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Crumpler v. State, Dept. of Revenue, CSED (07/22/2005) sp-5927
Crumpler v. State, Dept. of Revenue, CSED (07/22/2005) sp-5927
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
| KELLY TODD CRUMPLER,
| ) |
|
| ) Supreme Court No. S-
11428 |
|
Appellant, | ) |
|
| ) Superior Court
No. |
|
v. | ) 3AN-03-11163
Civil |
|
| ) |
|
STATE OF ALASKA, | ) O P I N I O
N |
|
DEPARTMENT OF REVENUE, | ) |
|
CHILD SUPPORT ENFORCEMENT | ) [No. 5927 - July 22,
2005] |
|
DIVISION ex rel. REBECCA C. | ) |
|
ARMSTRONG, | ) |
|
| ) |
|
Appellee. | ) |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: D. Scott Dattan, Law Office of
D. Scott Dattan, Anchorage, for Appellant.
D. Kevin Williams, Assistant Attorney
General, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
PER CURIAM.
I. INTRODUCTION
The Child Support Enforcement Division (CSED) sought
modification of a fathers child support obligation. The superior
court ordered modification retroactive to the date the father was
served with notice of CSEDs petition for modification.
Contending that he never received CSEDs notice, the father
appeals the superior courts decision. Because the father failed
to establish good cause for deviating from the rule that
modification relates back to the date of the notice, and because
the superior court made explicit findings that the father
actually did receive notice, we affirm the decision of the
superior court.
II. FACTS AND PROCEEDINGS
Kelly Todd Crumpler married Rebecca Armstrong in
Wyoming in 1984. They have two children, Kelly Todd Crumpler II,
born September 24, 1984, and Jennifer Beth Crumpler, born January
22, 1988. Crumpler and Armstrong divorced in Wyoming in 1989.
The parties stipulated that Crumpler would pay $50 a month of
child support while he was attending college but that child
support would increase to $100 a month after he left college.
This stipulation was incorporated in the Wyoming divorce decree;
both of these documents were registered with the Alaska superior
court on September 3, 2003.
At some point the parties moved from Wyoming: Crumpler
settled in Alaska while Armstrong ultimately moved to North
Carolina. In October 2002 North Carolinas child support
enforcement division requested Alaskas assistance in modifying
and enforcing the original Wyoming enforcement order. North
Carolinas request listed Crumplers address as 330 Old Steese Hwy
#721, Fairbanks, AK 99701. According to the request, this
address was last confirmed on March 22, 2002. On December 3,
2002, CSED mailed a notice of petition for modification to
Crumplers Fairbanks address. On January 15, 2003, CSED mailed a
notice of adjustment to the Fairbanks address totaling Crumplers
arrears at $24,606.87. Crumpler maintains that he never received
either notice. He contends that he moved to Anchorage at the end
of 2001 and began a new job in January 2002. CSEDs records
indicate that neither notice was returned as undeliverable by the
postal service.
The record demonstrates that additional communication
between CSED, Crumpler, and the superior court occurred on: (1)
July 21, 2003, when Crumpler called CSED to inquire about an
arrears statement he received; (2) August 7, 2003, when a
withholding notice was sent by CSED to Crumpler; (3) August 19,
2003, when Crumplers attorney called CSED to discuss the arrears
amount; (4) September 10, 2003, when the superior court clerk
notified Crumpler that the Wyoming child support order was
registered with the Alaska superior court; and (5) September 16,
2003, when Crumpler called CSED to obtain a status report.
On September 26, 2003, CSED learned through Crumplers
employer that his mailing address had changed to an Eagle River
address. During this time period, Crumplers copy of the petition
to register the Wyoming child support order was returned as
undeliverable. A second copy was mailed to Crumplers new Eagle
River address on September 29, 2003. On October 6, 2003, CSED,
through the Attorney Generals Office, filed a motion to modify
the Wyoming child support order to $723 per month in accordance
with Alaska Civil Rule 90.3, effective January 1, 2003. An
evidentiary hearing on the motion to modify child support was
held on January 14, 2004. Crumpler admitted at the hearing that
he had not paid child support since July 1997, despite his
knowledge of his obligation to pay $200 per month. Superior
Court Judge Sharon L. Gleason issued oral findings at the time of
the hearing, determining that CSED established by a preponderance
of the evidence that notice was sent to Mr. Crumpler on December
3, 2002. The superior court concluded that there was no evidence
that the notice was returned by the postal service and that there
was no statutory requirement that the notice be sent by certified
mail.
Crumpler filed a motion for reconsideration on January
21, 2004, asserting that service of the notice was not actually
achieved until after the hearing on January 15, 2004. Crumpler
also contended that he was living in Anchorage at the time the
notice was mailed to Fairbanks. Judge Gleason denied Crumplers
motion for reconsideration on March 4, 2004, finding that
Crumpler did not present to the court as a credible witness with
respect to the issues in dispute, including whether he had
received the December 2002 notice. The superior court took
judicial notice that a person can receive forwarded mail for up
to one year after leaving an earlier address and also recognized
that under the original divorce decree filed in Wyoming, Crumpler
had an affirmative obligation to keep that court, and thereby Ms.
Crumpler, apprised of his whereabouts. The trial court also
noted that Mr. Crumpler does not dispute that he failed to comply
with this provision and failed to pay child support for 6 years.
The superior court recalculated Crumplers child support
obligation based on new financial information and ordered him to
pay $611 per month, effective January 1, 2003. This appeal
follows.
III. DISCUSSION
Both federal and Alaska law prohibit, with few
exceptions, retroactive modification of child support
obligations, whether the change is an increase or a decrease in
the parents obligation.1 Alaska Civil Rule 90.3(h), however,
provides that [a] modification which is effective on or after the
date that a . . . notice of petition for modification . . . is
served on the opposing party is not considered a retroactive
modification.2 Crumpler maintains that modification is only
appropriate from the date he received the notice, which he argues
was not until the hearing on modification took place: January 14,
2004. He alleges that the trial court erred in establishing
January 1, 2003 as the effective date for modification because he
had no notice of CSEDs intent to modify child support. Crumpler
complains that to modify his child support obligation
retroactively without adequate service or actual notice violates
his right to procedural due process. We examine each of these
arguments in turn.
A. Standards of Review
We review a trial courts decision on a motion to modify
child support for an abuse of discretion.3 In the event this
review calls for statutory interpretation, we use a de novo
standard and adopt the rule of law most consistent with
precedent, reason, and policy.4
B. The Superior Court Did Not Err in Determining that
There Was Adequate Notice for Modification of Child
Support.
Crumpler argues that he did not receive the notice of
petition for modification that was mailed by CSED on December 3,
2002 and claims that the superior court abused its discretion in
calculating his child support arrearage as of that date. In
Boone v. Boone, we held that absent an express finding of good
cause, Civil Rule 90.3(h) requires a trial court to make its
modification order effective as of the filing date of the motion
for modification.5 In State v. Dillon, we extended our previous
holding in Boone v. Boone to include notice of petitions for
modification as well as motions for modification.6 We explained
that absent an express finding of good cause to the contrary, a
modification should be deemed effective on the date of CSEDs
notice.7 [T]he motion service date should be the preferred
effective date, and . . . the superior court should exercise its
discretion in selecting a different effective date only if it
finds good cause for doing so.8
The superior court made a number of findings in its
motion for reconsideration that demonstrate it considered and
rejected Crumplers attempts to show good cause. The superior
court did not find Crumplers testimony to be credible, and it
also looked to Crumplers phone call to CSED in July 2003 as
additional evidence that Crumpler received the December 2002
notice. The superior court considered Crumplers evidence that he
moved from Fairbanks to Anchorage and began work at the Alaska
Native Medical Center on January 14, 2002, but noted that an
individual can receive forwarded mail from a former address for
up to one year. Moreover, it recognized that the notice was
never returned to CSED, whereas later documents sent by CSED to
Fairbanks in September 2003 were returned. There is no evidence
in the record to support Crumplers assertion that he did not
establish mail forwarding after moving from Fairbanks. Nor is
there any testimony to demonstrate that other mail he should have
received following his move to Anchorage was not received. We
therefore conclude that it was not an abuse of discretion for the
superior court to decide there was no good cause to deviate from
the Dillon rule. The superior courts finding on a more likely
than not basis that Mr. Crumpler did receive actual notice of the
December 2002 CSED notice at that time was not clear error.
Under Alaska Civil Rule 5,9 service is accomplished by
mailing it to the attorneys or partys last known address.10
Mailing of a copy means mailing it by first class United States
mail. Service by mail is complete upon mailing.11 Crumpler
argues that service should have been conducted pursuant to Civil
Rule 4(c), which requires direct personal service by a peace
officer.12 Crumpler argues that CSEDs notice asserted a new
claim for relief, and hence, falls outside of Civil Rule 5(a).
But AS 25.27.265(a) makes clear that service of a notice may be
done under Civil Rule 5.13 Moreover, we held in Balchen v.
Balchen that the formal complaint-summons service requirements of
Civil Rule 4 are inappropriate in proceedings which seek to
enforce the terms of a prior divorce decree relating to child
support payments.14 Because divorce decrees may be modified at
any time, we concluded that Civil Rule 5(b) provides the
appropriate procedure to be followed in such cases.15
The requirements of service under Civil Rule 5 were met
in this case. There is no dispute that Crumpler used to live at
the Fairbanks address where CSED sent its notice. A certificate
of mailing was signed by CSED on the December 2002 notice and is
sufficient proof to satisfy the requirements of Civil Rule
5(f).16 Two affidavits were submitted by CSED verifying that the
notice was mailed by first-class mail to the most current mailing
address in the CSED system.
Furthermore, as the superior court noted, Crumpler had
an affirmative obligation to keep the court apprised of his
whereabouts. This obligation arose both from the Wyoming divorce
decree, which required the parties to alert the court within
fifteen days of any change in address, and from AS 25.27.265,
which requires parties to child support proceedings to
immediately notify CSED if a change in address occurs.17 Despite
his contention that he began working in Anchorage in January
2002, Crumpler did not contact CSED to update his mailing address
until December 9, 2003. We conclude that it was both reasonable
and appropriate for CSED to serve Crumpler in Fairbanks via mail,
as permitted under Civil Rule 5, especially since the Fairbanks
address was Crumplers last known address.18
IV. CONCLUSION
Because the record supports the superior courts
findings, we AFFIRM the superior courts modification of child
support.
In the Supreme Court of the State of Alaska
Kelly Todd Crumpler, )
) Supreme Court No. S-11428
Appellant, )
v. ) Order
)
State of Alaska, Department of )
Revenue, Child Support Enforcement )
Division ex rel. Rebecca C. Armstrong, )
)
Appellee. ) Date of
Order: 7/22/05
)
Trial Court Case # 3AN-03-11163CI
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe,
and Carpeneti, Justices.
On consideration of the motion to publish Memorandum Opinion
and Judgment No. 1213, issued on May 11, 2005,
It is Ordered:
1. The motion to publish is Granted.
2. Memorandum Opinion and Judgment No. 1213, issued on May
11, 2005, is withdrawn and Opinion No. 5927 is issued
in its place.
Entered at the direction of the court.
Clerk of the Appellate Courts
Marilyn May
cc: Supreme Court Justices
Trial Court Judge Sharon Gleason
Trial Court Appeals Clerk/Anchorage
Publishers
Distribution:
D. Scott Dattan
Law Office of D Scott Dattan
2600 Denali Street, Suite 460
Anchorage AK 99503
Kelly T. Crumpler
P.O. Box 91745
Anchorage AK 99509
Stacy K. Steinberg
Assistant Attorney General
1031 W. 4th Ave., Suite 200
Anchorage AK 99501
Rebecca Armstrong
c/o Wake County CSEA,
P.O. Box 550
Raleigh NC 27602-0550
_______________________________
1 State, Dept of Revenue, Child Support Enforcement Div.
ex rel. Husa v. Schofield, 993 P.2d 405, 407-08 (Alaska 1999);
see also 42 U.S.C. 666(a)(9) (2000); Alaska Civil Rule
90.3(h)(2).
2 Alaska Civil Rule 90.3(h)(2); see also Rowen v. Rowen,
963 P.2d 249, 256 & n.5 (Alaska 1998).
3 Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998).
4 Boone v. Gipson, 920 P.2d 746, 748 (Alaska 1996).
5 Boone v. Boone, 960 P.2d 579, 585 (Alaska 1998).
6 State, Dept of Revenue, Child Support Enforcement Div.
v. Dillon, 977 P.2d 118, 120 (Alaska 1999).
7 Id. at 119-20.
8 Id. at 119.
9 Alaska Civil Rule 5(a) explains that every pleading
subsequent to the original complaint . . . every written motion
other than one which may be heard ex parte, and every written
notice, appearance, demand, offer of judgment, and similar paper
shall be served upon each of the parties . . . .
10 Alaska Civil Rule 5(b).
11 Id.
12 Alaska Civil Rule 4(c)(1).
13 AS 25.27.265(a) states that [e]xcept as otherwise
provided under this chapter, when a notice, paper, or other
document is required by this chapter to be given or served upon a
person by the agency, the notice, paper, or other document may be
served as required by Rule 5, Alaska Rules of Civil Procedure or
any other method permitted by law.
14 566 P.2d 1324, 1327 (Alaska 1977).
15 Id.
16 Alaska Civil Rule 5(f) states that proof of service
must state the name of each person who has been served, must show
the day and manner of service, and may be by certificate of an
attorney, authorized agent, or any other proof satisfactory to
the court.
17 See AS 25.27.265(b).
18 Crumpler also argues that modification of child support
without actual notice violates both Article I, Section 7 of the
Constitution of Alaska and the 14th Amendment of the Constitution
of the United States. But in this instance, although Crumpler
argued that he did not receive notice, the superior court did not
believe his testimony. It made an express finding that on a more
likely than not basis, Mr. Crumpler did receive actual notice.
We therefore conclude that Crumplers procedural due process
rights were not violated.
