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Opinion # 4278
Dept. of Revenue, Child Support Enforcement Div. v. Dunning (8/18/95) sp-4237
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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 99501-2084 or call (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) Supreme Court No. S-6373
ENFORCEMENT DIVISION, )
) Superior Court No.
Appellant, ) 4FA-93-660 CI
)
v. ) O P I N I O N
)
GARY DUNNING, ) [No. 4237 - August 18, 1995]
)
Appellee. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Mark I. Wood, Judge pro tem.
Appearances: R. Poke Haffner, Assistant
Attorney General, Fairbanks, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellant. Gary Dunning, pro se, Fairbanks.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
PER CURIAM.
The Child Support Enforcement Division (CSED) takes the
position that its administrative establishment of Gary Dunning's
level of child support was within its statutory authority. In
support of this position, CSED asserts that statutory
authorization for the support order it entered in response to the
State of Montana's request is found in AS 25.27.020(a)(7), AS
25.27.022 and AS 25.27.140. Additionally, CSED relies upon the
legislative history of the 1988 amendments to AS 25.27.020, as
well as a broad remedial reading of this statute, to sustain its
order under 15 Alaska Administrative Code (AAC) 125.191 (1994).
We conclude that none of the points advanced by CSED
are meritorious. Rather, we are in agreement with the opinion
entered in this case by Mark I. Wood, Superior Court Judge pro
tem. Judge Wood's opinion is appended, having been edited in
conformance with Supreme Court procedural standards.
The judgment of the superior court reversing the
decision of the hearing officer is AFFIRMED.
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
FOURTH JUDICIAL DISTRICT AT FAIRBANKS
GARY M. DUNNING, )
)
Appellant, )
)
v. )
)
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT )
ENFORCEMENT DIVISION, )
)
Appellee. )
______________________________)
Case No. 4FA-93-660 Civil
DECISION ON APPEAL
This is an appeal from a decision of the Department of
Revenue, Child Support Enforcement Division (hereinafter CSED)
administratively establishing Gary Dunning's child support
obligation to his two minor children of $423.00 per month. Mr.
Dunning is pro se.
I. Statement of Facts
Gary Dunning and Patty Jo Garlick had four children:
Rose, Patty Jo, Shane, and Shawn. A Wyoming court granted
custody of the children to his wife and ordered Gary Dunning to
pay $300.00 a month child support ($75.00 a month per child).
Rose and Patty Jo are no longer dependent minors. In 1984
Dorothy Garlick, Patty Jo Garlick's mother, gained custody of the
children. After Dorothy died, the children's uncle, John
Garlick, became their legal guardian. Currently Shane and Shawn
live with him in Montana. Pursuant to the Wyoming court order,
Gary Dunning pays child support in the amount of $150.00 a month
for the two boys through the County Clerk of the District Court
in Montana. At the time the action of CSED against Dunning was
initiated and throughout these proceedings, Dunning has been
current in his child support obligations under the Wyoming
decree.
This is not a case involving Aid to Families with
Dependent Children. John Garlick, the uncle and custodian of the
two boys, initiated a request through the Montana Child Support
Enforcement Division for the establishment of an Alaska child
support order. Garlick only wanted to increase the amount of
Dunning's child support obligation to $300.00 ($150.00 per minor
son). CSED in Alaska did not know about the Wyoming court order.
In fact, at the time of the formal hearing CSED had not obtained
the Wyoming decree but was proceeding to establish a separate
independent administrative order in Alaska which, at the point it
was granted, would "take precedence, gaining, in effect, a
modification request from the State of Montana." Arrears, if
any, would be governed by the Wyoming order and payments under
the Alaskan administrative order would satisfy the Wyoming order.
CSED served Dunning with a "Notice and Finding of
Financial Responsibility" on December 16, 1992, with CSED's
"determination" that Dunning owed $923.00 a month in child
support and $10,153.00 in arrears from February 1 to December 31,
1992. Dunning requested an informal hearing which was held in
January of 1993. An Informal Conference Decision was issued on
January 25, 1993, requiring ongoing child support for the two
boys in the amount of $423.00 a month with $5,076.00 owing as
arrears for the period from February 1, 1992 until January 31,
1993. A formal hearing was held February 23, 1993 before a
senior hearing officer. At the hearing CSED conceded that, as a
result of the out-of-state order of support, the administrative
order should only be for ongoing support. The hearing officer
issued an order requiring Dunning to pay $423.00 a month for the
support of his two sons commencing March 1, 1993. Dunning
appeals from that order.
The mathematics of the administrative child support
order are not in dispute. Dunning is a GS-6 smoke jumper for the
federal government as a permanent seasonal employee. In the off
season he earns unemployment. His budget is not extravagant.
The $423.00 was derived from calculations pursuant to Alaska
Civil Rule 90.3. Dunning's complaint throughout the litigation
and appeal is that any increase in what he has been paying is
more than his meager income and spartan lifestyle can absorb.
Dunning does not address whether he has the ability to obtain
additional alternative employment in the off season to supplement
his income in order to make the increased payments.
II. Scope and Standard of Review
Alaska Statute 25.27.220(b) sets the scope and standard
of review:
Inquiry in an appeal extends to the following
questions: (1) whether the agency has
proceeded without or in excess of
jurisdiction; (2) whether there was a fair
hearing; and (3) whether there was a
prejudicial abuse of discretion. Abuse of
discretion is established if the agency has
not proceeded in the manner required by law,
the order or decision is not supported by the
findings, or the findings are not supported
by the evidence.
In this case, Dunning received both an informal and
formal hearing following adequate notice so there is no question
as to the fairness of the hearing. Dunning argues that the
amount of child support determined by the agency, $423.00, was an
abuse of discretion in light of his meager earnings which barely
cover his reasonable living expenses. During oral argument the
court raised the issue of whether CSED has proceeded in this case
in excess of its statutory jurisdiction. Supplemental briefing
was invited on the jurisdictional issue.
III. Discussion
A. The amount of CSED's order
CSED made its calculations of child support for
Dunning's two boys pursuant to Civil Rule 90.3 with the
appropriate allowances. Dunning's basic argument is that he
cannot make the increased payment and continue to live as he has
been. The court finds that none of Dunning's expenses are
unreasonable or extravagant. However, Dunning presented no
evidence that he was unable to work in alternative employment in
the off season to supplement his seasonal employment. Therefore,
the court finds the hearing officer's findings and calculations
are supported by both the weight of the evidence and by
substantial evidence in light of the whole record. If CSED had
jurisdiction to establish an administrative order in Alaska
independent of the Wyoming child support order, the order of the
hearing officer imposing $423.00 per month for two children under
age 18 commencing March 1, 1993 should be affirmed.
B. CSED's jurisdiction
CSED argues that it had authority to establish its
administrative order for child support notwithstanding the
Wyoming order of child support pursuant to 15 Alaska
Administrative Code (AAC) 125.191 (1994) which states:
If an obligor resides in Alaska and is
subject to a child support order issued in
another state, the agency will, in its
discretion, administratively establish the
obligor's support obligation. If a support
order is so established, the agency will
enforce the administrative order, as well as
any arrearages that accrued under the prior
order before the establishment of the
administrative order. An order of support
issued by the agency under this section does
not supersede the child support order issued
in the other state. Any amounts paid will be
credited against amounts accruing for the
same period under both orders.
This regulation refers to AS 25.27.020(a), .022, and
.060 as authority for CSED's administrative establishment of an
independent child support order under these circumstances.
Alaska Statute 25.27.060 does not specifically address the issue
but sets forth generally the factors to be considered by a court
in establishing a child support order and the effect of such
order.
Both AS 25.27.020(a)(7) and .022 reference out-of-state
child support determinations. Neither expressly authorize an
independent Alaska administrative determination of the amount of
the child support obligation where that obligation has been
determined judicially in another state. Alaska Statute
25.27.020(a)(7) authorizes CSED to
establish and enforce administratively under
this chapter, or through the superior courts
of the state, child support orders from other
jurisdictions pertaining to obligors within
the state . . . .
CSED ignores the direct object of the verbs "establish
and enforce"in its strained interpretation of the above statute.
The plain language of the statute authorizes CSED to establish
child support orders from other jurisdictions pertaining to in-
state obligors either by the administrative or judicial process.
Nothing in the language of the statute can be reasonably
construed to confer upon CSED the power to create an independent
order of a different amount against an in-state obligor when
there is an existing out-of-state child support court order.
This court's interpretation of AS 25.27.020(a)(7) is
supported by the legislative history cited by CSED. Prior to
1988 CSED had no authority to administratively establish and
enforce an out-of-state child support order. Until 1988, AS
25.27.020(a)(7) gave CSED the authority to
establish and enforce through the superior
courts of the state, child support orders
from other jurisdictions pertaining to
obligors within the state . . . .
This cannot be read to have conferred authority on the
CSED to judicially establish a child support order independent
from an existing out-of-state order. The clear and unambiguous
meaning of the statute was to authorize CSED to establish the out-
of-state order judicially as an Alaskan order and then enforce
it. The additional language in 1988 -- ". . . administratively
under this chapter, or . . ."-- provided the CSED with the
option of establishing and enforcing an out-of-state child
support order against an in-state obligor either by the courts or
by the administrative process. The language of CSED director
Holly Ploog quoted at pages 3 and 4 of CSED's Supplemental Brief,
supports this interpretation and does not speak to the
establishment of an independent administrative order without
regard to an existing out-of-state court order.
Without reference to case law, statute, rule or
dictionary, CSED proposes that to establish an order means ("in
the parlance of child support enforcement agencies") "creating an
order based on the factors used by the responding state's
guidelines." Webster's New World Dictionary (2d College ed.
1974) does not restrict the definition of establish to create:
1. to make stable; make firm; settle . . .
2. to order, or gain, or enact (a law,
statute, etc.) permanently 3. to set up (a
government, nation, business, etc.); found;
institute 4. to cause to be or happen; bring
about . . . 5. to settle in an office or
position, or set up as in business or a
profession 6. to make a state institution of
(a church) 7. to set up (a precedent,
theory, reputation, etc.) permanently; cause
to be accepted or recognized 8. to prove,
demonstrate . . . 9. Card games to win
control of (a suit) so that one is sure of
taking all the remaining tricks in it . . . .
Given the several meanings of establish and the lack of
express guidance from the legislature, it is reasonable to
conclude that to establish a new child support order where no
order previously exists is different from establishing an
existing order. The former must be created and set up
permanently. The latter need only to be caused to be accepted or
recognized in another jurisdiction. Both meet the accepted
definitions of establish and provide a consistent explanation of
CSED's authority. Before CSED can enforce an out-of-state child
support order in Alaska, it must cause it to be accepted either
by a judicial or administrative process.
Nor does reference to AS 25.27.022 authorize CSED to
establish administratively an independent child support order
which differs in amount from an out-of-state child support order
against an Alaskan obligor. Alaska Statute 25.27.022 states:
(a) The agency may act, under the laws of
this state, upon requests from similar state
agencies in other states that operate child
support enforcement programs under 42 U.S.C.
651-669 (Title IV-D Social Security Act) to
establish and enforce against obligors within
this state support obligations determined in
other states.
(b) Requests from child support enforcement
agencies in other states shall be made by
application containing the information that
this state's agency requires and including
written authorization from the requesting
state agency and the obligee for this state's
agency to initiate action necessary to
establish, enforce, and collect the support
obligation on their behalf.
This statute authorizes the Alaska CSED to act as the
agent of another, out-of-state CSED to establish and enforce
against Alaskan obligors support obligations determined by the
out-of-state CSED. Conceivably under this statute, the foreign
agency could have determined that a support obligation exists
without determining the amount and thus leave it to Alaska to
determine the amount of the support obligation when it
establishes it in Alaska. However, it does not create the
authority for an independent Alaska child support order which
differs from an out-of-state judicial decree of child support.
Nor does AS 25.27.022 apply to this case. This is not
an AFDC case. There is no evidence that the Montana CSED
determined Dunning's child support obligation. Montana has
passed on the request of John Garlick to establish an Alaskan
child support order. The child support obligation is based on a
Wyoming order. Therefore, AS 25.27.020(a)(7) controls.
CSED argues that the policy behind the statutes
pertaining to the establishment and enforcement of child support
obligations require a liberal construction in order to meet the
needs of the dependent children. In this case, there has never
been a determination that the minors needs were not being met,
only that the custodian's financial situation was tight. This is
not a case of the deadbeat dad who has shifted the burden of his
children's support to the state. Dunning stands willing to have
his boys live with him and to support them. He has remained
current on his child support under the current order. This case
does not fit the "general rule"since Dunning is meeting the
requirements of the Wyoming decree and there is no evidence that
the parents are not meeting their obligation to support their
children in this case.
Ralston v. State, 728 P.2d 635 (Alaska 1986), is
distinguishable from the case at bar. Ralston involved the
enforcement of an order obtained by CSED for monthly child
support and back child support. Paternity had been litigated and
AFDC payments had been made for the support of the child. The
Supreme Court liberally construed an Income Assignment Order
which had been issued under Title 47 against Ralston for ongoing
child support to also apply to the order for arrearages in child
support. The enforcement tool, the Income Assignment Order, was
expanded by interpretation to effectuate the purposes of the
statute. In the case at bar there is no issue as to enforcement
of an existing out-of-state order. The issue is whether CSED can
establish an independent administrative order against Dunning
which differs from the out-of-state decree. Rather than
expanding the applicability of an existing enforcement tool as in
Ralston, here the issue goes to CSED's jurisdiction to
administratively establish a new support order despite the
existence of a child support order from another state.
CSED cites another enforcement case for the proposition
that a responding URESA jurisdiction can establish a child
support order without regard to, or effect on, the initiating
state's order. Westberry v. Reynolds, 653 P.2d 379, 381-82
(Ariz. App. 1982). However, Westberry did not deal with the
jurisdiction of CSED to establish an out-of-state decree but
involved the effect of an Arizona URESA judgment for child
support arrearages on an Arizona divorce decree. In that case
the parties were divorced in Arizona in 1965 and the father was
required to pay $75.00 a month in child support under the Arizona
decree. The father failed to pay his child support. The mother
and child moved to Texas, and in 1969 initiated a URESA request
for payment of child support which was forwarded to Arizona where
the father resided. Without addressing arrearages, an Arizona
court acting on the URESA petition ordered the father to pay
$75.00 a month child support. In 1977 pursuant to another URESA
petition, the Arizona court set the arrearages in the URESA
action at $3,192.00 and ordered the father to pay $25.00 a month
more than the $75.00 child support to reduce the arrearages.
In 1979 another URESA petition was filed in Arizona
against the father and the mother also initiated an action under
the original divorce decree in Arizona. These actions were
consolidated and following a hearing the trial court awarded the
mother $8,045.00 in arrearages plus attorney's fees.
On appeal, the father claimed that the 1977 URESA
judgment for arrearages was res judicata and that he should only
be liable for $3,192.00 in arrearages plus the $525.00 which
accrued between 1977 and 1979. The Arizona court disagreed
holding that the divorce decree, not the URESA action, controlled
and the child support payments may not be altered retroactively.
Id. at 381. The court further went on to state:
URESA is only a supplemental remedy for the
enforcement of support orders, and the orders
issued by a court acting as a responding
state do not affect or supersede any previous
order of support.
Id. at 381-82 (citation omitted).
That is the exact opposite proposition asserted by CSED
in its Supplemental Brief. In the case at bar, CSED is using 15
AAC 125.191 not as a supplemental remedy but as the primary
remedy to supersede the effect of the Wyoming decree. While any
payments made under the Alaska administrative order would be
applied under the regulation to meet the Wyoming order, the
effect of the new order is to increase Dunning's child support
payments almost threefold from the requirement of the Wyoming
order.
The language of AS 25.22.020(a)(7) is clear and
unambiguous in its authorization of CSED to establish and to
enforce foreign decrees against Alaskan obligors either
judicially or administratively. No express authority in the
statutory scheme empowers CSED to create an administrative child
support order independent and different from the foreign child
support decree. Nor has CSED presented any case authority from
any jurisdiction interpreting a similar statute in the manner in
which CSED is attempting to interpret AS 25.22.020(a)(7) to
justify 15 AAC 125.191. The party asserting that a clear and
unambiguous statute means something else must bear a heavy burden
to establish contrary legislative intent. Sonneman v. Knight,
790 P.2d 702, 707 (Alaska 1990). The legislative history set
forth by CSED supports the court's interpretation of the statute.
CSED has not met its heavy burden of showing contrary legislative
intent. Therefore, CSED lacks jurisdiction to administratively
create a child support order against an Alaskan obligor under the
circumstances existing in this case where the administratively
created order modifies the amount of child support which had been
previously ordered by a foreign court.
IV. Conclusion
CSED did not abuse its discretion in ordering Dunning
to pay $423.00 child support for his two boys who reside in
Montana in that the evidence supports the findings of the hearing
officer. However, this court finds that CSED proceeded in excess
of its statutory jurisdiction in the administrative creation of
that child support order independent and different from the
Wyoming court order. Therefore, the decision of the hearing
officer is reversed. If CSED still desires to establish an
Alaska child support order against Dunning for future enforcement
purposes, CSED is authorized to do so consistent with the
provisions of the Wyoming decree.
Dated at Fairbanks, Alaska this 22nd day of April,
1994.
/s/ Mark I.
Wood___________
MARK I. WOOD
SUPERIOR COURT JUDGE
PRO TEMPORE
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