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Boone v. Gipson (6/28/96), 920 P 2d 746
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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, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL ALAN BOONE, ) Supreme Court No. S-6985
)
Appellant, ) Superior Court No.
) 3AN-81-7034 CI
v. )
) O P I N I O N
ANGELYN RAY GIPSON, )
)
Appellee. ) [No. 4364 - June 28, 1996]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.
Appearances: William T. Ford, Anchorage, for
Appellant. Janet D. Platt, Anchorage, for
Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices, and
Shortell, Justice pro tem.
RABINOWITZ, Justice.
I. INTRODUCTION
This appeal involves a dispute concerning child support
payments. Appellant Daniel Boone argues that the superior court
erred in granting Appellee Angelyn Gipson's motion for
reconsideration without first affording him an opportunity to
respond, and that the superior court erroneously awarded a
retroactive modification of child support.
II. FACTS AND PROCEEDINGS
Daniel Boone and Angelyn Ray Gipson married in 1974.
Their only child, Eryn Angelyn Boone, was born on November 4, 1978.
Boone and Gipson were divorced in 1981. The 1981 Decree of
Dissolution of Marriage provided that they would have joint custody
of Eryn; it made no provision for child support payments. Several
months later, Eryn began living full time with her mother, but
visited with Boone periodically. Boone and Gipson agreed to this
arrangement verbally, and also agreed that Boone would pay $200
monthly for child support. Some time after the divorce, Boone and
Gipson entered into new relationships and subsequently both
remarried. Boone moved to California in 1987 to attend law school.
He graduated in June 1990, at which time he began work as an
attorney. Boone is now a California resident.
On February 24, 1992, Gipson filed a "Request for Review
of Judicial Support Order"with the Alaska Child Support
Enforcement Division (CSED). On February 26, 1992, CSED sent a
Notice of Review of Support Order and a Child Support Guidelines
affidavit to Boone. On March 24, 1992, CSED sent a letter to Boone
asking him to submit financial information such as his most recent
tax return. On April 23, 1992, Gipson filled out a form titled
"Affidavit in Support for Motion for Child Support." In the
affidavit, Gipson stated in part:
[Boone] has been paying me $200.00 per month.
He indicated he would help out more after he
finished law school. Although he has now been
out of school approx. two years, he has not
offered any additional assistance. He had
also told me he would pay his share of
medical/dental bills incured [sic] over the
last 7-8 years; but he hasn't. I feel my only
alternative is to have a child support order
issued.
At the time, no motion for child support was filed with the
affidavit.
Over a year later, on September 7, 1993, CSED submitted
to the superior court a Motion and Supporting Memorandum requesting
that Boone submit his 1992 tax return and an affidavit to CSED.
Gipson's 1992 affidavit was attached to the motion. The motion was
apparently sent to Boone on September 7, 1993, with a note advising
him that any response must be filed with the superior court within
fifteen days of when the motion was served upon him.
On February 24, 1994, the superior court ordered that
Boone submit his 1992 tax returns, an affidavit, and other
financial information "within 15 days of the date of this order."
The superior court further stated that if Boone failed to comply
with the order, the court would enter a support order of $1,000 per
month, effective April 1, 1992. (EN1) The order was not mailed
until March 7, at which point the time period for Boone to respond
had almost expired. Boone claims that the time for him to reply
had completely expired when the order reached him in California.
A CSED employee submitted an affidavit stating that no information
had been received from Boone as of April 5, 1994. Sometime
thereafter, Boone contacted CSED and supplied his 1993 tax return.
On August 29, 1994, CSED filed a "Notice of Proposed Adjustment in
Child Support"in the superior court stating that Boone should pay
$817 per month, based on his 1993 income of $66,500.
On October 7, 1994, CSED mailed to Boone a "Notice of
Motion and Motion to Modify Child Support." Boone filed his
Opposition and an Affidavit on October 31, 1994. In his affidavit,
Boone stated that he had approximately $30,000 of student loans to
pay, and that two children in the household (a daughter of his new
wife from a previous marriage and a child which Boone and his new
wife had together) required substantial medical, psychological, and
legal expenses that cost Boone large amounts of money. Gipson
filed a reply memorandum on December 5, 1994. In an attached
affidavit, Gipson stated that she experienced substantial financial
hardship while Boone was in law school, but that she did not
pressure him for increased payments during that time because she
assumed that he, too, was under financial pressure at the time.
However, she stated that she expected him to pay more child support
following his attainment of employment as an attorney.
Additionally, she claims that Boone did not pay the health and
dental expenses which he was required to pay under the Decree of
Dissolution.
On January 12, 1995, the superior court granted the
Motion to Modify Child Support, and required Boone to pay $817 per
month beginning on January 1, 1995. On January 19, 1995, Boone
filed a Motion for Reconsideration asking the court to reduce the
child support from the $817 per month that the court had ordered.
On January 23, 1995, Gipson filed a Motion for Reconsideration
arguing that the commencement date for the child support increase
should be April 1, 1992. On February 16, 1995, the superior court
granted Gipson's Motion for Reconsideration, ordering that the
increased child support payment would be effective as of April 1,
1992. The court also granted Gipson $1,500 of her attorney's fees
and costs. The superior court denied Boone's motion for
reconsideration. Boone then filed this appeal.
III. STANDARD OF REVIEW
In interpreting a statute or rule, this court will adopt
the rule of law which is most persuasive in light of precedent,
reason, and policy. M.R.S. v. State, 897 P.2d 63, 66 (Alaska
1995). Therefore, we review interpretations of statutes and rules
on a de novo basis. Furthermore, a child support award will not be
overturned unless the trial court has abused its discretion.
Richmond v. Richmond, 779 P.2d 1211, 1216 (Alaska 1989); Coghill v.
Coghill, 836 P.2d 921, 924 n.1 (Alaska 1992).
IV. DISCUSSION
Boone raises two arguments on this appeal. First, he
argues that the superior court abused its discretion by granting
Gipson's motion for reconsideration, since the court did not allow
Boone an opportunity to respond. Second, Boone argues that the
superior court lacked the authority to award child support
retroactive to April 1, 1992.
A. Did the Superior Court Abuse Its Discretion by Granting
Gipson's Motion for Reconsideration without Affording
Boone an Opportunity to Respond?
The superior court articulated several reasons for
granting Gipson's motion for reconsideration to make Boone's child
support obligation retroactive to April 1, 1992. Specifically, the
court stated that Boone had failed to respond to Judge Andrews'
February 24, 1994, order requiring Boone to submit relevant
financial information by March 11, 1994, and noted that Judge
Andrews' order had provided, "If the obligor fails to submit the
information as required by this order . . . the court shall enter
a support order of $1,000 per month effective April 1, 1992
. . . ." The superior court also observed that when Boone did
provide financial information, "it was inaccurate and outdated."
Boone argues that had he been given an opportunity to
respond, he would have pointed out that he received the February,
1994, order too late to respond to it in time, and that he provided
his most current tax returns when he did subsequently respond to
CSED. Gipson does not dispute that Boone received the February
order too late to comply with its terms, but she points out that
Boone still had not complied with the order even as of April 5,
1994. In light of this, and of what she claims was the superior
court's awareness of Boone's actions during the pendency of the
case, Gipson argues that the superior court did not abuse its
discretion by failing to request a response from Boone before
granting her motion for reconsideration.
Resolution of this issue depends on the interpretation of
Civil Rule 77(k)(3). This rule states:
No response shall be made to a motion for
reconsideration unless requested by the court,
but a motion for reconsideration will
ordinarily not be granted in the absence of
such a request.
(Emphasis added.)
This is the first occasion we have had to interpret Civil
Rule 77(k)(3). Based on the plain meaning of Civil Rule 77(k)(3),
a trial court should ordinarily not grant a motion for
reconsideration without first requesting a response from the
nonmoving party. Therefore we hold that in the absence of an
explanation of a compelling reason for it not to request a
response, the superior court abused its discretion in granting
Gipson's motion for reconsideration without affording Boone an
opportunity to respond. Thus we vacate the superior court's order
granting Gipson's motion for reconsideration and remand with
directions to afford Boone the opportunity to respond before again
ruling on Gipson's motion for reconsideration.
B. Did the Superior Court Err in Ordering Boone to Pay Child
Support as of April 1, 1992?
Boone argues that the superior court erred by ordering
him to pay the increased child-support payments as of April 1,
1992. Specifically, Boone argues that the superior court lacked
authority to award the child support retroactively, and that
therefore the superior court's order granting Gipson's motion for
reconsideration should be set aside.
Resolution of this issue turns on the interpretation of
former Civil Rule 90.3(h)(2). (EN2) As it read during the pendency
of this case and at the time the superior court granted Gipson's
motion for reconsideration, the rule stated:
Child support arrearage may not be modified
retroactively. A modification which is
effective on or after the date that a motion
for modification is served on the opposing
party is not considered a retroactive
modification.
1. Did former Civil Rule 90.3(h)(2) only apply to
decreases in child support?
Gipson argues that the legislative history of the federal
counterpart of Civil Rule 90.3(h)(2) demonstrates that the rule was
meant only to prohibit retroactive reductions of child support, and
that the comments to former Civil Rule 90.3(h)(2) make clear that
the rule was based on its federal counterpart. (EN3) Since this
case involves a retroactive increase in child support, Gipson
argues that the rule does not bar the superior court's order.
We disagree with Gipson's contention that Civil Rule
90.3(h)(2) applies only to retroactive reductions in child support.
The plain meaning of the text of the rule is clear. It does not
differentiate between retroactive modifications that increase child
support and retroactive modifications that decrease child support.
This court has previously stated that "the plainer the language of
the statute, the more convincing contrary legislative history must
be." Marlow v. Municipality of Anchorage, 889 P.2d 599, 602
(Alaska 1995). This principle is equally valid where the text
being interpreted is not a statute adopted by the legislature, but
a Civil Rule. Additionally, the commentary to Civil Rule
90.3(h)(2), as it read during the pendency of this case in the
superior court, stated in part:
X. Modification
. . . .
The prohibition against retroactive
modification limits both requested decreases
and increases in child support. See
Prohibition of Retroactive Modification of
Child Support Arrearage, 54 Fed. Reg. 15,763
(1989).
(Emphasis added.) Thus, the plain meaning of the text of the
former rule, and the commentary to the Alaska rule, indicate that
the appropriate interpretation of Civil Rule 90.3(h)(2) is to
prohibit both retroactive decreases and retroactive increases in
child support awards. (EN4)
2. When was Boone served with a motion for
modification?
As previously noted, former Civil Rule 90.3(h)(2) allowed
the superior court to increase Boone's child support obligation
only from the date when he was served with a motion for
modification. Gipson argues that CSED's March, 1992, letter to
Boone constituted the "functional equivalent of a motion for
modification"under Civil Rule 90.3(h)(2), and that therefore the
superior court did not err in ordering Boone to pay increased child
support payments as of April 1, 1992. Boone argues in part that he
did not receive notice of a motion for modification until much
later, and that therefore the superior court's order should be set
aside.
There were five relevant mailings to Boone. The first
mailing is mentioned in an affidavit obtained from a CSED employee.
According to this employee, the CSED sent a "Notice of Review of
Support Order and a Child Support Guidelines Affidavit"to Boone on
February 26, 1992.
The second mailing was dated March 24, 1992. It was
signed by Michelle L. Wall-Rood, Child Support Enforcement
Representative, and the letterhead stated "State of Alaska
Department of Revenue Child Support Enforcement Division". The
text of the letter reads in full:
We are currently in the process of reviewing
your child support order for a possible
modification in the support amount. In order
to make our income determination as accurate
as possible we need additional information
from you. Please complete the enclosed
affidavit, attach back-up documentation such
as your most recent tax return and current
paystubs and return the information to us
within 10 days.
If you have any questions contact us. The
kids line is available 24 hours a day to leave
a message on.
Despite the language stating that CSED "need[ed]"the additional
information, and the letter's request that Boone respond within ten
days, the letter made no mention of pending legal action or court
proceedings seeking modification of Boone's support obligation.
The third mailing Boone received was entitled "NOTICE",
and was dated September 7, 1993. It was from Linda L. Kesterson,
Assistant Attorney General. The text of this document stated in
full:
PLEASE TAKE NOTICE that pursuant to Civil Rule
77 you have a right to file a written response
or opposition to this motion. Any such
response must be filed with the Superior
Court, 303 "K"Street, Anchorage, Alaska
99501, within fifteen days of service of this
motion upon you, and a copy must be sent to
the attorney whose name appears on this
motion.
To the notice was attached a "Motion For Order That Obligor Submit
Income Information", an affidavit submitted by Gipson, and a
memorandum supporting the motion. This letter indicated that legal
proceedings had begun, but did not mention that a motion for
modification of child support was at issue.
The fourth mailing that Boone received was the order
signed by Judge Andrews, dated February 24, 1994, which was not
mailed to Boone until March 7, 1994. The full text of the order
reads:
IT IS HEREBY ORDERED that Daniel A. Boone
shall submit his 1992 tax return including all
schedules and supporting documentation and a
signed and notarized guidelines affidavit in
the form attached including supporting
documentation such as paystubs to the court
and to the Child Support Enforcement Division
(CSED), 550 W. 7th Ave. 4th Floor, Anchorage,
Alaska 99501, within 15 days of the date of
this order. If the obligor fails to submit
the information as required by this order,
upon notice by the state of the obligor's
noncompliance, the court shall enter a support
order of $1,000 per month effective April 1,
1992 based on an imputed adjusted income of
$60,000.
Again, the mailing made no explicit mention that a motion for
modification of child support was filed and pending.
The final relevant mailing that Boone received was
entitled "Notice of Motion (Civil Rule 5(9)) and Motion to Modify
Child Support". It was dated September 13, 1994 and was mailed to
Boone on October 7, 1994.
It is clear that the document titled "Motion to Modify
Child Support"which was mailed to Boone on October 7, 1994,
satisfied former Civil Rule 90.3(h)(2), and that the superior court
would have been justified in ordering Boone to pay child support
arrearages on increased child support back to the date it was
served on him.
The first part of former Civil Rule 90.3(h)(2) states a
general prohibition on modifying child support payments retro-
actively. The second half of the rule provides for an exception to
this general prohibition. Given the general prohibition, we think
that the exception should be construed narrowly. Since the
exception in the second half of the rule only refers to motions for
modification, and contains no indication that "functional
equivalents"of motions for modification also suffice, we conclude
that nothing short of a motion or petition for modification
satisfies the requirement of the former rule. Therefore, we
conclude that the superior court erred in ordering Boone to pay
increased child support to Gipson retroactive to April 1, 1992.
This aspect of the superior court's ruling is therefore vacated and
remanded for redetermination in accordance with this opinion. (EN5)
V. CONCLUSION
The superior court's judgment is VACATED and the case is
REMANDED for further proceedings consistent with this opinion.
(EN6)
ENDNOTES:
1. This order was entered by Judge Andrews.
2. Civil Rule 90.3(h)(2) has been amended, effective July 15,
1995. See infra note 5.
3. She argues that "federal law and its Alaska counterpart, Civil
Rule 90.3(h)(2) were intended to prevent cases where a child
support obligor, through neglect or refusal to pay, incurs
arrearages that would be reduced or forgiven during enforcement
proceedings."
4. Also, 42 U.S.C. sec. 666(a)(9) (1991) explicitly limits
retroactive modifications of child support orders "to any period
during which there is pending a petition for modification, but only
from the date that the notice of such petition has been given,
either directly or through the appropriate agent, to the obligee or
(where the obligee is the petitioner) to the obligor." Cases where
the obligee is the petitioner are petitions for a child support
increase. Thus, Federal law prohibits retroactive increase, as
well as decrease, of child support obligations.
5. Civil Rule 90.3(h)(2) was modified on July 15, 1995, which was
after the superior court's grant of Gipson's motion for
reconsideration. The rule now states:
Child support arrearage may not be modified
retroactively. A modification which is
effective on or after the date that a motion
for modification, or a notice of petition for
modification by the Child Support Enforcement
Division, is served on the opposing party is
not considered a retroactive modification.
(Emphasis added.) Civil Rule 98 provides:
These rules become effective on the date to be
established by order of the supreme court.
They shall govern all civil actions and
proceedings thereafter commenced and so far as
just and practicable all proceedings then
pending.
Since we are of the view that the new and old versions of
the rule command the same result in this case, we conclude that it
would be just and practicable for the superior court to apply the
new version of Civil Rule 90.3(h)(2) on remand.
6. We decline to address Boone's standing and subject matter
jurisdiction arguments since they are raised for the first time in
his reply brief. Nor do we deem it appropriate to address Gipson's
estoppel argument, made at oral argument, given that Gipson failed
to explicitly brief the issue.
As the issue of subject matter jurisdiction may be raised at
any point in the proceeding, Burrell v. Burrell, 696 P.2d 157, 162
(Alaska 1984), Boone may address this issue on remand to the
superior court, where Gipson will have the opportunity to respond.
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