Clemans
as of August 1, 1987. Thus, the relevant question is not whether
Douglas has prospective sources of income from which to pay
support, but whether there is any basis in Rule 90.3 for treating
indigent incarcerated parents differently from other indigent
parents who are also subject to the rule. We conclude that there
is not. Accordingly, both Rule 90.3 and its minimum monthly
support provision were properly applied to establish Douglas'
child support obligation.
We recognize that Douglas' incarceration may limit her
present ability to meet her ongoing support obligation. However,
we see no basis in Rule 90.3 for concluding that her
incarceration should excuse that obligation, just as it will not
excuse any other debt Douglas owes. Rather, as is true for any
other indigent parent who owes a duty of child support, the debt
will continue to accrue. As a practical matter, the state's
ability to collect on that debt may be impaired at the present
time. However, this fact does not justify excusing the basic
obligation, which Douglas may be able to satisfy upon her release
from prison and reentry into the work force, or upon any
improvement in her financial circumstances. See Ohler v. Ohler,
369 N.W.2d 615, 618 (Neb. 1985) ("There is no reason those who
have had to step in and assume the applicant's [child support]
obligation should not be reimbursed by the applicant should his
future position enable him to do so.").
Moreover, despite Douglas' arguments, we note that
Douglas substantially benefits from the application of Rule 90.3
to her circumstances. As discussed above, Douglas' liability to
the state was for the full amount of public assistance paid to
support her minor children. AS 25.27.120. As a result of DOR's
adoption of Rule 90.3 and the court's entry of a support order
fixing Douglas' obligation at $50 per month, Douglas' liability
to the state is drastically reduced. Pursuant to AS 25.27.120,
the court's ordered support constitutes a ceiling on Douglas'
liability, and DOR cannot pursue her for any more than the
For the foregoing reasons, we conclude that Civil Rule
90.3 was properly applied to assess Douglas' ongoing child
support obligation, which will continue to accrue regardless of
Douglas' incarceration and presumed lack of financial resources.
B. DOR did not deny Douglas procedural due process.
Douglas claims that DOR violated her due process rights
when it assessed the $50 monthly support obligation against her
without holding an evidentiary hearing so that she could
establish her inability to pay. To support this claim, Douglas
again relies on Clemans, 679 P.2d 1041. As noted previously,
Clemans was superseded by Rule 90.3 and its mandatory minimum
Since we affirm DOR's conclusion that the minimum
support obligation will exist regardless of Douglas' present
inability to pay, there were no factual issues to resolve in an
evidentiary hearing. DOR assumed Douglas had no assets and
income less than $50 per month, and it addressed purely legal
issues in assessing Douglas' child support obligation.
Accordingly, there was no error in refusing Douglas an
evidentiary hearing. See Smith v. State, Dep't of Revenue, 790
P.2d 1352, 1353 (Alaska 1990) (there is no right to an
evidentiary hearing in the absence of a factual dispute).
DOR's adoption of Civil Rule 90.3 to govern its child
support actions was permissible. The rule specifies a mandatory
minimum $50 per month obligation regardless of the obligor's
financial circumstances, and it applies to Douglas like any other
obligor parent. Further, there were no factual issues to resolve
in an evidentiary hearing. Therefore, DOR did not violate
Douglas' due process rights by failing to hold a hearing.
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 The administrative support order underlying this case
addresses support for only one child. However, it appears from
the record that Douglas' sister has received public assistance
for all seven of Douglas' children. This fact does not affect
the legal issues before this court, since the minimum support
provision of Rule 90.3 applies for all children of a non-
custodial parent, not to each child separately. See Civil Rule
90.3 cmt. VI.C.
2 The Commentary to Rule 90.3 has not been adopted or
approved by this court. See Civil Rule 90.3 cmt. I.A. However,
it may provide useful evidence of the purposes and considerations
underlying the provisions of the rule.
3 Moreover, the Commentary to Rule 90.3 clarifies that
the rule "applies to all proceedings involving child support."
Civil Rule 90.3 cmt. I.C. The present action is a "proceeding
involving child support,"which brings it under the purview of
the rule. See Hertz v. Hertz, 847 P.2d 71, 72 (Alaska), cert.
denied, ___ U.S. ___, 113 S. Ct. 2453 (1993) (minimum support
provision of Civil Rule 90.3 applied to incarcerated parent); Cox
v. Cox, 776 P.2d 1045, 1047 (Alaska 1989) (Rule 90.3 was designed
to apply to all awards of child support).