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Child Support Enforcement Agencey v. Alsop & Castleman (9/8/95), 902 P 2d 790
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
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THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) Supreme Court No. S-6472
ENFORCEMENT DIVISION, )
) Superior Court No.
Appellant, ) 3AN-93-11707 Civil
) O P I N I O N
) [No. 4252 - September 8, 1995]
WILLIAM R. ALLSOP and )
APRIL CASTLEMAN, )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Larry Card, Judge.
Appearances: Diane L. Wendlandt, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellant. Kenneth C. Kirk, Anchorage, for
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
MOORE, Chief Justice.
The Child Support Enforcement Division (CSED) initiated
support collection measures at the administrative level against
William Allsop, whereupon Allsop sued his ex-wife and CSED to
disestablish his paternity. CSED appeals from two aspects of the
trial court's decision: (1) its holding that such an action lies
against the State; and (2) its decision to award Allsop full
attorney's fees based upon its finding that CSED litigated
vexatiously and in bad faith. We affirm the trial court's
conclusion that CSED is a proper defendant, but we vacate the
award of full fees.
II. FACTS AND PROCEEDINGS
William Allsop and April Castleman wed in April 1988.
Approximately one month later, Allsop was incarcerated. During
his five years in prison, Allsop apparently received no conjugal
visits and gained no other opportunities for access to his wife.
Castleman gave birth to Karissa Young on October 5,
1989.1 As required by state law, Allsop was listed as the father
on Karissa's birth certificate.2 However, when Castleman applied
for AFDC benefits shortly after the birth of her daughter, she
listed a man she had been living with, Shaun Lewis Young, as the
child's father on forms for use by CSED.
In November 1990, while Allsop remained imprisoned, he
and Castleman obtained a California decree dissolving their
marriage. The Joint Petition for Summary Dissolution of Marriage
had been signed and submitted by both parties. The petition was
a standard-form document, with one term providing that there were
"no minor children born of our relationship before or during our
In May 1993 CSED wrote to Castleman and explained that
despite the dissolution and her identification of Young as the
biological father, Allsop retained his status as Karissa's legal
father. The letter urged Castleman to take additional steps to
disestablish Allsop's paternity or else CSED would be required to
seek support from him:
The Alaska Department of Vital
Statistics has advised us that the
dissolution entered in . . . California is
not sufficient to remove "William Allsop's"
name from Karissa's birth certificate as she
was born during the marriage and the
dissolution does not specify that he is not
If you wish to pursue a paternity action
against Shaun Young, you will need to obtain
an "amended dissolution" which specifically
states that "William Allsop" is not Karissa's
father and has no parental or financial
responsibilities for her.
We will suspen[d] the action on our case
for 60 days to allow you time to initiate
action to amend the California dissolution.
If you have not . . . verif[ied] that you
have initiated this action within 60 days
from the above date, we must pursue action
against "William Allsop" as he is considered
Karissa's legal father until an order is
entered releasing him of his responsibility
CSED followed up with a similar letter to Castleman in
September 1993, and asked her to complete another form pertaining
to paternity. Although Allsop's name was typed in the space
marked "alleged/most likely father," Castleman supplied dates for
their sexual relationship which were too early for Allsop to have
been Karissa's father. On the next page, where she was to
indicate who else could be the biological father, Castleman again
identified Young and stated, "This man is the father."
Two months later, CSED sent Allsop a Notice and Finding
of Financial Responsibility. The notice stated that Allsop had
an accrued debt for assistance paid of $2,520 and that he would
be responsible for an ongoing support obligation of $50 per month
to benefit Karissa. Allsop contested these findings, requested
an informal conference, and initiated the present action.
Allsop brought a complaint against CSED and Castleman
requesting a decree disestablishing his paternity of Karissa. He
simultaneously moved for an order enjoining CSED from collecting
any support for Karissa's benefit from him. Allsop attached an
affidavit in which he detailed his belief that he could not
possibly be the father:
I was continually incarcerated from 1988
through 1993. I did not have any parole,
probation, work release, or other way of
getting out of prison. I did not escape at
any time. I did not have any conjugal
visits. I did not have intercourse with
April Castleman. I cannot be the father of a
child born in October 19.
CSED opposed the motion to stay collection of support,
explaining that the State is charged with a non-discretionary
duty to establish and collect support from legally obligated
parents. CSED further cited case law providing that a child born
to a married woman is presumed to be the offspring of her husband
unless rebutted by "clear and convincing evidence." Smith v.
Smith, 845 P.2d 1090, 1092 (Alaska 1993). CSED argued that as
Karissa's legal father, Allsop possesses a duty of support until
a court determines by clear and convincing evidence that the
presumption of paternity is overcome.
CSED also answered the complaint. In it CSED admitted
that Allsop was taken into custody in May 1988. However, because
CSED lacked sufficient knowledge concerning the nature of
Allsop's custody, it denied Allsop's allegation that he could not
be the biological father. CSED additionally raised the
affirmative defense that Allsop's claim for disestablishment of
paternity was not an actionable claim against the State.
Castleman's Answer was comparatively succinct: "I,
April Castleman, Agree with the Plaintiff, William R. Allsop, in
that he is not the natural, biological, father of Karissa Young,
the child in question. Shaun Lewis Young, a man with whom I was
living at the time of Karissa's conception, is the biological
The trial court ordered CSED to temporarily stay
collection of all child support or support arrears against Allsop
and directed that a hearing be held on "substantial questions
regarding paternity." The order also explicitly invited CSED to
drop its administrative collection action against Allsop.
Although CSED complied with the stay, it did not dismiss its
administrative case. Allsop thereafter moved for summary
CSED filed a non-opposition to Allsop's summary
judgment motion, admitting that "it appears that there is enough
evidence from which the court can make a finding that Mr. Allsop
has rebutted the presumption of his paternity by clear and
convincing evidence." However, CSED continued to press the
contention that its pursuit of Allsop was legitimate. CSED
insisted that the agency is not empowered to make determinations
of nonpaternity. In a case involving a child born during the
marriage, CSED argued that "one of the parties to the marriage
must initiate proceedings in court to delegitimize a child if
that is what they wish to do. . . . Now that Mr. Allsop has
initiated such proceedings . . . CSED will then be able to
initiate proceedings [to] establish the paternity of Karissa
as . . . a child 'born out of wedlock.'" (Quoting former AS
25.27.040, amended by ch. 57, ' 9, SLA 1995.) CSED also
requested that the court dismiss the State from Allsop's
nonpaternity action, arguing that CSED cannot be a proper
defendant to a nonpaternity action brought by a legally presumed
Before the court ruled on the summary judgment or
dismissal motions, a hearing was held before a judicial master on
the substantive question of paternity. The transcript reveals
that CSED acknowledged that the evidence did not support a
finding that Allsop was the biological father. In fact, CSED
affirmatively advocated for the disestablishment of Allsop's
So the state would request that you recommend
to the court that it grant the summary
judgment motion on the paternity issue and
enter an order declaring that Mr. Allsop is
not the father of the minor child. And with
that order the state can then proceed against
the other alleged father.
Following the hearing, the trial court granted Allsop's
motion for summary judgment, denied CSED's motion to dismiss, and
ordered CSED to terminate any collection or enforcement efforts
directed at Allsop for the benefit of Karissa. The trial court
also declared Allsop the prevailing party, and awarded him full
attorney's fees against the State3 in the amount of $775.4
In entering the fee award, the court relied upon Alaska
Civil Rule 82(b)(3)(G), which permits a variation from the fee
schedule for "vexatious or bad faith conduct." The court
provided the following justifications for awarding Allsop full
1.The State was told from the beginning
that Mr. Allsop was not the father.
2.Mr. Allsop was incarcerated in April
of 1988 while married to the mother of
the child, but the child was not born
until October of 1989.
3.The CSED also had the California court
order that there were no children of the
marriage of Mr. Allsop and Ms.
Castleman. Still CSED determined that
that was not enough to rebut the
presumption of paternity.
4.Still, in spite of having all of the
previous information that Mr. Allsop was
not the father, CSED forced Mr. Allsop
to file paperwork to defend himself in
court. Thus, this court determines that
CSED proceeded in a vexatious and bad
faith manner, thus the allowance of full
attorney's fees and costs to Mr. Allsop.
CSED moved unsuccessfully for reconsideration. The
trial court elaborated that from the outset, CSED possessed "more
than clear and convincing evidence" that Allsop was not Karissa's
biological father. The court stated that when the State "chose
to rely on the presumption that a child born during the marriage
is a child of the marriage," CSED abused its administrative
CSED presents two narrow questions for review: (1)
whether Allsop's action for disestablishment of paternity lies
against the State; and (2) whether the trial court's decision to
award Allsop full attorney's fees constituted an abuse of
discretion. CSED links these issues with a more general
objection to the trial court's implicit ruling that CSED
possessed broad discretion to disregard the presumption of
Allsop's paternity. CSED argues that in the case of a man
presumed by law to be a child's father, even if CSED knows that
the presumption can be easily rebutted, the State must pursue him
for child support.
A.Allsop's Claim for Disestablishment of Paternity Lies
In support of its contention that a claim for
disestablishment of paternity cannot lie against the State, CSED
contends that an action for a declaration of nonpaternity is
analogous to an action for divorce, a claim properly brought by
and against only the parties to that legal relationship. CSED
argues that because the agency is a complete foreigner to
Allsop's marriage and to the creation of his status as Karissa's
legal father, the State should have been dismissed from the case.
In the alternative, CSED argues that even if third parties may be
named as defendants in a nonpaternity action, the State is not a
proper defendant because it possesses no independent authority to
disestablish Allsop's paternity.
Whether a cause of action lies against a particular
class of defendants is a question of law. We review questions of
law by exercising our independent judgment. See Guin v. Ha, 591
P.2d 1281, 1284 n.6 (Alaska 1979). Regardless of whether we
accept CSED's contention that it does not possess the authority
to disestablish Allsop's paternity at the administrative level,
we agree with the trial court that Allsop's claim for declaration
of nonpaternity is actionable against CSED.
CSED pursued Allsop for child support based upon his
status as Karissa's legal "parent." This status, with its
consequent liability for Karissa's financial support, exposed
Allsop to any number of extensive support collection remedies
available to CSED by statute. As CSED stated in the Notice and
Finding of Financial Responsibility sent to Allsop which set an
ongoing support obligation and announced an accrued debt for
Unless you object in writing to the duty of
support and/or payment amount within 30 days,
this NOTICE AND FINDING OF FINANCIAL
RESPONSIBILITY will be legal and binding upon
you. Your income and property, including
unemployment compensation and retirement
benefits, will be subject to lien,
foreclosure, distraint, seizure, sale and
order to withhold and deliver to satisfy the
debt WITHOUT FURTHER ADVANCE NOTICE OR
HEARING. (AS 25.27.230-.270) Execution
against your retirement benefits may result
in involuntary termination from the
Allsop's Notice explicitly warned that his permanent fund
dividends, federal income tax refunds, income, and other property
"will be withheld."
The administrative remedies available to CSED and
described in the Notice provide the agency with an exceptional
degree of power to collect support from delinquent parents. See,
e.g, AS 25.27.250 (granting CSED the power to issue orders to
withhold and deliver obligor's real or personal property); AS
25.27.230 (providing that CSED may record liens upon obligor's
real or personal property); AS 25.27.253 (providing that CSED may
record liens that direct the State to withhold earnings and tax
refunds). However, the legislature also provided a remedy for
obligor "parents" in Allsop's situation who wish to challenge the
agency's authority to establish and enforce a support obligation
against them. At least two statutes entitled Allsop to resort to
the courts to obtain appropriate relief. AS 25.27.210, amended
by ch. 57, ' 17, SLA 1995;6 AS 25.27.270.7 Because the basis for
such relief was his nonparentage, Allsop was also justified in
naming CSED as a co-defendant to his action for declaration of
Moreover, even in the absence of express statutory
authority, the result that we reach here is bolstered by the fact
that while the State has a general interest in ensuring that
paternity determinations are made correctly, in the present case,
CSED possesses a tangible interest in the paternity of Karissa.
As Allsop notes, CSED provides Castleman with AFDC benefits, and,
as a condition of this arrangement, Castleman assigned her rights
to support "from all sources" over to the agency. See AS
47.25.345. This plainly gives CSED a real interest in the
paternity of Karissa. We are persuaded that Castleman alone may
not have adequately protected the State's interest. Compare
Keating v. Traynor, 833 P.2d 695, 696 & n.2 (Alaska 1992)
(allowing custodial mother who had assigned right to support to
CSED to intervene in CSED's motion to modify prior support order
because her interest was "inadequately represented" by agency).
Thus, unless Allsop wished to sue Castleman solely and risk that
CSED would not be bound by a resulting declaration of
nonpaternity, Allsop was doubly justified in joining CSED in an
action to disestablish his paternity.
B.The Trial Court Erred in Awarding Allsop Full
Having rejected CSED's argument that the State cannot
be a proper defendant to an action for disestablishment of
paternity, we turn to the remaining issue: whether Allsop
deserved full attorney's fees because CSED "proceeded in a
vexatious and bad faith manner" in "forc[ing] Mr. Allsop to file
paperwork and defend himself in court."8 An award of full
attorney's fees is manifestly unreasonable in the absence of a
finding of bad faith or vexatious conduct. Demonski v. New, 737
P.2d 780, 788 (Alaska 1987). An award of full fees entered due
to bad faith or vexatious conduct is reviewable for abuse of
discretion. Keen v. Ruddy, 784 P.2d 653, 657 (Alaska 1989);
Crook v. Mortenson-Neal, 727 P.2d 297, 306 (Alaska 1986).
As described above, the trial court entered specific
findings to support the award of full fees. The court determined
that after learning that Allsop and Castleman believed that
Allsop was not Karissa's father, that Allsop was imprisoned
during the period of possible conception, and that the parties
had obtained a "court order that there were no children of the
marriage," the agency proceeded beyond the bounds of good faith
litigation when it determined that there was still insufficient
evidence "to rebut the presumption of paternity." We believe
that the trial court's characterization of CSED's defense is
unwarranted, and therefore vacate the award of full fees.
The trial court's stated reasons are insufficient to
justify an award of full fees in part because they rely upon a
flawed premise: that it was wholly unreasonable for CSED to
question its authority to unilaterally determine Allsop's non-
paternity. Although we concluded that CSED's arguments regarding
possible limitations on its powers to establish and disestablish
paternity were irrelevant as to whether Allsop's action lies in
the first instance against the State, these contentions have
direct bearing upon the motivations of the agency in choosing not
to allow a default judgment to be entered against it and to
formally oppose Allsop's motion for a stay of the administrative
proceedings against him.
CSED emphatically contended at every stage of these
proceedings that regardless of any appearance of Allsop's
nonpaternity, until a court declares by clear and convincing
evidence that Allsop is not Karissa's father, CSED had no choice
but to regard Allsop as a parent liable for her support. CSED
bases this conclusion in part upon AS 25.27.040(a), amended by
ch. 57, ' 9, SLA 1995, which authorizes CSED to bring paternity
actions only for "children born out of wedlock."9 CSED contends
that because the agency possesses no express authority to
establish paternity for children born "in wedlock," and because
no statutory mechanism allows the agency to independently
disestablish the paternity of a legally presumed father or bring
an action in court to disestablish paternity on his behalf,10 CSED
had no discretion to drop its case against Allsop for the purpose
of initiating a paternity action against a more likely candidate.
We need not reach the merits of CSED's argument. It is
sufficient to note that we consider the agency's legal position
tenable and not so devoid of merit as to indicate a bad faith or
vexatious intent. It is apparent from the record that CSED
reasonably believed that until a court declared that Allsop was
not Karissa's father by clear and convincing evidence, the
State's hands were tied. Moreover, under these circumstances, it
is revealing that CSED never opposed Allsop's substantive claim
of nonpaternity11 but affirmatively acknowledged to the judicial
master, as well as to the trial court, that the evidence did not
support a view that Allsop was Karissa's biological father.
Given this record, we do not believe that CSED's legal arguments
and conduct rose to the level of egregiousness generally required
to warrant the imposition of full fees. We therefore hold that
the court's finding of bad faith was an abuse of discretion. Cf.
Crook, 727 P.2d at 306 (affirming award of full fees based upon
trial court's specific finding that "[d]efendants litigated a
weak and incredible defense").
This result is further supported by the fact that in
drafting its specific findings, the trial court overstated the
strength of the evidence in Allsop's favor. The trial court
specifically found that CSED was in possession of a "California
court order that there were no children of the marriage of Mr.
Allsop and Ms. Castleman." In our view, the trial court's
characterization of the order of dissolution of the marriage is
clearly erroneous. The dissolution that Allsop and Castleman
obtained in California was the product of an uncontested, summary
proceeding. Allsop and Castleman filed a standard-form joint
petition for dissolution, one of the terms of which stated that
"[t]here are no minor children born of our relationship". The
judgment of dissolution was entered as a standard-form order
which took the pleadings on their face, terminated the marriage,
and restored Castleman's former name. No adjudication of
paternity occurred at that time, and thus, even if CSED possessed
the authority to independently disestablish Allsop's paternity,
it would have been justified in giving the California order very
We AFFIRM the trial court's conclusion that CSED is a
proper defendant to Allsop's claim for disestablishment of
paternity. However, the record does not support the trial
court's decision to award Allsop full fees based upon a finding
that CSED conducted its defense vexatiously and in bad faith. We
therefore VACATE the award of full attorney's fees and remand for
the entry of a partial fee award.
1 Karissa was therefore born almost 17 months after Allsop
2 See AS 18.50.160(d) (providing that when a married woman
gives birth, her husband's name shall be entered on the birth
certificate); 7 AAC 5.390.
3 Allsop did not seek attorney's fees against Castleman.
4 The $775 fee award fell short of Allsop's request of
$1,642 in actual attorney's fees. Nevertheless, because only
$775 out of the $1,642 request was adequately documented, we
treat this as an award of "full" fees.
5 Allsop contends that by "aggressively litigating the
substantive issues in the case," CSED either waived the argument
that it is not a proper defendant or CSED must be estopped from
raising it on appeal. Allsop cites no legal authority for this
proposition, and we find his waiver argument meritless. Even if
it were possible for a defendant to inadvertently waive the
defense that an action against him cannot lie, the record
demonstrates that nearly all of CSED's efforts below were
directed at explaining why the State was not a proper defendant.
6 Former AS 25.27.210, amended by ch. 57, ' 17, SLA 1995,
provided in relevant part:
Judicial review of administrative decisions
and actions. (a) Judicial review by the
superior court of an agency decision
establishing . . . a duty of support . . .
may be obtained by filing a notice of
appeal . . . .
. . . .
(e) The superior court may enjoin agency
action in excess of constitutional or
statutory authority at any stage of an agency
proceeding. If agency action is unlawfully
or unreasonably withheld, the superior court
may compel the agency to initiate action.
7 AS 25.27.270 provides:
Judicial relief from administrative
execution. Any person against whose property
a lien has been recorded under AS 25.27.230
or an order to withhold and deliver served in
accordance with AS 25.27.250 may apply for
relief to the superior court.
8 CSED briefly argues that the trial court erred in
determining that Allsop was the prevailing party. We are
unpersuaded by this contention, since Allsop obtained formal
relief on the merits for virtually everything that he sought:
disestablishment of his paternity and an order requiring CSED to
permanently cease its enforcement efforts against him. See
Continental Ins. Co. v. United States Fidelity & Guar. Co., 552
P.2d 1122, 1125 (Alaska 1976) (holding that a prevailing party
determination will be overturned only for an abuse of
9 Former AS 25.27.040(a), amended by ch. 57, ' 9, SLA
1995, provided in relevant part:
The agency shall appear on behalf of minor
children or their mother or legal custodian
or the state and initiate efforts to have the
paternity of children born out of wedlock
determined by the court.
10 The legislature recently enacted a statute which
directs CSED to establish procedures and standards for the
disestablishment of paternity of a child whose paternity was
established other than by court order. See AS 25.27.166(a); ch.
57, ' 14, SLA 1995. Because it was enacted well after the outset
of the present case, AS 25.27.166(a) has no relevance here.
11 When the agency answered Allsop's complaint, it
"denied" the allegation that Allsop could not be Karissa's
biological father. However, CSED's denial was a result of its
professed lack of knowledge sufficient to form a belief regarding
the conditions of Allsop's incarceration. See Alaska R. Civ. P.
8(b). Given the character of CSED's denial, the fact that this
was the only instance in which CSED "contested" Allsop's
paternity, and the agency's decision to file a non-opposition to
Allsop's motion for summary judgment, we refuse to regard the
denial as evidence of a clearly inappropriate defense.