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State, Child Support Enforcement Division v. Bromley (9/17/99) sp-5180
State, Child Support Enforcement Division v. Bromley (9/17/99) sp-5180
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, CHILD )
SUPPORT ENFORCEMENT DIVISION, ) Supreme Court Nos. S-7833/7883
)
Appellant and ) Superior Court No.
Cross-Appellee, ) 4FA-96-117 CI
)
v. ) O P I N I O N
)
KEITH W. BROMLEY, ) [No. 5180 - September 17, 1999]
)
Appellee and )
Cross-Appellant. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: Scott Davis, Assistant Attorney
General, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellant/
Cross-Appellee. Bret D. Cook, Cook, Schuhmann
& Groseclose, Inc., Fairbanks, for Appellee/
Cross-Appellant.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
FABE, Justice.
I. INTRODUCTION
This appeal and cross-appeal arise out of a dispute over
child support payments. Keith Bromley argues that he is entitled
to a refund from the Child Support Enforcement Division (CSED)
because CSED acted outside its authority in establishing his
support obligation. He also contends that in modifying his child
support obligation, the superior court should have applied
Pennsylvania law instead of Alaska law because his child lives in
Pennsylvania. Because Bromley is precluded from contesting whether
CSED acted in excess of its subject matter jurisdiction, we hold
that its decision must stand and that Bromley is not entitled to a
refund on that basis. We further hold that the superior court
properly decided to apply Alaska law in modifying Bromley's support
obligation.
In its appeal, CSED contends that although the superior
court correctly decided to apply Alaska law in modifying Bromley's
support obligation, it improperly decided to vary from the Alaska
Civil Rule 90.3 formula for determining child support. Because we
conclude that the superior court was not justified in departing
from the formula and that Bromley's request for modification based
on the order's lack of validity was in essence a collateral attack
on the 1993 order, we reverse and remand.
II. FACTS AND PROCEEDINGS
In October 1985 Keith W. Bromley and Patricia G. Marlar
were divorced by judgment of the Maine District Court. The court
awarded primary physical custody of the couple's one child, Shane
(d/o/b 3/21/84), to Marlar, and ordered Bromley to pay $215 a month
in child support. In June 1986 the Maine court amended the divorce
judgment, increasing Bromley's child support obligation to $315 a
month. Following the divorce, Marlar moved with Shane to
Pennsylvania and Bromley relocated to Alaska. Neither Marlar nor
Shane has ever lived in Alaska.
In August 1992 the State of Pennsylvania asked the Alaska
CSED to establish a child support order for Shane. CSED issued a
notice and finding of financial responsibility in October 1992.
Following an informal conference in November 1992, CSED established
Bromley's child support obligation at $695 a month. Bromley
appealed on several grounds, but in January 1993 a senior revenue
hearing officer of the Alaska Department of Revenue upheld CSED's
support calculation. Although Bromley was entitled to appeal that
decision to the superior court within thirty days, he did not do
so. Thereafter, Bromley made the support payments established by
CSED.
Three years later, in January 1996, Bromley registered
the Maine child support order in the superior court pursuant to AS
25.25.601. CSED responded that it did not oppose enforcement or
prospective modification of the Maine child support order, but that
it would object to any attempt to modify the finding of financial
responsibility retroactively. CSED then moved to modify Bromley's
child support obligation. It contended that under Alaska Civil
Rule 90.3(a)(2)(A), Bromley's child support obligation should be
twenty percent of his income, or $840 a month.
Bromley opposed the motion, arguing that his support
obligation should be calculated under the law of the child's home
state, Pennsylvania. In the alternative, he argued that CSED's
calculation under Rule 90.3 was erroneous and that his obligation
under the rule would only be $795 a month. Bromley also moved for
a credit or refund of "funds wrongfully collected"by CSED,
insisting that CSED's establishment in 1993 of child support was
"void ab initio." CSED opposed this motion.
Following a hearing, Superior Court Judge Ralph R.
Beistline granted CSED's motion to modify. But instead of
increasing Bromley's child support obligation, the court decreased
it. Applying Alaska law, the court found that unusual
circumstances under Rule 90.3(c)(1)(A), including the fact that
CSED's establishment of the support obligation was "in excess of
its statutory authority,"justified a downward departure from the
Rule 90.3(a) formula for determining child support. It decreased
Bromley's support obligation to $527 a month, which it asserted was
approximately the amount Bromley would owe under Pennsylvania law.
The court denied Bromley's motion for a credit or refund. CSED
sought reconsideration of the modification order, arguing that the
superior court misapplied Rule 90.3. The superior court granted
reconsideration, but did not alter its order.
CSED appeals the superior court's departure from the Rule
90.3(a) formula, and Bromley appeals its denial of his motion for
a credit or refund and its decision not to apply Pennsylvania law
in modifying the Maine support order.
III. DISCUSSION
A. Bromley Is Not Entitled to a Refund of Payments Made in
Excess of the Maine Order.
We begin by analyzing Bromley's arguments on cross-
appeal. He argues that he is entitled to a refund of child support
payments made in excess of the Maine order because CSED's
establishment of his child support obligation in 1993 was void ab
initio. In the alternative, Bromley contends that retroactive
application of our decision in State, Department of Revenue v.
Dunning entitles him to a refund. These arguments present
questions of law, which we review de novo. We will "adopt the
rule of law that is most persuasive in light of precedent, reason,
and policy."
1. Voidness
Relying on our decision in Dunning, Bromley first
maintains that CSED had no authority to establish a child support
order in 1993 because the Maine order already existed. He equates
this lack of authority with a lack of subject matter jurisdiction
and contends that decisions made in excess of jurisdiction are void
ab initio. He therefore concludes that he is entitled to a refund
of his payments made in excess of the Maine order.
We must determine whether CSED's establishment of child
support was void. A decision made by a tribunal lacking subject
matter jurisdiction may be considered void. Thus, if CSED lacked
subject matter jurisdiction over Bromley's child support
obligation, then its decision could be set aside as void. But not
all decisions made by a forum lacking in subject matter
jurisdiction can be contested by a party who participated in the
proceedings before the forum. We have previously looked to the
Restatement (Second) of Judgments for guidance in determining when
a decision can be collaterally attacked on a claim of lack of
subject matter jurisdiction. It provides that "[a] judgment may
properly be rendered against a party only if the [tribunal] has
authority to adjudicate the type of controversy involved in the
action." As we observed in Colville Environmental Services, Inc.
v. North Slope Borough, section 12 of the Restatement states that
a tribunal's subject matter jurisdiction in a contested proceeding
cannot be contested in later litigation unless:
(1) The subject matter of the action was so
plainly beyond the [tribunal's] jurisdiction
that its entertaining the action was a
manifest abuse of authority; or
(2) Allowing the judgment to stand would
substantially infringe the authority of
another tribunal or agency of government; or
(3) The judgment was rendered by a [tribunal]
lacking capability to make an adequately
informed determination of a question
concerning its own jurisdiction and as a
matter of procedural fairness the party
seeking to avoid the judgment should have
opportunity belatedly to attack the
[tribunal's] subject matter jurisdiction.[ ]
In this case, none of the three requirements is
satisfied. First, establishment of a child support decree is not
plainly beyond CSED's jurisdiction. In fact, the legislature
established CSED in part to "establish, enforce, and administer
child support obligations administratively under this chapter."
Second, even if CSED exceeded its statutory authority, it did not
infringe upon another agency's authority or "seriously distur[b]
the distribution of governmental powers." The authority of the
Maine court was not substantially infringed upon because, when CSED
acted, none of the parties resided in Maine. Thus, under section
611 of the Uniform Interstate Family Support Act, the Maine order
was subject to modification in another jurisdiction. Third,
nothing suggests that CSED was unable to make an informed decision
about its jurisdiction. The commentary to the Restatement explains
that if "fair opportunity is available to contest subject matter
jurisdiction in the [tribunal] whose jurisdiction is in question"
and "the rules afford opportunity for appellate review,"then the
finality of a decision is generally recognized. In establishing
the child support order in this case, CSED entertained Bromley's
argument that it did not have the "ability"to establish a child
support order. Furthermore, CSED informed Bromley of his right to
appeal its decision to the superior court within thirty days.
Bromley, however, did not exercise this right. In consideration of
these factors, we conclude that Bromley cannot challenge CSED's
subject matter jurisdiction in this case.
This holding is consistent with our decision in
Dunning.
That case involved a similar factual background. But Dunning
directly appealed the CSED determination with which he disagreed
rather than bringing a collateral attack. The superior court held
that CSED did not have "the power to create an independent order of
a different amount against an in-state obligor when there is an
existing out-of-state child support court order." It therefore
concluded that "CSED proceeded in excess of its statutory
jurisdiction,"and reversed CSED's child support order. Our
initial decision in Dunning, which we later withdrew, simply
adopted and appended the trial court's decision.
CSED then moved for clarification. In anticipation of
challenges precisely like Bromley's, CSED asked us to clarify
whether we "intended to equate CSED's lack of statutory authority
with a court's lack of subject matter jurisdiction." It explained
that "[i]f so, the 1,000+ such administrative orders CSED has
entered under its presumed authority may be void. If those orders
are void, obligors will raise difficult questions regarding
possible refund of monies collected pursuant to those orders and
forwarded to custodial parents."
We granted CSED's motion, withdrew our decision, and
reissued the decision with a new footnote:
We agree with Judge Wood's opinion in all
respects except for his use of "jurisdiction"
and "statutory jurisdiction"in Section III.B.
and IV. of his opinion. We disapprove of such
phraseology. The appropriate terminology is
"statutory authorization"or "authority."[ ]
Although "authority"and "jurisdiction"are terms that can be used
interchangeably, the differentiation which we made in the new
footnote at least suggests that the CSED error was not such a
serious one that it could be regarded as "plainly beyond the
court's jurisdiction"or a "manifest abuse of authority." We
conclude, based on the foregoing reasons, that Bromley may not
contest in this collateral proceeding the validity of the 1993
decision. Bromley therefore is not entitled to a refund from CSED
on this basis.
2. Retroactivity
Bromley argues that even if we do not conclude that
CSED's 1993 order was void ab initio, we should give Dunning
retroactive effect. He presumably believes that if Dunning is
applied retroactively, he will be entitled to a refund of his child
support payments made in excess of the Maine order.
Essentially, Bromley seeks retroactive modification of
his child support obligation. But we have held that absent special
circumstances not present in this case, "courts may not
retroactively modify support orders." As we explained in Hendren
v. State, Department of Revenue, retroactive modification is
allowed only where it is explicitly permitted by statute. Because
retroactive modification is not statutorily authorized under the
circumstances of this case, we conclude that Bromley is not
entitled to a refund of any payments allegedly made in excess of
the Maine order.
B. Alaska Law Controls Bromley's Child Support Obligation.
We must next determine which state's law governs the 1996
modification of Bromley's child support obligation. This issue
presents a question of law, that we review de novo. Bromley
contends that because Pennsylvania has the closest connection to
Shane, its law should apply. CSED counters that the Uniform
Interstate Family Support Act (UIFSA) requires application of
Alaska law.
UIFSA took effect in Alaska on January 1, 1996,
replacing the Uniform Reciprocal Enforcement of Support Act. One
of UIFSA's governing principles is that in every case only one
child support order will exist at a time. To this end, UIFSA
provides that a state that issues a child support order has
"continuing, exclusive jurisdiction"over the order "as long as
[that] state remains the residence of the obligor, the individual
obligee, or the child for whose benefit the support order is
issued." Additionally, the issuing state's law "governs the
nature, extent, amount, and duration of current payments and other
obligations of support and the payment of arrearages under the
order." Maine was the issuing state. Thus, so long as Bromley,
Marlar, or Shane remained a resident of Maine, it retained
continuing, exclusive jurisdiction and another state could not
modify its order. But a tribunal may modify another state's
existing child support order if certain conditions are met.
Specifically, under AS 25.25.611(a)(1), if another state's order
has been registered in Alaska, then Alaska may modify it if three
conditions are satisfied:
(A) the child, the individual obligee, and
the obligor do not reside in the issuing
state;
(B) the petitioner who is not a resident of
this state seeks modification; and
(C) the respondent is subject to the personal
jurisdiction of the tribunal of this state.
Where these requirements are satisfied, the "modifying tribunal
assumes continuing, exclusive jurisdiction over the only operative
child support order." In this case, the three conditions are
satisfied: Bromley, Marlar, and Shane no longer reside in Maine,
the issuing state; Marlar, who is not a resident of Alaska, seeks
modification through CSED; and Bromley is subject to the personal
jurisdiction of CSED, the tribunal in Alaska. Thus, under AS
25.25.611(a)(1), the superior court may modify the Maine child
support order and assume continuing, exclusive jurisdiction over
the child support order in this case.
This analysis, however, does not resolve the question of
which state's law CSED should use in modifying the child support
order. Once Alaska has continuing, exclusive jurisdiction over the
order, should the court apply Alaska, Maine, or Pennsylvania law?
We answer this question by considering the relevant provisions of
Alaska's version of UIFSA. Alaska Statute 25.25.611(b) provides
that an order issued in another state is modified as if it had been
issued by an Alaska tribunal:
Modification of a registered child support
order is subject to the same requirements,
procedures, and defenses that apply to the
modification of an order issued by a tribunal
of this state and the order may be enforced
and satisfied in the same manner.
We read the use of the term "requirements"to mean that Alaska
substantive law applies when Alaska assumes exclusive jurisdiction
to modify a child support order.
Although this language might be interpreted to mean that
Alaska's procedural rules, but not substantive law, should apply in
such a modification proceeding, several sources support our
construction. The official comment to UIFSA 611 explains that
when a state has modification jurisdiction, as Alaska does in this
case, its substantive law applies: "[I]f the forum has
modification jurisdiction because the issuing state has lost
continuing, exclusive jurisdiction, the proceedings will generally
follow local law with regard to modification of child support
orders." Thus, the commentary clarifies that modification of
Bromley's child support obligation should follow Alaska law.
Consistent with this view, the Oregon Court of Appeals, the only
court we are aware of that has squarely addressed this issue, has
interpreted UIFSA 611(b) to mean that "[o]nce an Oregon court
acquires jurisdiction over the foreign support order in accordance
with [ 611(a)], it is to apply Oregon law to determine the proper
amount of the child support."
More importantly, AS 25.25.303, which is virtually
identical to UIFSA 303, directs CSED to apply Alaska "procedural
and substantive law,"including the rules on choice of law and to
"determine the duty of support and the amount payable under the law
and support guidelines of this state"when acting as a responding
tribunal. The official commentary to this UIFSA section
emphasizes that application of forum law "continues as a key
principle of UIFSA." As the commentary explains, this principle
is based primarily on efficiency concerns: "To insure the
efficient processing of the huge number of interstate support
cases, it is vital that decision-makers apply familiar rules of
local law to the maximum degree possible." Because CSED acted as
a responding tribunal in this case, 303, like 611, indicates
that the superior court appropriately applied Alaska law to
modification of Bromley's child support order.
We also consider AS 25.25.604, UIFSA's choice of law
provision, which "identifies situations in which local law is
inapplicable." Because 604 defines when a state may diverge
from local law, and because 303 provides that local law applies
"[e]xcept as otherwise provided by [UIFSA],"these sections, read
together, imply that forum law applies in all circumstances not
expressly identified by UIFSA. The commentary to 604 reinforces
this interpretation; it states that "[a]bsent a loss of continuing,
exclusive jurisdiction and a subsequent modification of the order,
the [issuing state's] order never becomes 'an order of the
responding state.'" Conversely, once the issuing state has lost
continuing, exclusive jurisdiction, as Maine has in this case, its
order presumably becomes an order of the responding state, Alaska,
and Alaska law applies.
The report to Congress of the United States Commission on
Interstate Child Support also supports the view that local law
applies when a state assumes jurisdiction to modify a child support
order. The Commission, which Congress created in 1988 to recommend
"how to improve the interstate establishment and enforcement of
child support awards," favored a system under which the modifying
jurisdiction's law would apply in modification proceedings. In
its report to Congress, the Commission noted that it had heard
testimony advocating a variety of approaches to deciding which
state's law to apply in such proceedings: Some witnesses testified
that the law most advantageous to the child should govern, others
testified that the law where the obligor resides should govern, and
still others testified that the law where the child resides should
govern. The Commission ultimately recommended "that the
procedural and substantive law of the forum state should govern in
establishment and modification proceedings,"citing the "ease and
efficiency of application of local law by decision-makers"as an
important consideration. As discussed above, the official UIFSA
commentary echoes this concern for efficiency.
Consideration of UIFSA's 611(b), 604, and especially
AS 25.25.303, thus compels our conclusion that when an Alaska
tribunal assumes continuing, exclusive jurisdiction of a child
support order under AS 25.25.611 for the purpose of modification,
it should apply Alaska law to determine the appropriate amount of
child support. Therefore, the superior court did not err by
applying Alaska law to the modification of Bromley's child support
obligation.
C. The Superior Court Erred by Departing from Rule 90.3(a).
Because we conclude that it was appropriate for the
superior court to apply Alaska law in modifying Bromley's child
support obligation, we turn next to CSED's argument that the
superior court erred by varying from the Rule 90.3 formula for
determining child support. CSED claims that the superior court
erred in departing from the rule because Bromley never sought a
variance from the rule or presented evidence to justify such a
variance and because principles of finality bar Bromley's attack on
the child support order. "Whether the trial court used the correct
method of calculating child support is a matter of law, therefore
we give no deference to the trial court's decision."
Under Rule 90.3, in the case of sole or primary physical
custody of one child, the trial court must determine the non-
custodial parent's adjusted annual income and multiply it by twenty
percent to calculate the child support award. The court may vary
the award, however, "for good cause upon proof by clear and
convincing evidence that manifest injustice would result if the
support award were not varied." "It may do so only after the most
careful scrutiny of the facts in the particular case." Rule
90.3(c)(1)(A) states that good cause to vary from the rule includes
findings of "[u]nusual circumstances." Although the meaning of
"good cause"depends on the context in which it is used, it "must
focus first and foremost on the needs of the children."
The superior court found that Bromley established by
clear and convincing evidence "that manifest injustice would result
if the formula of 90.3(a) were strictly adhered to." In concluding
that "unusual circumstances exist here which require variation"
from Rule 90.3, the superior court made the following findings:
1. Mr. Bromley has never been in arrears and
has cooperated fully with CSED in ensuring
Shane's needs have been met.
2. For over three years Mr. Bromley has made
support payments which CSED had established in
excess of its statutory authority.
3. Shane has never lived in Alaska. Ms.
Marlar has never lived in Alaska.
Pennsylvania has a lower cost of living than
Alaska.
4. There is no evidence to show that Shane's
reasonable needs have not been met or that any
state has incurred costs related to him. This
is true even under the former Maine order
which fixed support at $315 a month.
5. The formula in Rule 90.3(a) was intended
to address the percentage of a non-custodial
parent's income which should be paid to meet a
child's reasonable expenses while living in
Alaska. While relocation of a custodial
parent out of Alaska will not normally justify
a reduction in support, evidence that the
custodial parent and the child have never
lived in Alaska would justify a departure.
Given these findings, the superior court set Bromley's child
support obligation at the level that it believed would be
appropriate under Pennsylvania's child support guidelines:
The state of Pennsylvania, where Shane
resides, has determined that approximately 15%
of the non-custodial parent's income should go
to meet the reasonable expenses of a child in
Pennsylvania. This Court feels that Alaska
law permits it to set Mr. Bromley's support
obligation at $527 a month. This figure
represents approximately 15% of Mr. Bromley's
income and will adequately meet the needs of
his son, Shane.
In our view, this departure from the Rule 90.3 formula
was not justified. We will address the superior court's
justifications for varying from the formula in turn.
First, the superior court found that Bromley has never
been in arrears in his support payments and has cooperated with
CSED. But compliance with a support order, while laudable, does
not represent an unusual circumstance justifying departure from
Rule 90.3.
Second, the superior court noted that Bromley had made
payments set by CSED in excess of its statutory authority.
Although overpayment might justify a variance from Rule 90.3's
child support calculation formula in some circumstances, we need
not reach the question of whether the court here properly granted
a variance based on overpayment because we agree with CSED that
Bromley's overpayment argument was barred by principles of
finality.
Whether principles of finality apply to a judgment is a
question of law that we review de novo. Res judicata (claim
preclusion) prevents relitigation of claims that already have or
should have been decided in previous lawsuits: "Once a judgment on
the merits of a controversy has been entered, res judicata bars
subsequent actions between the same parties on the same claim or on
claims that were required to be brought in the original
proceeding." The related doctrine of collateral estoppel (issue
preclusion) prevents relitigation of an issue already litigated and
decided, barring relitigation where:
(1) the party against whom the preclusion is
employed was a party to or in privity with a
party to the first action; (2) the issue
precluded from relitigation is identical to
the issue decided in the first action; (3) the
issue was resolved in the first action by a
final judgment on the merits; and (4) the
determination of the issue was essential to
the final judgment.[ ]
Both finality doctrines aim to prevent parties from "again and
again attempt[ing] to reopen a matter that has been resolved by a
court of competent jurisdiction." Principles of finality may be
applied to the decisions of administrative agencies if, after case-
specific review, a court finds that the administrative decision
resulted from a procedure "that seems an adequate substitute for
judicial procedure" and that it would be fair to accord preclusive
effect to the administrative decision.
We apply finality principles slightly differently in the
context of child support enforcement. In Bunn v. House, we noted
that Rule 90.3(1)'s modification procedure "provides an exception
to the general principle that final judgments should not be
disturbed" and declined to articulate finality principles in
preclusion terms. But we emphasized the importance of finality:
Some courts articulate [statutory modification
procedures] in terms of res judicata. That
is, they hold that a child support decree is
res judicata unless and until there is a
material change of circumstances which opens
the door to modification. While we believe
that such motions to modify child support,
under Alaska law, do not technically raise res
judicata concerns, the principle of finality
is a good one . . . . A party should not be
allowed to relitigate the same facts in the
hope of gaining a more favorable result.[ ]
Applied to Bromley's case, we believe that it is fair to afford
preclusive effect to the administrative tribunal's 1993 child
support determination.
"[B]efore the trial court may modify a child support
order under Rule 90.3(h)(1), the moving party must allege and prove
a material change in circumstances. Absent changed circumstances,
the sound principle of finality requires the order to be treated as
final." Bromley and CSED agree that, because the existing Maine
order was calculated based upon Bromley's 1986 income, a material
change in circumstances existed in 1996 to justify modification of
the support order. But Bromley's 1996 arguments in favor of
modification and his "Motion for Credit and/or Refund"sought more
than an updated calculation. Rather, Bromley sought to obtain a
"refund of funds wrongfully collected"pursuant to the 1993
administrative modification of his child support obligation.
Although it rejected Bromley's motion for a refund, the
superior court in effect accepted Bromley's reasoning when the
court granted Bromley a variance from Rule 90.3's guidelines
because "[f]or over three years Mr. Bromley has made support
payments which CSED had established in excess of its statutory
authority." This rationale -- that Bromley should pay less now
because he paid too much before -- indicates that Bromley's request
for modification functioned as a collateral attack upon the 1993
decision. This reasoning also seems to indicate that Bromley asked
for and received a retroactive modification of his 1993 support
order, which is generally prohibited under both federal and Alaska
law.
We have noted that "[h]owever denominated, a claim is
functionally an administrative appeal if it requires the court to
consider the propriety of an agency determination." Bromley's
claim is properly considered an untimely appeal "because a court
could grant the relief he seeks . . . only if it determined that
the [agency's] prior decision was erroneous." When the superior
court granted Bromley a variance, it did so not because Bromley's
circumstances had changed, but because it believed that CSED's 1993
decision was erroneous.
In January 1993 a hearing officer rejected Bromley's
claim that CSED was without authority to alter the Maine order. At
that time, the agency informed Bromley of his right to appeal the
decision within thirty days. Bromley failed to do so, instead
waiting three years to challenge the hearing officer's decision.
Bromley's 1996 motions simply restated his earlier allegations
that CSED was without authority to modify the Maine order. The
motion for a credit even noted that CSED's "administrative
modification was upheld at the hearing even though Bromley
questioned the ability of CSED to administratively modify his child
support obligation."
The fact that an administrative tribunal has already
addressed the merits of Bromley's claims indicates that the proper
forum for these allegations is not a motion to modify filed three
years after a hearing officer rejected his claims. Rather, Bromley
should have appealed. Having foregone the chance to file a timely
appeal, Bromley was not entitled "to relitigate the same facts in
the hope of gaining a more favorable result." Accordingly, the
superior court's second rationale does not support granting Bromley
a variance.
Third, the court found that Shane has never lived in
Alaska and that Pennsylvania has a lower cost of living than
Alaska. Although it is true that Shane has never lived in Alaska,
nothing in the record supports the court's finding that
Pennsylvania has a lower cost of living. Furthermore, the
commentary to Rule 90.3 indicates that another state's lower cost
of living does not warrant decreasing child support:
The relocation of the custodial parent to a
state with a lower cost of living normally
will not justify a reduction in support. The
level of Alaska's guidelines is comparable to
the national average. The fact that the
obligor parent's income has in effect
marginally increased relative to the
children's living expenses simply enables the
children to be supported at a slightly higher
level.[ ]
Although we have not adopted or approved the commentary, we often
rely upon it "for guidance in child support matters." In this
case, it aids our determination that Pennsylvania's cost of living,
even if lower than Alaska's, is not the kind of unusual
circumstance contemplated by Rule 90.3(c) as justifying a downward
departure.
Fourth, the court found that there was no evidence to
show that Shane's reasonable needs had not been met. We have
expressly rejected the argument that "an increase in the support
award is not warranted because the children's needs are being met
at the current level of support." "This argument runs counter to
the premise of Rule 90.3"because "[a]n obligor parent who
experiences an increase in income cannot avoid paying additional
support merely by showing that the children's needs are being met
by an existing support award." To the contrary, the commentary
to Rule 90.3 explains that "[t]he rule operates on the principle
that as the income available to both parents increases, the amount
available to support the children also will increase." Given that
Bromley's income had increased, the superior court was not
justified in lowering his support obligation from $695 to $527 a
month.
Fifth, the court justified departure from the Rule 90.3
formula on the ground that Marlar and Shane have never lived in
Alaska. The court offered no explanation why this circumstance
justified departure from Rule 90.3 or made its application unjust.
And as discussed above, the fact that the custodial parent and
child live in another state with a lower cost of living does not
justify a reduction in support.
Finally, Rule 90.3(c)(1)(A) requires a court varying from
the formula provided in the rule to consider the custodial parent's
income. In this case, however, the superior court made no
reference to Marlar's income. In sum, departure from the Rule 90.3
formula for determining the amount of Bromley's child support
obligation was not justified.
IV. CONCLUSION
We conclude that Bromley is not entitled to a refund from
CSED for past child support payments. We further hold that the
superior court did not err in deciding to apply Alaska law to the
modification of Bromley's child support obligation. We therefore
AFFIRM the superior court's decisions on these issues. But because
we conclude that the superior court erred by departing from the
Rule 90.3 formula for determining child support, we REVERSE and
REMAND for a child support determination consistent with Rule 90.3
and this opinion.
AS 25.25.601 provides:
Registration of order for enforcement. A
support order or an income withholding order
issued by a tribunal of another state may be
registered in this state for enforcement.
907 P.2d 1 (Alaska 1995).
See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Id.
See Perry v. Newkirk, 871 P.2d 1150, 1153 n.5, 1157
(Alaska 1994).
See, e.g., id.; Colville Envtl. Servs., Inc. v. North
Slope Borough, 831 P.2d 341, 345 (Alaska 1992).
Restatement (Second) of Judgments 11 (1982).
831 P.2d at 345-46 (quoting Restatement (Second) of
Judgments 12 (1982)).
AS 25.27.020(a)(4).
Restatement (Second) of Judgments 12 cmt. d (1982).
See AS 25.25.611(a)(1); Unif. Family Support Act 611
commentary, 9 U.L.A. 396 (Supp. 1998).
Id. at cmt. e; see also Wall v. Stinson, ___ P.2d ___,
Op. No. 5142 (Alaska, July 23, 1999).
907 P.2d 1 (Alaska 1995).
Id. at 4.
Id. at 7.
Id. at 2 n.1.
See Restatement (Second) of Judgments 11.
Hendren v. State, Dep't of Revenue, 957 P.2d 1350, 1352
(Alaska 1998).
See id.
See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
AS 25.25.101-.903.
See Ch. 57, 28, SLA 1995.
Former AS 25.25.010-.100 (repealed by Ch. 57, 21, SLA
1995).
See, e.g., Unif. Interstate Family Support Act 201
commentary, 9 U.L.A. 345 (Supp. 1998) (describing UIFSA's "new one-
order regime"); Patricia Wick Hatamyar, Critical Applications and
Proposals for Improvement of the Uniform Interstate Family Support
Act and the Full Faith and Credit for Child Support Orders Act, 71
St. John's L. Rev. 1, 4 (1997).
AS 25.25.205(a)(1).
AS 25.25.604(a).
See Unif. Interstate Family Support Act 611 commentary,
9 U.L.A 396 (Supp. 1998).
Id. at 397.
Id. at 398.
In re Marriage of Cooney, 946 P.2d 305, 307 (Or. App.
1997).
AS 25.25.303(1).
AS 25.25.303(2). In its entirety, AS 25.25.303 provides:
Application of law of this state. Except as
otherwise provided by this chapter, a
responding tribunal of this state shall
(1) apply the procedural and substantive law,
including the rules on choice of law,
generally applicable to similar proceedings
originating in this state and may exercise all
powers and provide all remedies available in
those proceedings; and
(2) determine the duty of support and the
amount payable under the law and support
guidelines of this state.
Unif. Interstate Family Support Act 303 commentary, 9
U.L.A. 360 (Supp. 1998).
Id.
AS 25.25.604 provides:
(a) The law of the issuing state governs the
nature, extent, amount, and duration of
current payments and other obligations of
support and the payment of arrearages under
the order.
(b) In a proceeding for arrearages, the
statute of limitation under the laws of this
state or of the issuing state, which is
longer, applies.
Unif. Interstate Family Support Act 604 commentary, 9
U.L.A. 390 (Supp. 1998).
Id.
United States Commission on Interstate Child Support,
Supporting Our Children: A Blueprint for Reform xii (1992).
See id. at 91-92.
See id. at 91.
Id. at 91-92.
See Unif. Interstate Family Support Act 303 commentary,
9 U.L.A. 360 (Supp. 1998).
Turinsky v. Long, 910 P.2d 590, 594 n.10 (Alaska 1996).
See Alaska R. Civ. P. 90.3(a)(1), (2)(A).
Alaska R. Civ. P. 90.3(c)(1).
Coats v. Finn, 779 P.2d 775, 777 (Alaska 1989).
Alaska R. Civ. P. 90.3(c)(1)(A).
Doyle v. Doyle, 815 P.2d 366, 373 (Alaska 1991)
(quotation and citation omitted); see also Coats, 779 P.2d at 777
(observing that good cause exists to deviate from the formula when
the formula produces an award that substantially exceeds or falls
short of the amount needed to provide for the child's reasonable
needs).
See Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631,
633 (Alaska 1999).
Id. at 633; see also Jackinsky v. Jackinsky, 894 P.2d
650, 654 (Alaska 1995).
Jackinsky, 894 P.2d at 654.
Engebreth v. Moore, 567 P.2d 305, 307 (Alaska 1977).
Holmberg v. State, Div. of Risk Management, 796 P.2d 823,
825 (Alaska 1990) (citation omitted).
See Johnson v. Alaska Dep't of Fish and Game, 836 P.2d
896, 908-09 (Alaska 1991).
934 P.2d 753 (Alaska 1997).
Id. at 757.
Id. at 757-58 (citations, quotations, and footnote
omitted).
Rusenstrom v. Rusenstrom, ___ P.2d ___, Op. No. 5130 at
13 (Alaska, June 4, 1999).
See 42 U.S.C. 666(a)(9); Alaska Civil Rule 90.3(h)(2);
Boone v. Gipson, 920 P.2d 746, 749-51 (Alaska 1996).
Hayes v. State, Commercial Fisheries Entry Comm'n, 746
P.2d 892, 893 (Alaska 1987).
Id.
Bunn, 934 P.2d at 758.
Alaska R. Civ. P. 90.3, Commentary VI.B.4.
Bunn v. House, 934 P.2d 753, 755 n.7 (Alaska 1997)
(citations omitted).
Berkbigler v. Berkbigler, 921 P.2d 628, 631 (Alaska
1996).
Id.
Alaska R. Civ. P. 90.3, Commentary II.
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