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Agen v. State of Alaska, Child Support Division (8/29/97), 945 P 2d 1215
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
MICHAEL M. AGEN, )
) Supreme Court No. S-6913
) Superior Court No.
v. ) 3AN-93-10156 CI
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF REVENUE, CHILD SUPPORT )
ENFORCEMENT DIVISION, )
Appellee. ) [No. 4874 - August 29, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: Michael M. Agen, pro se,
Anchorage. Rhonda F. Butterfield, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
The State of Alaska (State), Department of Revenue, Child
Support Enforcement Division (CSED), determined that Michael Agen
was responsible for the repayment of public assistance already
expended for the support of his child and for the payment of
ongoing support for the child. The superior court affirmed and
awarded attorney's fees to CSED. We reverse the attorney's fees
award and affirm in all other respects.
II. FACTS AND PROCEEDINGS
Michael Agen is the natural father of Andrea Dawn Hanzuk,
born on September 19, 1980 to Debra Hanzuk. In March 1981, Agen
signed a Consent to Adoption, stating that he released his rights
as a parent and consented to entry of a court order of adoption of
Andrea, without further notice to him. [Fn. 1] In November 1982,
the child's name was changed from Andrea Dawn Hanzuk Agen to Andrea
Dawn Hanzuk, without notice to Agen. Agen has had no significant
contact with Andrea and has provided no significant support for
In December 1992, CSED sent Agen a Notice and Finding of
Financial Responsibility (NFFR). The NFFR stated that Agen should
pay ongoing child support of $845 per month, beginning February 1,
1993, pursuant to AS 25.27.160. It further stated that he owed the
State $41,926 for assistance paid for the child from October 1,
1987 to January 31, 1993, pursuant to AS 25.27.160.
Agen requested an informal conference before CSED,
stating that CSED's support determination was unreasonable and
incorrect. After holding an informal conference, CSED confirmed
its support determination, modifying only the amount of accrued
debt, which by then had grown to $46,996. Agen appealed the
informal conference decision.
A formal hearing was held before a hearing examiner from
the Department of Revenue. Agen argued that in signing the Consent
to Adoption, he relinquished his parental rights; therefore, the
State was barred from recovering any child support from him. The
hearing examiner concluded: (1) laches did not bar CSED's attempt
to recover child support; (2) in the absence of adoption (of which
no evidence was presented at the hearing), the Consent to Adoption
did not terminate Agen's responsibility to support his child; and
(3) Agen was responsible for the repayment of public assistance for
the periods of October 1987 through April 1988 and December 1991
through April 1992, and was responsible for ongoing support dating
from December 30, 1992 (the date of service of the NFFR). The
hearing examiner did not determine the precise sum owed, ordering
that Agen's monthly payment and total debt be calculated "based on
his ability to pay, to be determined from the income information
submitted by [Agen] for the applicable years."
Pursuant to Appellate Rule 602(a)(2), Agen appealed to
the superior court. [Fn. 2] The superior court affirmed the
hearing examiner's formal hearing decision and awarded attorney's
fees to CSED.
Agen appeals. He argues that the superior court erred in
concluding that (1) the Consent to Adoption did not extinguish his
obligation to support his child; (2) laches and the statute of
limitation did not bar CSED's action; and (3) he was not denied due
process of law. Agen also argues that the superior court's award
of attorney's fees was improper.
A. Standard of Review
We give no deference to the decision of the superior
court when it acts as an intermediate court of appeals; we
independently review the merits of the administrative
determination. Handley v. State, Dep't of Revenue, 838 P.2d 1231,
1233 (Alaska 1992). We review the superior court's award of
attorney's fees for an abuse of discretion. Fairbanks N. Star
Borough v. Lakeview Enterprises, Inc., 897 P.2d 47, 62 n.34 (Alaska
1995); Diedrich v. City of Ketchikan, 805 P.2d 362, 365 n.3 (Alaska
B. The Consent to Adoption Did Not Relieve Agen of His
Responsibility to Support His Child.
A parent is obligated both by statute and at common law
to support his or her children. Matthews v. Matthews, 739 P.2d
1298, 1299 (Alaska 1987); AS 25.20.030. "This duty exists even in
the absence of a court order of support." Matthews, 739 P.2d at
A parent's duty of support encompasses a duty to
reimburse the State for any public assistance for the support of
the child. Id. Alaska Statute 25.27.120(a) establishes a parent's
liability to the State when it pays the parent's support
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 . . . may not exceed the amount of support provided for
in the support order . . . .
Alaska Statute 25.27.140(a) establishes the State's power to
collect ongoing support from obligors who are liable to the State
for assistance it has paid:
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 procedure 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).
Agen admits that he is the natural father of Andrea, but
argues that these statutory provisions do not apply to him because
his support obligation terminated when he signed the Consent to
Adoption in 1981. We disagree. The Consent to Adoption by itself
does not relieve Agen of his responsibility to support his child.
Sound policy dictates that signing a Consent to Adoption
by itself will not relieve a parent of his or her support
obligation. Were we to hold otherwise, irresponsible non-custodial
parents readily would sign such consent forms, leaving custodial
parents or the State with the burden of supporting the children.
The parental duty to support a child is relieved only when another
person adopts the child and, as a consequence of the adoption,
assumes the obligations to support the child. AS 25.23.130.
Termination of parental rights and obligations does not occur with
the execution of a Consent to Adoption; consent may be withdrawn
before the entry of an adoption. AS 25.23.060; AS 25.23.070.
Other jurisdictions also hold that "[t]he execution of a consent to
adoption alone is insufficient to terminate a noncustodial parent's
court-ordered obligation to make child support payments." Schnepp
v. State ex rel., Dep't of Econ. Sec., 899 P.2d 185, 189 (Ariz.
App. 1995) (citing Kimble v. Kimble, 341 S.E.2d 420, 424 (W. Va.
1986)); see also St. Germain v. St. Germain, 157 P.2d 981, 984
(Wash. 1945) (holding that child support obligation ceases when
order of adoption is entered). Agen presented no evidence before
the hearing examiner or the superior court that another person had
adopted Andrea. Agen's execution of the Consent to Adoption
therefore is insufficient in and of itself to relieve him of his
duty to support Andrea. That duty would only have terminated if
Agen and Hanzuk had properly executed an agreement to waive child
support under the law in force at the time.
Prior to the promulgation in 1987 of the child support
guidelines rule, Alaska Civil Rule 90.3, parties were free to agree
to waive child support as long as they did so in writing, the
custodial parent did not retract the agreement, and the State had
provided no assistance for the support of the child. SeeAS 25.27.065; Malekos v. Yin, 655 P.2d 728 (Alaska 1982). However,
in Cox v. Cox, 776 P.2d 1045, 1049 (Alaska 1989), we held that the
"freedom of contract attitude exemplified by Malekos . . . ha[d]
been superseded by Rule 90.3,"and concluded that "[p]arents may
not make a child support agreement which is not subject to the
rule." Id. (footnote omitted). Moreover, "no parental agreement
regarding child support is valid until it receives judicial
scrutiny under Rule 90.3." Nix v. Nix, 855 P.2d 1332, 1334 (Alaska
Although Agen executed the Consent to Adoption in 1981,
it fails to meet the requirements for an enforceable contract
between parents for a waiver of child support which were in
existence before Rule 90.3 became effective. It is undisputed that
Hanzuk received public assistance for the support of Andrea.
Moreover, Hanzuk never signed the Consent to Adoption, nor does the
Consent to Adoption by its terms release Agen from his support
obligation. The document concerns only Agen's parental rights,
specifically his right to participate in Andrea's upbringing and
his right to notice of an intended adoption. It does not refer to
the rights of the State, nor does it refer to Hanzuk's rights,
except to give her full control over Andrea. Agen has produced no
evidence of any separate agreement between himself and Hanzuk which
was intended to terminate his parental duty of support. That duty
therefore remains in force.
C. The State's Claim Is Not Barred by Laches.
Agen maintains that the superior court erred in finding
that laches did not bar the State's support finding against him.
This argument lacks merit. In State, CSED v. Valdez, __ P.2d __,
Op. No. 4841 (Alaska, June 27, 1997), we held that the defense of
laches is not available in child support collection actions, since
suits for monetary judgments for child support arrearages are legal
rather than equitable in nature. Id. at 17. Agen therefore cannot
raise the defense of laches in this case.
D. The State Brought Its Action within the Applicable
Agen also argues that the Consent to Adoption evidences
a contract and that the State's claim is barred by the statute of
limitation applicable to contracts cases. This argument fails as
The State correctly asserts that it was not a party to
the Consent to Adoption, is not bound by any contract between Agen
and Hanzuk, and therefore is not subject to the statute of
limitation applicable to contract cases.
The applicable statute of limitation is the six-year
limit found in AS 09.10.120. [Fn. 3] The date of the accrual of
the cause of action is October 1987, the earliest period for which
the State seeks reimbursement for public assistance paid for
Andrea's support. The action was initiated by the State in 1992,
when Agen received service of the NFFR pursuant to AS 25.27.160,
and therefore falls within the six-year statute of limitation.
E. Agen Was Not Denied Due Process.
Agen also raises a number of due process claims under the
United States [Fn. 4] and Alaska [Fn. 5] Constitutions. [Fn. 6]
All of these claims lack merit.
Agen first argues that he has been denied due process of
law, in violation of the Fourteenth Amendment of the United States
Constitution. [Fn. 7] He claims he was not afforded "an
opportunity to be heard at a meaningful time and meaningful
manner,"because the 1993 administrative hearing was held "12 years
after the rendering of the release of parental rights." In support
of his claim, he cites cases involving pre-hearing deprivations.
See Peralta v. Heights Medical Center, Inc., 485 U.S. 80 (1988);
Fuentes v. Shevin, 407 U.S. 67 (1972); Armstrong v. Manzo, 380 U.S.
545 (1965). Unlike the appellants in the above cases, Agen was
afforded numerous opportunities to argue his case prior to any
deprivation of property. [Fn. 8] These opportunities included an
informal conference, a formal conference before a hearing examiner,
an appeal to the superior court, and now an appeal to this court.
Since these proceedings provided Agen with an ample opportunity to
be heard, his claim fails.
Second, Agen argues that he was denied due process of law
because the State delayed too long in bringing a claim against him.
This claim amounts to a repetition of his argument concerning
laches and the statute of limitation, and fails for the reasons
stated above. The State's delay in seeking reimbursement may
demonstrate a lack of diligence, but the period involved falls
within the applicable statute of limitation. In addition, the
relevant statute permits the State to recover from the natural
parent public assistance paid for the support of a child, even if
the State failed to give notice to the obligor parent of his
accruing liability. [Fn. 9] Any concerns regarding notice to Agen
are outweighed by the undisputed fact that Agen knew he was the
natural father of Andrea, but never provided any support for
Third, Agen contends that the superior court's denial of
his Motion to Compel Discovery deprived him of due process of law
by preventing him from defending against the State's claim on the
ground that Andrea had been adopted. Agen maintains that, in
violation of federal due process guarantees, the superior court
improperly denied his Motion to Compel Discovery of information
relating to the possible adoption of his child, and improperly
placed on him the burden of proving that Andrea was adopted. As a
threshold matter, Agen was provided with an opportunity to respond
to the State's claims at the administrative level and before the
superior court. However, he did not raise the defense of adoption
or file his Motion to Compel Discovery until August 1994, after he
had appealed the Department's determination to the superior court
and after the parties had filed briefs in that court. We hold that
Agen's motion for discovery therefore was untimely. We conclude
that the superior court did not abuse its discretion in denying
Agen's discovery motion. See Glover v. Western Air Lines, 745 P.2d
1365, 1370 (Alaska 1987) ("As a general matter, the decision to
limit discovery is within the broad discretion of the trial court
. . . ."); Douglas v. Glacier State Tel. Co., 615 P.2d 580, 593
The superior court also did not err in placing on Agen
the burden with regard to the issue of adoption. To prove its
case, the State need only show that Agen is Andrea's father and
that the State paid for Andrea's support; it need not show that
Andrea was not adopted. Agen's claim amounts to an affirmative
defense, and the burden of proof of an affirmative defense is on
the party raising the defense. See Stormont v. Astoria Ltd., 889
P.2d 1059, 1063 (Alaska 1995); Morrow v. New Moon Homes, Inc., 548
P.2d 279, 294 (Alaska 1976) ("The party raising the affirmative
defense generally bears the burden of proof as to that issue.")
cited in State Dep't of Public Safety, Div. of Motor Vehicles v.
Fann, 864 P.2d 533, 538 (Alaska 1993). Even assuming that there
may be in the State's control records which pertain to an adoption,
Agen has failed to meet his burden of proof. In addition to
failing to offer any evidence of a possible adoption, he does not
claim that an adoption actually occurred. He contends only that an
adoption is "possible."
F. The Award of Attorney's Fees Constituted an Abuse of
Agen argues that the superior court erred in awarding
$713.80 in attorney's fees under Civil Rule 82, rather than under
Appellate Rule 508. [Fn. 10] He further argues that even under the
appellate rules, an award of attorney's fees is improper because
the Department of Law attorneys who argued this case for the State
are the equivalent of in-house counsel. See Continental Ins. Co.
v. United States Fidelity and Guar. Co., 552 P.2d 1122, 1128
(Alaska 1976) (holding that "attorney's fees"do not include the
cost of in-house counsel).
The State concedes that its request for attorney's fees
should have been made under Appellate Rule 508, rather than Civil
Rule 82. However, the State argues that "since there are no
specific guidelines in Appellate Rule 508, an analogy to, and use
of, Civil Rule 82 is appropriate." In response to Agen's in-house
counsel argument the State cites numerous cases in support of its
contention that fee awards to state agencies are proper.
We reverse the award of attorney's fees. As a general
matter, a superior court acting as an intermediate appellate court
has broad discretion to award costs and attorney's fees pursuant to
Appellate Rule 508. See Messerli v. Department of Natural
Resources, 768 P.2d 1112, 1122 (Alaska 1989); Rosen v. State Bd. of
Pub. Accountancy, 689 P.2d 478, 482 (Alaska 1984). Indeed, we have
held that the superior court need not articulate its reasons for
awarding attorney's fees. See Rosen, 689 P.2d at 480. Such broad
discretion notwithstanding, in Royal Krest Construction, Inc. v.
Municipality of Anchorage, 640 P.2d 133, 134 (Alaska 1981), we held
that it is error for a superior court acting as an intermediate
appellate court to award fees under Civil Rule 82, rather than
under Appellate Rule 508. [Fn. 11] See also Diedrich, 805 P.2d at
371; Kodiak West. Alaska Airlines, Inc. v. Bob Harris Flying Serv.,
Inc., 592 P.2d 1200, 1204-05 (Alaska 1979). In Royal Krest, we
focused on the different directives in the fee award provisions:
"[A]ttorney's fees need not be awarded as a matter of course under
[Appellate Rule 29(d), now Appellate Rule 508(e)]. This differs
from Civil Rule 82, which requires that some portion of attorney's
fees be awarded to the prevailing party . . . ." Royal Krest, 640
P.2d at 134. In this case, the superior court based its award on
Civil Rule 82. Since the superior court based its award on an
incorrect rule, the case must be remanded to the superior court for
recalculation in accordance with the correct rule. [Fn. 12]
Agen's argument that Continental Insurance bars even an
Appellate Rule 508 fee award to the State lacks merit. We have
repeatedly affirmed the award of attorney's fees to prevailing
government entities. See, e.g., Patch v. Patch, 760 P.2d 526, 530-
31 (Alaska 1988) (affirming award to CSED of attorney's fees). In
Greater Anchorage Area Borough v. Sisters of Charity of House of
Providence, 573 P.2d 862 (Alaska 1978), we explained our holding in
In that case the prevailing party in the
superior court, an insurance company, argued that its actual legal
costs were greater than those incurred by retained counsel, as the
cost of in-house attorney time spent on the case had not been
included within the award of attorney's fees sought in the superior
court. . . . We did not intend to express a prohibition against
awarding attorney's fees when a party's active representation in
litigation is by in-house counsel rather than retained counsel.
Nothing in Continental was intended to
alter our long-standing practice of awarding attorney's fees to
public entities who litigate chiefly, and often entirely, through
573 P.2d at 862-63. Agen offers no reason for us now to overrule
G. The Amount of the Award for Back Child Support Is
Finally, Agen contends that the superior court erred in
determining that he owed the State $41,926 in back child support.
This argument fails as well. The superior court made no such
determination. The superior court affirmed the formal hearing
decision, which directed CSED to calculate the amount owed based on
Agen's ability to pay, but did not specify the precise amount which
Agen owed. The superior court mentioned the $41,926 figure only in
the "Facts"section of its opinion, noting "[CSED] sent Agen a
Notice and Finding of Financial Responsibility (NFFR) asserting
that Agen [owed] a debt for past public assistance in the amount of
$41,926 and ongoing support of $845 per month." Moreover, the
State acknowledges that the $41,926 figure is too high.
We REVERSE the superior court's award of attorney's fees
and REMAND the case for recalculation of that award. In all other
respects, the decision of the superior court is AFFIRMED.
In the Consent to Adoption Agen declared:
I, Michael Maxim Agen . . . do hereby
relinquish and release forever, my rights as a parent in and to a
female child born . . . on September 19, 1980, namely: Andrea Dawn
Hanzuk Agen, to Debra M. Hanzuk . . . . I declare that I am the
father of said child and I do hereby consent to the adoption of
said child and respectfully request any court of competent
jurisdiction to enter its order of adoption without further notice
I do further consent that Debra M. Hanzuk
shall have full care and custody of said child until an order is
entered for it's [sic] adoption and that Debra M. Hanzuk, alone,
shall have the power to exercise control over said minor child
until such time as a legal adoption is consummated.
I do further agree not to interfere with
the custody or management of said minor child in any way from the
date of this instrument and not to encourage or permit anyone else
to do so.
The failure to calculate the amount of the accrued debt and
the monthly stipend for ongoing support meant that the hearing
examiner's decision was not final for appeal purposes. See City &
Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979). The
superior court therefore should have either dismissed the appeal or
treated it as a petition for review under Appellate Rule 611(a)(2).
Similarly, the decision of the superior court is not final, since
further proceedings before the administrative agency are necessary
to determine the amounts which Agen should pay. See Thibodeau, 595
P.2d at 629. However, neither party has raised this point, and in
the interests of judicial economy we have decided to treat this
case as a petition for review and decide the questions presented.
AS 09.10.120 provides:
An action brought in the name of or for
the benefit of the state, any political subdivision, or public
corporation may be commenced only within six years of the date of
accrual of the cause of action.
"[N]or shall any state deprive any person of life,
liberty, or property, without due process of law . . . ." U.S.
Const. amend. XIV, sec. 1.
"No person shall be deprived of life, liberty, or
property, without due process of law." Alaska Const. art. I, sec.
"Issues of constitutional interpretation are
questions of law which this court reviews de novo." Revelle v.
Marston, 898 P.2d 917, 925 n.13 (Alaska 1995), citing Carvalho v.
Carvalho, 838 P.2d 259, 261 n.4 (Alaska 1992).
Agen restricts his argument to denial of federal
constitutional protections, stating that "[a]ny effort to argue the
Alaska Constitution in this case would be futile, for the 'broader'
protections afforded by that document are illusionary, and nothing
There is nothing in the record suggesting that Agen suffered
any pre-hearing deprivation, or that the State has attached Agen's
wages or property. Apparently the only payment Agen has made is a
single one hundred dollar payment made on April 11, 1995.
AS 25.27.120(c) provides in part:
Within 30 days after the agency knows the
identity and address of an obligor who resides in the state and who
is liable to the state under this section, the agency shall send
written notification by certified mail to the obligor parent of the
obligor's accruing liability.
Subsection (e) provides that "[t]he agency's failure to comply with
(c) of this section does not bar an action by the state to recover
amounts owed by the obligor." AS 25.27.120(e).
We express no opinion whether CSED's failure to provide
notice to the obligor parent of his or her accruing debt would
implicate the right of due process. Agen's actual knowledge of the
birth of a child for which he bore legal responsibility is adequate
notice to him of his accruing debt for support of that child.
The superior court concluded that fees computed under Civil
Rule 82(b)(1) would be inappropriate, and therefore awarded fees
pursuant to Civil Rule 82(b)(3).
The superior court in Royal Krest erred by awarding fees under
former Appellate Rule 29(d), the relevant language of which was
identical to current Appellate Rule 508(e), rather than under Civil
Rule 82. See Royal Krest, 640 P.2d at 134 n.2.
While the amount of the award does not appear manifestly
unreasonable, calculation of the amount owed under the correct rule
is properly the role of the superior court.