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Child Support Enforcement Div. v. Rios (5/23/97), 938 P 2d 1013
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,
phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT ) Supreme Court No. S-7166
OF REVENUE, CHILD SUPPORT )
ENFORCEMENT DIVISION, ex rel. ) Superior Court No.
CHADAYE HAWTHORNE, ) 3AN-92-6408 CI
Appellant, ) O P I N I O N
) [No. 4823 - May 23, 1997]
ALFREDO N. RIOS, )
Appeal from the Superior Court of the State of Alaska, Third Judicial
Rene J. Gonzalez, Judge.
Appearances: Diane L. Wendlandt, Assistant Attorney General, Anchorage,
and Bruce M. Botelho, Attorney General, Juneau, for Appellant. Tracey A.
Tillion, Law Offices of Gordon F. Schadt, Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz, Matthews, Eastaugh, and Fabe,
The primary question raised in this appeal is, from what date does a
child's biological father have a duty to support his child?
II. FACTS AND PROCEEDINGS
Chadaye Hawthorne was born on February 9, 1986, to Lachelle Hawthorne.
Chadaye's birth certificate did not name Alfredo Rios as the father. The State
of Alaska has paid public assistance to Lachelle on behalf of Chadaye since
In December 1991 Lachelle signed a paternity affidavit naming Rios as
Chadaye's father. In July 1992 the Child Support Enforcement Division (CSED)
filed a complaint against Rios seeking to establish paternity of Chadaye.
Counsel was then appointed for Rios pursuant to the Soldiers' and Sailors' Civil
Relief Act. After his return to the United States, Rios submitted to a blood
test. The results showed a 99.55 percent probability of Rios's paternity. CSED
then moved for summary judgment on the issue of paternity.1 Rios did not oppose
summary judgment on the issues of paternity and reimbursement of paternity
testing costs. In his "Limited Opposition To Motion For Summary Judgment And
Costs,"Rios opposed summary judgment on the issue of back child support. In
this regard Rios stated:
Nowhere in Plaintiff's memorandum is the duty of support discussed, except
in the last paragraph wherein the State requests summary judgment thereon, and
therefore it is impossible for Defendant Rios to file a complete opposition to
the issue. Defendant Rios therefore, requests that this Court make note on the
Summary Judgment Order that the duty of support has not been briefed or decided,
and that it remains for review.
In its reply to Rios's opposition, CSED argued that issues concerning the
amount of ongoing child support, back child support, support payment plans, and
visitation were not properly before the superior court. CSED emphasized that
its motion for summary judgment was limited to a request that Rios be
adjudicated the biological father of Chadaye and that as such he had a duty to
The superior court granted summary judgment to CSED. Its order provided
in part that the child support obligation "is deemed effective from the date of
judgment." CSED moved for reconsideration of the provision making the child
support award prospective, asserting that "[a]t stake is $40,403 of welfare paid
to support the child since her birth, at least a portion of which the State
hopes to recover from the child's father, the defendant." Reconsideration was
denied and this appeal followed.
III. STANDARD OF REVIEW
This court reviews questions of law de novo. Wright v. Black, 856 P.2d
477, 479 (Alaska 1993). "The standard of review applicable to a child support
award is abuse of discretion. An award will be set aside only if we are 'left
with a definite and firm conviction that a mistake has been made.'" Terry v.
Terry, 851 P.2d 837 (Alaska 1993) (quoting Richmond v. Richmond, 779 P.2d 1211,
1216 (Alaska 1989) (citation omitted)).
A. When Does a Parent's Duty to Support His or Her Child Commence?
CSED frames the legal issue presented in this appeal as follows: "[F]rom
what date does a child's biological father have a duty to support his child?"4
The answer is supplied by both statute and common law. Alaska Statute 25.20.030
provides in relevant part, "Each parent is bound to maintain the parent's
children when poor and unable to work to maintain themselves." In Matthews v.
Matthews, 739 P.2d 1298, 1299 (Alaska 1987), we concluded that a parent is
obligated by statute (citing AS 25.20.030) and by the common law to support his
or her children. We further observed that this duty of support exists even in
the absence of a court order of support and that "[a] parent's duty of support
encompasses a duty to reimburse other persons who provide the support the parent
Based on the foregoing, we hold that a biological parent's duty of support
commences at the date of the birth of the child. We therefore reject the
superior court's implicit holding that in the circumstance of a child born out
of wedlock, the biological parent's duty of support does not begin until a court
has adjudicated paternity. CSED correctly notes that, although an adjudication
of paternity may be a prerequisite to enforcement of a duty of support, it does
not create the duty of support.5
Sound policy reasons support a holding that the duty of child support
commences from the birth of the child. As the court reasoned in Cyrus v.
Mondesir, 515 A.2d 736, 738-39 (D.C. 1986):
[P]recluding a retroactive award would create an incentive for men to
avoid their child support obligations for some period of time by delaying the
process of adjudicating paternity. The creation of such an incentive would, of
course, run counter to the statutory purpose of providing for the needs of
children without regard to circumstances of birth.
B. The Superior Court's Provision that Rios's Child Support Obligation
"is deemed effective from the date of judgment."
Alaska Statute 25.27.120(a) provides that a parent
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 . . . .
CSED is charged with obtaining, enforcing, and administering orders for
child support. AS 25.27.020. In the instant case, CSED instituted proceedings
to establish Rios's paternity as a prerequisite to establishing, through its
administrative procedures, the amount of child support owed by Rios.7
As noted above, in granting summary judgment establishing Rios's
paternity of Chadaye, the superior court further provided that Rios's child
support obligation "is deemed effective"from the date of entry of summary
judgment. We conclude that this portion of the superior court's order should be
Earlier we set out in considerable detail the record context in which Rios
raised what is essentially an anticipatory equitable estoppel or waiver defense
against CSED's effort to obtain reimbursement for AFDC support payments made to
the custodial parent. Assuming that estoppel or waiver is available against
CSED's reimbursement claim, we conclude that the superior court lacked an
evidentiary basis for the prospective support provision it fashioned. Rios's
equitable and waiver arguments are confined to his opposition memorandum to
CSED's motion for summary judgment. Further, the record shows that the parties
were never afforded the opportunity to develop an evidentiary record concerning
these potential issues. Thus, given the lack of any admissible evidence
supporting an equitable estoppel or waiver defense to CSED's reimbursement
claim, we hold that it was error for the superior court to sua sponte engraft a
prospective support provision onto its order granting summary judgment.
That portion of the superior court's order granting summary judgment which
provides that Rios's support obligation "is deemed effective from the date of
judgment"is REVERSED and VACATED. The case is REMANDED for further
proceedings, not inconsistent with this opinion, for the purposes of determining
the amount of child support Rios owes, and whether he has any estoppel and
waiver defenses to CSED's claims for reimbursement for AFDC payments made to the
1 CSED's Memorandum in Support of Motion for Summary Judgment
concludes by also requesting "summary judgment on the issues of . . . the duty
of support and . . . costs and attorney fees."
2 In his memorandum in opposition Rios further stated:
Defendant Rios currently is stationed at Fort Lee, Virginia, but for five
(5) years after the birth of Chadaye Hawthorne he was stationed at Fort
Richardson. During that time he saw Lachelle Hawthorne on several occasions and
he even confronted her about the identity of the father of Chadaye three
separate times. Lachelle Hawthorne adamantly denied that Defendant Rios was the
father each time, as did Lachelle Hawthorne's grandmother. Lachelle Hawthorne's
statements denied Defendant Rios the right to have a relationship with his
daughter during her formative years and while he was living in the same city.
Any child support alleged due from the date of Chadaye's birth obviously
would have attached to it severe penalties and interest. These charges are
unfair to impose on a father who has been denied rights to his child for nearly
eight (8) years, purely as a result of Lachelle Hawthorne's prior false
statements. Moreover, to impose the duty of back child support now, is unfairly
prejudicial as Defendant Rios has a wife and another child whom he supports.
The imposition of a large back support obligation now, which could have been
paid all along if Lachelle Hawthorne had been truthful, is an undue burden and
would take away from his ability to support his family. Alternatively, if the
duty of support were imposed on Defendant Rios, then Defendant Rios would
necessarily have the right to play a part in his daughter's life, such as
visitation and unrestricted communication with her. Defendant Rios would
therefore request that this Court add to any Order for support that Lachelle
Hawthorne consent and allow Defendant Rios visitation and unrestricted
communications with his daughter, Chadaye Hawthorne.
3 CSED further elaborated:
CSED has made no administrative determination as to the amount of support
due. Indeed, it can not determine the amount of support which Alfredo Rios will
be obligated to pay until this court rules that he is Chadaye Hawthorne's
father. Once this court rules on paternity, CSED should be permitted to
determine the amount of defendant's support obligation administratively,
pursuant to AS 25.2.140 through 25.27.180.
4 CSED's brief presents the issue as follows:
Did the trial court err when it held that Alfredo Rios's duty to support
his child did not commence until paternity was adjudicated, thus preventing the
State of Alaska from recovering reimbursement for public assistance paid on
behalf of the child before the adjudication of paternity?
5 See Weaver v. Chester, 393 S.E.2d 715, 717 (Ga. App. 1990)
("[I]t is not the father's obligation to support the child which is made
contingent upon an adjudication of paternity but simply the right to enforce
that legal obligation through legal process.") (superseded by statute in other
respects); Commonwealth v. Chase, 432 N.E.2d 510, 517 (Mass. 1982); Tidwell v.
Booker, 225 S.E.2d 816, 827 (N.C. 1976).
6 AS 25.27.130 provides:
Subrogation of state. (a) If the obligor is liable to the state under AS
25.27.120(a) or (b), the state is subrogated to the rights of the obligee to
(1) bring an action in the superior court seeking an order of support;
(2) proceed under AS 25.27.160-25.27.270 to establish a duty of support;
(3) enforce by execution, in accordance with AS 25.27.230-25.27.270, or
otherwise, a support order entered in favor of the obligee.
(b) To establish or enforce an order of support, including, if applicable,
a medical support order, based on the subrogation of the state, the agency is
not limited to the amount of assistance being granted to the child.
(c) The recovery of any amount for which the obligor is liable that
exceeds the total assistance granted under AS 47.07 and AS 47.25.310-47.25.420
shall be paid to the obligee.
(d) Except as provided in (f) of this section, if the obligee is not
receiving assistance under AS 47.07 or AS 47.25.310-47.25.420 at the time the
state recovers money in an action under this section, the recovery of any amount
for which the obligor is liable shall be distributed to the obligee for support
payments, including medical support payments, that have become due and unpaid
since the termination of assistance under AS 47.07 or AS 47.25.310-47.25.420
under a support order in favor of the obligee.
(e) After payment to the obligee under (d) of this section, the state may
retain an amount not to exceed the total unreimbursed assistance paid on behalf
of the obligee under AS 47.07 or AS 47.25.310-47.25.420.
(f) Notwithstanding (d) of this section, the state shall, if required
under federal law or regulations, distribute amounts recovered through offset of
the obligor's federal tax refund as past due support with first distribution to
the state for unpaid support assigned to the state under AS 47.07.025 and AS
Alaska's Aid to Families with Dependent Children Act (AFDC) is found in AS
7 AS 25.27.040 authorizes CSED to initiate efforts to have the
paternity of children born out of wedlock determined by the court. AS 25.27.140
through AS 25.27.180 further authorize CSED to administratively determine the
amount of the support obligation. In this regard AS 25.27.140(a) provides:
If no support order has been entered, the agency may establish paternity
and a duty of support utilizing the procedures prescribed in AS 25.27.160-
25.27.220 and may enforce a duty of support utilizing the procedures prescribed
in AS 25.27.230-25.27.270. Action under this subsection may be undertaken upon
application of an obligee, or at the agency's own discretion if the obligor is
liable to the state under AS 25.27.120(a) or (b).
8 For purposes of remand, we caution that a custodial parent's
conduct cannot amount to an estoppel or waiver altering the obligation to pay
child support. This follows from the rule that parties cannot by agreement
alter a noncustodial parent's obligation to pay child support without court
approval. With respect to CSED's claims for reimbursement, the focus of any
waiver or estoppel defense must be on the conduct of CSED. Further, the
doctrine of laches is inapplicable to a reimbursement claim by CSED for AFDC
payments since such an action is one at law and thus governed by the applicable
statute of limitations.
In regard to actions to establish child support obligations, AS 25.27.135
Limitation on actions to establish child support obligation. If the same
causes of action concerning a duty of child support are pending concurrently in
court and before the agency, the second action filed may be abated upon the
motion of a party or the agency. The court or the agency may award full costs
and attorney fees to the party prevailing on the abatement motion.