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Child Support Enforcement Agency v. Gerke (7/25/97), 942 P 2d 423
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) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) Supreme Court No. S-7375
ENFORCEMENT DIVISION, ex rel. )
JANET L. GERKE, ) Superior Court No.
) 3AN-80-4265 CI
) O P I N I O N
) [No. 4857 - July 25, 1997]
DAVID L. GERKE, )
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. David L. Gerke, pro se, Anchorage.
Before: Compton, Chief Justice, Matthews,
Eastaugh, and Fabe, Justices. [Rabinowitz,
Justice, not participating.]
After repeated attempts to collect child support from
David Gerke, the Alaska Child Support Enforcement Division (CSED)
reduced the arrearages to final judgment. The superior court
conditioned "any"collection of the arrearages judgment for periods
more than five years upon a showing of "just and sufficient
reasons"for failing to execute within five years, pursuant to AS
09.35.020 and Alaska Civil Rule 69(d).
Because it was error to apply Alaska Civil Rule 69(d) and
AS 09.35.020 to administrative, non-judicial collection
proceedings, we reverse and remand.
II. FACTS AND PROCEEDINGS
David and Janet Gerke were married in Wisconsin in
November 1957. They had five children. The Alaska Superior Court
granted them a divorce in 1981. The divorce decree ordered David
to pay $300 support per month for each of the three youngest
children, until each reached the age of eighteen or graduated from
high school, whichever was later.
Since November 19, 1986, the only payments CSED's records
reflect are garnishments of David's Permanent Fund Dividend (PFD)
check. Since 1987 CSED has made repeated attempts to collect the
child support owed by David. CSED has sent withholding orders to
banks and the Social Security Administration, recorded a lien on
David's property, and identified him to the Internal Revenue
Service. These attempts proved futile. By July 1994 David owed
more than $25,000 in child support arrearages. [Fn. 1]
In July 1994 CSED moved to reduce David's arrearages to
judgment pursuant to AS 25.27.226. [Fn. 2] The superior court
granted CSED's motion. The order for entry of judgment includes
the following handwritten notation: "Any 'collection of arrearages
judgment' for periods in excess of 5 years shall comply with the
requirements of the Cross [/] Dean decision, slip op. # 4244
(Alaska 1995)."[Fn. 3] The court entered judgment against David
in the amount of $26,110.18. The judgment includes the following
handwritten provision: "No executions shall take place on any part
of this judgment exceeding 5 years without following the Cross and
Dean case, opinion # 4244 (Alaska 1995)."
A. Standard of Review
This case presents a question of law, which we review de
novo. Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988). It
is our duty "to adopt the rule of law that is most persuasive in
light of precedent, reason, and policy." Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979).
B. Application of AS 09.35.020 and Civil Rule 69(d) to
CSED's Administrative Collection Actions
CSED interprets the order for entry of judgment to
prohibit administrative collection unless and until CSED meets the
requirements of AS 09.35.020 [Fn. 4] and Alaska Civil Rule 69(d).
[Fn. 5] CSED asserts that its collection efforts in this case and
similar cases have been suspended until CSED can show good cause
for any lapse of more than five years between a judgment under AS
25.27.225 [Fn. 6] and execution on that judgment. [Fn. 7] The
issue we must address is whether the trial court has the authority
to impose conditions on administrative collection efforts in this
CSED argues that AS 09.35.020 applies only to judicial
executions and not to its administrative collection procedures.
CSED reasons that section .020 is contained in Title 9 of the
Alaska Statutes, the Code of Civil Procedure, which applies to "all
proceedings in actions brought after January 1, 1963, and all
further proceedings in actions then pending." AS 09.70.010
(emphasis added). Alaska Statute 01.10.060(1) defines "action"as
"any matter or proceeding in a court, civil or criminal."
(Emphasis added.) CSED argues that the Code of Civil Procedure and
thus AS 09.35.020 apply only to court proceedings and not to
CSED explains that AS 09.35.020 would clearly apply had
CSED sought a writ of execution through the court to secure
judicial collection of the judgment. It argues that the
legislature, however, has granted CSED an array of independent
powers to collect child support payments. Dean, 902 P.2d at 1325.
Under AS 25.27.230-.260, CSED may issue administrative orders to
garnish wages and attach property, including tax refunds and PFDs.
CSED acknowledges that these procedures are similar to actions that
may be taken by the court, but asserts that "they are entirely
separate and do not require judicial action to complete."
As CSED notes, Gerke incorrectly argues that "by filing
a motion to reduce arrears to judgment under AS 25.27.226, CSED
subjected itself to the civil rules for all subsequent proceedings,
whether judicial or administrative." The Alaska Constitution, the
civil rules, and the child support statutes do not permit or
contemplate such a consequence.
The condition placed by the superior court on CSED's
ability to collect also contravenes legislative purpose. The
legislature enacted AS 25.27.225 and AS 25.27.226 to make judicial
remedies more readily available as a complement to administrative
enforcement. CSED does not waive or relinquish any statutory
powers when it seeks to reduce arrearages to judgment under AS
25.27.226. Indeed, AS 25.27.227 states that sections .225 and .226
"provide remedies in addition to and not as a substitute for any
other remedies available to the parties." AS 25.27.227. Because
sections .225 and .226 provide remedies that are not exclusive, but
are cumulative with other remedies, the trial court may not place
any conditions upon the exercise of the independent administrative
remedies provided by AS 25.27.230-260. When the legislature
amended the child support statutes and added the provisions now
contained in sections .225-.227, it stated:
The purpose of the amendments in this Act is
to enhance the efforts of those persons who
seek to enforce the payment of child support obligations by
noncustodial parents having the duty of support.
Ch. 144, sec. 1(a), SLA 1984 (emphasis added). Restricting CSED's
ability to collect is contrary to this legislative purpose. Alaska
Statute 09.35.020 does not apply to CSED's administrative
CSED also contends that applying AS 09.35.020 to
administrative proceedings would violate the separation of powers
doctrine. It argues that "the trial court is effectively requiring
CSED to ask the court's permission before it may use its
administrative powers." CSED asserts that the court does not have
this statutory authority. Given our conclusion that the statute
does not apply, we need not reach this issue.
CSED also argues that the Alaska Rules of Civil Procedure
apply only to judicial proceedings. Alaska Civil Rule 1 states
that the civil rules govern "[t]he procedure in the superior court
and, so far as applicable, in the district court." Alaska R. Civ.
P. 1. Civil Rule 93 states that "[t]hese rules are promulgated
pursuant to constitutional authority granting rule making power to
the supreme court." Alaska R. Civ. P. 93. The Alaska Constitution
grants the supreme court the power to make rules "governing the
administration of all courts." Alaska Const. art. IV, sec. 15.
argues that the constitution does not grant this court the power to
make rules governing the procedures of administrative agencies;
this is a power that falls squarely within the domain of the
legislative and the executive branches of government.
CSED correctly argues that "[t]he Alaska Rules of Civil
Procedure do not apply to administrative proceedings unless
specifically adopted by regulation or statute." It notes by way of
example that CSED expressly adopted Civil Rule 90.3 as its child
support guidelines in administrative proceedings. 15 Alaska
Administrative Code (AAC) 125.010. Neither CSED nor the
legislature has adopted Civil Rule 69(d) for CSED's administrative
collection actions. Again, we need not reach the separation of
The order and judgment are defective for another reason.
We have recently noted that AS 25.27.226 "sets out an essentially
ministerial role for the courts in reducing arrearages to
judgment." State, Dep't of Revenue, Child Support Enforcement Div.
v. Demers, 915 P.2d 1219, 1221 (Alaska 1996). We there held that
the superior court lacked authority to condition CSED's ability to
execute on a valid judgment for child support arrearages upon
Demers's good faith efforts to make child support payments
established by an out-of-state order. Id. at 1221. We noted in
Demers that AS 25.27.225-.226
and the decisions of this court construing
those statutes, tightly confine the discretion of the court in
determining whether judgment should be granted. To introduce . .
. 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
Id. at 1220 (citations omitted). It was error to impose a
condition on any administrative execution on the judgment.
C. The Dean Case
Gerke argues that the superior court correctly
interpreted our decision in State, CSED ex rel. Inman v. Dean, 902
P.2d 1321 (Alaska 1995), as holding that AS 09.35.020 and Civil
Rule 69(d) apply to administrative collection procedures. We
disagree. In Dean, we noted that administrative remedies were
"akin"to a standard execution for purposes of AS 09.35.020 to the
extent that efforts to collect administratively would be considered
"good cause"under the statute for lapses of more than five years
between a section .225 judgment and judicial execution. Dean, 902
P.2d at 1325.
In Dean we required CSED on remand to "further show 'good
cause' to collect arrearages, if any, which accrued more than five
years before any particular administrative effort to collect the
accrued debt." Id. Because CSED collection attempts were "akin"
to executions, the court applied AS 09.35.020 and Civil Rule 69(d)
to any five-year lapses in administrative collection efforts before
judicial execution would issue. Id. at 1326. We neither stated
nor implied that AS 09.35.020 and Rule 69(d) apply to CSED's
administrative collection procedures.
Alaska Statute 09.35.020 and Alaska Civil Rule 69(d) do
not apply to CSED's administrative collection efforts. We REVERSE
and REMAND for entry of a judgment that does not restrict
administrative collection of child support arrearages.
Ongoing child support payments are not at issue here. The
youngest child became 18 in 1991.
AS 25.27.226 provides for the establishment of a final
judgment for collection of past due child support. CSED notes that
it "generally uses administrative collection procedures first,
leaving judicial procedures for cases in which administrative
procedures have been unsuccessful."
The "Cross/Dean decision"refers to State ex rel. Inman v.
Dean, 902 P.2d 1321 (Alaska 1995), which decided two consolidated
appeals concerning the applicability of AS 09.10.040 -- the ten-
year statute of limitations on "actions upon a judgment"-- to the
collection of child support installments which accrued more than
ten years before the date of the AS 25.27.226 motion. Dean and
Cross, the obligor parents, were the appellees in those appeals.
AS 09.35.020 states:
When a period of five years has elapsed after
the entry of judgment and without an execution being issued on the
judgment, no execution may issue except by order of the court in
which judgment is entered. The court shall grant the motion if the
court determines that there are just and sufficient reasons for the
failure to obtain the writ of execution within five years after the
entry of judgment.
Alaska Civil Rule 69 outlines the procedures by which a
judgment creditor may obtain a writ of execution when a period of
five years has lapsed without execution on the judgment. Civil
Rule 69(d) provides in pertinent part:
Whenever a period of five years shall elapse
without an execution being issued on a judgment, no execution shall
issue except on order of the court in the following manner:
(1) The judgment creditor shall file a
motion supported by affidavit with the court where the judgment is
entered for leave to issue an execution. The motion and affidavit
shall state the names of the parties to the judgment, the date of
its entry, the reasons for failure to obtain a writ for a period of
five years and the amount claimed to be due thereon or the
particular property of which possession was adjudged to the
judgment creditor remaining undelivered.
AS 25.27.225 provides that a support order requiring the
obligor to make periodic support payments "is a judgment that
becomes vested when each payment becomes due and unpaid." These
discrete judgments can be reduced to a final, consolidated judgment
under AS 25.27.226. Thus, according to the superior court's order,
before CSED could use its administrative powers to collect child
support, it had to show good cause for any failure to execute
within five years for each and every separate due and unpaid
CSED notes that it has appealed similar orders in at least
nine other cases. Those cases have been stayed pending the outcome
of the case at bar.