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Sielak v. Alaska Child Support Enforcement Div. (5/15/98), 958 P 2d 438
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
JAMES K. SIELAK, )
) Supreme Court No. S-8215
) Superior Court No.
v. ) 4FA-96-759 Civil
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) O P I N I O N
ENFORCEMENT DIVISION, )
______________________________) [No. 4985 - May 15, 1998]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Niesje J. Steinkruger, Judge.
Appearances: Arthur L. Robson, Robson Law
Office, Fairbanks, for Appellant. Scott Davis, Assistant Attorney
General, Fairbanks, and Bruce M. Bothelo, Attorney General, Juneau,
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
James Sielak appeals a decision of the superior court
that affirmed CSED's determination that CSED was without
jurisdiction to disestablish James's paternity of two minor
children. We affirm in part and remand for further proceedings.
II. FACTS AND PROCEEDINGS
James Sielak and Emma Nicolai Strong were married in
July 1982. In 1984 they separated. James asserts that they
unsuccessfully attempted a dissolution of marriage in the summer of
1985. James asserts that at about that time, Emma moved in with
Robert Neal. In April 1986 Emma gave birth to Derrick John Neal.
As James and Emma were still husband and wife, James's name
appeared on Derrick's birth certificate as the father.
Approximately one year later, Emma gave birth to Douglas Lee Neal.
James and Emma were still legally married.
In April 1988 CSED served James with a Notice and Finding
of Financial Responsibility (NFFR) with respect to Derrick. [Fn. 1]
This notice established a support obligation of $692 per month and
arrears of $5,401. James took no action contesting the NFFR at
that time. Six years later, CSED sent James a Notice of Review of
Administrative Support Order. Based on information provided by
James, CSED modified his support obligation to $50 per month. This
modification was issued in January 1996 with an effective date of
May 1, 1994. James appealed this decision and requested an
CSED held a hearing in March 1996 at which it affirmed
its support determination. The hearing officer held that CSED had
no jurisdiction to disestablish paternity. He held that support
was required unless and until a court of competent jurisdiction
disestablished James as Derrick's legal father. James appealed to
the superior court. The superior court held that CSED was without
jurisdiction to disestablish paternity. The superior court further
held that, even if CSED had jurisdiction, James had not presented
to CSED the clear and convincing evidence required to disestablish
his paternity. This appeal followed.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate court of
appeals, this court pays no deference to its decision. See Brown
v. State, 931 P.2d 421, 423 (Alaska 1997). The question whether
CSED had jurisdiction to disestablish paternity is one of law.
This court reviews questions of law de novo. See Guin v. Ha, 591
P.2d 1281, 1284 n.6 (Alaska 1979). This court has the duty to
"adopt the rule of law that is most persuasive in light of
precedent, reason, and policy."Id.
James makes two arguments that CSED had jurisdiction to
disestablish paternity. We discuss each in turn.
A. By Statute
James suggests that AS 25.27.166 provided CSED with the
authority to disestablish his paternity of Derrick. Alaska Statute
25.27.166 became effective January 1, 1996, and required CSED to
establish administrative procedures for disestablishing paternity
of a child where paternity was initially established neither by
court order nor by certain genetic tests. Subsection (b)(2) of
AS 25.27.166, however, permits a petition to disestablish paternity
to be brought, pursuant to these new procedures, only within "three
years after the child's birth or three years after the petitioner
knew or should have known of the father's putative paternity."
CSED asserts, and James does not contest, that (1)
April 22, 1989, marks three years after Derrick's birth; (2) May 5,
1991, marks three years after CSED served James with the NFFR,
putting him on notice that he was Derrick's legal father and owed
a duty of support; and (3) AS 25.27.166 did not become effective
until well after those dates. James argues that this is somehow an
"ex post facto"application of the statute of limitations. James
fundamentally misconstrues the nature of an ex post facto law. "An
ex post facto law is a law passed after the occurrence of a fact or
commission of an act which retrospectively changes the legal
consequences or relations of such fact or deed." Underwood v.
State, 881 P.2d 322 (Alaska 1994). Alaska Statute 25.27.166 does
not change the legal consequences of actions James took before it
was passed. It simply does not include James in the class of
putative fathers who may take advantage of CSED's new authority.
Alaska Statute 25.27.166's time limitation is not an
unconstitutional ex post facto law. CSED had no authority to
disestablish James's paternity of Derrick under AS 25.27.166.
B. By Inherent Power
A basic proposition regarding administrative agencies
comes from McDaniel v. Cory, 631 P.2d 82 (Alaska 1981). In
McDaniel we stated that "[a]dministrative agencies rest their power
on affirmative legislative acts. They are creatures of statute and
therefore must find within the statute the authority for the
exercise of any power they claim." Id. at 88. The plain language
of State, Department of Revenue v. Wetherelt, 931 P.2d 383, 389
(Alaska 1997), makes absolutely clear that, outside of
AS 25.27.166, "CSED lacked statutory authority to disestablish
The judgment of the superior court finding CSED to be
without jurisdiction to disestablish paternity in the instant case
is AFFIRMED. We REMAND this case to the superior court with
directions to conduct a paternity adjudication [Fn. 2] to determine
whether James is, in fact, the father of Derrick or Douglas. On
remand, the superior court shall take whatever additional evidence
it deems necessary, including blood-testing, to resolve the
paternity issue and then determine the parties' respective
financial rights and liabilities.
CSED had not yet attempted to collect support on behalf of
We do not see the need, under these circumstances, to require
James to file yet another action in superior court to disestablish