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Child Support Enforcement Div. v. Demers (5/17/96), 915 P 2d 1219
Notice: This opinion is subject to 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-
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) Supreme Court No. S-6751
ENFORCEMENT DIVISION, )
) Superior Court No.
Appellant, ) 3AN-85-8645 Civil
) O P I N I O N
DONALD DEMERS, )
) [No. 4350 - May 17, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: Rhonda F. Butterfield, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellant. No appearance by Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Shortell,
Justice, pro tem.
The State of Alaska, Department of Revenue, Child Support
Enforcement Division (CSED), acting on behalf of Angela Zajac,
filed a Motion to Reduce Child Support Arrearages to Judgment
against Donald Demers. The superior court granted CSED's motion,
but added a restriction to the judgment preventing execution
thereon. CSED appeals. We reverse and remand for entry of
judgment in CSED's favor without restriction upon execution.
II. FACTS AND PROCEEDINGS
According to the terms of their divorce, Demers was
ordered to pay Zajac $300 per month child support. Demers failed
to make child support payments for four years following entry of
the order. Demers moved to Ohio during this time.
In 1990 an Ohio court entered an order withholding from
Demers's salary $300 per month for child support. Demers was then
employed part-time. The Ohio order also required that an
additional $200 per month be withheld from Demers's salary once he
acquired full-time employment. Demers subsequently gained full-
time employment, and has regularly met the obligations established
by the Ohio order.
In 1994 CSED filed in the superior court in Anchorage a
Motion to Reduce Child Support Arrearages to Judgment. Demers's
arrearages then totaled $22,879.17. Demers filed a response
asserting his good faith and his inability to meet any obligation
beyond those imposed by the 1990 Ohio order.
The superior court issued an order granting CSED's motion
and stating: "The fact that defendant has made good faith efforts
to pay should be considered by the State prior to any execution.
He appears to be paying faithfully ever since he became re-
employed. However, the arrearages exist, and plaintiff is entitled
to a judgment." The court accordingly issued a judgment for
plaintiff for the requested sum of $22,879.17, but added the
following restriction to the judgment: "No execution shall issue
as long as Defendant is paying in accordance with his agreement on
a 'timely basis.' If he fails to make a payment without just cause
satisfactory to the State, Execution shall issue immediately
without further application to the Court."
CSED moved for reconsideration. The superior court
denied the motion, stating: "If Mr. Demers ever misses a payment,
execution shall immediately issue." CSED appeals.
CSED challenges the superior court's authority to
condition execution of a valid judgment upon Demers's failure to
make payment under the Ohio order. This presents a question of
law, which this court reviews de novo. Guin v. Ha, 591 P.2d 1281,
1284 n.6 (Alaska 1979).
As the superior court correctly recognized, CSED is
entitled to a judgment against Demers for the child support
arrearages. Once a valid judgment has been granted, the statutory
provisions for the execution of judgments do not give the superior
court authority to impose conditions upon the creditor's right to
obtain a writ of execution based on the judgment. AS 09.35.010.
Alaska Statute 09.35.010 states that "[t]he party in
whose favor a judgment is given that requires the payment of money
or the delivery of real or personal property or either of them may
have a writ of execution issued for its enforcement." The plain
language of this statute gives the court no discretion to decide
whether to issue a writ of execution once a valid judgment for the
payment of money has been entered. Under AS 09.35.070, "[a]ll
goods, chattels, money, or other property, both real and personal,
. . . not exempt by law . . . are liable to execution."(EN1)
Our decision is buttressed by the statutes controlling
reduction of child support arrearages to judgment. AS 25.27.225-
.226. The statutes governing parental support payments, and the
decisions of this court construing those statutes, tightly confine
the discretion of the court in determining whether judgment should
be granted. Id. To introduce such discretion at the execution
stage would circumvent this legislative decision, and potentially
overstep the powers vested in the courts. The court could not have
refused to enter judgment; consequently it could not restrict the
execution of that judgment once granted. (EN2)
Alaska Statute 25.27.225 states:
A support order ordering a noncustodial parent
obligor to make periodic support payments to
the custodian of a child is a judgment that
becomes vested when each payment becomes due
and unpaid. The custodian of the child, or
the agency on behalf of that person, may take
legal action under AS 25.27.226 to establish a
judgment for support payments ordered by a
court of this state that are delinquent.
This court has held that "like court-rendered judgments, child
support arrearages are not subject to retroactive modification."
State, Dep't of Revenue, Child Support Enforcement Div. v. Dean,
902 P.2d 1321, 1323 (Alaska 1995).
Alaska Statute 25.27.226 sets out an essentially
ministerial role for the courts in reducing arrearages to judgment.
To collect the payment due, the custodian of a
child, or the agency on behalf of that person,
shall file with the court (1) a motion
requesting establishment of a judgment; (2) an
affidavit that states that one or more
payments of support are 30 or more days past
due . . . ; and (3) notice of the obligor's
right to respond. . . . If the obligor's
affidavit states that the obligor has paid any
of the amounts claimed to be delinquent,
describes in detail the method of payment or
offers any other defense to the petition, then
the obligor is entitled to a hearing. After
the hearing, if any, the court shall enter a
judgment for the amount of money owed.
AS 25.27.226 (emphasis added). The court is thus limited to
determining the amount of money owed; the mandatory language
emphasized above suggests that once the court finds that a sum of
money is owed, it has no power to withhold judgment for that sum.
This narrow function comports well with the statute's
characterization of child support payments as judgments that vest
when they become due and unpaid. AS 25.27.225.
The system established by the legislature for collection
of child support payments does not empower a court to forgive or
modify those payments after they become due and unpaid. If a court
is without power to modify child support arrearages directly, it
should be equally unable to do so by restricting execution on those
judgments. See Smith v. Smith, 797 S.W.2d 798, 800-801 (Mo. App.
1990) ("A party in whose favor a judgment has been rendered may
have an execution. . . . Husband, in his petition to quash [the
writ of execution], in effect sought to relitigate the division of
property made by the trial court. As the trial court determined,
this was an improper 'collateral attack upon the judgment.'"). The
superior court was not permitted to consider Demers's good faith in
reducing his arrearages to judgment; restricting CSED's ability to
execute the judgment based upon Demers's good faith is accordingly
impermissible. (EN3) See Hooks v. Hooks, 762 P.2d 846 (Kan. App.
1988) (holding that in the absence of statutory authority trial
court lacked discretion to condition execution of child-support
judgment upon regular payments towards the arrearages).
CSED submitted the required documentation of Demers's
arrearages. It was entitled to have those arrearages reduced to a
judgment. Once they had been so reduced, CSED had an unfettered
right to obtain a writ of execution. We hold that the superior
court lacked the authority to condition execution on a valid
judgment for child support arrearages.
We REVERSE the superior court, and REMAND for entry of
judgment containing no restrictions upon execution.
1. Alaska Civil Rule 69(a) provides in part that "[p]rocess
to enforce a judgment shall be by a writ of execution, unless the
court directs otherwise." This could be read to grant the court
discretion to direct other means by which a judgment may be
enforced, possibly including a condition such as that imposed by
the superior court. However, we do not read the phrase "unless the
court directs otherwise"so broadly. See 7 James W. Moore et al.,
Moore's Federal Practice 69.03(2) (2d ed. 1995) ("Although
[federal] Rule 69(a) provides that money judgment shall be enforced
by a writ of execution 'unless the court directs otherwise,' that
clause does not grant unlimited authority to the district court to
enforce money judgments by means other than execution. Indeed, 'it
is understood that the use of such means [under the 'unless'
clause] should be confined to those situations in which execution
would be an inadequate remedy.'"(second alteration in original)).
2. CSED may not always choose to seek a judgment against the
non-custodial parent. Compare AS 25.27.225 ("the agency on behalf
of [the custodian of the child] may take legal action") (emphasis
added) with AS 25.27.226 ("[T]he court shall enter a judgment for
the amount of money owed.") (emphasis added).
3. Demers contended before the superior court that
[t]he reason I didn't pay wasn't out of malice
or disregard for the child support order, but
lack of steady work. . . . I don't know what
else I can do besides paying the $300.00 order
plus $200.00 additional for arrearages. Also
all bonuses are taken for arrearages. I'm
honestly doing the best that I can.
Although we hold that a court could not prevent execution upon
CSED's judgment on this basis, Demers and CSED could enter into an
agreement under which execution would be withheld. It follows that
the superior court would then have the authority to condition the
exercise of execution in accordance with the parties' agreement.