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Flanigin v. Alaska Child Support Enforcement Division (10/31/97), 946 P 2d 446
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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
PATRICK BOND FLANIGIN, )
) Supreme Court No. S-7745
Appellant, )
) Superior Court No.
v. ) 3AN-95-8435 CI
)
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF REVENUE, CHILD SUPPORT )
ENFORCEMENT DIVISION, )
)
Appellee. ) [No. 4896 - October 31, 1997]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Elaine M. Andrews, Judge.
Appearances: Kenneth C. Kirk, Anchorage, for
Appellant. Diane L. Wendlandt, Assistant Attorney General,
Anchorage, Bruce M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
MATTHEWS, Justice.
The Child Support Enforcement Division (CSED) is
authorized to administratively establish child support orders.
CSED initiates an administrative case seeking such an order through
service of a "Notice and Finding of Financial Responsibility"
(NFFR) upon a putative obligor parent. The question in this case
is whether CSED has the general authority to order the payment of
support arrearages accruing prior to service of an NFFR. Despite
a CSED policy interpretation to the contrary, we answer "yes,"
based on the clear language of the authorizing statutes.
I. FACTS AND PROCEEDINGS
The facts in this case are not disputed. HE gave birth to BE on July 20, 1990.
Mother and child live in Norway. Patrick Flanigin lives in Alaska.
He signed an "acknowledgment of paternity"regarding BE at
the Norwegian Consulate on December 6, 1990.
On January 1, 1991, HE began receiving "advance
payments"on behalf of BE from the Kingdom of Norway. These
advance payments are paid to any child who resides in Norway with
only one parent. The payments are not based on financial need.
Prior to the proceedings giving rise to this appeal, no child
support order had been entered against Flanigin in any
jurisdiction.
This case came to CSED as a Uniform Reciprocal
Enforcement of Support Act (URESA) petition from the Kingdom of
Norway. CSED decided to handle the case administratively.
Flanigin was served with a NFFR on May 1, 1994. In the NFFR, CSED
claimed that Flanigin was obligated to pay $742 per month in
ongoing support and that he owed $2,226 in arrearages from December
1, 1993 to February 28, 1994. Flanigin requested an informal
conference. An informal decision was issued on November 3, 1994,
in which CSED modified the amounts in the NFFR to $561 in monthly
support and $29,946 in arrearages accrued from January 1, 1991 to
November 30, 1994.
Flanigin then requested a formal hearing as provided for
in AS 25.27.170. At the hearing, Flanigin argued that no
arrearages could be established administratively in his case
because no Aid to Families with Dependent Children (AFDC) funds had
been paid on behalf of BE. He further argued that, even if CSED had the authority to administratively establish non-AFDC
arrearages, the amount should be limited to that actually paid by
the Norwegian government. The hearing officer entered a decision
finding that CSED had no statutory authority to administratively
establish arrearages that accrued prior to the service of the NFFR
when no AFDC had been paid. Pursuant to this finding, the hearing
examiner entered an order requiring Flanigin to pay $886 in monthly
support and $9,746 in arrearages accrued from February 1994 to
December 31, 1994. Both Flanigin and CSED moved for
reconsideration of this order.
Flanigin's motion was denied and CSED's was granted.
CSED's argument on reconsideration was based on the fourth
paragraph of CSED Policy 9-1 which reads, in part:
When the [child support order] is established
following the adjudication of paternity, the support order may be
retroactive to the date the obligor was served with the paternity
complaint, provided the complaint gave notice that both paternity
and a support obligation were sought to be established by the
court. Service of the paternity complaint on the putative father
corresponds to the service of the Notice and Finding of Financial
Responsibility in AS 25.27.160 where paternity is not in dispute.
The hearing officer, citing Policy 9-1, found Flanigin liable for
arrearages back to the date on which he signed the acknowledgment
of paternity, a sum of $41,624 through February 1995.
Flanigin appealed to the superior court. The superior
court affirmed. Flanigin appeals claiming error in the assessment
of arrearages prior to the service of the NFFR.
II. STANDARD OF REVIEW
When the superior court acts as an intermediate court of
appeal, we conduct an independent review of the merits of the
administrative determination. Handley v. State, Dep't of Revenue,
838 P.2d 1231, 1233 (Alaska 1992). Determining the breadth of the
legislature's grant of authority to an agency is an exercise in
statutory interpretation that does not require special agency
expertise. Kodiak Seafood Processors Ass'n v. State, 900 P.2d
1191, 1197 (Alaska 1995). Therefore, this court uses its
independent judgment. Konecky v. Camco Wireline, Inc., 920 P.2d
277, 280 (Alaska 1996).
III. DISCUSSION
Flanigin does not dispute that HE or the Kingdom
of Norway could maintain a debt action in court for reimbursement
of child support under Matthews v. Matthews, 739 P.2d 1298 (Alaska
1987). The only issue before us is whether CSED can
administratively establish child support arrearages for a period
prior to the service of an NFFR when no support order is in
existence.
Alaska Statute 25.27.140(a) authorizes the administrative
establishment of child support orders. It reads, in part:
(a) If no support order has been entered,
the agency [CSED] may establish 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.
Alaska Statute 25.27.160(a) describes how an administra-
tive case is initiated:
(a) An action to establish a duty of
support authorized under AS 25.27.140(a) is initiated by the agency
serving on the alleged obligor a notice and finding of financial
responsibility. The notice and finding served under this
subsection shall be served personally or by registered, certified,
or insured mail, return receipt requested, for restricted delivery
only to the person to whom the notice and finding is directed or to
the person authorized under federal regulation to receive that
person's restricted delivery mail.
The term "duty of support"is defined in AS 25.27.900(3)
as follows:
In this chapter
. . . .
(3) "duty of support"includes a duty of
support imposed or imposable by law, by a court order, decree or
judgment, or by a finding or decision rendered under this chapter
whether interlocutory or final, whether incidental to a proceeding
for divorce, legal separation, separate maintenance, or otherwise,
and includes the duty to pay arrearages of support past due and
unpaid together with penalties and interest on arrearages imposed
under AS 25.27.020(a)(2)(C).
Alaska Statute 25.27.170(d) defines the issues that the
hearing officer shall decide in a formal hearing:
(d) The hearing officer shall determine
the amount of periodic payments necessary to satisfy the past,
present, and future liability of the alleged obligor under AS
25.27.120, if any, and under any duty of support imposable under
the law. The amount of periodic payments determined under this
subsection is not limited by the amount of any public assistance
payment made to or for the benefit of the child.
These statutes plainly authorize CSED to enter orders
establishing child support arrearages that have accrued prior to
service of an NFFR even though no prior support order has been
entered and no prior AFDC payments have been made. Substituting
the definition of "duty of support"for the term, the effective
language of subsection .140(a) is: "If no support order has been
entered, the agency may establish a duty of support imposable by
law . . . [including] the duty to pay arrearages of support past
due and unpaid utilizing the procedures prescribed in [AS
25.27.170(d)]." Further, making the same substitution, subsection
.170(d) states that "the hearing officer shall determine the amount
of periodic payments necessary to satisfy the past . . . liability
of the alleged obligor . . . under any duty of support imposable by
law [including] the duty to pay arrearages of support past due."
Flanigin argues that AS 25.27.160(a) provides a "basic
rule . . . that when there is not a prior court order, CSED must
first serve a NFFR on the alleged obligor, and it may then
establish an ongoing child support order from that point forward."
The language of subsection .160(a) on which Flanigin relies is as
follows:
An action to establish a duty of support
authorized under AS 25.27.140(a) is initiated by the agency serving
on the alleged obligor a notice and finding of financial
responsibility.
This language speaks to how the administrative proceeding is to be
initiated. Concerning the remedies that may be obtained, it
states, given the definition of duty of support, that they may
include "arrearages of support past due." Thus subsection .160(a)
permits rather than precludes an action for arrearages.
Concerning subsection .170(d), Flanigin argues that this
subsection merely "allows the Hearing Officer to establish a
repayment schedule when administrative arrearages are established,"
but is not a grant of authority to the hearing officer to establish
"arrearages which are not otherwise authorized." Although sub-
section .170(d) speaks directly only to the authority of the
hearing officer to set a payment schedule for "the past, present,
and future liability"of the obligor, we reject this argument. The
subsection implies that the hearing officer has the authority to
determine the past liability of the obligor. Further, arrearages
are "otherwise authorized." Subsections .140(a) and .160(a), given
that the term "duty of support"is defined to include arrearages,
supply the authorization.
Flanigin makes a more plausible argument based on CSED
Policy 9-l. [Fn. 1] This policy provides that support orders are
prospective from service of an NFFR except for AFDC reimbursement
and except where the obligor was first served with a paternity
complaint seeking to establish a support obligation. Flanigin's
argument concerning Policy 9-1 may be summarized as follows. CSED
Policy 9-1 falls within the definition of a regulation set forth in
AS 44.62.640(a)(3). [Fn. 2] However, he argues that CSED adopted
the policy without following the methods required by the
Administrative Procedure Act for submission, filing, publication
and adoption of regulations. See AS 44.62.040-.290. Therefore,
the policy is an invalid regulation and lacks the force of law.
However, the first three paragraphs of the policy reflect CSED's
interpretation as to the meaning of the statutes concerning its
authority to order arrearages and this interpretation is entitled
to judicial deference. [Fn. 3]
CSED does not contest Flanigin's assertion that Policy 9-
l is a regulation within the scope of AS 44.62.640(a)(3) or his
assertion that it was not validly adopted. Instead, CSED argues
that rather than an interpretation of the meaning of the applicable
statutes, the policy merely reflects CSED's choice to seek only
prospective support when no public assistance has been paid.
We agree with Flanigin that the policy is a regulation
that was not validly adopted, and therefore lacks the force of law.
Further, in our view the policy may reasonably be read as an agency
interpretation of existing law. As such, it would entitled to some
degree of deference if it reflected a reasonable interpretation of
the statutory system. Totemoff v. State, 905 P.2d 954, 967 (Alaska
1995).
However, the policy does not reflect a reasonable
interpretation of AS 25.27.140(a), .160(a), .170(d), and .900(3).
For the reasons expressed supra at 5-7, these subsections can only
reasonably be read as a grant of authority to CSED to
administratively establish all child support arrearages that are
imposable by law. Since child support arrearages are imposable by
law from the date of a child's birth, arrearages may be imposed by
CSED from that time. [Fn. 4]
Flanigin's other arguments are conditioned on the
assumption that we will determine that CSED lacked the general
authority to assess arrearages prior to the NFFR. Since our
determination is that CSED had such authority, these arguments are
mooted.
Finally, we note that no issue is raised concerning the
correctness of the amount of arrearages or ongoing support
determined by CSED and both parties assume that Alaska rather than
Norwegian substantive law governs this case. [Fn. 5] We therefore
have no occasion to examine these issues.
IV. CONCLUSION
For the above reasons, the judgment of the superior court
affirming the final order of CSED is AFFIRMED.
FOOTNOTES
Footnote 1:
CSED Policy 9-1, adopted October 5, 1994, provides:
In establishing an administrative support
obligation, the amounts due from an obligor prior to the date of
the service of the Notice and Finding of Financial Responsibility
("NFFR") shall be limited to reimbursement to the state for
assistance provided to an obligee or obligees under the Aid to
Families with Dependent Children Act ("AFDC").
AS 25.27.160 provides that an administrative
support order begins with the service of the Notice and Finding of
Financial Responsibility. AS 25.27.120 entitles the state to
reimbursement for AFDC paid for the benefit of an obligee limited
either by the amount of an existing court order or an amount to be
determined under Civil Rule 90.3. State Child Support Enforce. v.
Gammons, 774 P.2d 181, 184 (Alaska 1989). A parent has a duty to
reimburse others who provide the support the parent owes. When a
party, other than the State, brings a claim for reimbursement it is
an action on a debt. Matthews v. Matthews, 739 P.2d 1298, 1299
(Alaska 1987). There is no authority for beginning a child support
order or for determining an amount due other than for AFDC
reimbursement prior to the date of service of the Notice and
Finding of Financial Responsibility. See Alaska Rev. Dec. 92-10.
When determining the liability of an obligor
prior to the date of service of a Notice and Finding of Financial
Responsibility, limit the amounts due prior to the date of service
to those amounts due under AS 25.27.120. No amounts should be
included for periods prior to the date of service when AFDC was not
provided to the obligee or obligees. A custodian may be advised
that reimbursement may be obtained in a debt action against a
parent who has failed to provide support prior to the date of
service of the Notice and Finding of Financial Responsibility.
Such an action must be brought in court.
Note: When the administrative support order
is established following the adjudication of paternity, the support
order may be retroactive to the date the obligor was served with
the paternity complaint, provided the complaint gave notice that
both paternity and a support obligation were sought to be
established by the court. Service of the paternity complaint on
the putative father corresponds to the service of the Notice and
Finding of Financial Responsibility in AS 25.27.160 where paternity
is not in dispute.
Footnote 2:
AS 44.62.640(a)(3) provides:
(a) In AS 44.62.010 - 44.62.320, unless
the context otherwise requires,
. . . .
(3) "regulation"means every rule,
regulation, order, or standard of general application or the
amendment, supplement, or revision of a rule, regulation, order, or
standard adopted by a state agency to implement, interpret, or make
specific the law enforced or administered by it, or to govern its
procedure, except one that relates only to the internal management
of a state agency; "regulation"does not include a form prescribed
by a state agency or instructions relating to the use of the form,
but this provision is not a limitation upon a requirement that a
regulation be adopted under this chapter when one is needed to
implement the law under which the form is issued; "regulation"
includes "manuals,""policies,""instructions,""guides to
enforcement,""interpretative bulletins,""interpretations,"and the
like, that have the effect of rules, orders, regulations, or
standards of general application, and this and similar phraseology
may not be used to avoid or circumvent this chapter; whether a
regulation, regardless of name, is covered by this chapter depends
in part on whether it affects the public or is used by the agency
in dealing with the public[.]
Footnote 3:
With respect to the fourth paragraph of the policy, Flanigin
argues that it does not apply to his case as he was never served
with a paternity complaint or a document seeking to establish a
support obligation prior to the NFFR.
Footnote 4:
AS 25.20.030; Vachon v. Pugliese, 931 P.2d 371 (Alaska 1996);
Matthews v. Matthews, 739 P.2d 1298 (Alaska 1987).
Footnote 5:
See generally on the choice of law issue, Louis Parley, Choice
of Law Issues Under Child Support Guidelines 16 No. 5 FairShare 2
(1996) and cases cited therein; see also Black v. Walker, 684 A.2d
1011 (N.J. App. 1996).
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