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State vs John G. Wise and Cynthia Wolf (10/14/2005) sp-5948
State vs John G. Wise and Cynthia Wolf (10/14/2005) sp-5948
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
| STATE OF ALASKA,
| ) |
|
DEPARTMENT OF REVENUE, | ) Supreme Court No. S-
11656 |
|
CHILD SUPPORT SERVICES | ) |
|
DIVISION, | ) Superior Court No.
3AN-87-3637 CI |
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| ) |
|
Appellant, | )
|
|
| ) O P I N I O
N |
|
v. | ) |
|
| ) [No. 5948 - October
14, 2005] |
|
JOHN G. WISE and | ) |
|
CYNTHIA WOLF, | ) |
|
| ) |
|
Appellees. | )
|
|
| ) |
|
|
|
|
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Morgan
Christen, Judge.
Appearances: Anne E. Bandle, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellant. John G. Wise, pro se, Anchorage,
Appellee. No appearance by Appellee Wolf.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
PER CURIAM.
I. INTRODUCTION
Cynthia Wolf asked the Child Support Services Division
to modify John Wises child support for their son, Cory. The
division sent both parents a notice of petition for modification
of child support and, after examination of Wises finances, moved
the superior court to increase Wises child support. After a
hearing, the superior court modified the child support order,
making the new order effective from the date the division filed
its motion to modify, rather than from the date that it served
the parents the notice of petition. The only reason given for
this was the length of the divisions administrative review. The
division appeals. Because an administrative delay of nine months
is not a sufficient reason to diverge from the presumptive
effective date for the modification of a child support order, we
reverse.
II. FACTS AND PROCEEDINGS
John Wise and Cynthia Wolf are the parents of Cory,
born August 3, 1986. In 1992 the superior court ordered Wise to
make child support payments of $130 per month. In October 2002
Wolf asked the Child Support Services Division for a modification
of the order and the division sent Wise and Wolf a Notice of
Petition for Modification of Judicial Support Order on November
1, 2002. That notice requested information about the parties
incomes.
After Wise responded to this initial request, the
division sought further information on two subsequent occasions
April 2, 2003 and June 4, 2003. Wise provided the requested
information and documentation. Although the Master subsequently
found that Wise had cooperated with the investigation, the review
of his file took nine months and it was not until August 1, 2003,
that the division filed a Motion to Modify Support with the
superior court. The motion asked that Wises child support be
increased to $547 per month, effective December 1, 2002.
Wise requested a hearing, which was held in February
2004. The Masters report found that Wise was voluntarily
underemployed and imputed income to him based on his part-time
participation in a family rental business and on thirty hours a
week of minimum-wage work, increasing his child support
obligation to $272.47 per month. The Master recommended that
this increase be effective from September 1, 2003, noting that
the order should be entered for the first of the month after CSED
filed the motion in court (rather than the lengthy period of
administrative review).
The division filed an objection to the Masters
recommendations, arguing that there was insufficient basis to
delay the effective modification date from December 1, 2002 to
September 1, 2003. Wise filed an opposition, arguing that he had
been unable to save any money during the period of the
administrative review and would not receive any undeserved
benefit from the Masters proposed effective date. The superior
court issued the order for modification of child support with the
September 1, 2003 date, summarily approving the Masters
recommendations. The state appeals.
III. DISCUSSION
We review a trial courts decision on a motion to modify
child support under the abuse of discretion standard.1
Alaska Civil Rule 90.3(h)(2) prohibits retroactive
modification of a child support order. It provides:
Child support arrearage may not be modified
retroactively . . . . A modification which is
effective on or after the date that a motion
for modification, or a notice of petition for
modification by the Child Support Enforcement
Division, is served on the opposing party is
not considered a retroactive modification.[2]
Although the text of the rule expresses no preference as to the
most appropriate effective date for a modification order so long
as it does not predate notice to the obligor, in Boone v. Boone
we established that the presumptive effective date should be the
motion service date.3 We explained that this date best reflected
the needs of the child, holding that [d]elays in resolving such
disputes should not disadvantage parties entitled to relief.4 In
State v. Dillon, we expanded this holding to include cases in
which a request for modification was filed with CSED rather than
the superior court.5 We held that the date of a Notice of
Petition to Modify Child Support was the presumptive date that a
subsequent modified order would take effect.6 We reasoned: In
both situations, allowing modified child support orders to take
effect upon receipt of the initial notice adequately protects
noncustodial parents against prejudice, while both increasing the
likelihood that their payments will accurately reflect their
ability to pay and depriving them of incentives to engage in
tactical delay.7
Nevertheless, we have recognized that there may be
occasions when a different date is appropriate and the superior
court may order a different effective date when it finds good
cause to do so.8 But this is not such an occasion. In Dillon,
the father argued that the modified order should not be effective
from the date of the Notice of Petition because he had not
received a copy of the actual motion filed by the division.9 But
we held that a parent who did not receive a copy of the motion to
modify because the division failed to keep his address up-to-date
was not entitled to a later effective date because he was on
notice that his support obligation might change, having received
a Notice of Petition.10
Thus, Dillon stands for the proposition that absent
good cause, a modified child support order should be effective
from the date the parent receives notice that a modification is
being considered. And Dillon controls here. Wise was on notice
that his child support obligation might change after he received
the Notice of Petition in November 2002. We fail to see why a
delay of nine months while the division gathered financial
information from Wise is good cause to change the presumptive
effective date of the modified child support order. The Masters
recommendation provides no other justification for the later
date, nor is one apparent from the record.
In Boone, we held that service of the motion [or notice
of petition] gives the opposing party both fair warning that
support may change and an opportunity to reassess, even before
the court rules, the correct amount of support. This gives an
opportunity to adjust consumption patterns in anticipation of
modification, and thus minimize prejudice when relief is granted
effective as of the service date.11 Wise contends that he did not
change his spending habits after getting notice of the divisions
intent to request a modification, because he did not believe that
he was underemployed and did not expect his obligation to change.
But a non-custodial parents excessive optimism in assessing the
likelihood that his obligation will increase cannot be sufficient
cause to delay the effective date for such an increase without
sabotag[ing] the efficacy of Rule 90.3.12 Therefore, we hold that
it was an abuse of discretion for the superior court to diverge
from the presumptive effective date for the modification of child
support order simply because of the length of the administrative
review.
IV. CONCLUSION
Because a lengthy administrative delay by itself is not
good cause to diverge from the presumptive effective date for a
child support modification order, we REVERSE and REMAND to the
superior court for entry of the modified child support order,
effective from December 1, 2002.
_______________________________
1 Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998).
2 The Child Support Enforcement Division is now the Child
Support Services Division and the text of Rule 90.3(h)(2) has
been changed to reflect this, but this is the version of the rule
in effect when this case came before the superior court.
3 960 P.2d 579, 585 (Alaska 1998) (The rules text does
not express a preference or presumption that a modification
become effective on the motion service date, and does not prevent
the superior court from exercising its discretion and selecting a
later effective date. But we are nonetheless persuaded that the
motion service date should be the preferred effective date.).
4 Id.
5 977 P.2d 118, 120 (Alaska 1999).
6 Id. at 118 (Under Alaska Civil Rule 90.3(h)(2), a
revised child support order presumptively relates back to notice
of a petition for modification. Absent good cause for a later
effective date, this presumptive date must govern.).
7 Id. at 120.
8 See, e.g., Boone, 960 P.2d at 585 ([T]he superior court
should exercise its discretion in selecting a different effective
date only if it finds good cause for doing so.).
9 977 P.2d at 119.
10 Id. at 120.
11 960 P.2d at 585-86.
12 Id. at 586.
