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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fowler v. State, Dept. of Revenue, Child Support Services Division (10/12/2007) sp-6174
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
| DAVID B. FOWLER, | ) |
| ) Supreme Court No. S- 12314 | |
| Appellant, | ) |
| ) Superior Court No. 1SI-06-8 CI | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF REVENUE, | ) |
| CHILD SUPPORT SERVICES | ) No. 6174 October 12, 2007 |
| DIVISION, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, First
Judicial District, Sitka, Larry C. Zervos,
Judge.
Appearances: David A. Graham, Graham Law
Firm, Sitka, for Appellant. Karen W. Ince,
Assistant Attorney General, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
The Idaho Department of Health and Welfare served David
Fowler with notice of a paternity suit, Fowler filed an answer
without a filing fee in the Idaho court, and the court entered a
default judgment against him for failure to pay the fee. Fowler
received notice of the departments intent to seek a default
judgment and the default judgment itself. He filed pleadings
with the court challenging its entry of default, which the
department moved to strike. The Idaho court set a hearing on the
departments motion, which Fowler did not attend.
Sometime after the proceedings ended in Idaho, Fowler
relocated to Alaska. The Alaska Child Support Services Division
sought to register and enforce the Idaho judgment against Fowler
under Alaskas Uniform Interstate Family Support Act1 and the
Federal Full Faith and Credit for Child Support Orders Act.2
Fowler appeared in court in Alaska to challenge registration of
the order, asserting that he was denied due process in the Idaho
proceedings. The superior court rejected Fowlers challenge and
registered the order without issuing a written decision. After
Fowler moved for reconsideration, the court issued a written
decision explaining its reasons for rejecting Fowlers due process
argument.
Fowler appeals, renewing his due process claim. Having
reviewed the parties briefing, the superior courts order, and the
record, we conclude that the superior courts order on
reconsideration accurately describes the relevant facts and
correctly applies the governing law. Accordingly, we set out the
courts order below and adopt it as the basis for our resolution
of Fowlers appeal.3
ORDER ON MOTION TO RECONSIDER
David Fowler moves the court to reconsider
the order allowing an Idaho child support order to be
registered in this state. He argues that the Idaho
court violated his due process rights by entering the
support order. Mr. Fowler made a very similar argument
at a hearing held on March 8, 2006. This court denies
his motion to reconsider for the same reason that the
court rejected his due process argument at the hearing.
I. FACTS
On January 19, 2006, the Alaska Child Support
Services Division petitioned the court under AS
25.25.602 to register a child support order from the
Idaho District Court. Mr. Fowler objected to the
registration because he claimed the Idaho court did not
provide him with due process before the court entered
the order. He argued that Alaska could not register
the order and he requested a hearing.
At the hearing, Mr. Fowler testified that he
was served with a summons and complaint in 2002 and
that he filed an answer. According to Mr. Fowler the
clerk accepted the answer for filing and did not tell
him there was a filing fee.
But on May 6, 2002, the Idaho court entered
default against Mr. Fowler because he did not pay the
filing fee. Mr. Fowler said he received a copy of the
default child support order. He also testified, when
shown a document that included a notice of intent to
enter default for failure to file an answer, that he
did not recall receiving this notice, but added that if
he did receive such a notice, he would have ignored it
because he already filed an answer.
In response to the default order, Mr. Fowler
said he filed an opposition to the order and asserted
what appear to be claims against the clerk of court.
He filed those pleadings on May 13, 2002 and paid an
$8.00 filing fee.
After he filed his response, the Plaintiff,
the Idaho Department of Health and Welfare, moved the
court for an order striking the pleadings. Mr. Fowler
admitted that he received the Departments motion to
strike. He also said it included a notice that there
would be a hearing. Mr. Fowler testified that he did
not attend the hearing because he did not think the
hearing required his attendance. He felt this way, he
said, because he filed his response already, and
because if they were going to just strike [his]
pleadings, that was one thing, but [his] defense was in
there, too, and that was the important thing; they
didnt say they were going to strike [his] defense.
Finally Mr. Fowler admitted that he received
the order striking his pleadings. That order stated in
part that Mr. Fowler received prior notice of the
hearing but did not attend.
At the conclusion of the evidence, Mr. Fowler
argued that the Idaho court violated his due process
rights by not considering his answer. He argued that
the Idaho court did not notify him that it would not
consider the answer nor did it notify him that he had
to pay a filing fee. Mr. Fowler maintained that the
Idaho court violated his due process rights when it
rejected his answer because he did not pay a filing
fee. And he argued that the hearing held after the
default judgment did not cure the violation because the
hearing did not address his answer, and in any case, he
asserted that in Alaska an order entered by a court in
violation of a partys procedural due process rights is
void.
The Division responded that Mr. Fowler
received a copy of the default judgment against him, so
he knew the court did not consider his answer, and that
is why he filed the responsive pleadings on May 13th.
Therefore, according to the Division, a reasonable
person would have attended the hearing scheduled by the
court.
This court held that it may or may not have
been a due process violation to refuse a pro se
litigants pleadings for failure to pay a filing fee,
but in looking at the full picture of what happened in
Idaho, no due process violation occurred. Mr. Fowler
had notice of the claim and he learned that his answer
was not considered. He filed a responsive pleading and
was given a hearing. He knew when the hearing was but
chose not to attend. After the hearing, and after Mr.
Fowler did not appear, the Idaho court granted the
motion to strike and the default judgment remained in
effect. Mr. Fowler did not appeal the judgment or file
a motion to set aside the judgment. Instead he did
nothing.
II. MR. FOWLERS ARGUMENT THAT THE POST-DEFAULT HEARING
DID NOT CURE THE DUE PROCESS VIOLATION
Mr. Fowler argues that the Idaho hearing
scheduled after the default is not a remedy because
neither his subsequent acts nor his omissions to act
can revive a void judgment. In support of his
statement, Mr. Fowler relies on State, Department of
Revenue, CSED v. Maxwell.1
In Maxwell, the Alaska Supreme Court held
that a void judgment cannot gain validity simply by the
passage of time.2 Also Mr. Fowler correctly points out
that he can attack a void judgment at any time.3 But,
of course, the question here is whether the Idaho
judgment is void.
Mr. Fowler contends that the Idaho judgment
is void based on the reasoning he found in two
Washington state cases. But the first case stands for
a proposition that is not in dispute. In Allstate
Insurance Co. v. Khani,4 the Washington Court of
Appeals determined that service on the defendant was
defective and therefore the judgment entered in
reliance on the defective service was void.5 The
appellate court also pointed out that the passage of
time did not bar a motion to vacate a void judgment.6
But unlike the Khani case, there is no issue
of defective service in this case. The issue here is
the same issue raised by Mr. Fowler at the hearing was
he afforded due process by the Idaho court.
And that leads to Mr. Fowlers second
Washington case. In R.R. Gable, Inc. v. Burrows,7 the
defendants, a couple living in Washington, received a
summons and complaint filed in Los Angeles County
court.8 The Burrows exchanged several letters with the
clerk of the California court seeking an exemption from
the courts filing fees and the requirement that they
file their pleadings on special pleading paper.9 The
clerk refused to waive the requirements, did not file
the answer and never notified the Burrows of the
decisions not to waive the requirements and not to file
the answer.10
The California court entered default judgment
against the Burrows without notifying them that entry
of a default judgment had been requested.11 After the
default judgment was granted, the plaintiff, R.R. Gable
Inc., tried to register the judgment with the
Washington trial court.12 The Burrows filed a motion
to vacate the filing and the court granted it because
of the California courts refusal to waive the special
pleading paper requirements and because that court did
not notify the Burrows of the request for a default
judgment.13
On appeal, the Washington Court of Appeals
acknowledged that a court can enter a default judgment
against a defendant who does not answer, and may do so
without additional notice on the theory that a properly
served defendant has been given adequate notice to
allow an intelligent decision on whether to appear or
default.14 But the court found that rule inapplicable
because the [Burrows] took action to contest the
complaint and were denied notice of the refusal to file
their answer and were not given a meaningful
opportunity to be heard.15 Because of this, the court
agreed with the lower court that the Burrows due
process rights were violated.16
There is a parallel course between the
Burrows case and Mr. Fowlers in that the original
courts in both cases refused to consider the defendants
answers. But there the similarity ends.
When Mr. Fowler was notified that his answer
had not been accepted, he was told why it was not
accepted. He was notified that a default judgment had
been entered and he filed an opposition to the default
and he filed what appear to be several claims against
the clerk of court. In response to these pleadings,
the Department moved to strike his opposition and his
claims and the court set on a hearing. Mr. Fowler knew
about the date and time of the hearing, but decided not
to attend.
His excuse for not attending is not very
convincing. He says that he did not attend because the
hearing was about the motion to strike. He also
asserts that it did not matter to him whether his May
13th pleadings were stricken because he had previously
filed his answer. The problem with this after-the-fact
excuse is that Mr. Fowlers May 13th pleadings contain
his argument as to why his answer should have been
accepted and why the default was wrongfully granted.
His pleadings also created factual questions about the
clerks actions and statements and about what the clerk
and court did with his answer. By not attending the
hearing he forfeited his opportunity to establish under
oath what he claims the clerk told him and why he filed
his answer in the manner he did. Not attending the
hearing guaranteed that any error by the clerk
concerning the filing fee or by the court in not
accepting the answer would never be addressed. It also
assured that his pleadings would be stricken.
Mr. Fowler had notice of the default and
notice of the reasons why it was entered. He had
notice of the hearing on the motion to strike his
opposition to the default. He had an opportunity to
attend the hearing to explain what the clerk said and
to explain why he did what he did with his answer. In
other words, he had notice and a meaningful opportunity
to be heard.17
III. CONCLUSION
Viewing the complete history of the
proceedings in Idaho, the court concludes again that
there was no due process violation. The court denies
the motion to reconsider. Because the motion to
reconsider is denied, Mr. Fowlers motion to stay is
moot.
______________________
17 Id.
II. CONCLUSION
For the reasons set out by the superior court in its
order reprinted above, we AFFIRM the superior courts registration
of the Idaho child support order in all respects.
_______________________________
1 AS 25.25.10125.25.903.
2 28 U.S.C. 1738B (2006).
3 We have edited the order to conform to this courts
style and formatting requirements and have omitted internal
citations.
1 State, Dept of Revenue, CSED v. Maxwell, 6 P.3d
733 (Alaska 2000).
2 Id. at 736.
3 In re Marriage of Leslie, 772 P.2d 1013, 1017
(Wash. 1989); Falkner v. Amerifirst Fed. Sav. & Loan
Assn, 489 So.2d 758, 759 (Fla. Dist. Ct. App. 1986).
4 Allstate Ins. Co. v. Khani, 877 P.2d 724 (Wash.
App. 1994).
5 Id. at 728.
6 Id.
7 R.R. Gable, Inc. v. Burrows, 649 P.2d 177 (Wash.
App. 1982).
8 Id. at 178.
9 Id. at 178-79.
10 Id. at 179.
11 Id.
12 Id.
13 Id.
14 Id. at 180.
15 Id.
16 Id.
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