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Webb v. State, Dept. of Revenue, CSED (09/09/2005) sp-5941
Webb v. State, Dept. of Revenue, CSED (09/09/2005) sp-5941
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
| GARY E. WEBB,
| ) |
|
| ) Supreme Court No. S-
11160 |
|
Appellant, | ) |
|
| ) Superior Court
No. |
|
v. | ) 1KE-01-00504
CI |
|
| ) |
|
STATE OF ALASKA, | ) O P I N I O
N |
|
DEPARTMENT OF REVENUE, | ) |
|
CHILD SUPPORT | ) [No. 5941 - September 9,
2005] |
|
ENFORCEMENT DIVISION | ) |
|
ex rel. MICHELLE WEBB, | ) |
|
n/k/a MICHELLE KEY, | ) |
|
| ) |
|
Appellee. | ) |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Ketchikan, Trevor N. Stephens, Judge.
Appearances: Bryan T. Schulz, Ketchikan, for
Appellant. Susan L. Daniels, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
Gary Webb, a father of two children, did not pay child
support during a period when his children were in the custody of
their grandmothers. He claims that the childrens mother, to whom
he owed the support payments, is precluded under Civil Rule
90.3(h)(3) from collecting the arrears accumulated during that
time. The superior court disagreed with Webb, concluding that
Rule 90.3(h)(3) provides for preclusion only when the obligor
parent has primary physical custody of the children. We agree
with the superior court and affirm.
II. FACTS AND PROCEEDINGS
A. Factual History
Gary Webb and Michele Key were married January 29,
1988. They had two daughters, Megan, born on April 21, 1988 and
Sarah, born on March 11, 1989. The marriage was dissolved on
April 12, 1990. Key was granted legal and primary physical
custody of the children and Webb was ordered to pay $418 a month
in child support. At the time of their divorce, the parties were
living on Fort Richardson. Key later moved to Maine and Webb
moved to Ward Cove. Courts in Maine later appointed the
daughters grandmothers as guardians in two separate proceedings.1
Roberta Webb, Garys mother, was made guardian of Sarah in 1993,
an arrangement which lasted until the guardianship was terminated
in 2001. Sarah then returned to living with Key. In 1995 Megan
was placed in the guardianship of Sheila Smith, Keys mother, who
also resides in Maine. A petition to terminate this guardianship
was filed in Maine in 1997. Although the termination was never
issued, it is undisputed that Megan returned to live with Key.
Thus, between 1993 and 2001, Key never had custody of both
daughters at once, and between 1995 and 1997, she had custody of
neither of them.
According to the Child Support Enforcement Division
(CSED), Webb made no child support payments to Key between 1993
and 2001. He made some payments to his mother, Sarahs guardian,
which CSED eventually credited against his arrears.2
B. Procedural History
On October 24, 2001, when both children were back in
Keys custody, Webb, acting pro se, moved to modify the amount of
arrears he owed, claiming that he should not have to pay for the
period in which both children were in their grandmothers custody.
The superior court read his motion as requesting relief for the
years 1993 through 1997, which included a period of time when
Megan was still living with Key. In response, CSED calculated
that Webb owed $6,001.53 in arrears. Webb assented to that
figure and the superior court approved it.
CSED later returned to court, moving under Civil Rule
60(b)(1) to set aside the arrears order because of an error in
its calculation. The agency claimed that Webb in fact owed
$72,105.22 but allowed that Webb might be able to show that he
had made more payments than had been accounted for. In his
opposition to the motion, Webb renewed his argument that he
should not have to pay arrears for the period when both girls
were with their grandmothers and should only have to pay reduced
arrears for the time when Megan was living with Key. At this
time, Webb was represented by counsel and argued that Civil Rule
90.3(h)(3) precluded the collection of these arrears. He also
claimed that he had made payments that CSED failed to credit when
it computed the arrears. After an evidentiary hearing apparently
resolved the question of credit due to Webb, the superior court
decided that Civil Rule 90.3(h)(3) did not apply and that CSED
was therefore not precluded from collecting arrears for the
challenged period. The court entered a final order setting the
amount owed at $51,058.14.
Webb appeals.
III. STANDARD OF REVIEW
The question whether preclusion applies in this case
depends on the application of a court rule that determines the
correct method of calculating child support; it is thus a
question of law we review de novo.3 We will adopt the rule of
law most persuasive in light of precedent, reason, and policy.4
IV. DISCUSSION
A. Rule 90.3(h)(2) Does Not Preclude an Obligee Parent
from Collecting Arrears Accumulated While the Children
Are in the Custody of a Third Party Who Is Not the
Obligor Parent.
Webb seeks a retroactive modification of his child
support obligation and asks us to eliminate or significantly
reduce his liability for the child support debt that accrued over
a period of 101 months when one or both of his daughters were
living with their grandmothers. In general, Civil Rule
90.3(h)(2) bars retroactive modification. It is subject to two
exceptions, one of which is relevant here.5 Civil Rule
90.3(h)(3) provides in relevant part:
Preclusion. The court may find that a parent
and a parents assignee are precluded from
collecting arrearages for support of children
that accumulated during a time period
exceeding nine months for which the parent
agreed or acquiesced to the obligor
exercising primary custody of the children.
A finding that preclusion is a defense must
be based on clear and convincing evidence.[6]
Under this rule, if the child or children7 live with the obligor
parent, with the consent of the obligee parent, for a period
greater than nine months, and the obligor parent does not make
support payments during that time, then the obligee parent may
not collect the arrears.8 Webb claims that this rule should
preclude Key from collecting the arrears accumulated while the
daughters were living with their grandmothers. We disagree.
1. The plain language and policy of Rule 90.3(h)(3)
do not support preclusion in this case.
A prerequisite for any interpretation of a court rule
is that it have a basis in the rules text.9 Webbs proposed
interpretation of Civil Rule 90.3(h)(3), to allow preclusion for
a period when the children are in the custody of a third party,
is not permitted by the language of the rule. The rule provides
for preclusion when the children have lived with the obligor.
Thus, the plain language of the rule does not support Webbs
interpretation. Rule 90.3(h)(3) only allows preclusion in one
situation: when the children have lived with the parent who owes
child support. Megan and Sarah never lived with Webb. Under the
plain language of the rule, there is no basis to preclude Key
from collecting support.10
We have previously stated that when a straightforward
application of [a court] rule yields [an] extreme or absurd . . .
result, it may require us to bend the plain language of the rule.11
But requiring Webb to pay the child support he owes does not lead
to an extreme or absurd result. First, when children live with a
third party, both parents have the duty to support the children.12
Thus, Webb was not absolved of a duty to support his children
merely by their living with a third party rather than their
mother. And although it is true that Key will be compensated by
Webb for past child support expenses that were actually paid by
the grandmothers, any windfall to Key might be temporary, as the
grandmothers will be able to seek reimbursement from Key for
child support received for the period of time the children were
in the grandmothers care.13 Finally, Key is currently caring for
the children, who are the beneficiaries of the child support
order.14 In the event either of the grandmothers chooses not to
pursue compensation from Key, the children should benefit from
Webbs payment of child support arrears to Key, their primary
custodian, for obligee parents are required by the statute to
administer support funds on the childrens behalf.15
Retroactively modifying the child support order to
permit Webb to evade his child support obligations would result
in a windfall to Webb and deprive the children of funds to which
they are entitled. Child support awards, by their very
definition, are intended to benefit the child, not provide a
windfall to the parent.16 During the years that Webb was not
meeting his obligations, his daughters were not receiving the
benefit the support order was designed to provide. We therefore
conclude there is no reason to go beyond the words of the rule
and allow preclusion.17
2. Absent a modification of the support order, the
original order is enforceable.
We agree that Webb could have sought modification of
the support order given that there was a change in the physical
custody of the children. But he chose to wait until his
daughters had returned to live with Key before seeking to modify
child support. As we previously held in Karpuleon v. Karpuleon,
the burden is on the parents to promptly apply for modification
when a child changes residency.18 If the parties do not follow
the custody order, they should ask the court to enforce the
custody order or should move to modify the child support order.19
Court-ordered child support may only be modified or terminated by
the court; a child support order does not automatically terminate
simply because a third party assumes custody of the children.20
The obligation to pay child support pursuant to a court order
generally continues until the child reaches age 18 or until the
happening of any contingency specified in the court order.21 And
several courts have concluded that the death of a non-custodial
parent, the death of a custodial parent, the emancipation of the
child, or the appointment of a third party as a temporary
conservator for the child does not terminate the support
obligation.22 Thus, a court-ordered change of custody arising out
of a guardianship proceeding, as in this case, does not
automatically extinguish a valid support order.
Webb did not petition the court to change the existing
child support order throughout the eight-year period when his
daughters were living with their grandmothers in Maine. Webbs
failure to seek modification of the support order may not now be
used to contest the child support arrears he owes.23 Webb relies
on Turinsky v. Long24 and Bennett v. Bennett25 to argue that
support orders have no effect when custody of the children
changes. But in Turinsky, we explained that [c]hild support
awards should be based on a custody and visitation order, not on
the visitation actually exercised.26 This language supports the
States position that retroactive modification is not permissible
and that the superior court must always look to the most recent
child support order. And Bennett reiterates our holding in
Turinsky and explains that this principle was intended to
encourage parents to either comply with court orders or move to
modify them in a timely manner.27
V. CONCLUSION
Because the language of Civil Rule 90.3(h)(3) does not
permit preclusion when the obligor parent did not have physical
custody of the children, we AFFIRM the superior courts decision.
_______________________________
1 Both parties agree that the State of Maine paid public
assistance on behalf of the children from 1991 through 1993 but
was reimbursed in full for this amount by Webb. Maine has not
requested additional enforcement services from Alaska and has
sought no further reimbursement from Webb.
2 Civil Rule 90.3(h)(3) uses the term arrearages. This
court has used both arrearages and arrears. Compare Cline v.
Cline, 90 P.3d 147, 151 (Alaska 2004) with Murphy v. Newlynn, 34
P.3d 331, 333 (Alaska 2001).
3 Murphy, 34 P.3d at 333.
4 Id.
5 Alaska Civil Rule 90.3(h)(2) provides: No Retroactive
Modification. Child support arrearage may not be modified
retroactively, except as allowed by AS 25.27.166(d). AS
25.27.166(d) permits retroactive modification if paternity is
disestablished.
6 In a technical sense, this provision does not permit a
retroactive modification of the child support award because it
does not extinguish the child support debt. It simply bars the
creditor from collecting the debt. In terms of pleading, the
rule provides a defense to collection, rather than a means of
disproving the debt.
7 See Murphy, 34 P.3d at 335 (allowing partial preclusion
when only one of two children lived with obligor parent).
8 See Alaska Civil Rule 90.3(h)(3); Murphy, 34 P.3d at
335.
9 ska Civil Rule 90.3(h)(3).Mundt v. Northwest Explor
ations, Inc., 963 P.2d 265, 270 (Alaska 1998).See M
10 Alaska Civil Rule 90.3(h)(3).
11 Mundt v. Northwest Explorations, Inc., 963 P.2d 265,
270 (Alaska 1998).
12 See Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska
1987) (superseded on other grounds by Civil Rule 90.3 and Vachon
v. Pugliese, 931 P.2d 371 (Alaska 1996)) (explaining that [a]
parents duty of support encompasses a duty to reimburse other
persons who provide the support the parent owes) (citation
omitted).
13 Id. (noting that [a] claim for reimbursement belongs to
whomever supported the children, and is simply an action on a
debt).
14 See State, Dept of Revenue, Child Support Enforcement
Div. ex. rel. Valdez v. Valdez, 941 P.2d 144, 154 n.14 (Alaska
1997) (The right to support is that of the child . . . .).
15 See AS 25.27.060(a) ([A]n order of support establishes
a relationship by which the custodian of the child is the
administrator for the purposes of administrating child support on
behalf of the child.).
16 Bennett v. Bennett, 6 P.3d 724, 727 (Alaska 2000).
17 Webb relies on our decision in Murphy, 34 P.3d at 331,
to argue that Rule 90.3(h)(2) should be extended beyond its
language. In Murphy, we held that the obligee parent was
precluded from collecting arrears for the child who lived with
the obligor, reasoning in part that requiring the obligor parent
to pay child support while he was actually supporting the child
would not benefit [the child] and would provide [the obligee
parent] with an undeserved windfall. Id. at 335. As an initial
matter, we note an essential factual difference between Murphy
and this case: in Murphy, the obligor parent contested paying
child support because he had primary physical custody of one of
the children. Id. at 332-33. Webb never had primary physical
custody of either of his children nor does he claim to have been
actually supporting either child during this period. Moreover,
our decision in Murphy relied on the principle that child support
awards . . . are intended to benefit the child. Id. at 335
(quoting Bennett, 6 P.3d at 727). And here, as we clarified
above, any windfall to Key would be temporary because the
grandmothers have a legal right to the support arrears. On
remand, the superior court has the discretion to structure its
order to ensure that the arrears are spent for the childrens
benefit. See, e.g., State, Dept of Soc. Servs., Cedar County ex
rel. Brecht v. Brecht, 255 N.W.2d 342, 345 (Iowa 1977)
(Reasonable and adequate safeguards should be imposed upon [child
support] lump sum payments to assure their eventual and orderly
distribution for the needs of the children.).
18 881 P.2d 318, 320 (Alaska 1994).
19 Turinsky v. Long, 910 P.2d 590, 595 (Alaska 1996)
(holding child support arrears should be based on the valid
custody and visitation order issued by the court, not on the
amount of visitation actually exercised).
20 See In re Marriage of Gregory, 281 Cal. Rptr. 188, 190
(Cal. App. 1991) (a parent must look for assistance from the
courts in order to modify or terminate a support order); Abrams
v. Connolly, 781 P.2d 651, 656 (Colo. 1989) (even following the
death of the custodial parent, the non-custodial parent must
resort to the court if modification of the support award is
justified).
21 In re Marriage of Gregory, 281 Cal. Rptr. at 190
(concluding that the death of the custodial parent does not
terminate the child support order); see also OBrien v. OBrien,
766 A.2d 211, 215 (Md. Spec. App. 2001, revd on other grounds,
790 A.2d 1 (Md. 2002) (same).
22 See, e.g., Stein v. Hubbard, 102 Cal. Rptr. 303, 303-04
(Cal. App. 1972) (court-ordered child support survives death of
non-custodial parent); In re Marriage of Gregory; 281 Cal. Rptr.
at 190 (death of custodial parent does not terminate support
order); In re Marriage of Beilock, 146 Cal. Rptr. 675, 730 (Cal.
App. 1972) (emancipation does not automatically terminate the
parents obligation of support) (internal quotations and citations
omitted); Matter of Marriage of Henick, 865 P.2d 1336, 1337-38
(Or. App. 1993) (appointment of temporary conservator did not end
fathers obligation to provide support).
23 We also note that the child support order in this case
imposes a support obligation on Webb; it does not specify that
this support obligation is to be paid only to Key. The order
would therefore permit CSED to substitute a third-party custodian
as payee. The support order in this case provides for support to
continue until each child reaches the age of eighteen, is
otherwise legally emancipated or dies.
24 910 P.2d at 590.
25 6 P.3d at 724.
26 910 P.2d at 595.
27 Bennett, 6 P.3d at 727 (citing Turinsky, 910 P.2d at
594-95).
