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Alaska Child Support Enforcement Div. v. Valdez (6/27/97), 941 P 2d 144
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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, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) Supreme Court No. S-6568
ENFORCEMENT DIVISION, ex rel. )
LINDA S. VALDEZ, ) Superior Court No.
) 3AN-84-1933 CI
Appellant, )
)
v. )
)
ALFONSO RAYES VALDEZ, ) O P I N I O N
)
Appellee. ) [No. 4841 - June 27, 1997]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: Diane L. Wendlandt, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellant. Alfonso R. Valdez, pro se, Renton,
Washington.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
I. INTRODUCTION
The Child Support Enforcement Division (CSED) appeals
from a judgment of the superior court which (1) bars CSED from
attempting to collect from Alfonso Valdez child support arrearages
which accrued before June 1, 1984; and (2) declares that a
California support order entered pursuant to the Uniform Reciprocal
Enforcement of Support Act (URESA) supersedes the original order of
support contained in the Alaska divorce decree. We conclude that
both determinations are erroneous. We vacate the judgment and
remand for further proceedings.
II. FACTS AND PROCEEDINGS
On November 28, 1983 an Alaska superior court entered a
decree of divorce terminating the marriage of Alfonso Valdez and
Linda Valdez. The decree awarded Linda custody of the parties'
minor child, Jaime Lynn Marie Valdez, and ordered Alfonso to pay
$400 in child support per month. Alfonso moved to California.
CSED filed a URESA petition in California on Linda's
behalf in April 1984. The petition stated that Alfonso was liable
to the State of Alaska for "assistance granted." The responding
court in California later became aware that Alfonso also owed
arrearages under the divorce decree. In response to the petition,
the California superior court approved a stipulation in August 1984
which ordered Alfonso to pay $250 per month in ongoing child
support and $25 per month toward arrears. [Fn. 1] Alfonso signed
the stipulation, and a Deputy District Attorney of Alameda County,
California, signed on Linda's behalf. According to CSED, Alfonso's
payments in accordance with that stipulation were sporadic.
In January 1994, Linda filed a motion in Alaska superior
court for modification of the original November 1983 support order.
The court granted the motion and increased Alfonso's support
obligation for Jaime to $528 per month. During these proceedings,
the superior court obtained letters that Alfonso had sent to CSED
regarding his arrearages. The superior court chose to treat the
letters as a Motion to Clarify Amount of Child Support Arrearages,
with particular emphasis on whether past accruals amounted to $400
or $250 monthly. The superior court twice invited CSED to formally
respond, but CSED did not.
In June 1994, the superior court entered an order which
provided in part:
[CSED] is ORDERED that it may not attempt
to collect arrearages older than June 1, 1984;
[CSED] is ORDERED that the child support
amounts assessed against Mr. Valdez shall be $400 through July 31,
1984. From August 1, 1984 to the present, absent no other court
orders in evidence, the amount of child support assessed shall be
$250 per month. On August 13, 1984 the Superior Court for the
State of California, Alameda County, entered an order pursuant to
the Uniform Reciprocal Enforcement of Support Act (URESA) that Mr.
Valdez pay the sum of $250 monthly for child support of this child.
This court and CSED are bound by the United States Constitution to
give full faith and credit to the judgments and orders of other
states. Therefore, that order shall be obeyed.
(Emphasis added.) CSED and Linda each moved unsuccessfully for
reconsideration. This appeal followed.
III. DISCUSSION
CSED challenges the rulings of the trial court which
effectively (1) bar CSED from attempting to collect child support
arrearages which accrued more than ten years before, and (2)
declare that the original Alaska support order was nullified in
August 1984 by the URESA order entered in California. We address
these issues in reverse order.
A. The California Support Order Entered Pursuant to URESA
Does Not Supersede the Earlier Support Order Contained in the
Alaska Divorce Decree.
The November 1983 Alaska divorce decree required Alfonso
to pay $400 in child support per month. In August 1984, the
California superior court entered a stipulation pursuant to URESA,
requiring Alfonso to pay $250 per month with an additional $25
toward arrearages. CSED challenges the superior court's conclusion
that Alaska is bound by the United States Constitution to give the
latter order full faith and credit, as well as its declaration that
after August 1, 1984 the amount of child support assessed was the
reduced figure of $250 per month.
CSED contends that according to the express language of
URESA, a support order entered by a responding court is not a
judgment meant to be afforded full faith and credit by the
initiating state. Rather, URESA condones the concurrent existence
of more than one binding order of support. Thus, CSED retains the
ability to enforce the original obligation.
Alfonso does not address CSED's reading of URESA.
Instead, he provides an alternative ground to affirm. He explains
that at the time CSED petitioned California for the entry of an
order of support under URESA, CSED failed to notify both him and
the California court of the existence of the support order
contained in the Alaska divorce decree. [Fn. 2] Alfonso argues
that CSED's failure to provide notice of the Alaska divorce decree
renders the Alaska order null and void for the duration of the
order entered in California.
Alaska adopted URESA in 1953. [Fn. 3] Ch. 31, SLA 1953
(codified at AS 25.25.010-.270). The legislation was intended as
a means to improve the enforcement of child support obligations
when parents cross state lines. In the present case, Alaska served
as an "initiating state"in 1984 by forwarding a URESA petition to
California, the state to which Alfonso had moved.
See AS 25.25.090-.120. Upon receipt of the petition, California, the
"responding state,"had several options, including establishing a
new support order or enforcing an existing support order.
See AS 25.25.160-.210; Cal. Fam. Code sec.sec. 4831-4837.
At issue is the effect which a new support order entered
by a responding state court has on a support order previously
entered by the initiating state. Whether the California support
order modified or superseded the earlier Alaska order is a legal
question which requires interpretation of the language of URESA.
We review questions of statutory interpretation de novo. Hertz v.
Carothers, 784 P.2d 659, 660 (Alaska 1990). This case also
presents a choice of law question. CSED correctly observes that
the law of California governs this dispute. See AS 25.25.060
(URESA's choice of law provision providing that "[d]uties of
support applicable under this law are those imposed or imposable
under the laws of a state where the obligor was present during the
period for which support is sought"). We conclude that under the
law of either California or Alaska, Alfonso is liable for the
payment of $400 per month ordered in the 1983 Alaska divorce
decree.
We turn first to the plain language of the statute. The
version of URESA adopted in Alaska in 1953 contained a provision
which explicitly permitted the concurrent existence of more than
one binding order of support. This was found in section 30. It
remains in force today in substantially the same form:
An order of support issued by a court of this
state, when acting as a responding state, does not supersede a
previous order of support issued in a divorce or separate
maintenance action, but the amounts for a particular period paid
under either order shall be credited against amounts accruing or
accrued for the same period under both.
AS 25.25.240 (emphasis added); see also URESA sec. 30, 9B U.L.A.
553,
600 (1987).
When URESA was amended in 1968 by the National Conference
of Commissioners on Uniform State Laws, a similar, though more
explicit provision replaced section 30, that being section 31 of
the Revised Uniform Reciprocal Enforcement of Support Act (RURESA).
Although RURESA has not been adopted in Alaska, California enacted
it in 1970. 1970 Cal. Stat. 1126. Section 31 as adopted in
California reads:
A support order made by a court of this state
pursuant to this chapter does not nullify and is not nullified by
a support order made by a court of this state pursuant to any other
law or by a support order made by a court of any other state
pursuant to a substantially similar provision of law, regardless of
priority of issuance, unless otherwise specifically provided by the
court. Amounts paid for a particular period pursuant to a support
order made by the court of another state shall be credited against
the amounts accruing or accrued for the same period under a support
order made by the court of this state.
Cal. Fam. Code sec. 4840 (emphasis added). [Fn. 4]
A majority of jurisdictions that have considered the
meaning of sections 30 of URESA and 31 of RURESA have interpreted
the language consistent with the interpretation espoused by CSED,
concluding that the respective measures allow the responding state
some flexibility in enforcement, but simultaneously protect the
integrity of the prior order. A responding court may order the
payment of an amount differing from an earlier order entered by the
initiating state. However, such an order modifies, nullifies, or
supersedes an earlier order only when the responding court so
specifies. Otherwise, the original order of support remains fully
enforceable. See generally Andrea G. Nadel, Annotation,
Construction and Effect of Provision of Uniform Reciprocal
Enforcement of Support Act That No Support Order Shall Supersede or
Nullify Any Other Order, 31 A.L.R.4th 347, 353 (1984) ("A number of
courts have been called upon to enforce a child support order
rendered in the original divorce action or other proceeding where
a subsequent URESA order has been rendered in another state
prospectively reducing the support obligation, and have held that
the prior order was fully enforceable by the divorce court
notwithstanding the subsequent URESA order, on the basis that the
URESA order did not supersede or nullify the previous order.").
A California appellate court faced this question in In re
Marriage of Popenhager, 160 Cal. Rptr. 379 (Cal. App. 1979), and
reached essentially the same result under both the former anti-
supersession and present anti-nullification provisions of URESA.
In considering the effect of a RURESA order on a prior order of
support contained in a divorce decree, the court stated:
Supersession occurs only where the issue of
modification has been raised and litigated by the parties.
Likewise, a reciprocal support order, like the instant one, which
differs in face amount from a prior dissolution action support
order but does not expressly mention modification, cannot
automatically and after-the-fact, modify the dissolution order; the
amount on the face of the reciprocal order merely represents the
sum currently enforceable.
Popenhager, 160 Cal. Rptr. at 383. The court concluded that
despite the entry of a RURESA order which required the father to
pay $30 monthly, the father had remained continuously obligated to
satisfy his earlier obligation of $200 per month, which arose from
the support order in the divorce decree. Id.
Several other jurisdictions have mirrored Popenhager's
approach, and have warned against viewing a responding state's
order of support under URESA as a per se modification of a prior
order. These courts have noted that besides the anti-
supersession/anti-nullification provisions of the measure, URESA
explicitly states that its enforcement remedies "are in addition to
and not in substitution for any other remedies." See AS 25.25.020;
RURESA sec. 3, 9B U.L.A. 381, 408 (1987). Courts have strived to
maintain the separate, independent character of URESA procedures
like those employed in the present case so that (1) the support
obligation can be enforced in a new jurisdiction, (2) the
responding court may make its own determination about the needs and
abilities of the parties, and (3) the prior order may
simultaneously remain in effect. See, e.g., Despain v. Despain,
300 P.2d 500, 503 (Idaho 1956) (by its terms, URESA is "an
auxiliary or supplemental remedy for the enforcement of orders of
support"and thus "the court originally ordering payment is not
affected . . . by an order of the court of the responding state
fixing a different sum"); Burke v. Burke, 617 N.E.2d 959, 963-64
(Ind. App. 1993) (unless it modifies prior order, responding
state's order has "no effect"on original order of support); Howard
v. Howard, 191 So. 2d 528, 531 (Miss. 1966) (mother's pursuit of
supplemental remedy under URESA "in no way relieved"father from
responsibility under prior order).
Several courts in other jurisdictions have concluded that
unless the responding state's order specifically modifies a prior
support order, it is merely an enforcement tool and not a judgment
that is entitled to full faith and credit under the federal
constitution. [Fn. 5] See, e.g., In re Marriage of Wettstein, 514
N.E.2d 783, 785-86 (Ill. App. 1987) (holding that it would
contradict "the express language of the statute"to give full faith
and credit to URESA order over original decree); Banton v. Mathers,
309 N.E.2d 167, 171-73 (Ind. App. 1974) (Full Faith and Credit
Clause "has little or no application"when determining arrearages
due under prior order); Elsner v. Elsner, 425 S.W.2d 254, 256 (Mo.
App. 1967) (to give full faith and credit to URESA order of sister
state would be giving greater effect to statute than is given by
courts of sister state itself); Oglesby v. Oglesby, 510 P.2d 1106,
1107-08 (Utah 1973) (purpose of uniform act is not to "emasculate"
lawful support orders, and that it is actually the original order
of support which is entitled to full faith and credit).
We are persuaded that the rationale of Popenhager, and
other jurisdictions which hold similarly, is correct. While this
court is not bound by precedent from other jurisdictions, we
recognize the need for common construction of uniform acts.
See AS 25.25.260 (provisions of URESA to be interpreted so as to
"effectuate its general purpose to make uniform the law of those
states which enact it"); see also Cal. Fam. Code sec. 3
(identifying
general purpose of constructing uniform state laws in harmony with
other enacting states). We believe that an interpretation that
gives deference to the original, unmodified order of support
correlates with the intent of URESA -- to aid in the enforcement of
support obligations when parents travel to new jurisdictions. Such
an interpretation also recognizes the practicalities associated
with interstate support enforcement under URESA. As CSED argues,
it would be unfair to give preclusive effect to a new support order
entered in a proceeding in which the obligee commonly does not
participate. See Popenhager, 160 Cal. Rptr. at 384 ("The
specificity . . . required for modification . . . recognizes that
a reciprocal case is a two-state matter with no appearance by the
obligee. Thus, the responding court may frequently lack
information as to the obligee's testimony or evidence as to the
obligee's ability to pay."). We hold that a support order entered
by a responding court pursuant to a URESA petition, which does not
specifically modify an order entered in the initiating state, has
no effect on the validity of that earlier order and is not entitled
to full faith and credit by courts of the initiating state.
Turning to the language of the California stipulation, we
must consider whether the order actually took precedence over the
Alaska decree. The stipulation referred to the Alaska decree, but
only insofar as the court entered a consolidated judgment against
Alfonso for arrearages due. The stipulation did not specifically
indicate that it modified the prior support order. We conclude
that under Popenhager, despite Alfonso's acquiescence in the order
of support contained in the California stipulation, he remained
obligated by the support order contained in the Alaska decree. [Fn.
6]
We vacate that portion of the superior court's order
which declares that Alaska is bound by the support order entered in
California pursuant to URESA. We remand for entry of an order
which provides that until the support order was modified in April
1994, Alfonso remained subject to a $400 monthly obligation as set
forth in the November 1983 Alaska divorce decree.
B. The Superior Court Erred in Barring CSED from Attempting
to Hold Alfonso Valdez Responsible for Child Support Arrearages
which Accrued before June 1, 1984.
CSED attempted to collect some of Alfonso's arrearages.
In barring CSED from doing so, the court simply stated: "[CSED] is
ORDERED that it may not attempt to collect arrearages older than
June 1, 1984." No rationale was given to support this aspect of
the superior court's order, nor to explain the significance of
June 1.
On appeal, CSED assumes that in the June 1994 order the
superior court applied sua sponte the ten-year statute of
limitations pertaining to "an action upon a judgment,"former
AS 09.10.040. AS 09.10.040, amended, ch. 86, sec.sec. 1-2, SLA
1994. [Fn. 7] CSED argues that the court's application of AS
09.10.040
was overbroad because it implicitly prohibits CSED from collecting,
even administratively, a debt older than ten years at the time of
the order. CSED also contends that the ten-year statute should
have been deemed tolled due to CSED's pursuit of various collection
remedies at the administrative level.
Alfonso does not specifically address the applicability
of the ten-year limitations statute, AS 09.10.040. He instead
argues that the original support order contained in the Alaska
divorce decree is invalid because he was not given an opportunity
to submit an affidavit, as required by Alaska Civil Rule 90.3(e),
which would have stated and verified his adjusted annual income.
We can see no basis for the superior court's order other
than the former ten-year statute of limitations applicable to an
action upon a judgment. See AS 09.10.040. Furthermore, the
superior court's ruling was squarely rejected in State ex rel.
Inman v. Dean, 902 P.2d 1321 (Alaska 1995).
In Dean we held that the ten-year statute of limitations
governing "an action upon a judgment"by its very nature applies
only to an "action,"which is commenced by the filing of a
complaint. Id. at 1323 (citing former AS 09.10.040) (observing
that action upon a judgment is commonly employed when judgment
creditor attempts to enforce unregistered foreign judgment in
sister state); cf. Young v. Williams, 583 P.2d 201, 205 (Alaska
1978) (holding that attempt to obtain judgment for past-due support
arising from California decree which was not registered in Alaska
pursuant to URESA constitutes new action restricted by
AS 09.10.040). We also distinguished an action upon a judgment
from post-judgment proceedings undertaken to enforce, or execute
upon, domestic judgment debt. As to the latter, Dean held that no
time limitation applies; however, if a judgment creditor attempts
to execute after five years, a writ will not issue in the absence
of good cause. Dean, 902 P.2d at 1323-1325 (citing AS 09.35.020;
Alaska R. Civ. P. 69(d)).
The present case involves neither an action upon a
judgment nor an attempt to execute. The appeal arises from a
parent's motion to clarify the amount of support arrearages owing.
Based upon our holding supra that the Alaska decree remains
enforceable, the execution lapse statute, AS 09.35.020, may at some
future date serve to bar CSED from collecting past-due support.
However, to inquire now into whether some arrearages are barred
would be premature. By the terms of AS 09.35.020 and Alaska Civil
Rule 69(d), a judgment creditor need not make a showing of good
cause to enforce a domestic decree until it ultimately chooses to
execute. We hold that none of the arrearages are currently time-
barred, and vacate that portion of the court's order barring CSED
from attempting to collect arrearages which accrued before June 1,
1984.
Alfonso's argument that any time limitation issue is moot
because the original decree is invalid is without merit. The
Alaska divorce decree was entered on November 28, 1983. No timely
appeal was filed. See Alaska R. App. P. 204(a) (notice of appeal
must be filed within thirty days of distribution of judgment).
There is no record before this court concerning the proceedings
leading to the entry of the Alaska decree, including what type of
evidence the trial court possessed regarding Alfonso's level of
income. We therefore refuse to consider this argument. [Fn. 8]
To the extent that the superior court's decision to bar
CSED from attempting to collect arrearages older than June 1, 1984,
was based upon former AS 09.10.040, it is incorrect. Under Dean,
the ten-year statute of limitations does not apply absolutely to
the collection of child support, and any current assessment of a
time limitation under AS 09.35.020 would be premature.
C. The Doctrines of Laches, Estoppel, and Waiver.
In general, the availability of an equitable defense such
as laches depends on the nature of the action in which it is
raised. "When a party is seeking to enforce a legal right, as
opposed to invoking the discretionary equitable relief of the
courts, the applicable statute of limitations should serve as the
sole line of demarcation for the assertion of the right,"and
equitable defenses are not available. Kodiak Elec. Ass'n v.
Delaval Turbine, Inc., 694 P.2d 150, 157 (Alaska 1984) (defense of
laches was unavailable in an action at law). Whether an action is
legal or equitable depends on the relief sought. Gudenau v. Bang,
781 P.2d 1357, 1363 n.9. (Alaska 1989).
Alfonso argues that the superior court erred in not
considering the defense of laches. Since the CSED seeks a monetary
judgment for child support arrearages, a remedy "that is within the
powers traditionally possessed by courts of law,"id., this dispute
is legal rather than equitable in nature. As noted, generally
equitable defenses are unavailable in such cases. We have held
that the doctrine of laches is not available in spousal support
collection actions. See Lantz v. Lantz, 845 P.2d 429 (Alaska
1993), overruled on other grounds by State ex rel. Inman v. Dean,
902 P.2d 1324 n.8 (Alaska 1995) ("We now state definitively that
laches is no defense to an action to reduce alimony arrearages to
judgment."). We are not persuaded now to hold otherwise in the
context of child support collection actions.
In regard to estoppel and waiver, [Fn. 9] Alfonso argues
in part that "CSED made no attempt to properly inform the
California courts that another court order was in effect at that
time; and . . . CSED and Linda had over six years to correct the
URESA and didn't. The URESA requirement of only $250 a month
support was accepted all that time." Alfonso's contentions have
record support.
The record shows that in its URESA complaint, CSED
affirmatively alleged that "Defendant is (not) under a Court Decree
to provide support for said minor child[ren]." CSED struck the
next clause, "a copy of which [other court decree] is attached
hereto as applicable and incorporated herein."[Fn. 10] CSED only
requested $246 per month in its URESA complaint.
In fact, it appears that until 1990, CSED treated Alfonso
as owing $250 per month in current obligations. In a CSED "Child
Support Account Audit From January 1, 1983 to December 29, 1992,"
there is a "Scheduled Payment Due"of $250 every month until
January 1990, and accrual of arrearages is commensurate with the
$250 figure. [Fn. 11] On February 12, 1990, there is an entry,
"Arrears adjusted,"adding $13,050 to Alfonso's arrears. Beginning
March 1, there are monthly entries of "Scheduled Payment due . . .
[$]400." It appears that CSED adjusted its accounting, and did so
retroactively, after filing a new proceeding with the State of
Washington.
In addition to denying explicitly the existence of any
pre-existing child support order, requesting only $246 in the
California URESA action, and for sixty-six months treating
Alfonso's account as accruing only a $250 per month obligation,
CSED failed to answer the superior court's Order Regarding Support
Arrearages, which unambiguously ordered CSED to respond "regarding
calculation of [Alfonso's] child support arrearages, specifically,
whether a past child support amount of $250 or $400 monthly was
applicable."
The mere existence of a URESA order, and CSED's
acquiescence to it, considered alone, do not estop CSED from
relying on the original $400 Alaska decree. [Fn. 12] However, the
record shows that CSED affied that Alfonso was not under a court
decree for child support, and requested $246 per month in child
support. When this disavowal of the Alaska decree is coupled with
CSED's sixty-six month treatment of the $250 California support
order as Alfonso's entire obligation, and with its failure to
comply with the superior court's order to respond, Alfonso has
produced an evidentiary basis supporting the contention that CSED
waived the right to rely on the original $400 decree in its request
for arrearages from the time of the California URESA order, at
least until the 1990 action in Washington. [Fn. 13] If, on remand,
the superior court finds that the arrearages were owed to reimburse
CSED for support paid to Linda, it should then determine whether
the doctrines of waiver or estoppel should operate to bar CSED's
claims for reimbursement in this case. [Fn. 14]
IV. CONCLUSION
We VACATE that portion of the superior court's order
which declares that the California URESA order deserves full faith
and credit over the prior support order contained in the Alaska
divorce decree. We also VACATE that portion of the superior
court's order which bars CSED from attempting to collect child
support which accrued before June 1, 1984. This case is REMANDED
for further proceedings not inconsistent with this opinion.
FOOTNOTES
Footnote 1:
The stipulation stated in part:
THAT the Respondent shall pay to the TREASURER
OF ALAMEDA COUNTY . . . the sum of TWO HUNDRED FIFTY DOLLARS
($250.00) per month, for the support and maintenance of the above
named child, payable on the last day of every month commencing
AUGUST 31, 1984, continuing until further order of the Court.
THAT the [Petitioner] be granted Judgment
against the [Respondent] in the amount of THREE THOUSAND ONE
HUNDRED TWENTY FIVE DOLLARS ($3,125.00) for arrearages accrued from
DECEMBER 1, 1983 to JULY 31, 1984 on the order issued by Superior
Court, County of Anchorage, State of Alaska on November 28, 1983
and for welfare assistance provided for [Jaime] from SEPTEMBER 1,
1983 to NOVEMBER 30, 1983.
THAT the Respondent shall pay to the TREASURER
OF ALAMEDA COUNTY . . . the sum of TWENTY FIVE DOLLARS ($25.00) per
month as reimbursement to the [Petitioner] on said Judgment, said
payments to be payable on the last day of every month commencing
AUGUST 31, 1984 and continuing until the Judgment is liquidated,
and to be made in addition to and with the above current support
payments.
Footnote 2:
The petition merely stated that Alfonso was liable
to the State of Alaska for "assistance granted."
Footnote 3:
We note that the Alaska Legislature recently
repealed URESA and replaced it with the Uniform Interstate Family
Support Act (UIFSA). Ch. 57, SLA 1995 (effective Jan. 1, 1996).
Footnote 4:
This stands in sharp contrast to the new system
provided by the Uniform Interstate Family Support Act. In what the
National Commissioners called "perhaps the most crucial provision
in UIFSA,"UIFSA sec. 205 gives the issuing court exclusive
jurisdiction over the support order. UIFSA sec. 205, Comment.
Another state's courts may only modify the support order by consent
of the parties, or if the issuing court loses jurisdiction over the
order. Id. The issuing state only loses jurisdiction if the child
support obligor, obligee, and the child no longer reside in that
state. Id. And of course, if the issuing state does lose
jurisdiction, a new state must have personal jurisdiction over both
parties before it may modify the support order. Id.
Arguably this new system of dealing with interstate child
support orders will eventually result in a system in which child
support orders, when modified, will represent the sole prospective
obligation of the child support obligor.
Footnote 5:
Article IV, section 1 of the United States
Constitution provides: "Full faith and credit shall be given in
each state to the public acts, records, and judicial proceedings of
every other state. And the Congress may by general laws prescribe
the manner in which such acts, records and proceedings shall be
proved, and the effect thereof."
Footnote 6:
We reject Alfonso's argument that the Alaska order
is unenforceable because CSED's 1984 URESA petition failed to state
that Alfonso was liable for support under a decree. No statute
requires reference to a decree in order for a URESA petition to be
valid. Rather, the complaint need only "set[] out facts from which
it may be determined that the defendant owes a duty of support."
AS 25.25.120. Here, CSED's complaint adequately stated that Linda
had been in receipt of AFDC and that Alfonso was believed to be the
child's father. Additionally, although neither the complaint nor
the certificate referred to the prior decree, it is clear from the
stipulation that at least by the time it was signed, the California
court and Alfonso had become aware of its existence. Thus, any
failure by CSED to comply with proper procedure was cured.
Footnote 7:
The amendment to AS 09.10.040 became effective
September 4, 1994. It has no significance here.
Footnote 8:
Alfonso claims that he moved to California before
entry of the divorce decree and that he was not served with a copy
of the final order. Even if true, this fact does not excuse
Alfonso's failure to timely challenge the validity of the decree.
It is clear from the briefing that at some point during the nearly
twelve years since the entry of the decree, Alfonso learned of its
existence but made no attempt to have it set aside.
Footnote 9:
The elements of equitable estoppel are (1) representation of
a position by conduct or word; (2) reasonable reliance thereon by
another party; and (3) resulting prejudice. K.E. v. J.W., 899 P.2d
133, 134 (Alaska 1995), citing Jamison v. Consolidated Utils.,
Inc., 576 P.2d 97, 102 (Alaska 1978).
Waiver is "generally defined as 'the intentional
relinquishment of a known right.'" Miscovich v. Tryck, 875 P.2d
1293 (Alaska 1994) (quoting Milne v. Anderson, 576 P.2d 109, 112
(Alaska 1978)).
Implied waiver may be accomplished "if the actor's
conduct 'evidences an intention to waive a right, or . . . [if]
neglect to insist upon the right results in prejudice to another
party.'" Id. (quoting Milne, 576 P.2d at 112). To prove implied
waiver, "there must be direct, unequivocal conduct indicating a
purpose to abandon or waive the legal right, or acts amounting to
an estoppel by the party whose conduct is to be construed as a
waiver." Milne, 576 P.2d at 112. Implied waiver created by
neglect to insist upon a right "is, in reality, a type of equitable
estoppel." Wausau Ins. Cos. v. Van Biene, 847 P.2d 584, 489
(Alaska 1993). It follows that "neglect to insist upon a right
only results in an estoppel, or an implied waiver, when the neglect
is such that it would convey a message to a reasonable person that
the neglectful party would not in the future pursue the legal right
in question." Id.
Footnote 10:
Alfonso raises these points himself: "Does the deletion of any
reference to another court order 'is attached here to as applicable
and incorporated herein', and the leaving in of the term '(not)' on
the URESA, Page 4, Lines 24 through 25, mean that CSED was not
going to let another court order affect the URESA? At least for
it's [sic] duration."
Footnote 11:
A concurrent URESA order in another state would not change the
amount owed to CSED. Rather, it would establish the amount
enforceable in that other state. CSED's Account Audit reflects
amounts owed of $250 per month.
Footnote 12:
See Hodgins v. Hodgins, 814 S.W.2d 710 (Mo. App. 1991); Foster
v. Marshman, 611 P.2d 197 (Nev. 1980).
Footnote 13:
Although not explicitly argued, it can be inferred from
Alfonso's arguments that he contends that if he had been apprised
by CSED that it insisted upon compliance with the November 28,
1983, superior court's order which fixed Alfonso's obligations at
$400 per month, he would have moved to reduce this amount on the
basis of his changed financial circumstances.
Footnote 14:
Where CSED is acting on behalf of the custodial parent to
collect child support which is then passed through to that parent,
CSED's conduct cannot amount to waiver or estoppel. The right to
support is that of the child and thus cannot be waived by CSED.
However, where CSED is collecting support as reimbursement to the
State for AFDC payments made to the custodial parent, the doctrines
of waiver or estoppel may apply.
In this case, the record and briefing are unclear whether
the amounts CSED was collecting from Alfonso were being passed
through to Linda, were solely reimbursement for public assistance,
or were some combination of the two. CSED asked that Alfonso pay
$246 per month. If that was the reimbursable amount of AFDC paid
to Linda, the difference between that amount and the $400 monthly
support ordered by the Alaska court would go to Linda for the
child. While Linda at one point apparently had assigned to CSED
her right to receive support, any amounts collected by CSED in
excess of the AFDC payments would revert to Linda on behalf of the
child. AS 25.27.130(c) provides that CSED's "recovery of any
amount for which the obligor is liable that exceeds the total
assistance granted under AS 47.04 or AS 47.25.310-47.25.420 shall
be paid to the obligee."
CSED's briefing suggests that the arrearages would be
paid to Linda and the child, rather than being retained by CSED as
reimbursement for AFDC payments. At some point, it appears that
Linda came off of public assistance. CSED points out in its brief
that by the time the superior court was requesting information from
it about the correct amount of child support arrearages, "CSED was
not a party to the action and no public assistance was involved in
the case." It contends that "[b]ecause no public assistance was
involved in this case, CSED did not immediately respond to this
matter."
If, as CSED's briefing suggests, the arrearages are
payable to Linda, then the defenses of waiver and estoppel would
not be available to Alfonso. If, on the other hand, some portion
of the arrearages constitute reimbursement to the State for AFDC
payments made to Linda, then the court should determine on remand
whether CSED waived or should be estopped from collecting those
amounts.
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