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Bartlett v. state, Department of Revenue, Child Support Enforcement Division (12/16/2005) sp-5966
Bartlett v. state, Department of Revenue, Child Support Enforcement Division (12/16/2005) sp-5966
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
| JONNA BARTLETT, n/k/a
| ) |
|
JONNA ENCELEWSKI, | ) Supreme Court No. S-
11271 |
|
| ) |
|
Appellant, | ) Superior Court
No. |
|
| ) 3KN-85-00583
Civil |
|
v. | ) |
|
| ) O P I N I O
N |
|
STATE OF ALASKA, | ) |
|
DEPARTMENT OF REVENUE, | ) [No. 5966 - December 16,
2005] |
|
CHILD SUPPORT ENFORCEMENT | ) |
|
DIVISION ex rel. RALPH V. | ) |
|
BARTLETT, | ) |
|
| ) |
|
Appellee. | ) |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: Mark D. Osterman, Osterman Law
Office, P.C., Kenai, 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.
FABE, Justice.
I. INTRODUCTION
This appeal arises out of a dispute over the interstate
enforcement of a child support order. Arizona denied
registration and enforcement of a 1993 Alaska child support
order, holding that the father, Ralph Bartlett, was not properly
served and hence Alaska lacked personal jurisdiction. Based on
this judgment and a petition by Alaskas Child Support Enforcement
Division (CSED), the Alaska superior court vacated the 1993
order, apparently giving the Arizona courts order preclusive
effect. We reverse the vacation order and hold, based on the
exception to the doctrine of collateral estoppel found in section
28(3) of the Restatement (Second) of Judgments, that orders in
registration proceedings conducted under the Uniform Interstate
Family Support Act (UIFSA)1 should not be given preclusive effect
in the issuing state when the issuing state retains jurisdiction.
II. FACTS AND PROCEEDINGS
Alaska residents Ralph Bartlett and Jonna Bartlett (now
Encelewski) divorced in 1985. Ralph was initially ordered to pay
child support in the amount of $250 per month for their daughter,
Jenessa Bartlett. On August 1, 1990, this amount was raised to
$303.60 per month. In February 1993 CSED again reviewed Ralphs
support obligation, asking him for updated income information in
a letter sent to his last known address, a post office box in
Kalamazoo, Michigan. CSED verified that Ralph received mail at
this address in August 1992 and again in October 1992. After
Ralph failed to respond, CSED sought and received a superior
court order requiring him to submit an income affidavit and
supporting financial documentation. The motion for the order was
mailed to the Kalamazoo, Michigan address. The order, which was
granted on May 28, 1993, warned Ralph that if he did not respond
the court would impute an annual adjusted income of $60,000 and
set his child support at $1,000 per month.
In a letter dated June 23, 1993, Ralph objected to his
child support being set at $1,000 per month but did not provide
the requested financial information. Ralph explained that he
could not send check stubs verifying his income because he was
unemployed. It was later established that Ralph was hired by the
Arizona Public Service on June 21, 1993, was still living and
employed in Arizona in 1996, and was making a gross yearly income
of $50,112. Ralph also admitted in later pleadings that he had
been in Arizona since prior to April 23, 1993. But the return
address on Ralphs envelope was Wayland, Michigan; his letter was
mailed from Arizona; and Ralph stated in the letter that his home
base was Connecticut. Ralph did not clarify in his letter which
address CSED should use to contact him.
In August 1993 CSED notified the superior court of
Ralphs failure to comply with its order and requested that the
court modify Ralphs child support to $1,000 per month. Although
CSED confirmed through the postmaster that Ralph received mail at
the Wayland address in June 1993, CSED sent a copy of the notice
of noncompliance to Ralph at the Kalamazoo address, rather than
the Wayland address.
A month later, on September 13, 1993, Superior Court
Judge Charles K. Cranston raised Ralphs support obligation to
$1,000 per month based on an imputed annual income of $60,000.
The order listed the Kalamazoo address for Ralph. Later that
month, an assistant attorney general wrote to Ralph at the
Wayland address, advising him of the modification and telling him
that if he submitted income information the order could be
adjusted to a lesser amount.
In August 1994 Jenessas stepfather adopted her, ending
Ralphs support obligation. But CSED continued to seek arrears
that had accrued before the adoption. After learning that Ralph
had moved to Arizona, CSED tried to register the child support
order in that state under UIFSA. Ralph petitioned the Arizona
court to dismiss the registration, arguing that he was not
properly served with the 1993 modification because CSED used the
Kalamazoo address.
The Arizona court agreed. At the conclusion of a
December 1997 hearing, the Arizona superior court stated that it
was denying the registration order because proper service was not
made on the person of Mr. Bartlett. On May 13, 1998, an Alaska
wage withholding order was issued to Ralphs employer, Arizona
Public Service. On July 22, 1998, the Arizona superior court
quashed this withholding order and reiterated that Alaska had
failed to effectuate proper service on Ralph, rendering the 1993
child support judgment void.
Based on the Arizona courts order, Alaska Superior
Court Judge Harold M. Brown vacated the 1993 support order under
Alaska Civil Rule 60(b)(4), which provides that a judgment may be
set aside if it is void. Consequently, CSED determined that
Ralph had overpaid support and was owed $7,655.70, $5,545.56 of
which CSED had not yet distributed to Jonna. Jonna moved for a
new trial, which the superior court denied. Jonna then sought to
reinstate the 1993 order under Civil Rule 60(b), asserting that
Ralphs correspondence with CSED established that Ralph had actual
notice of the 1993 modification and that Ralph intentionally
misled CSED about his income and ability to pay child support.
Jonna also alleged that CSED failed to inform the Arizona court
of postal verifications in its files that showed that Ralph
received mail at the addresses listed and used by CSED. The
superior court found that Jonna had not proved her fraud,
misrepresentation or misconduct assertions by clear and
convincing evidence, declined to reinstate the 1993 child support
order, and concluded that the funds currently held by CSED should
be released to Ralph. Jonna appeals.
III. DISCUSSION
Despite the complicated procedural history of this
case, this appeal only concerns child support for a period of
roughly one year (September 1993 to August 1994) and is limited
to the narrow legal question whether the doctrine of collateral
estoppel bars review of an Arizona courts determination that the
Alaska superior court did not have personal jurisdiction due to
improper service.
A. Standard of Review
The applicability of the doctrine of collateral
estoppel is a question of law subject to our independent review.2
On questions of law, we adopt the rule of law most persuasive in
light of precedent, reason, and policy without deferring to the
lower courts decision.3
B. Arizona Properly Considered Jurisdictional Issues Prior
to Registering Alaskas Child Support Order Under UIFSA.
A complex statutory scheme of federal legislation
exists to promote efficiency and enforcement of interstate child
support judgments. The Uniform Interstate Family Support Act
(UIFSA)4 and the Full Faith and Credit for Child Support Orders
Act (FFCCSOA)5 require states to enforce other states child
support judgments in order to create uniformity in interstate
judgments. Both Arizona and Alaska have adopted UIFSA.6 UIFSA
permits a defendant who has not already litigated the issue to
contest the validity of the support order being registered by
proving that the issuing tribunal lacked personal jurisdiction
over the contesting party.7 [B]efore one state court is bound by
a judgment rendered in a court in another state, it may inquire
into the propriety of a foreign courts exercise of jurisdiction.
If the foreign court did not have jurisdiction, full faith and
credit need not be given.8 Similarly, FFCCSOA permits a party to
challenge the enforcement of a child support judgment when the
issuing court lacked subject matter jurisdiction, personal
jurisdiction, or failed to provide the contesting parties with
reasonable notice and opportunity to be heard.9
In contesting CSEDs attempt to register Alaskas child
support order in Arizona, Ralph argued that he was improperly
served with the 1993 modification order, and hence the Alaska
court lacked personal jurisdiction to modify his child support
obligation. Jonna contends that the Arizona court did not have
jurisdiction to consider the validity of Alaskas order because
Alaska retained exclusive jurisdiction to modify child support,
and service was properly made on Ralph. We disagree.
We have routinely stated that service of process is a
prerequisite to a court validly exercising personal jurisdiction
over a party.10 In Lagerway v. Lagerway, we held that it would
be improper for a court of this state to issue a judgment for
arrears [on a foreign support order] without first obtaining
personal jurisdiction over the obligor and affording him an
opportunity to litigate the propriety of such a modification.11
We further explained that the only exception to this rule occurs
when the foreign support order is a final judgment entitled to
full faith and credit in this state and the obligor has been
properly notified as to satisfy the due process clause.12 A
judgment is void where the state in which the judgment was
rendered had no jurisdiction to subject the parties or the
subject matter to its control . . . . 13 In this instance, the
Alaska superior court issued a default judgment against Ralph
following his failure to supply financial information. Ralph did
not litigate the issue of service or notice in the Alaska
superior court, nor did he appeal Alaskas modification order. In
the case of a judgment entered by . . . default, none of the
issues is actually litigated.14 We therefore conclude that,
given the provisions of UIFSA and FFCCSOA, it was proper for the
Arizona court to consider Ralphs contention that he was
improperly served.15
We need not address the merits of the Arizona courts
determination that there was a lack of personal jurisdiction. We
turn instead to the question whether the Arizona courts
determination bars subsequent litigation on this issue under the
doctrine of collateral estoppel.
C. The Exception to the Doctrine of Collateral Estoppel in
Section 28 of the Restatement (Second) of Judgments
Applies in this Case.
This appeal raises the question whether collateral
estoppel bars Jonna from challenging the Arizona courts
determination that the 1993 Alaska order was invalid due to lack
of service. Although the parties have raised questions regarding
privity and whether Jonna had an opportunity to contest Ralphs
claims before the Arizona court, we need not reach these issues
because we conclude that even if the elements of collateral
estoppel were shown to be satisfied in this case, an exception to
that doctrine applies.
The doctrine of collateral estoppel, or issue
preclusion, renders an issue of fact or law which has already
been decided by a court of competent jurisdiction conclusive in a
subsequent action between the same parties, whether on the same
or a different claim.16 To this general rule, section 28 of the
Restatement (Second) of Judgments sets out what can fairly be
called a limited scope, limited jurisdiction exception:
Although an issue is actually litigated and
determined by a valid and final judgment, and
the determination is essential to the
judgment, relitigation of the issue in a
subsequent action between the parties is not
precluded in the following circumstances:
. . . .
(3) A new determination of the issue is
warranted by differences in the quality or
extensiveness of the procedures followed in
the two courts or by factors relating to the
allocation of jurisdiction between
them[.][17]
We find that this exception applies in the case of child support
registration proceedings because such proceedings do diffe[r] in
the quality [and] extensiveness of the procedures followed in the
two courts18 and because there are factors relating to the
allocation of jurisdiction19 that strongly warrant granting
jurisdiction to the state issuing the child support order.
Child support registration proceedings are typically
perfunctory in the responding state and the responding state is
limited in its authority to act. Under UIFSA and FFCCSOA, the
registration of an out-of-state child support order takes place
immediately upon filing, without further action on the part of
the responding state.20 An obligor may contest registration or
enforcement by the responding state, but only on limited
grounds.21 If the responding state finds that a successful
defense has been presented in a registration contest, 607(b) of
UIFSA specifically lists two possible responses: a stay of
enforcement of the registered order in the responding state or a
continuance.22 The section also authorizes other appropriate
orders, but this phrase should be accorded a limited construction
consistent with the legislations proclivity toward non-
interference with the original order that is evident from the
remedies that are specifically provided.23
Crucial to this case, the responding state is expressly
prohibited from modifying the child support order of the issuing
state if either the child or the obligee continues to reside in
the issuing state.24 The prohibition against the modification of
a child support order is broad: modification means a change in
a child support order that affects the amount, scope or duration
of the order and modifies, replaces, supersedes, or otherwise is
made subsequent to the child support order.25 If the Arizona
order in this case were given issue-preclusive effect, the 1993
Alaska order would be modified within the meaning of 28 U.S.C.
1738B(b) because the amount of the 1993 order would be affected
and the order would be replaced by the earlier 1990 order
requiring Ralph to pay $303 per month.
The Arizona court itself recognized that its ruling was
not meant to be the last word on the validity of the 1993 Alaska
order. The Arizona court in its order of July 22, 1998 (issued
some months after ruling that Ralph had not been properly served)
set a status hearing for a future date to review the progress
being made between the Respondent and the States of Arizona and
Alaska as to jurisdiction on the $1,000 per month child support
order. This statement is consistent with the Arizona courts oral
ruling in which, after denying registration, the court indicated
that the $1,000 per month order was still in effect in Alaska:
[Court Addressing Ralph:]
And too because of what my concerns are with
you and Ive voiced them here and elsewhere,
nothing changes. The Alaska order of a
thousand dollars per month, according to them
is still in effect. Youll have to follow
through with that and get that taken care of.
So my suggestion to you is that you make
immediate arrangements through Mr. Nelson or
through an attorney in Alaska to make an
effort to overturn the current order.
Its a difficult situation. Its going to take
you some more money to get that done, but I
suggest you change that thousand dollar
order.
The statutory scheme also allocates jurisdiction
between issuing and responding courts in response to several
factors common to child support order proceedings. Under the
registration system previous to UIFSA, whether governed by the
Uniform Reciprocal Enforcement of Support Act (URESA)26 or its
revised version27 (RURESA), responding states were granted a
broader authority to modify child support degrees.28 To
accommodate these powers of modification, URESA had a clause
stating that orders entered by a responding state did not
supersede a prior order in the initiating state29 and the revised
version of URESA similarly provided that a support order entered
in a responding state would not nullify an order in an initiating
state unless specifically so provided.30
In State, Department of Revenue v. Valdez, we held that
a support order entered by a responding court pursuant to a URESA
petition, which does not specifically modify an order entered in
the initiating state, has no effect on the validity of that
earlier order and is not entitled to full faith and credit by
courts of the initiating state. We observed that this holding
was consistent with the intent of URESA to assist in the
enforcement of support obligation when parents move to new
jurisdictions.31 We also noted that the holding is consistent
with the practicalities of interstate enforcement including the
customary lack of participation by the obligee and the lack of
information on the part of the responding court.32 We recognized
that
it would be unfair to give preclusive effect
to a new support order entered in a
proceeding in which the obligee commonly does
not participate. See In re Marriage of
Popenhager, 160 Cal. Rptr. at 384 (The
specificity . . . required for modification .
. . recognizes that a reciprocal case is a
two-state matter with no appearance by the
obligee. Thus, the responding court may
frequently lack information as to the
obligees testimony or evidence as to the
obligees ability to pay.).[33]
The same policies and practical realities that underlay
the reluctance to give res judicata effect to child support
orders issued by responding states under URESA also apply to the
current UIFSA regime. If anything, the increased restrictions on
the authority of responding states to modify child support orders
in UIFSA suggest that courts should be even more reluctant to
give preclusive effect to orders issued by responding states. In
the words of the Restatement (Second) of Judgments, these
policies and practicalities are factors that suggest that the
proper allocation of jurisdiction as between two courts should
rest with the issuing court.34
Although cases under UIFSA concerning the preclusive
effect of the responding states order on the issuing states order
are rare, the Court of Appeals of Kansas in Summitt v. Summitt
has addressed the exact issue.35 The court there declined to
give res judicata effect to a series of orders issued by North
Carolina that refused the registration and enforcement of orders
of support originally issued by Kansas. The North Carolina court
had repeatedly found that the obligor was not in arrears on his
support duty. The last such order was governed by UIFSA. The
obligors argument, as summarized by the Kansas court, is very
similar to Ralphs argument in this case:
Linda submitted the matter to the North
Carolina court, which found that he was not
in arrears. According to Danny, the North
Carolina decisions nullified the Kansas
orders, and Lindas failure to appeal any of
the North Carolina decisions rendered that
courts findings res judicata as to whether he
owed arrearages.
The Kansas court rejected this argument both as to the orders to
which URESA applied and as to the final order governed by UIFSA.
As to the UIFSA order, the court held that because under UIFSA,
North Carolina lacked jurisdiction to nullify the Kansas orders,
the Kansas trial court properly declined to give preclusive
effect to the North Carolina decisions discussing whether
arrearages were owed.36
In short, the increased restrictions on the respondings
state authority in the registration and enforcement of child
support orders under UIFSA suggest that the proceedings on child
support orders undertaken by the responding state are different
in quality and extensiveness from those of the issuing state.
The policies and practicalities involved in child support
proceedings, which are ongoing and continuous in the original
jurisdiction so long as the child or obligee still resides in
that jurisdiction, also suggest that the allocation of
jurisdiction as between the two states should be in favor of the
issuing state. Based on the limited scope, limited jurisdiction
exception of the Restatement (Second) of Judgments, we therefore
conclude that the Arizona courts determination that Ralph was not
properly served should not be given issue preclusive effect so as
to invalidate the 1993 Alaska order.
IV. CONCLUSION
Because the limited scope, limited jurisdiction
exception to the collateral estoppel doctrine applies, we REVERSE
the order vacating the 1993 order for modification and REMAND for
proceedings consistent with this opinion.
_______________________________
1 9 U.L.A. 241 (2001).
2 Campion v. State of Alaska, Dept of Comty. & Regl
Affairs, Hous. Assistance Div., 876 P.2d 1096, 1098 (Alaska 1994)
(citing Borg-Warner v. Avco Corp., 850 P.2d 628, 643 n.15 (Alaska
1993)).
3 Norcon, Inc. v. Kotowski, 971 P.2d 158, 164 n.3 (Alaska
1999).
4 Unif. Interstate Family Support Act 603(c), 9 U.L.A.
255 (2001) (providing that a state asked to enforce another
states child support order shall recognize and enforce, but may
not modify, a registered order if the issuing tribunal had
jurisdiction). 42 U.S.C. 666(f) (2000) requires states to adopt
UIFSA.
5 28 U.S.C. 1738B (2000) states in full:
c) Requirements of child support
orders. A child support order made by a
court of a State is made consistently with
this section if
(1) a court that makes the order
pursuant to the laws of the State in which
the court is located and subsections (e),
(f), and (g)
(A) has subject matter jurisdiction to
hear the matter and enter such an order; and
(B) has personal jurisdiction over the
contestants; and
(2) reasonable notice and opportunity
to be heard is given to the contestants.
6 AS 25.25.101 et seq.; Ariz Rev. Stat. 25-261 et seq.
7 AS 25.25.607(a)(1); see also Wall v. Stinson, 983 P.2d
736, 737 (Alaska 1999) (explaining final judgments are entitled
to full faith and credit in sister states as long as issuing
court had jurisdiction over parties and subject matter); United
States v. Bigford, 365 F.3d 859, 871 (10th Cir. 2004).
8 Superior Court v. Ricketts, 836 A.2d 707, 736 (Md.
Spec. App. 2003) (quoting Imperial Hotel, Inc. v. Bell Atlantic
Tri-Con Leasing Corp., 603 A.2d 1371, 1373-74 (Md. Spec. App.
1992)) (holding no res judicata where appellee never litigated in
California whether California courts had jurisdiction to enter
two default judgments against him; circuit court was entitled to
determine whether California exercised jurisdiction properly).
9 28 U.S.C. 1738B (2000).
10 See, e.g., Beam v. Adams, 749 P.2d 366, 367 (Alaska
1988).
11 681 P.2d 309, 312 (Alaska 1984).
12 Id. (citing Shaffer v. Heitner, 433 U.S. 186 (1977));
see also Kurtis A. Kemper, Annotation, Construction and
Application of Uniform Interstate Family Support Act, 90 A.L.R.
5th 1, 45 (2005).
13 DeNardo v. State, 740 P.2d 453, 457 (Alaska 1987)
(quoting Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966)).
14 Campion, 876 P.2d at 1099 (quoting Restatement (Second)
of Judgments 27 cmt. e (1982)).
15 Arizona explicitly found that it did not have
jurisdiction to modify the child support order and hence, did not
improperly impinge on Alaskas continuing exclusive jurisdiction
in this matter, as Jonna asserts.
16 McElroy v. Kennedy, 74 P.3d 903, 907 (Alaska 2003)
(citing Restatement (Second) of Judgments 27 (1982)).
17 Restatement (Second) of Judgments 28 (Exceptions To
The General Rule Of Issue Preclusion).
18 Id.
19 Id.
20 Unif. Interstate Family Support Act 601-607, 9 U.L.A.
241 (2001).
21 Id.
22 Section 607(b) of UIFSA provides:
If a party presents evidence establishing a
full or partial defense under subsection (a),
a tribunal may stay enforcement of the
registered order, continue the proceeding to
permit production of additional relevant
evidence, and issue other appropriate orders.
An uncontested portion of the registered
order may be enforced by all remedies
available under the law of this state.
23 This interpretation entails an application of the
ejusdem generis principle (the general is controlled by the
particular) in that when several items in a list share an
attribute, it suggests that the general item possesses the same
attribute. See Alaska State Employees Assn v. Alaska Pub.
Employees Assn, 825 P.2d 451, 460 (Alaska 1991).
24 UIFSA 610-613; 28 U.S.C. 1738(B)(d)-(e).
25 28 U.S.C. 1738B(b).
26 9C U.L.A. 273 (2001).
27 9C U.L.A. 81 (2001).
28 The commentary to 606(a) of UIFSA notes that UIFSA is
philosophically very different from RURESA which directed that a
registered order shall be treated in the same manner as a support
order issued by a court of this state. Under UIFSA a contest of
the fundamental provisions of the registered order is not
permitted in the responding State.
29 See URESA 30, quoted in State, Dept of Revenue, Child
Support Enforcement Div. ex rel. Valdez v. Valdez, 941 P.2d 144,
148 (Alaska 1997).
30 RURESA 31, quoted in Valdez, 941 P.2d at 149.
31 941 P.2d at 150.
32 Id.
33 Id.
34 Restatement (Second) of Judgments 28(3).
35 74 P.3d 584, 586-87 (Kan. App. 2003).
36 Id. at 586.
