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Ray v. Ray (07/01/2005) sp-5918
Ray v. Ray (07/01/2005) sp-5918
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
JAMES DWAYNE RAY, )
) Supreme Court No. S-11269
Appellant, )
) Superior Court No. 3AN-92-2426CI
v. )
) O P I N I O N
MARGARET ETTA RAY, )
) [No. 5918 - July 1, 2005]
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Suddock, Judge.
Appearances: Justin R. Eschbacher, Law
Offices of G.R. Eschbacher, Anchorage, for
Appellant. Leroy K. Latta Jr., Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee, State of Alaska, Child Support
Enforcement Division.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
James Ray argues that because the superior court found
in 1993 that James was not the father of C.R., the 1995 order
requiring him to pay child support for C.R. was void for lack of
subject matter jurisdiction. He therefore argues that when he
moved in 2003 for relief from the 1995 order, Alaska Civil Rule
60(b)(4) entitled him to retroactive relief. We affirm the
denial of his motion for retroactive relief. Even after
biological paternity was disestablished in 1993, the court had
subject matter jurisdiction to enter the 1995 support order.
James raises no other theory that would entitle him to
retroactive relief.
II. FACTS AND PROCEEDINGS
Margaret Ray gave birth to four children during her
marriage to James Ray. James Rays March 1992 divorce complaint
alleged that the youngest child, C.R., was not his biological
son, but that he love[d] and treat[ed] the child as [his] natural
child. His supporting affidavit stated: I . . . am not the
natural father of [C.R.] although I do love the child and have
treated him as my own and as part of the family. On April 1,
1992 Superior Court Judge Elaine M. Andrews awarded James interim
custody of all four children. Master Andrew Brown heard evidence
and argument on May 3, 1993 concerning the divorce and child
custody, and issued a report containing proposed findings and
conclusions. The report found that C.R. was a child of the
marriage, but it also contained this passage concerning C.R.:
At the May 3, 1993 hearing, Ms. Ray raised
the allegation that [C.R.] might not be Mr.
Rays child. However, this is a default
judgment case due to the fact that Ms. Ray
did not file an answer, so she may not now
raise any legal issue of paternity. Also,
the evidence shows that Mr. Ray has been the
only father figure in [C.R.s] life, whether
or not he is the childs biological father.
The superior court approved the report and dissolved
the marriage on June 4, 1993.
By agreement approved by the superior court, custody of
all four children was transferred to Margaret on August 30, 1993.
The court required James to pay child support totaling $900 a
month but did not explain how it derived that figure or
specifically whether that figure included support for C.R.1 On
December 23, 1993, Superior Court Judge Peter A. Michalski
entered findings and a custody and visitation order that stated
that both parties acknowledge that James Dwayne Ray is not the
biological father of [C.R.]. The courts order also found that a
father-son relationship does exist and the child shall be
included as a child of the parties marriage for purposes of
custody and visitation. These findings were incorporated into
the courts final divorce decree of December 23, 1993.
In late 1994 James Ray, through counsel, filed a motion
asking the court to establish his child support obligation.
James also submitted a child support guidelines affidavit that
stated that he owed $539.52 a month for support of four children.
Jamess application for the services of the Alaska Child Support
Enforcement Division (CSED) stated that he was the father of C.R.
In early 1995 Superior Court Judge Rene J. Gonzalez entered the
child custody and support order that James had proposed. There
was no objection to or appeal from this order.
On May 13, 2003, James Ray filed a pro se superior
court motion seeking a change of custody, support, and
visitation, a combined affidavit and memorandum, and a proposed
order. His motion asked the court to stop all child support for
C.R. retroactive to the date of the divorce and stated that C.R.
was not his biological or adopted son. James alleged in his
motion that he had not been given visitation rights as court-
ordered and that he had been allowed to see C.R. only three times
since the divorce. His supporting affidavit and memorandum
alleged that C.R. was included in the divorce order because it
had been determined that there was an existing father-son
relationship. Jamess affidavit also stated that the father-son
relationship was stopped when [C.R.s mother] left the state
within a week of divorce and never allowed me visitation with
[C.R.]. [C.R.s] father-son relationship was at the time and
still is with Leo Pettit. Jamess proposed order stated that
James Dwayne Ray is not the biological father of [C.R.]. A
father-son relationship does not exist.
CSED argued in opposition that laches barred Jamess
motion and that he had not shown a right to relief under any
subsection of Civil Rule 60(b). CSED also contended that if
James were to prevail, he would still owe arrearages and that
only prospective relief would be available to him.
Superior Court Judge John Suddock denied Jamess motion
for the reasons set forth in CSEDs opposition and commented:
A stepfather who agrees to pay support for a
stepchild is subject to Alaska Rule of Civil
Procedure 90.3. Plaintiff has shown no basis
under that rule for a modification of child
support. A parent cannot simply abandon a
child, even if the parent is denied
visitation. Mr. Rays remedy if he wants to
visit with the child is to make a Motion to
Enforce the prior visitation order, or to
enter a new order in light of changed
circumstances.[2]
James, by now again represented by counsel, moved for
reconsideration, alleging that he was entitled to relief because
the 1995 child support order was void. The state opposed,
arguing both that there is no evidence that Mr. Rays paternity
has ever been disestablished and that the support order was not
void because he had sought the order and did not appeal when it
was entered. James replied through counsel, claiming that Judge
Michalskis 1993 order made it clear that James was not C.R.s
biological father. He also argued that his request for a child
support order was at most based on a promise that was
unenforceable for lack of consideration. Judge Suddock denied
reconsideration, reasoning:
A child born during a marriage is presumed
the child of the husband. The Court never
established as a matter of fact that this was
not the case, even though the parties took
that position. Such a determination was
irrelevant, because Mr. Ray wished to be
deemed the father, with rights of visitation.
He affirmatively moved to have a child
support order put in place, and raised no
objection to inclusion of [C.R.] with the
three undisputed children of the marriage.
The court instructed James to have a DNA test if he wished to
disestablish paternity; he could then move to terminate support
prospectively.
James appeals.
III. STANDARD OF REVIEW
Because the legal effect of a courts findings of fact
is a question of law, we review de novo the question whether the
superior courts 1993 findings regarding custody and visitation
was sufficient to disestablish Jamess paternity of C.R.3 Denial
of an Alaska Civil Rule 60(b) motion and denial of a motion for
reconsideration will only be disturbed if the court has abused
its discretion.4 A superior court abuses its discretion when we
are left with a definite and firm conviction on the whole record
that the trial judge has made a mistake.5 Whether a judgment is
void under Alaska Civil Rule 60(b)(4) is a question of law.6 In
resolving a question of law, we exercise our independent judgment
and adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.7
IV. DISCUSSION
A. Whether Biological Paternity Was Disestablished Before
Entry of the Support Order
James contends that he was entitled to retroactive
relief from the 1995 support order because it is void for lack of
subject matter jurisdiction. He bases this contention on the
1993 order which, he claims, disestablished his paternity of C.R.
and consequently deprived the superior court of jurisdiction to
require him to pay child support for C.R. We first consider his
underlying assertion, that paternity was disestablished in 1993.
Although the husband of a married woman is presumed to
be the father of any child born to the wife during the marriage,8
this presumption can be overcome by clear and convincing
evidence.9 James was presumed to be C.R.s father because he was
married to C.R.s mother when C.R. was born. Jamess divorce
complaint and supporting affidavit stated that he was not the
natural father of [C.R.]. The courts 1993 findings and order on
custody and visitation found that [t]hree minor children were
born to the parties of the marriage10 and that both parties
acknowledge that James Dwayne Ray is not the biological father of
[C.R.]. These 1993 findings were sufficient to disestablish
Jamess biological paternity with regard to C.R. At no subsequent
time did the superior court enter a finding that re-established
Jamess biological paternity of C.R.
It was therefore technically incorrect to hold in 2003
that the superior court had never established as a matter of fact
that James Ray was not C.R.s father. Likewise, the order denying
reconsideration incorrectly stated that James was deemed the
father in fact, until he successfully disestablishes paternity
with a DNA test.11
B. The Superior Court Had Authority To Enter the 1995
Support Order.
Having concluded that Jamess biological paternity of
C.R. was disestablished in 1993, we next consider Jamess argument
that disestablishment ended any duty to support C.R., entitling
him to Alaska Civil Rule 60(b) relief from the 1995 support
order.12
James argues that he may have mistakenly thought he had
a duty to support C.R., that his prior attorney may have
mistakenly included C.R. on the child support order, and that he
may simply have wanted to place in writing a promise to support
C.R. We do not know what motivated James to include C.R. in his
1995 motion to establish child support. If any of his present
explanations is correct, James had ample opportunity to seek
correction of his mistake after entry of the support order in
1995. Rule 60(b)(1) allows relief from a judgment based on
mistake, inadvertence, surprise or excusable neglect if the
motion for relief is filed not more than one year after the date
of notice of the judgment or orders. But James never filed a
timely motion for relief under Rule 60(b)(1) and he filed his
2003 motion long after the one-year deadline had passed.13
Jamess main argument is that the 1995 support order was
void. He reasons that the disestablishment order deprived the
court of subject matter jurisdiction to enter an order requiring
James to support C.R. Alaska Civil Rule 60(b)(4) permits relief
from a void judgment if the issuing court lacked subject matter
jurisdiction or violated due process.14 Void judgments may be
attacked at any time.15
James reasons that because his paternity had been
disestablished, the superior court had no authority under AS
25.24.160(a) to impose a support order for C.R.16 Although it is
true that the language of this statute only explicitly authorizes
entry of support orders for children of the two divorcing
parties, we have previously enforced support orders that fall
outside the statutes plain language.17
We have already rejected a nearly identical argument.
In J.C. v. M.L.C., the non-biological father argued that the
superior court did not have subject matter jurisdiction to enter
a support order because the child was not of the marriage.18 We
held that, because the parties are residents of the State of
Alaska and the superior court is competent to render judgment
concerning child custody and support, the superior court did not
lack subject matter jurisdiction.19
In late 1994 James voluntarily filed documents with the
superior court listing C.R. as his child. The child support
guidelines affidavit he filed with his motion to establish child
support asked the court to impose a monthly obligation of
$539.52. This amount was calculated by multiplying Jamess 1993
income by 0.36, the multiplier that applies when support is
calculated for four children.20 As we said in J.C., Jamess motion
could be interpreted as an agreement to support the child
regardless of its paternity. We know of no reason why the
superior court would lack authority to enforce such an agreement.21
We therefore reject Jamess contention that it was error
to deny him relief under Rule 60(b)(4).
C. We Need Not Consider Jamess Pro Se Claim of Changed
Circumstances.
At oral argument we were told that the superior court
granted James relief after a genetic paternity test established
that he was not C.R.s biological father. The appellate record
does not contain the order; it was apparently entered sometime
after James served his pro se modification motion on May 13,
2003. If so, it potentially raises a question of whether relief
should have become effective as of the service date of Jamess
motion. Relief from that date forward would not have violated
the prohibition on retroactive modification of child support
orders.22
But James does not argue on appeal that the change-of-
circumstances grounds cited in his May 13, 2003 motion entitled
him to relief; he has therefore waived any such issue.
Moreover, such an argument would be meritless. His
2003 motion papers alleged that the 1995 support order should be
modified because he was denied visitation with C.R. But they
also stated that his relationship with C.R. changed within a week
of the divorce, long before the support order was entered in
early 1995. Jamess 2003 motion therefore did not allege facts
establishing that circumstances changed after entry of the 1995
support order.23
V. CONCLUSION
Because the superior court had jurisdiction to enter
the 1995 child support order, it was not void. The superior
court therefore correctly denied Jamess request for retroactive
relief. AFFIRMED.
_______________________________
1 Judge Andrews based her support order on Master Browns
oral recommendation. It appears that Master Brown used the
multiplier for four children rather than for three to calculate
Jamess $900-a-month support payment. This suggests that C.R. was
included in the support award.
2 Civil Rule 90.3 governs the procedure for imposing a
child support award on a non-custodial parent. Rule 90.3(h)
dictates when an existing child support award can be modified.
This subpart states:
(1) Material Change of Circumstances. A
final child support award may be modified
upon a showing of a material change of
circumstances as provided by state law. A
material change of circumstances will be
presumed if support as calculated under this
rule is more than 15 percent greater or less
than the outstanding support order. . . .
(2) No Retroactive Modification. Child
support arrearage may not be modified
retroactively, except as allowed by AS
25.27.166(d). . . .
3 State v. Wetherelt, 931 P.2d 383, 387 (Alaska 1997).
4 Dewey v. Dewey (Dewey I), 886 P.2d 623, 626 (Alaska
1994). See also Neal & Co., Inc. v. Assn. of Vill. Council
Presidents Regl Hous. Auth., 895 P.2d 497, 506 (Alaska 1995).
5 Jensen v. Froissart, 982 P.2d 263, 266 (Alaska 1999).
6 Id.
7 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
8 AS 18.50.160(d) provides:
If the mother was married at conception,
during the pregnancy, or at birth, the name
of the husband shall be entered on the
certificate as the father of the child unless
(1) paternity has been lawfully determined
otherwise by a tribunal, in which case the
name of the father, if determined by a
tribunal, shall be entered; or
(2) both the mother and mothers husband
execute affidavits attesting that the husband
is not the father and that another man is the
father, and the mother and the other man
execute affidavits attesting that the other
man is the father . . . .
9 Wetherelt, 931 P.2d at 387; Smith v. Smith, 845 P.2d
1090, 1092 (Alaska 1993).
10 Neither party disputed the paternity of the other three
children born during the marriage.
11 We have been informed that a DNA test was subsequently
performed, and that the superior court relied on that test in
granting James prospective relief from the 1995 support order.
12 Civil Rule 60(b) states:
On motion and upon such terms as are just,
the court may relieve a party or a partys
legal representative from a final judgment,
order, or proceeding for the following
reasons: (1) mistake, inadvertence,
surprise or excusable neglect;
(2) newly discovered evidence which by
due diligence could not have been discovered
in time to move for a new trial under Rule
59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void;
(5) the judgment has been satisfied,
released, or discharged, or a prior judgment
upon which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment should have
prospective application; or (6) any other
reason justifying relief from the operation
of the judgment.The motion shall be made
within a reasonable time, and for reasons
(1), (2) and (3) not more than one year after
the date of notice of the judgment or orders
as defined in Civil Rule 58.1(c). . . .
13 His 2003 pro se motion papers cited no rule in support;
his lawyers motion for reconsideration characterized the pro se
motion as having sought relief under Civil Rule 60(b)(4), on the
theory the support order was void, and seems to disavow
requesting relief under any other Rule 60(b) subpart.
14 State v. Maxwell, 6 P.3d 733, 736 (Alaska 2000). James
does not argue that the superior court violated his due process
rights.
15 Dewey v. Dewey (Dewey II), 969 P.2d 1154, 1159-60
(Alaska 1999).
16 AS 25.24.160(a) states:
In a judgment in an action for divorce or
action declaring a marriage void or at any
time after judgment, the court may provide
(1) for the payment by either or both
parties of an amount of money or goods, in
gross or installments that may include cost-
of-living adjustments, as may be just and
proper for the parties to contribute toward
the nurture and education of their children,
and the court may order the parties to
arrange with their employers for an automatic
payroll deduction each month or each pay
period, if the period is other than monthly,
of the amount of the installment; if the
employer agrees, the installment shall be
forwarded by the employer to the clerk of the
superior court that entered the judgment or
to the court trustee, and the amount of the
installment is exempt from execution . . . .
17 See Dewey II, 969 P.2d at 1160 (enforcing voluntary
agreement to support stepchild). See also T.P.D. v. A.C.D., 981
P.2d 116, 121 (Alaska 1999) (acknowledging that paternity by
estoppel can give rise to duty to support non-biological child);
J.C. v. M.L.C., 668 P.2d 1351, 1353 (Alaska 1983) (upholding
agreement to support non-biological child).
18 J.C. v. M.L.C., 668 P.2d 1351, 1353 (Alaska 1983).
19 Id.
20 Alaska Civil Rule 90.3(a) provides that the amount of
the child support award is:
the adjusted annual income of the non-
custodial parent multiplied by a percentage.
. . .
(2) The percentage by which the non-
custodial parents adjusted income must be
multiplied in order to calculate the child
support award is:
(A) 20% (.20) for one child;
(B) 27% (.27) for two children;
(C) 33% (.33) for three children; and
(D) an extra 3% (.03) for each additional
child.
21 J.C., 668 P.2d at 1353.
22 Alaska R. Civ. P. 90.3(h)(2).
23 See Bunn v. House, 934 P.2d 753, 758 (Alaska 1997)
(listing factual situations that satisfy the material change in
circumstances requirement of Civil Rule 90.3); Arndt v. Arndt,
777 P.2d 668, 670 (Alaska 1989) (considering alteration in
custody arrangement in material change of circumstances
analysis).
