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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Whah v. Whah (8/23/2002) sp-5612

Whah v. Whah (8/23/2002) sp-5612

     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,


MARY C. WHAH,                 )
                              )    Supreme Court No. S-10171
             Appellant,            )
                              )    Superior Court No. 3AN-94-7981
     v.                       )
                              )    O P I N I O N
ANDREW WHAH,             )
                              )    [No. 5612 - August 23, 2002]
             Appellee.             )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Eric T. Sanders, Judge.

          Appearances:  Jody A. Reausaw, Law Office  of
          Jody  A.  Reausaw, Anchorage, for  Appellant.
          Ryan R. Roley, Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Bryner,  and Carpeneti, Justices.  [Matthews,
          Justice, not participating.]

          EASTAUGH, Justice.


          I.   Andrew Whah, whose child was then receiving Children's

Insurance  Benefit (CIB) payments, agreed to entry of an  October

1994  order requiring him to pay monthly child support  of  $896.

In  1998  he sought a child support credit for the CIB  payments.

Mary  Whah argued in opposition that Andrew had waived any credit

in his August 1994 handwritten note stating that he knew he might

be  entitled  to a credit for the CIB payments, but also  stating

that  "I  agree  to pay the whole amount."  The  superior  court,

citing  Miller v. Miller,1 ruled that Andrew was entitled to  the

          credit.  We reverse and remand because we cannot tell whether the

court  considered Mary's waiver argument, or rejected it  on  its

merits despite unresolved potentially material factual disputes.


          Andrew  and  Mary Whah married in 1965.  They  filed  a

petition to dissolve their marriage in September 1994.  They  had

one  minor  child,  Aniela,  born  in  1979.   Their  dissolution

petition stated that Andrew's "net monthly child support payment"

obligation,  calculated under Alaska Civil Rule 90.3,  was  $896.

Their  petition  did  not identify any child support  credits  or

circumstances  justifying a lower payment.  At  the  October  13,

1994  dissolution  hearing,  the  parties  confirmed  that  child

support  would be $896; Andrew represented himself at the hearing

and  counsel  represented Mary.  The superior  court  entered  an

order  on October 17, 1994 requiring Andrew to pay monthly  child

support of $896.

          Although  the  parties  did not  mention  it  in  their

petition or during the hearing, Andrew had been receiving  social

security benefits for a long-term disability; as a result, Aniela

had been receiving Children's Insurance Benefits (CIB).

          Andrew  paid  child support of $896 per  month  as  the

dissolution  petition contemplated and the 1994  order  required,

but  in  January 1998 he filed a motion to modify child  support.

Among  other  things,  his motion sought credit  for  the  social

security  benefits  paid on behalf of Aniela  before  she  turned

eighteen  in  September  1997.   He  attached  to  his  affidavit

printouts  to  support  his  averment that  the  social  security

payments exceeded $18,000.

          Mary  opposed  his motion, and argued that  Andrew  was

really  seeking  an  offset.   She  stated  in  her  accompanying

affidavit  that  she was attaching "a handwritten  note  [Andrew]

wrote  to  my  lawyer, Brent Cole, which shows he understood  his

right  to  an offset and his waiver of that right at that  time."

The  copy  of  the  handwritten note bears  an  August  30,  1994

transmission date.

          According  to the record, Andrew signed the dissolution

petition  containing the child support calculation on August  26,

1994;  Mary signed it on September 2.  The note Mary attached  to

her affidavit states, among other things:

          Accord   to  Social  Security  Agent   Nettie
          Snorton  the  amount Sherry & Aniela  receive
          from  Social  Security is credited  to  child
          support required by court. However I agree to
          pay the whole amount.
          In  reply,  Andrew requested a hearing to resolve  fact

disputes  arising  from Mary's opposition to his  request  for  a

credit.   The superior court held a hearing in December  1998  at

which  Andrew  and Mary testified but at which neither  discussed

the  issue  of  waiver or the handwritten note.   Superior  Court

Judge  Dan A. Hensley entered a January 1999 order that  required

the Alaska Child Support Enforcement Division (CSED) to calculate

Andrew's child support arrearages.  CSED then conducted an audit;

its  September 1999 notice stated that CSED had reduced  Andrew's

arrearages by $11,133.24 for the period October 31, 1994  through

September  1999,  and  that  it was crediting  his  account  with

$15,557 in CIB payments received by Aniela for the November 1994-

September 1997 period.

          Mary  then  moved for an order finding that Andrew  had

waived any possible CIB credit by executing the handwritten  note

and  sending  it to Mary's lawyer before Mary and Andrew  entered

into  and  filed the September 1994 dissolution petition agreeing

to  monthly child support of $896.  She argued that CSED's  audit

failed  to  acknowledge Andrew's waiver,  and  argued  that  this

court's  decisions permitting a credit for CIB payments  did  not

apply  because  Andrew  had "knowingly  waived"  a  credit.   She

supported  her  motion  with  her February  1998  affidavit  that

discussed and attached Andrew's note to Mary's attorney.   Andrew

opposed  this  motion,  arguing  that  the  dissolution  petition

contained   no  waiver  and  that  any  offer  to  waive   during

negotiations  was  of  no  significance  because   it   was   not

incorporated into the petition.

          By  order of March 2001, Superior Court Judge  Eric  T.

Sanders   denied  Mary's  motion  after  having   "reviewed   the

pleadings."   The  order referred to paragraph  seven  of  Mary's

March  18,  1998 affidavit in which she "assumed"  that  the  CIB

payments   would  be  offset  against  Andrew's   child   support

obligation.  Mary moved for reconsideration, arguing that she was

referring  in  paragraph seven to CIB payments  made  before  the

dissolution.    On  reconsideration,  the  court  "reviewed   the

pleadings  [and] memoranda" and stated that it was "not convinced

that Mary Whah's motion is meritorious in view of the dissolution

agreement  the  parties  signed and the  decision  in  Miller  v.

Miller, 890 P.2d 574 (AK 95)."

          Mary appeals.


     A.   Remand Is Necessary To Decide Whether Andrew Waived any
          Mary  argues that the dissolution petition's discussion

of  the  amount of child support takes Andrew's waiver of  a  CIB

credit  into consideration.  She asserts that there was no reason

for  the dissolution petition to discuss the waiver, because  the

petition  predated  Miller  v.  Miller.2   When  she  and  Andrew

prepared  the petition, they knew that the CIB payments could  be

credited  and,  Mary argues, Andrew knew that he was  voluntarily

waiving that credit.  But the parties did not know the extent  to

which   this   court's   later  decisions  would   enforce   that

entitlement;  she  asserts that she and Andrew therefore  thought

that  their verbal understanding (as expressed in Andrew's  note)

would  be  sufficient.  She also argues that admissible extrinsic

evidence  establishes the parties' intent to  waive  the  credit.

She  contends that Andrew expressed this intent in a  writing  he

has not refuted, i.e., his handwritten note, and that he made the

full  payments  of  $896 for more than three  years  after  their

dissolution petition was filed.  She points out that the petition

is  silent  as to both the waiver and the possible  credit.   She

          also notes that their petition did not include the CIB benefits

in calculating Andrew's income.

          In  Miller,  we reasoned that social security  benefits

are  earnings  derived  from the parent's  past  social  security

contributions.3  We held that such benefits should be counted  as

the  contributing  parent's income for  purposes  of  calculating

income  under  Alaska  Civil Rule 90.3 and  that  the  parent  is

entitled  to  child support credit for those payments  the  child

receives.4   In  Pacana v. State, Department  of  Revenue,  Child

Support  Enforcement Division, we extended the holding in  Miller

and  read  Rule 90.3(h)(2) "to allow an automatic credit  against

child  support arrearage for CIB. . . .  Because the CIB payments

are regular monthly payments and the custodial parent is aware of

them,  they can be credited against a child support obligation."5

In  Hermosillo v. Hermosillo, we held that the lower court  erred

by  not  crediting  CIB  payments when it  calculated  the  child

support arrearages.6

          Mary  asserts that Miller and its progeny do not  apply

here because they did not involve obligors who, after learning of

the  right  to  a credit for CIB payments, agreed  to  forgo  the

credit.  She argues that Andrew is bound by his agreement to  pay

monthly child support of $896 regardless of the CIB payments.

          Andrew    argues   that   the   dissolution    petition

incorporated no waiver because it did not explicitly or impliedly

address  waiver  and  neither party mentioned  a  waiver  at  the

dissolution  hearing.  He asserts that the parties  intended  the

petition to be their entire agreement.  Andrew argues that "it is

appropriate to consider all of the available evidence surrounding

the  alleged waiver."  He does not dispute the existence  of  his

handwritten  note.   He  contends that we  should  interpret  the

petition's  silence  on  waiver to mean that  the  parties  never

agreed  to  any  waiver,  given that AS 25.24.210(e)  requires  a

dissolution  petition  to  "state in  detail  the  terms  of  the

agreement between the spouses."  Andrew asserts that no  evidence

          suggests that the superior court did not consider the note when

it   stated   that  it  was  "not  convinced  Mary's  motion   is

meritorious."  Andrew argues that because the lower court did not

find that Andrew waived the CIB credit, Miller and our later  CIB

credit cases mandate that he receive the credit.

          We review a superior court's factual determinations for

clear error,7 and  its legal determinations regarding dissolution

agreements  and  other contracts de novo.8   But we  cannot  tell

here whether the court was resolving a factual dispute or whether

it  was  ruling  solely  as a matter of  law.   We  exercise  our

independent  judgment in determining whether there were  genuine,

material  factual disputes that could not be resolved without  an

evidentiary hearing.9

          It  is  not  clear  from the orders or  the  procedural

context  why the superior court denied Mary's motion  seeking  an

order  declaring  that Andrew had waived a  credit  for  the  CIB

payments  and  her subsequent motion for reconsideration.   There

are several possibilities.

          The  superior court may have ruled without reaching the

question  whether Andrew waived a credit.  Given its reliance  on

paragraph seven of Mary's March 18, 1998 affidavit, it  may  have

reasoned  that  Mary  had  already conceded  that  a  credit  was

required,  notwithstanding a waiver.  It may have  reasoned  that

the  alleged  waiver  predating Miller  and  our  subsequent  CIB

decisions  either would have been invalid or could not have  been

knowing.   Or  it  may simply have interpreted the  petition  and

order  not  to  preclude  Andrew's  claim  for  the  credit  CSED

ultimately granted him.

          Alternatively,  the court may have reached  the  waiver

issue,  but resolved it against Mary.  Thus, it may have accepted

Andrew's  arguments  that  the parties' September  1994  petition

contained  no  waiver, and that the August note  was  at  most  a

waiver  offer  that  was  not  incorporated  into  the  September

petition.   Or it may have reasoned that Mary failed to establish

          that there was a genuine factual dispute, perhaps because it

deemed  Mary's evidence of waiver to be inadmissible.  Or it  may

have  concluded, based on the evidence, that Andrew did not waive

any right to a credit.

          If  any one of these possibilities justified denial  of

Mary's  motion  without  an  evidentiary  hearing,  we  would  be

reluctant  to reverse.10  But because the purely legal issues  do

not  compel  affirmance and because there appear to  be  genuine,

material factual disputes that could not be resolved against Mary

as a matter of law, we reverse.

          It  is  undisputed that Andrew would have been entitled

to credit for the CIB payments, absent a waiver.11  Mary submitted

Andrew's note and asserted that it "shows [Andrew] understood his

right  to  an offset and his waiver of that right at that  time."

In  response, Andrew offered no evidence other than the  parties'

dissolution  petition.  On appeal, Andrew does not direct  us  to

any  other evidence relevant to the dispute.  He does not dispute

the existence of the written note and does not affirmatively deny

that  there  was a waiver.  Finally, he does not  argue  that  no

waiver  could have been valid or that no pre-Miller waiver  could

have been knowing.

          We assume for purposes of this appeal that Andrew wrote

and  sent  the note, that he could have waived a credit  for  CIB

payments,  and  that he could have committed to pay  a  specified

amount of child support notwithstanding the possibility he  might

have  been  entitled to a credit.  And given  the  evidence  that

Andrew  obtained information from the social security  agent,  we

also assume that a court could find that a waiver was knowing and

therefore  valid.  Miller and our subsequent CIB  cases  did  not

consider whether the right to the credit had been waived and they

did  not  involve obligors who had received advice from a  social

security  administrator, permitting an inference that the  waiver

was knowing.

          Given   these   assumptions,   we   must   remand   for

          consideration of Mary's waiver claim.  We first conclude that she

raised  a  genuine factual dispute about whether Andrew knowingly

waived  receiving  a child support credit for the  CIB  payments.

This  dispute could not be resolved against Mary as a  matter  of


          We also conclude that the dispute was material, because

extrinsic   evidence  of  waiver  and  the  parties'  contracting

intentions  was  relevant  to  interpreting  the  child   support

agreement in which Andrew agreed to pay monthly support  of  $896

and  which  identified no grounds for a credit.   We  discern  no

reason why the superior court was precluded from considering  the

handwritten note.  Because the note was not inconsistent with the

integrated  petition,  considering it  would  not  have  violated

contract interpretation or parol evidence principles.12

          The  duration and scope of Andrew's alleged waiver  may

be  subject to dispute on remand.  Mary requested a "finding that

Andrew  waived  any  credit to his child  support  payments  from

social security payments his daughter received from November 1994

to September 1997."  Mary opposed any credit for the CIB payments

from  November  1994  until September 1997  (when  Aniela  turned

eighteen and the payments ended).  She arguably also opposed  any

attempt  by Andrew to offset the CIB payments against his  future

support payments he had conditionally agreed to pay until  Aniela

turned  twenty-two.  Even if Andrew was not entitled to a  credit

against  support  he  owed before he moved to  modify  his  child

support  obligation  in January 1998, it is not  clear  that  his

waiver  was  irrevocable  or  would preclude  an  offset  against

payments  he  would  owe  in the future.   The  handwritten  note

expresses  a  willingness  to pay the  specified  amount  without

receiving a credit.  Although it may imply an irrevocable waiver,

it  does  not  express an irrevocable waiver,  and  it  does  not

expressly relinquish any future claim for a credit or an offset.

          It is therefore necessary on remand to consider whether

the  note was evidence of voluntary waiver.  If it was, what  was

          the scope and duration of that waiver?  Did it forever preclude

Andrew  from  seeking CIB credit?  Or did it simply  reflect  his

revocable  willingness to forgo a credit, without precluding  him

from  moving  for a modification in the future?  If that  is  the

case, the court may also have to consider whether there has  been

a  change  in circumstances sufficient to justify a reduction  in

Andrew's  payments,  and whether our issuance  of  Miller  was  a

change   of   the  law  which  would  amount  to  a   change   in


          Finally,  we  note  that a finding that  a  waiver  was

limited   -  i.e., that it was revocable and did not preclude  an

offset against post-January 1998 support payments   -  could give

rise to a claim that Mary reasonably relied on the waiver to  her

detriment, estopping Andrew from seeking an offset against future



          For  these  reasons, we REVERSE the  denial  of  Mary's

motion  requesting an order finding that Andrew waived any  claim

for  a  credit  or offset for the CIB payments,  and  REMAND  for

further proceedings.

     1    890 P.2d 574 (Alaska 1995).

     2    890 P.2d 574 (Alaska 1995).

     3    Id. at 578.

     4    Id. at 575, 578.

     5    941 P.2d 1263, 1266 (Alaska 1997).

     6    962 P.2d 891, 894 (Alaska 1998).

     7    Knutson v. Knutson, 973 P.2d 596, 599 (Alaska 1999).

     8      Id.   (holding   that  interpretation   of   parties'
dissolution  agreement is question of law which  appellate  court
reviews exercising its independent judgment).

     9     Beaudoin  v. Beaudoin, 24 P.3d 523, 526 (Alaska  2001)
(citing Acevedo v. Burley, 944 P.2d 473, 476 n.2 (Alaska 1997)).

     10     See  Epperson v. Epperson, 835 P.2d 451, 453  (Alaska
1992)   (holding  hearing  not  required  if  no  relevant   fact

     11    See supra text accompanying notes 4-7 discussing Miller
and its progeny.

     12     See  Alaska  Diversified Contractors, Inc.  v.  Lower
Kuskokwim  Sch.  Dist.,  778  P.2d  581,  583-84  (Alaska   1989)
(explaining parol evidence rule); Jackson v. Nagle, 677 P.2d 242,
247-48  (Alaska  1984) (examining extrinsic evidence  to  resolve
question  of  contracting  intent where  contract  silent  as  to
disputed issue).

     13     See  Bunn  v. House, 934 P.2d 753, 758 (Alaska  1997)
(explaining that both factual changes as well as changes  in  law
may  constitute  material  changes  of  circumstances  justifying
modification  of  child support); Charlesworth  v.  State,  Child
Support  Enforcement  Div.,  779  P.2d  792,  793  (Alaska  1989)
(concluding that adoption of Civil Rule 90.3 constitutes material
change of circumstances).

     14    See Cizek v. Concerned Citizens of Eagle River Valley,
Inc.,  41  P.3d  140,  145 n.14 (Alaska 2000)  ("The  defense  of
estoppel  has  four  elements: (1) A party substantially  changes
position; (2) in reliance on a promise made by another;  (3)  the
reliance  was either actually foreseen or reasonably foreseeable;
and  (4) enforcement of the promise is necessary in the interests
of justice." (citation omitted)).