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Child Support Enforcement Div. v. Dean (& Cross) (8/25/95), 902 P 2d 1321
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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, telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT OF)
REVENUE, CHILD SUPPORT ) Supreme Court No. S-6106
ENFORCEMENT DIVISION, ex rel, )
GAIL INMAN, ) Superior Court No.
) 3AN-82-3683 Civil
Appellant, )
)
)
v. )
)
GARY RAYMOND DEAN, )
)
Appellee. )
______________________________)
)
STATE OF ALASKA, DEPARTMENT OF)
REVENUE, CHILD SUPPORT )
ENFORCEMENT DIVISION, ) Supreme Court No. S-6116
)
Appellant, ) Superior Court No.
) 3AN-72-347 Civil
v. )
)
DONALD CROSS, ) O P I N I O N
)
Appellee. ) [No. 4244 - August 25, 1995]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese and Larry D. Card,
Judges.
Appearances: Mary A. Gilson and Diane
Wendlandt, Assistant Attorneys General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellant Child Support
Enforcement Division. No appearance for
Appellee Dean. Richard P. Newman, Law Office
of Richard P. Newman, Anchorage, for Appellee
Cross.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
MOORE, Chief Justice.
In separate proceedings, the Child Support Enforcement
Division (CSED) moved to reduce to judgment significant child
support arrearages owing against two noncustodial fathers, Donald
Cross and Gary Dean. The superior court in each case denied CSED
the right to recover support installments that accrued more than
ten years before the date of the motion. Each court held that
former AS 09.10.040,1 the statute of limitations applicable to
"an action upon a judgment,"bars the collection of past-due
child support when a judicial enforcement action is not commenced
within ten years of the missed payment. Because we conclude that
the lower courts incorrectly applied AS 09.10.040, we vacate the
orders of the superior courts and remand for further proceedings.
I. FACTS AND PROCEEDINGS
In Cross v. Cross, a superior court issued an order in
July 1972 requiring noncustodial parent Donald Cross to pay
$231.75 per month to support his three children.2 Despite the
order, the record indicates that Cross never voluntarily met his
obligation. After approximately ten years of non-compliance,
CSED initiated administrative enforcement measures against Cross.
In February 1981, CSED attempted to locate Cross using the
Federal Parent Locator Service. In November 1985, CSED notified
him that it would be attaching his federal income tax refunds due
to his child support delinquency. CSED successfully attached
Cross's federal income tax refunds in 1988, 1989, and 1990,
recovering $2,662.42 towards unpaid support. By mid-April 1993,
Cross's unpaid support arrearages plus interest totalled
$26,149.88. On August 16, 1993, CSED moved in court to establish
a final judgment for the delinquent support. AS 25.27.226 (to
collect past-due child support, CSED or custodian of child may
file motion requesting establishment of judgment).
In State, CSED v. Dean, a superior court ordered
noncustodial parent Gary Dean to pay $300.00 per month in support
for his two children starting in October 1977.3 Over the next
few years, arrearages in unpaid support accumulated to $16,200.
In May 1982, CSED filed a complaint in an Alaskan court under the
Uniform Reciprocal Enforcement of Support Act (URESA), AS
25.25.010 et seq., seeking to have an Oregon court recognize the
support order against Dean. After a reciprocal order was entered
in Oregon, from November 1984 until December 1990 Dean made
periodic child support payments. Nevertheless, as of May 1993,
Dean owed $54,507.24 in unpaid child support and interest. On
June 30, 1993, CSED moved to reduce Dean's arrearages to
judgment. AS 25.27.226.
In both Cross and Dean, the obligor parent opposed the
State's motion, arguing that the statute of limitations
applicable to actions upon a judgment barred CSED's motion to
collect that portion of arrearages which accrued more than ten
years before. AS 09.10.040. CSED denied in both instances that
it had delayed enforcement. According to CSED, its motions to
establish a final judgment for support arrearages represented
continuations of proceedings timely begun at the administrative
level. As such, CSED argued, the limitations statute should be
deemed tolled, and none of the support arrearages should be
considered time-barred.
The Cross and Dean superior courts agreed with the
obligor parents and ruled that in these cases, AS 09.10.040
barred the recovery of unpaid child support that accrued before
August 16, 1983, and June 30, 1983, respectively. CSED moved
unsuccessfully for reconsideration in each case. The cases were
consolidated for purposes of appeal. Alaska R. App. P. 204(g).
II. DISCUSSION
This appeal concerns the enforcement of two child
support orders, entered by Alaska courts, requiring noncustodial
parents to make regular support payments for the benefit of their
minor children. As in the majority of jurisdictions, Alaska
considers periodic child support obligations "judgments" that
vest when an installment becomes due but remains unpaid. AS
25.27.225; Young v. Williams, 583 P.2d 201, 205 & n.11 (Alaska
1978); see also Britton v. Britton, 671 P.2d 1135, 1138-39 (N.M.
1983). Each unpaid child support obligation is considered a
"judgment"because, like court-rendered judgments, child support
arrearages are not subject to retroactive modification.4 See,
e.g., Carter v. Carter, 611 A.2d 86, 87 (Me. 1992) ("[T]he right
to the payment of support becomes vested as it becomes due. Thus
an order of child support is essentially a 'judgment in
installments' . . . ."); Britton, 671 P.2d at 1138-39 ("[E]ach
monthly child support installment mandated in the final decree
was a final judgment, not subject to retroactive modification.");
Alaska R. Civ. P. 90.3(h)(2).
In finding the oldest portion of delinquent support
payments time-barred, the Cross and Dean superior courts applied
the statute of limitations applicable to an "action upon a
judgment." AS 09.10.040. In 1993, when these motions were
filed, AS 09.10.040 provided as follows:
Action upon judgment or sealed instrument in
10 years. No person may bring an action upon
a judgment or decree of a court of the United
States, or of a state or territory within the
United States, and no action may be brought
upon a sealed instrument unless commenced
within ten years.
(Emphasis added.) Both courts concluded that because a portion
of the missed support payments accrued more than ten years before
the instant court proceedings, any missed support obligations
that vested earlier than ten years before the State's current
"actions"were barred from collection.
We conclude that by applying former AS 09.10.040 in
this context, each court erred. Alaska Statute 09.10.040 applies
when litigants "bring an action" and thus governs only
proceedings commenced by the filing of a complaint.5 In each of
the present cases, when CSED moved to establish a judgment for
support arrearages pursuant to AS 25.27.226, the agency did not
initiate a new "action"to establish the non-custodial parent's
liability. Rather, CSED sought to collect a valid, unsatisfied
domestic judgment, which it already possessed, for a specified
sum of money. In this sense, although termed a "motion
requesting establishment of a judgment"under AS 25.27.226, each
proceeding was in aid of enforcement of a judgment which was
already in existence.
It is well-settled that executing upon a judgment does
not operate to commence an entirely new civil action.6 Our
statutes provide a separate standard for executions, imposing no
definitive time limitation upon their commencement. AS
09.35.020. If a judgment creditor seeks to execute upon a valid
judgment after a lapse of five years, however, good cause must be
demonstrated for the delay:
Issuance of execution after five years. When
a period of five years has elapsed after the
entry of judgment and without an execution
being issued on the judgment, no execution
may issue except by order of the court in
which judgment is entered. The court shall
grant the motion if the court determines that
there are just and sufficient reasons for the
failure to obtain the writ of execution
within five years after the entry of
judgment.
AS 09.35.020 (emphasis added); see also Alaska R. Civ. P. 69(d).7
Because the procedures employed by CSED in Dean and Cross were
preparatory to the issuance of executions, the trial courts
should have entered consolidated judgments and then utilized the
time limitation set forth in AS 09.35.020 and Civil Rule 69(d),
which directly govern execution proceedings.8
This holding, which differentiates between an action
upon a judgment and an execution, is in step with early decisions
of the Oregon Supreme Court construing the predecessors of our
modern statutes.9 By the mid-nineteenth century, the Oregon Code
of Civil Procedure contained a statute of limitations that, like
former AS 09.10.040, provided that the following actions would be
barred unless commenced within ten years:
1.An action upon a judgment or decree of
any court of the United States, or of
any state or territory within the United
States;
2.An action upon a sealed instrument.
Or. Code Civ. P. 5 (1862). The Oregon Civil Code provided,
like AS 09.35.020, that after five years from the entry of
judgment, execution could not issue except upon leave from court.
Gen. Stat. Or. 292 (1862).
In at least two early decisions construing these
statutes, the Oregon Supreme Court made clear that the statute of
limitations restricting actions upon a judgment did not apply to
executions upon domestic judgments. Murch v. Moore, 2 Or. 190
(Or. 1866), held that the life of an Oregon judgment is not
limited by the statute of limitations found in section 5. Id. at
190. Rather, under the execution statutes, "it is in the power
of the judgment creditor to keep his judgment alive until it is
discharged by payment, be that period long or short." Id. at
191. Later, in Strong v. Barnhart, 5 Or. 496 (Or. 1875), the
court reiterated that the means for enforcing a domestic judgment
is by execution, not by bringing a new action:
The means provided by the statute for
enforcing a judgment is by execution, which
may be issued at any time within five years
of the rendition of the judgment, after which
time it can only be enforced by obtaining
leave to issue an execution . . . .
. . . .
If it were true that 5 of the statute
of limitations, in the absence of any other
statute on the subject, would embrace
domestic judgments, still, when there is a
subsequent statute providing that execution
may issue at any time after five years, upon
leave being obtained, without any limitation
as to time, we cannot see how the general
statute on that subject should control.
Id. at 500. We see no reason to vary from this interpretation.
Therefore, the standard provided by AS 09.35.020 and Civil Rule
69(d) will govern on remand. In order to collect unpaid
obligations that vested more than five years before the current
proceedings, execution will not issue unless CSED can show to the
court's satisfaction "just and sufficient reasons for the failure
to obtain the writ of execution." AS 09.35.020.
CSED may be able to demonstrate any number of valid
reasons supporting its decision to delay formal execution.
Foremost among the reasons supporting a "good cause"
determination in Cross and Dean appear to be the State's previous
administrative efforts to collect delinquent support payments.
CSED attached Cross's federal income tax refunds in 1988, 1989,
and 1990, and CSED brought a URESA proceeding to have the support
order against Dean registered in his new home state. As CSED
notes in its brief, the legislature expressly granted CSED the
authority to independently employ extensive support enforcement
mechanisms such as these. See, e.g., AS 25.27.230 (authorizing
CSED to assert a lien upon real or personal property of obligor);
AS 25.27.250 (granting CSED power to issue an order to withhold
and deliver obligor's real or personal property, including
earnings due); AS 25.25.010-.270 (URESA procedures to register
support order in foreign jurisdiction).
Of the array of independent powers available to CSED to
collect upon delinquent child support "judgments,"many are as
effective as those available in the courts. We note that, like a
motion to reduce arrearages to final judgment under AS 25.27.226,
we consider the administrative remedies employed here akin to a
standard execution for purposes of AS 09.35.020. Evidence of
previous attempts to execute tends to support a finding of "good
cause" under AS 09.35.020 and Civil Rule 69(d). However, on
remand CSED must further show "good cause"to collect arrearages,
if any, which accrued more than five years before any particular
administrative effort to collect the accrued debt.
III. CONCLUSION
The superior courts erred as a matter of law by
applying AS 09.10.040 to CSED's motions to collect past-due child
support. CSED's motions to establish a final judgment for unpaid
child support are proceedings in aid of enforcement of existing
domestic judgments. As such, AS 09.10.040 has no application to
them. As to the portion of past-due payments that were more than
five years old at the time of CSED's motion, execution shall not
issue unless the conditions in AS 09.35.020 and Civil Rule 69(d)
are satisfied. On remand, CSED must be given the opportunity to
show just and sufficient reasons to justify the delay in
enforcement, which may include evidence of previous
administrative executions. Accordingly, we VACATE the orders of
the superior court and REMAND for further proceedings consistent
with this opinion.
_______________________________
1 The legislature's recent amendment to AS 09.10.040 made
stylistic changes to the body of the statute and added a
subsection specifically controlling actions to collect child
support arrearages. AS 09.10.040, as amended by ch. 86, 1-2,
SLA 1994. The amendment became effective September 4, 1994,
after these motions were filed. Thus, the changes have no
controlling significance here.
2 Cross's support obligation decreased in November 1981
when two of the three children were adopted. The third child was
emancipated in June 1984.
3 Dean's obligation was reduced in May 1989 when one child
became emancipated. The remaining support obligation continued
in force until the other child reached majority in March 1992.
4 Original orders of support are also considered
"judgments," which under certain conditions, are prospectively
modifiable. Alaska R. Civ. P. 90.3(h)(1) (permitting
modification of a final child support award if allowed by federal
law or upon material change of circumstances).
5 For example, the common law required the institution of
a new action before a foreign judgment could be enforced by a
sister state. 30 Am. Jur. 2d Executions and Enforcement of
Judgments 775 (1994); see, e.g., Young, 583 P.2d at 205
(holding that the ten-year limitations statute restricts an
action to obtain a judgment for past-due child support arising
from an unregistered California decree); Hamilton v. Seattle
Marine & Fishing Supply Co., 562 P.2d 333, 337 n.16 (Alaska 1977)
(applying the ten-year limitations statute to a creditor's action
to establish a judgment on the basis of one rendered by a
Washington court).
Most jurisdictions now allow the registration of
foreign judgments, which enables them to be enforced without
commencing another action. See, e.g., Uniform Enforcement of
Foreign Judgments Act, AS 09.30.200-.270; Uniform Reciprocal
Enforcement of Support Act (URESA), AS 25.27.254-.258.
6 "It has been said that a motion to enforce a judgment at
law is neither an action nor a special proceeding of a civil
nature, but is merely a subsequent step in an action or special
proceeding already commenced, which, with regard to the time
within which the motion may be taken, is governed entirely by the
provisions of the statute specially relating thereto." 30 Am.
Jur. 2d Executions and Enforcement of Judgments 6 (1994).
7 Civil Rule 69(d) provides in part:
Execution After Five Years. Whenever a
period of five years shall elapse without an
execution being issued on a judgment, no
execution shall issue except on order of the
court in the following manner:
(1) The judgment creditor shall file a
motion supported by affidavit with the court
where the judgment is entered for leave to
issue an execution. The motion and affidavit
shall state the names of the parties to the
judgment, the date of its entry, the reasons
for failure to obtain a writ for a period of
five years and the amount claimed to be due
thereon . . . .
(Emphasis added.)
8 In Cedergreen v. Cedergreen, 811 P.2d 784 (Alaska 1991),
we stated in dictum that AS 09.10.040 applies to motions to
enforce a decree. Id. at 786-87 & n.3. Because we did not
consider in that case whether any statute of limitations was
applicable to such an enforcement proceeding, we disapprove of
the dictum stated therein.
In Lantz v. Lantz, 845 P.2d 429 (Alaska 1993), we held
that AS 09.10.040 limits the time available for a spouse seeking
past-due alimony that arose in regular installments from a
domestic decree to bring a motion to reduce arrearages to
judgment. Id. at 431. We see no reason to treat the collection
of past-due alimony payments, ordered by decree, differently than
an execution proceeding to collect past-due child support. To
the extent that Lantz is inconsistent with our holding today, it
is overruled.
9 When Congress passed the Alaska Government Act of 1884,
the general statutes of Oregon were employed as the founding
basis for Alaska law. Act of May 17, 1884, ch. 53, 23 Stat. 24
(1884); see generally Frederic E. Brown, The Sources of the
Alaska and Oregon Codes, 2 UCLA-Alaska L. Rev. 15 (1973).
Although our decision in the present case does not
require resort to Oregon case law, we continue to adhere to the
rule of statutory construction that a statute adopted from
another state, having previously been construed by that state's
highest court, is presumed to have been adopted with that
construction placed upon it. City of Fairbanks v. Schaible, 375
P.2d 201, 207 (Alaska 1962), overruled on other grounds, Scheele
v. City of Anchorage, 385 P.2d 582 (Alaska 1963).
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