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Child Support Division v. Carrick (9/20/96), 923 P 2d 803
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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.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) Supreme Court No. S-6622
DIVISION, )
) Superior Court No.
Appellant, ) 3AN-89-818 CI
)
v. ) O P I N I O N
)
WILLIAM R. CARRICK, ) [No. 4405 - September 20, 1996]
)
Appellee. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.
Appearances: Terisia K. Chleborad, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellant. No appearance for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices, and
Shortell, Justice pro tem. [Fabe, Justice,
not participating.]
PER CURIAM
I. INTRODUCTION
The single issue presented in this appeal concerns the
manner in which a noncustodial parent, William Carrick, can satisfy
a combination of repayment obligations to the Child Support
Enforcement Division (CSED) and a continuing support obligation to
his minor son. (EN1) The superior court essentially authorized
William to pay a portion of these obligations directly to his
former wife. The State questions this authorization and asserts
that all monies owed by William must be routed through CSED as a
matter of law.
II. FACTS AND PROCEEDINGS
Renee Carrick and William Carrick were divorced in
October 1989. Renee assumed sole custody of their son.
Renee had been receiving public assistance for the support of their
son before the divorce and continues to receive support to the
present. Subsequently it came to the attention of CSED that
William, pursuant to a settlement agreement incorporated into their
divorce decree, was not paying child support in accordance with the
provisions of Civil Rule 90.3. (EN2) CSED then filed a motion to
require William to reimburse the State for past public assistance
and also to modify William's support obligation to bring it in
conformity with Civil Rule 90.3. The superior court entered an
order on August 5, 1994, requiring William to repay the State
$3,000 for public assistance payments made to Renee between October
1988 and September 1993. The superior court's order set William's
child support obligation at $460 a month commencing on October 1,
1993. (EN3)
Beginning on November 1, 1989, it appears that William
provided that $100 of his veteran's benefits be paid directly to
Renee each month. (EN4) This direct monthly payment is the basis
of CSED's attack on the superior court's order.
In his initial report, the Master wrote in part:
However, there was insufficient evidence as to
how either the VA or Social Security
Administration would view a support order
directing the federal agencies to dispense
monies in a certain way. The State's power to
do that is uncertain. Rather, the more
prudent means of dealing with support is for
the court to just order Mr. Carrick to pay the
$460.00 per month support and for him to
arrange payment as best he can.
Thereafter, in response to CSED's motion for clarification, the
Master stated in part:
Clarification was sought as to the phrase
. . . ". . . for him to arrange payment as
best he can." It means only that however he
comes up with the $460.00 per month is his
responsibility, but the bottom line is that is
what he would owe.[ (EN5)]
CSED objects to this arrangement, claiming "that the [$100.00
Veteran's Administration] payment should be routed through the
CSED." CSED asks this court to reverse the superior court and
order William to redirect the Department of Veteran's
Administration to pay the $100 in veteran's benefits to CSED.
Alternatively, CSED requests that William redirect the $100 in
veteran's benefits to himself and in turn pay the $100 directly to
it each month.
III. DISCUSSION
CSED commences its substantive argument by noting that
its entitlement to reimbursement for past and ongoing public
assistance paid to Renee is established under State, Child Support
Enforcement Division v. Gammons, 774 P.2d 181 (Alaska 1989). (EN6)
CSED also points to AS 47.25.345, which provides that a custodial
parent who receives public assistance for a minor child assigns all
right to support, from all sources, to the State as a condition of
accepting public assistance. (EN7) CSED next relies on the text of
AS 25.27.080(a), which provides that
[a] court order requiring payment of child
support shall be modified to order payments be
made to the agency [CSED] upon application.[
(EN8)]
Finally CSED argues that
[t]he state should be able to receive $360 a
month from Mr. Carrick and $100 a month from
the VA to pay towards the child support debt.
When money is routed through CSED, the
payments can properly be allocated to Mrs.
Carrick and to offset the public assistance
paid for Will Carrick. Since the trial
court's decision does not require that the
payments be routed through CSED, the state is
effectively denied reimbursement for public
assistance.
. . . .
CSED needs assistance from the court to
reroute the payment of Mr. Carrick's veteran's
disability benefits through the agency. The
United States Code exempts Mr. Carrick's
veteran's benefits from being attached,
levied, or seized through any legal process.
See 38 U.S.C. sec. 5301(a). Consequently,
CSED cannot attach the veteran's benefits
directly.
Unfortunately, CSED has failed to inform this court of
the procedural steps by which the custodial parent in this case
obtained the $100 monthly direct payments from the Department of
Veteran's Affairs. More importantly, CSED has not apprised this
court if there are existing procedures by which the veteran can
redirect the monthly $100 payments to CSED or to himself for
payments directly to CSED.
Prior to entering an order requiring William to redirect
the payments, this court must be satisfied that he has the
authority to do so. Based upon the record before us, we are unable
to ascertain whether or not this is the case. Therefore, we
decline to resolve the specific issue of redirection of the
payments at this time.
With respect to the closely related issue of whether or
not William should be credited for the $100 payments, we note only
that in the event that William is not able to redirect the
payments, we would be inclined to credit his obligation with these
amounts. This result is compatible with Miller v. Miller, 890 P.2d
574, 576-77 (Alaska 1995), where we held that a noncustodial parent
is entitled to credit against his support obligation for social
security insurance benefits the child receives on the parent's
behalf as part of the parent's retirement benefits.
Until such time as an adequate showing is made by CSED
regarding the feasibility of redirecting the veteran's benefits,
the $100 payments shall accordingly be credited against William's
$460 per month current obligation. (EN9) We note, however, that AS
25.27.080(a) does entitle CSED to an order requiring that all
payments made by William personally be routed through the agency.
The superior court's orders must be modified on remand to reflect
this requirement.
IV. CONCLUSION
This case is accordingly REMANDED to the superior court
for modification of its support orders and for further proceedings
not inconsistent with this opinion.
ENDNOTES:
1. CSED formulated the issue before this court as follows: "Where
a noncustodial parent is obligated to repay the state for public
assistance paid for the benefit of his child, did the superior
court err when it held that the [non]custodial parent's child
support obligation could be partially satisfied by payments made
directly to the custodial parent?"
2. As to child support the settlement agreement states:
The mother currently receives social security
payments and payments from the Veteran's
Administration. The social security
administration and the veteran's
administration pays to the wife a dependent's
share of the social security and veteran's
administration payments. The husband agrees
that these payments shall continue and he
shall not in any way interfere with them and
shall do all things necessary to make sure and
certain that the dependent payments from
social security and veteran's administration
are paid to the wife for the benefit of the
minor issue.
The parties agree that these payments
shall be in place of and instead of Civil Rule
90.3. However, the parties agree that should
the husband become employed on a full-time
basis, the wife reserves the right to ask for
and request child support payments pursuant to
Civil Rule 90.3.
3. The fact and extent of William's liability to reimburse the
State were never appealed. Nor did William appeal the superior
court's determination that pursuant to Civil Rule 90.3 his monthly
child support obligation is $460.
4. A letter from the Department of Veteran's Affairs states the
following:
This certifies the records of the U.S.
Department of Veterans Affairs (VA) indicate
Mr. William R. Carrick has provided payment of
$100.00 per month to Renee Carrick, custodian
of Will E. Carrick. This $100.00 has been
made monthly since November 1, 1989.
Mr. William R. Carrick currently receives a
total of [$]1,649.00 from this department, and
$100.00 is deducted from the [$]1,649.00
amount.
5. The superior court subsequently approved both the Master's
report and the Master's clarification of his interim report.
6. See AS 25.27.120(a), which provides in part:
An obligor is liable to the state in the
amount of assistance granted under AS 47.07
and AS 47.25.310 - 47.25.420 to a child to
whom the obligor owes a duty of support except
that, if a support order has been entered, the
liability of the obligor for assistance
granted under AS 47.25.310 - 47.25.420 may not
exceed the amount of support provided for in
the support order, and, if a medical order of
support has been entered, the liability of the
obligor for assistance granted under AS 47.07
may not exceed the amount of support provided
for in the medical order of support.
7. AS 47.25.345 reads as follows:
An applicant for or recipient of assistance
under AS 47.25.310 - 47.25.420 is considered
to have assigned to the state, through the
child support enforcement agency, all rights
to accrued and continuing support that the
applicant and other persons for whom
assistance is sought may have from all
sources. The assignment takes effect upon a
determination that the applicant is eligible
for assistance under AS 47.25.310 - 47.25.420.
Except with respect to the amount of any
unpaid support obligation accrued under the
assignment, the assignment terminates when the
applicant ceases to receive assistance.
8. CSED further argues that in conjunction with AS 25.27.080(a),
the provisions of AS 26.27.020(b) contemplate that all support
payments should be paid through CSED where public assistance has
been or is being paid for the benefit of the obligor's children.
AS 25.27.020(b) reads in full as follows:
In determining the amount of money an
obligor must pay to satisfy the obligor's
immediate duty of support, the agency shall
consider all payments made by obligor directly
to the obligee or to the obligee's custodian
before the time the obligor is ordered to make
payments through the agency. After the
obligor is ordered to make payments through
the agency, the agency may not consider direct
payments made to the obligee or the obligee's
custodian unless the obligor provides clear
and convincing evidence of the payment.
9. AS 25.27.020(b) provides for recognition of direct payments
from the obligor to the obligee even in the face of an order to
make payments through the agency, provided the obligor "provides
clear and convincing evidence of the payment."
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