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State, Child Support Enforcement Div, v. Green (7/30/99) sp-5148
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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
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) Supreme Court No. S-7740
ENFORCEMENT DIVISION, )
) Superior Court No.
Appellant, ) 3AN-89-10379 CI
)
v. )
) O P I N I O N
MICHAEL J. GREEN, )
) [No. 5148 - July 30, 1999]
Appellee. )
______________________________)
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. Edward L. Miner, Ross & Miner,
P.C., Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
EASTAUGH, Justice.
MATTHEWS, Chief Justice, dissenting.
I. INTRODUCTION
Without prior judicial approval, Michael Green paid a
lump sum to the mother of his minor child, in part for the purpose
of discharging his court-ordered past and future child support
liability. When the mother began receiving public assistance for
the child's benefit eighteen months later, the Child Support
Enforcement Division (CSED) sought reimbursement from Green. The
superior court credited Green's payment against his future child
support obligation. Because Green's payment did not defeat CSED's
independent statutory right to recover public assistance paid on
behalf of his child, we reverse and remand.
II. FACTS AND PROCEEDINGS
A child, Becky, was born to Michael Green and Lori Burton
in 1988. [Fn. 1] Green and Burton never married.
In 1989 the superior court entered an interim child
support order requiring Green to pay child support through CSED.
On July 9, 1990, the superior court granted Burton sole legal and
physical custody of Becky and increased Green's monthly support
obligation to $625, to be paid through CSED. The $625 amount was
calculated under Alaska Civil Rule 90.3.
On July 30 Green and Burton entered into a written
"Settlement Agreement"in which Green agreed to pay Burton a lump
sum of $54,000. Green also agreed to relinquish "all parental
rights"to Becky, and to waive "all future claims to custody and
visitation, and . . . the rights to receive notice of and consent
to adoption." Burton agreed in exchange that the payment satisfied
all amounts awarded for Becky's past and future child support and
the award of medical insurance for Becky until she reached
majority. The agreement was filed with the court, but it was never
noticed for hearing or judicially approved. Burton received the
lump sum in late July or early August 1990.
On August 3, 1990, the court entered findings of fact and
a judgment of $14,087 against Green for attorney's fees, costs, and
back child support. Burton was then receiving Aid for Families
with Dependent Children (AFDC), and had been since 1989.
On August 9 Tracy Green, Green's wife, informed CSED of
the agreement. CSED informed her that Burton was receiving public
assistance. When Tracy Green called CSED on August 14, CSED
indicated that it needed a copy of the settlement agreement to
adjust Michael Green's account. Later that day CSED informed Tracy
Green that Burton could not enter into an agreement with Michael
Green if Burton was on public assistance.
When the Greens contacted CSED two weeks later, CSED
agreed not to seek enforcement of the child support obligation, but
advised that it could not close the case until Burton withdrew from
CSED's services and ceased receiving public assistance. CSED
contacted the Alaska Division of Public Assistance in late August
to confirm that Burton was no longer on public assistance. Her
public assistance payments ended in August 1990.
In September Tracy Green called CSED to determine the
status of the case. CSED indicated that it could not adjust
Green's account until a judge signed the settlement agreement.
Green's counsel informed CSED in October that a judge's signature
was not required, and sent CSED copies of the agreement.
Burton asked CSED in November what would happen if she
reapplied for public assistance. CSED explained that it would
normally pursue reimbursement from an obligor parent, but that the
settlement agreement complicated her case. It told Burton that it
would nonetheless try to collect any future public assistance debt,
apparently from Michael Green, should Burton re-apply for public
assistance. Burton withdrew from CSED's services soon thereafter.
Burton again began receiving AFDC benefits in January
1992. CSED soon sought reimbursement from Green. The public
assistance ($821) paid monthly to Burton exceeded the monthly
support obligation ($625) imposed against Green in July 1990.
Green argued in response to CSED's collection efforts that his 1990
lump sum payment entitled him to a credit against his child support
obligation. He asserted that the $54,000 lump sum payment was
intended to satisfy not only future child support but also the
$14,087 judgment entered against him on August 3, 1990.
Subtracting the 1990 judgment from his 1990 lump sum payment, Green
argued for a credit of $39,913. The superior court awarded Green
a credit of $57,912 against child support payable after August 1,
1990. The amount of the credit represented the future value of
$39,913.
CSED appeals.
III. DISCUSSION
A. Standard of Review
Whether Green is entitled to a credit against his child
support obligation is a question of law we review de novo. [Fn. 2]
"Under this standard, it is our duty to adopt the rule of law that
is most persuasive in light of precedent, reason, and policy."[Fn.
3] We also review issues of statutory interpretation de novo. [Fn.
4] There is no genuine dispute about whether Green made the lump
sum payment, and no party claims that we should apply a clearly
erroneous or other deferential standard in reviewing the superior
court's decision.
B. Whether Any Part of the 1990 Lump Sum Payment Should Be
Credited against CSED's 1992 Reimbursement Claim
CSED contends that Green's agreement with Burton cannot
destroy his duty to reimburse the state for public assistance paid
on his child's behalf. It argues that the trial court erred in
giving effect to an agreement that was invalid and unenforceable
under Alaska law.
Green argues that because he has already paid his future
child support by making the direct payment to Burton, CSED can
collect nothing more from him without violating AS 25.27.120(a),
which limits his liability to CSED to "the amount of support
provided for in the support order." Green argues that because his
direct payment in 1990 exceeded his then-due child support, the
excess had to be credited against his future child support
obligation, including CSED's reimbursement claim that arose after
public assistance payments resumed in 1992. He asserts that his
right to a credit turns on the fact of his prepayment, not on the
validity of his agreement.
Green's agreement may be illegal in whole or in part and
therefore unenforceable because it attempts to avoid or limit
parental responsibilities contrary to law. Burton purported to
agree that the lump sum payment satisfied awards for all past and
future child support for Becky, and any award for Becky's medical
insurance, despite the possibility that Becky's needs might change
or Green's income might increase. Green purported to agree to
relinquish all parental rights, including all future claims to
custody and visitation, to waive notice of adoption, and to consent
to adoption. CSED correctly observes that this was an attempt to
terminate Green's parental rights and obligations, and was
therefore void. We have refused to recognize a termination of
parental rights except in a statutory proceeding or a child-in-
need-of-aid proceeding. [Fn. 5] By statute, a court in a
separation, dissolution, or divorce proceeding "may not accept"a
custodial parent's waiver of child support without proof that the
custodial parent can support the child adequately. [Fn. 6]
But it is not necessary to decide whether the terms of
the agreement were enforceable against CSED or the child, because
we agree with Green that the issue does not turn on the validity of
the agreement. Instead, our inquiry focuses on three statutes: AS
25.27.120(a), which requires the obligor parent to reimburse the
state for public assistance paid to the child; AS 47.25.345, which
gives CSED an assignment to recoup those payments; and AS
25.27.020(b), which may give the obligor parent a credit for direct
payments of child support. For the following reasons, we conclude
that Burton's receipt of the direct payment did not defeat CSED's
rights to seek reimbursement from Green.
1. AS 25.27.120(a) and AS 47.25.345
CSED enjoys both independent and derivative rights to
seek reimbursement for public assistance. CSED's independent right
to recover public assistance reimbursement from child support
obligors is derived from Alaska case law and Alaska statutes. In
Matthews v. Matthews, [Fn. 7] we noted that "[a] parent's duty of
support encompasses a duty to reimburse other persons who provide
the support the parent owes."[Fn. 8] In State, CSED v. Gammons,
[Fn. 9] we noted that "the state is entitled to reimbursement for
public assistance just as any other third party would be entitled
to reimbursement."[Fn. 10]
An independent right of recovery is created by AS
25.27.120(a). An obligor parent who "owes a duty of support""is
liable to the state"for public assistance paid to the child. [Fn.
11] Green owed Becky a duty of support. [Fn. 12] That duty
existed whether or not Green had paid all support then owing. The
duty of support does not end until the parental relationship is
terminated. Alaska Statute 25.27.120(a) looks not to whether the
obligor owes support, but to whether the obligor owes a duty of
support. The statute imposes a duty that runs directly from the
obligor to the state; it is not derivative of any rights the
custodian or even the child might have to collect support. The
statutory liability is for the amount of public assistance paid, or
for the amount of child support ordered, whichever is less. The
obligor's prepayment of court-ordered support without court
approval does not reduce either measure of liability under
subsection .120(a). Because CSED's right to recoupment under AS
25.27.120(a) is an independent right, Green could not defeat or
diminish his direct liability to CSED by paying Burton directly.
By contrast, AS 47.25.345 gives CSED a derivative right
to recoup public assistance payments by assigning to the state the
public assistance recipient's support rights. [Fn. 13] Under that
statute, an AFDC applicant "is considered to have assigned [to
CSED] all rights to accrued and continuing support that the
applicant and other persons for whom assistance is sought may have
from all sources."[Fn. 14] This statutory assignment "terminates
when the applicant ceases to receive assistance."[Fn. 15] Section
.345 had the effect of assigning to CSED Burton's and Becky's
rights against Green. Courts elsewhere have held that agreements
between parents do not defeat the state's right to reimbursement
and that the state's assigned rights are not limited by the acts of
the AFDC recipient. [Fn. 16] But we do not need to consider that
issue here. Even assuming that Green's direct payments impaired
CSED's derivative rights (those derived through Burton under AS
47.25.345) to enforce the 1990 child support order against Green,
and ignoring the question whether Burton's acts could impair rights
derived through the child, CSED's independent right continues.
Because CSED's independent right to recover AFDC payments
under AS 25.27.120(a) is separate from CSED's derivative right to
recover under AS 47.25.345, Burton's receipt of the lump sum
payment did not defeat or diminish CSED's recoupment claim.
Green's duty to reimburse the state under AS 25.27.120(a) was not
affected by the prepayment. Rather, Green's direct liability
simply depended on the existence of the duty to support his child.
We need not consider whether circumstances could both defeat CSED's
derivative section .345 right and also make it inequitable for CSED
to rely on its independent subsection .120(a) right. (Consider,
for example, an obligor who makes payments directly to the obligee
with CSED's permission, in extremis, or under an arrangement
adequately protecting the child's interests.) There was no
judicial determination that Green's arrangement was in Becky's best
interests. [Fn. 17]
Other courts have reached similar conclusions. In State
ex rel. Phipps v. Phipps, [Fn. 18] the Iowa Supreme Court held that
a dissolution decree releasing a father from future support
payments did not prevent the state from seeking reimbursement for
AFDC payments made by the state to his child. [Fn. 19] Like Green,
the father in Phipps argued against reimbursing the state based on
an agreement purporting to relieve him of child support. [Fn. 20]
The court held that the Iowa statute authorizing the state to seek
public assistance reimbursement established an independent remedy,
and that the state was therefore entitled to recover in its own
right without regard to the terms of support orders affecting the
parents' rights and obligations. [Fn. 21] In In re Marriage of
Walje, [Fn. 22] the court required an obligor to reimburse the
state for public assistance paid on behalf of his children when the
obligor paid support directly to the custodial parent and children,
and not through the court trustee as the decree required. [Fn. 23]
The court recognized that this result required the obligor to pay
twice. In State ex rel. D.H.S. v. Hartless, [Fn. 24] the court
held that an obligor's payments to the custodial parent did not
discharge the obligor's debt to the state for public assistance
paid for his children. [Fn. 25]
2. AS 25.27.020(b)
Green argues that CSED should have given him credit for
his lump sum payment, in accordance with CSED's own policies. CSED
Policy No. 8071.4 provides:
Direct payments. After the obligor is ordered
to make payments through CSED, the agency may not consider direct
payments made to the obligee or the obligee's custodian unless the
obligor provides clear and convincing evidence of the payment.
Upon receipt of such verification, CSED will credit the account.
CSED Policy No. 8054.1 provides in pertinent part:
The Division will review written statements
from the payee which verify receipt of direct payments, either
crediting for support paid during specified time, dictating a
specific dollar amount received, or providing for a visitation
credit.
CSED argues that these policies do not apply if the state is paying
public assistance. A CSED representative testified that these
policies apply to non-AFDC cases, and that she would not expect the
Green case to be handled as a "normal case."
These policies appear to derive from AS 25.27.020(b),
which Green's brief does not discuss. This statute provides that
in determining the amount an obligor must pay to satisfy "the
immediate duty of support, the agency shall consider"payments made
by the obligor directly to the obligee. [Fn. 26] But if the
obligor has been ordered to make payments through CSED, the
evidentiary standard changes. In that event, CSED "may not
consider direct payments"unless the obligor provides clear and
convincing evidence of the payment. [Fn. 27] CSED argues that
giving credit "makes sense when there is no public assistance debt
because, in that case, the person to whom the money is owed gets
paid."
We conclude that AS 25.27.020(b) and the two CSED
policies cited by Green do not automatically apply to cases
governed by AS 25.27.120(a), where CSED is not collecting support
on behalf of a custodial parent, but instead seeks to recoup public
assistance. In the AFDC reimbursement context, CSED need not
"determin[e] the amount of money an obligor must pay to satisfy the
immediate duty of support."[Fn. 28] Rather, it only needs to look
at the amount of public assistance paid and "the amount of support
provided for in the court order."[Fn. 29] Alaska Statute
25.27.120(a) does not acknowledge a third contingency, i.e.,
whether the obligor made any direct payments to the obligee parent.
At a minimum, an obligor attempting to defeat a CSED claim to
recover public assistance cannot claim credit for direct payments
made without judicial or CSED approval. Any possible tension
between AS 25.27.020(b) and AS 25.27.120(a) can be resolved by
reading subsection .020(b) to be inapplicable to a CSED claim to
recover public assistance. The words "immediate duty of support"
found in subsection .020(b) support this reading, because they
imply that subsection .020(b) addresses amounts to be spent
directly and currently for the child's support, rather than amounts
to reimburse the state for payments it made to support the child in
the past. We think this is the most natural and logical
interpretation of the provision.
That reading is consistent with the reading CSED gives to
subsection .020(b) and the CSED credit policies discussed above.
We give serious weight to this interpretation in accordance with
the rule that administrative agencies are given wide latitude when
they are interpreting statutes they have been charged to
administer. [Fn. 30]
That reading is also consistent with the policies that
seem to underlie AS 25.27 and the reimbursement requirement: first,
that private agreements, unless approved by the agency, do not
defeat the right to reimbursement and the state's duty to recover
AFDC payments it makes to the obligee parent; [Fn. 31] second, that
a court support order should be enforced per its terms, and not be
unilaterally modified by the parents or CSED; and third, that
parents support their children.
Green also relies on 15 Alaska Administrative Code
125.110(b). [Fn. 32] He argues that a federal regulation, 45
C.F.R. 302.51(b)(5), mandates the Alaska regulation. [Fn. 33] He
seems to argue that if he had paid the lump sum to CSED, these
regulations would have obliged CSED to pay the excess (after
satisfying arrearages, the judgment, and his then-current
obligation) to Burton. This would have given the same result
reached by his direct payment. But neither regulation could apply
here, because Green did not pay through CSED, despite the 1990
order requiring him to do so. The regulations provide no basis for
defeating CSED's reimbursement claim here. Moreover, they do not
state or imply that any part of the excess paid over to the obligee
would excuse the obligor from any duty to repay public assistance
paid in the future.
The dissent reasons that our interpretation of AS
25.27.120(a) "would effectively require the obligor to pay twice"
and that the resulting "double payment"would violate subsection
.120(a)'s mandate that the obligor's liability not exceed the
amount of support provided for in the support order. [Fn. 34] We
do not read subsection .120(a) to address double payments; it
simply preserves the state's right to a single recovery of AFDC
assistance. Nor does this result "require"the obligor to pay
twice. The statute did not require Green to make the unauthorized
direct lump sum payment. It "requires"only one payment, and Green
would have satisfied that requirement if he had paid CSED directly,
as the court had ordered. The only protection subsection .120(a)
offers Green pertains to the extent of his liability to repay
public assistance. And it simply limits his reimbursement
liability "to the amount of support provided for in the support
order."[Fn. 35] It looks to the terms of the order, not to the
terms of a side arrangement between the obligor and obligee. That
protection does not help Green because his prepayment did not alter
the amount of support the court ordered. Green could have asked
the court to modify the support order to reflect his prepayment.
Whether the court would have done so after considering the child's
interests is unknown, given the amount at stake and the danger its
premature exhaustion would prejudice Becky. But Green chose not to
seek court approval or a reduction of the support order. He will
get all the protection the statute requires if his reimbursement
duty is based on the support amount the court ordered.
There is also no reason to think that Green's prepayment
triggered the limitation in subsection .120(a). Green's prepayment
did not address any reimbursement duty Green might have "for
assistance"that might be paid in the future. By paying directly,
he took the chance Burton might again receive assistance someday,
thus exposing Green to additional liability under subsection
.120(a). His prepayment to Burton could not discharge a future
obligation Green might have to the state.
We do not think that Green's statutory liability to CSED
leads to an unfair result. He chose a course that risked premature
exhaustion of money needed to support his child. He took the
chance his child would again require AFDC. He could have, by
various measures, guaranteed that the amount he prepaid would be
available to support Becky for the full term of the court order.
By not doing so, he put her at risk and increased the risk the
state might have to pay public assistance in the future. Moreover,
even if AFDC were not involved, absent modification of the support
order, a parent who prepays arguably continues to owe the child a
support duty which the child can enforce if the obligee parent
improvidently exhausts the prepayment. The course Green chose
inherently exposed him to the danger he might have to pay more than
if he had simply paid the support in the manner the court ordered.
Finally, there is no reason to decide in this case
whether CSED's active involvement in approving or accepting a
prepayment might give the obligor other legal or equitable
defenses.
IV. CONCLUSION
For the reasons discussed above, the direct payment did
not relieve Green of his duty to reimburse the state for public
assistance paid on Becky's behalf. The only question remaining is
the amount of Green's liability. Under AS 25.27.120(a), it is
either the amount of public assistance paid, or the amount of
support required by the 1990 court order, whichever is less. We
therefore REVERSE the judgment crediting the excess payment as
child support and REMAND for calculation of the amount of Green's
liability under AS 25.27.120(a).
MATTHEWS, Chief Justice, dissenting.
Michael Green prepaid his child support obligation in
August 1990 in the sum of $39,913. Because his ordered monthly
support obligation was $625, the prepayment meant that he would be
current on his child support obligation for the next sixty-three
months (without calculating interest on prepaid balances), assuming
no change in the support amount. In January 1992 Lori Burton, the
child's mother, began collecting monthly welfare payments of $821
from the state. CSED sought reimbursement of these funds from
Green. But the superior court refused to order reimbursement
because Green was current on his child support obligation during
every month for which reimbursement was sought. I agree with this
decision for the following reasons.
Alaska Statute 25.27.120(a) limits child support
obligors' liability for welfare reimbursement to the amount payable
under their support orders. It provides:
An obligor is liable to the state in the
amount of assistance granted under AS 47.07 and AS 47.27 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 for
assistance granted under AS 47.[25.310--47.25.420] may not exceed
the amount of support provided for in the support order . . . .[
[Fn. 1]]
Although subsection .120(a) consists of only one
sentence, it does two distinct things. First, it makes a child
support obligor liable to the state for welfare payments that the
state has made on behalf of a child. ("An obligor is liable to the
state in the amount of assistance granted . . . to a child to whom
the obligor owes a duty of support . . . .") Second, the statute
limits this liability to the amount established under a child
support order. ("[I]f a support order has been entered, the
liability of the obligor . . . may not exceed the amount of support
provided for in the support order . . . .")
I interpret the limiting language of AS 25.27.120(a) to
mean that if an obligor's support obligation is current when a
welfare payment is made, the obligor is not liable to reimburse the
state for that payment. A contrary result would effectively
require the obligor to pay twice: once to the obligee and once to
the state. Such a double payment would violate AS 25.27.120(a)'s
mandate that the obligor's liability "may not exceed the amount of
support provided for in the support order."
CSED does not dispute that subsection .120(a) generally
protects obligors from double liability. Instead, it argues that
the statute only protects obligors who make their payments to CSED,
not -- as in this case -- directly to the obligee.
In my opinion, this argument lacks merit. The statute
does not provide that only payments paid through CSED are entitled
to credit when computing the "liability of the obligor for
assistance." Further, direct support payments are statutorily
sanctioned and routinely credited against an obligor's support
obligation. The only requirement is that the obligor provide clear
and convincing evidence of payment. [Fn. 2] That requirement is
met here.
Likewise, the fact that Green prepaid his support should
not disqualify him from subsection .120(a)'s protection against
double liability. No statute or regulation prohibits prepaid
support or directs that it should have different legal consequences
than support paid periodically. Our laws generally permit the
prepayment of obligations payable in installments. [Fn. 3] The
only instance of which I am aware where lump sum prepayments are
prohibited is in the area of workers' compensation. There the
prohibition is statutory and explicit. [Fn. 4] Nothing similar
exists in our child support statutes or regulations.
In summary, subsection .120(a) protects obligors who are
current on their child support obligations from liability to
reimburse the state for welfare payments made during the same
period. This protection is not lost merely because the obligor has
prepaid support payments directly to the obligee before receiving
notice of the welfare payments. I would therefore affirm the
judgment of the superior court granting credit to Green for his
prepaid support.
FOOTNOTES
Footnote 1:
"Becky"and "Lori"are pseudonyms.
Footnote 2:
See Miller v. Miller, 890 P.2d 574, 576 (Alaska 1995)
(reviewing de novo whether father was entitled to credit for social
security payments against his child support obligation).
Footnote 3:
Id. (quotations omitted).
Footnote 4:
See Boone v. Gipson, 920 P.2d 746, 748 (Alaska 1996).
Footnote 5:
See Perry v. Newkirk, 871 P.2d 1150, 1151-55 (Alaska 1994).
Footnote 6:
AS 25.27.065(c).
Footnote 7:
739 P.2d 128 (Alaska 1987).
Footnote 8:
See id. at 129.
Footnote 9:
774 P.2d 181 (Alaska 1989).
Footnote 10:
See id. at 183-84.
Footnote 11:
At times relevant here, AS 25.27.120(a) provided:
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 for assistance granted under AS 47.25.310--47.25.420
may not exceed the amount of support provided for in the support
order, and, if a medical order of support has been entered, the
liability of the obligor for assistance granted under AS 47.07 may
not exceed the amount of support provided for in the medical order
of support.
Footnote 12:
See Matthews, 739 P.2d at 1299 (holding that duty of parents
to support their children is grounded in common law and statute).
Footnote 13:
AS 47.25.345 provides:
An applicant for or recipient of assistance
under AS 47.25.310--47.25.420 is considered to have assigned to the
state, through the child support enforcement agency, all rights to
accrued and continuing support that the applicant and other persons
for whom assistance is sought may have from all sources. The
assignment takes effect upon a determination that the applicant is
eligible for assistance under AS 47.25.310--47.25.420. Except with
respect to the amount of any unpaid support obligation accrued
under the assignment, the assignment terminates when the applicant
ceases to receive assistance.
Footnote 14:
AS 47.25.345.
Footnote 15:
Id.
Footnote 16:
See, e.g., Eston v. Aman, 847 S.W.2d 902 (Mo. App. 1993)
(holding that father's obligation to reimburse state for AFDC is
not extinguished by mother's settlement with father of child
support arrearages claim); State v. T.D.G., 861 P.2d 990 (Okla.
1993) (holding that contract between mother and putative father was
void against public policy and thus did not prevent state from
establishing support obligations).
See also AS 25.27.065(b), which makes ineffective, while
the obligee parent is receiving public assistance, an agreement to
waive future child support when the right to receive child support
"has been assigned to a government entity,"unless the agreement
has been adopted by an administrative order of the agency.
Footnote 17:
In a related context, we decline to allow the parties to enter
into child support agreements that deviate from the requirements of
Civil Rule 90.3 without court approval, to avoid prejudicing the
child. See Alaska R. Civ. P. 90.3(c)(1); Cox v. Cox, 776 P.2d
1045, 1048 (Alaska 1989). See also Richmond v. Pluid, 925 P.2d
251, 254 (Alaska 1996) (holding that child support waivers are not
valid or enforceable until and unless court has reviewed and
approved their substantive adequacy under Civil Rule 90.3); Nix v.
Nix, 855 P.2d 1332, 1334 (Alaska 1993) (holding that letter from
mother partially waiving father's child support obligation was
ineffective absent court approval).
Footnote 18:
503 N.W.2d 391 (Iowa 1993).
Footnote 19:
See id. at 392.
Footnote 20:
See id.
Footnote 21:
See id. at 392.
Footnote 22:
877 P.2d 7 (Kan. App. 1994).
Footnote 23:
See id. at 10.
Footnote 24:
734 P.2d 330 (Okla. App. 1987).
Footnote 25:
See id. at 333; see also Dycus v. Cross, 869 S.W.2d 745, 750-
51 (Mo. 1994) (holding that settlement agreement, which provided
that neither parent would be liable to other for child support, did
not relieve father of liability for reimbursement for AFDC payments
made to mother after settlement).
Footnote 26:
AS 25.27.020(b) provides:
In determining the amount of money an obligor
must pay to satisfy the obligor's immediate duty of support, the
agency shall consider all payments made by the obligor directly to
the obligee or to the obligee's custodian before the time the
obligor is ordered to make payments through the agency. After the
obligor is ordered to make payments through the agency, the agency
may not consider direct payments made to the obligee or the
obligee's custodian unless the obligor provides clear and
convincing evidence of the payment.
Footnote 27:
AS 25.27.020(b).
Footnote 28:
AS 25.27.020(b).
Footnote 29:
AS 25.27.120(a).
Footnote 30:
See State, Bd. of Marine Pilots v. Renwick, 936 P.2d 526, 531
(Alaska 1997); Whaley v. State, 438 P.2d 718, 722 (Alaska 1968)
("[T]he well settled rule . . . requires courts to give
consideration and respect to the contemporaneous construction of a
statute by those charged with its administration, and not to
overrule such construction except for weighty reasons.").
Footnote 31:
AS 25.27.065(b) reflects that policy.
Footnote 32:
15 AAC 125.110(b) provides:
An obligor may make child support payments
through the agency after making written application for this
purpose. Payments exceeding the obligor's immediate support duty
will be applied toward satisfaction of arrearages. If money is
available after satisfying arrearages, the agency will disburse the
remaining money in accordance with the written instructions of the
obligor. If the obligor does not provide written instructions or if
more money is available for disbursement than provided for in the
written instructions, the money will be applied toward the
obligor's future duty of support established in the superior court
order, notice and finding of financial responsibility, or hearing
officer's decision.
Footnote 33:
45 C.F.R. 302.51(b)(5) provides: "If the amount collected is
in excess of the amounts required to be distributed under
paragraphs (b)(1) through (4) of this section, such excess shall be
paid to the family."
Footnote 34:
Dissent at 21.
Footnote 35:
AS 25.27.120(a).
FOOTNOTES (Dissent)
Footnote 1:
AS 25.27.120(a) (emphasis added).
Footnote 2:
As CSED, citing AS 25.27.020(b) and CSED Policy 8071.4,
states: "When the money is owed to the custodial parent, CSED gives
credit for direct payments if the obligor provides clear and
convincing evidence of the payments."
Footnote 3:
Indeed, penalties for prepayment are prohibited in a variety
of contexts. See, e.g., AS 45.45.010(g) (mortgages on dwellings);
AS 45.10.070(a) (retail installment sales).
Footnote 4:
See AS 23.30.012 (requiring Board approval for lump sum
settlements).
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