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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MARY C. WHAH, )
) Supreme Court No. S-10171
Appellant, )
) Superior Court No. 3AN-94-7981
CI
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. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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.
III. DISCUSSION
A. Remand Is Necessary To Decide Whether Andrew Waived any
Credit.
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
law.
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
circumstances.13
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
payments.14
IV. CONCLUSION
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
disputes).
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)).
