Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kyte v. Stallings (9/19/2014) sp-6956

Kyte v. Stallings (9/19/2014) sp-6956

         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  


THOMAS E. KYTE,                                       )  

                                                      )        Supreme Court No. S-14492  

                           Appellant,                 )  

                                                      )        Superior Court No. 3AN-03-12844 CI  

                  v.                                  )  

                                                      )        O P I N I O N  

DEIDRE L. STALLINGS AND                               )  

STATE OF ALASKA,                                      )        No. 6956 - September 19, 2014  


DEPARTMENT OF REVENUE,                                )  

CHILD SUPPORT SERVICES                                )  


DIVISION,                                             )  


                           Appellees.                 )  


                  Appeal from the Superior Court of the State of Alaska, Third  



                  Judicial District, Anchorage, Alex Swiderski, Judge pro tem.  


                  Appearances:            Rhonda   F.   Butterfield,   Anchorage,   for  

                  Appellant.  Susan L. Daniels, Assistant Attorney General,  

                  Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                  Juneau,  for  Appellee  State  of  Alaska.    No  appearance  by  


                  Appellee Deidre L. Stallings.  

                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.   

                  MAASSEN, Justice.  

----------------------- Page 2-----------------------


                   In  this  appeal,  a  father  argues  that  he  was  entitled  to  a  retroactive  


modification  of  his  child  support  obligations.    He  contends  that  a  request  for  

modification he filed in 2008 with the Child Support Services Division (CSSD) was   

never resolved by a final, appealable  decision as required by Alaska Appellate Rule 602;  

that  the  request  was  therefore  still  pending  in  2011  when  he  filed  a  motion  for  

modification in superior court; and that modification to the date of his 2008 request  


would not be unlawfully retroactive.  We conclude, however, that CSSD's decision of  

the father's 2008 request was an appealable final order satisfying Appellate Rule 602,  


and we therefore affirm the superior court's conclusion that the father is not entitled to  

a retroactive modification of child support.  



                   Thomas Kyte and Deidre Stallings are the parents of a daughter, born in  

2002.  CSSD entered an administrative order in 2005 requiring Kyte to pay child support  

of $576 per month, based on his estimated annual income.  Stallings later moved that  

child  support  be  made  retroactive  to  2002,  and  Kyte  moved  for  a  prospective  


modification; the superior court denied both motions in a 2007 order that maintained the  

monthly amount set by the earlier administrative order.   


                   In  January  2008  Kyte  filed  with  CSSD  a  form  request  for  review  and  


modification of the 2007 order.  A few weeks later CSSD sent Kyte and Stallings notice  


that the request had been filed, describing the review process and asking both parents to  

submit income affidavits, tax records, pay stubs, and proof of health insurance.    


                   The next document in the record is central to this appeal. It is a notice from  

CSSD  to  Kyte  dated  May  8,  2008,  captioned  in  bold  letters:    "Notice  of  Denial  of  

Modification Review ."  The body of the notice reads:  

                                                           - 2 -                                                     6956

----------------------- Page 3-----------------------

                    We reviewed the request for a modification on May 8, 2008.


                    We  will  not  go  forward  with  the  modification  for  the


                    following reason(s):

                    . . . . 

                    (X)	        OTHER:    Requesting  party  (non-custodial  

                              parent)       did     not     provide        Child       Support  

                              Guidelines Affidavits, IRS returns, W-2's, pay  

                              stubs or proof of insurance.  

                    If you disagree with this decision, you must file an appeal in  


                    an Alaska court within 30 days of the date this Notice was  

                    mailed.  There is no administrative appeal process for this  


The notice is signed by a CSSD child support manager.  Nothing in the record indicates  


a response to this notice from either party.  

                    Over three years later, in June  2011, Kyte filed a motion in superior court,  


seeking  to  modify  his  child  support  obligation  because  of  a  serious  hip  injury  and  


consequent reduction in his income.  He asked for modification both prospectively and  


retroactively to March 2008.  Recognizing that retroactive child support modifications  

are generally not allowed, Kyte asserted in his motion that his January 2008 request for  


modification still remained open; he contended that CSSD's notice of denial did not  


constitute a valid final order under Alaska Appellate Rule 602(a)(2).1  

                                                                                                       CSSD intervened  


in the court proceeding in order to address the issue of retroactive modification; Stallings  

did not participate.  

                    The  superior  court  denied  Kyte's  request  for  retroactive  modification,  


finding that CSSD's May 2008 denial notice was a final order from which Kyte could  


have appealed.  Kyte appeals from the superior court's order.  CSSD again intervenes as  

an appellee; Stallings again does not participate.  



                    The modification Kyte sought in his January 2008 request would have had  

an effective date of March 1, 2008, had it been granted.  

                                                             - 3 -	                                                         6956  

----------------------- Page 4-----------------------



                     "We interpret Appellate Rule 602 de novo."   In so doing "[w]e adopt 'the  


rule of law most persuasive in light of precedent, reason, and policy.' "   



                     Alaska law prohibits retroactive modification of child support orders; the  

                                                                                      4  Accordingly, a court may not  


parent's obligation can be changed only prospectively.  

modify a child support order retroactively to any date before the day a motion to modify  


the order was filed.5  


                     Kyte's appeal relies on a narrow exception to this rule derived from the  

language of Appellate Rule 602(a).  The rule addresses the time for taking appeals;  

discussing  appeals  from  the  decisions  of  administrative  agencies  specifically,  Rule  

602(a)(2) provides in relevant part that "[t]he 30-day period for taking an appeal does   

not begin to run until the agency has issued a decision that                               clearly states that it is a final  


decision and that the claimant has thirty days to appeal." (Emphasis added.)  In Paxton  

v.  Gavlak,  we  held  that  once  CSSD  had  commenced  a  review  of  the  father's  child  


support obligations, the agency's "failure to send [the father] a closure letter satisfying  


Appellate Rule 602 had the consequence of keeping its review file open."   Because  

CSSD failed to close the file with a final, appealable decision denying relief, the father's  

           2         State, Dep't of Natural Res. v. Nondalton Tribal Council, 268 P.3d 293, 299  

(Alaska 2012) (citing Stone v. State, 255 P.3d 979, 982 (Alaska 2011)).  

          3          Stone, 255 P.3d at 982 (quoting                      Jacob v. State, Dep't of Health & Soc.  

Servs., Office of Children's Servs., 177 P.3d 1181, 1184 (Alaska 2008)).  

          4          Alaska  R.  Civ.  P.  90.3(h)(2);  Swaney  v.  Granger,  297  P.3d  132,  136  


(Alaska 2013); see also 42 U.S.C.  666(a)(9) (2012).  

           5         Alaska R. Civ. P. 90.3(h)(2); see Swaney, 297 P.3d at 136.  

           6         100 P.3d 7, 12 (Alaska 2004).  

                                                                 - 4 -                                                          6956

----------------------- Page 5-----------------------

child support  modification request in superior court could relate back to the date of his             


earlier agency petition - still technically pending.    

                     Kyte argues that the same rule governs his case.   He argues that CSSD  


never closed the file on his January 2008 modification request with a final, appealable  


order  that  satisfied  Appellate  Rule  602(a)(2),  and  that  he  should  be  permitted  a  

modification  of  child  support  retroactive  to  March  2008,  resulting  in  a  significant  

reduction in the past-due amounts he owes under the 2007 order.    

                     We  reject  Kyte's  argument,  concluding,  as  the  superior  court  did,  that  


CSSD's notice satisfied Appellate Rule 602(a)(2).  To be effective as a final order, a  


notice  must  "clearly  indicate"  both  requirements  identified  in  the  rule:    (1)  that  the  


                                                                                                            We have held that  

decision is final and (2) that an appeal must be filed within 30 days. 

"where an administrative agency's decision is communicated in a letter that fails to do  


either of these things, it is an abuse of discretion not to relax Rule 602(a)(2)'s thirty-day  


appeal deadline."9  

                     In Paxton , letters issued by the agency failed to meet either requirement.10  


Not only did they fail to inform the father that the agency had made its final decision or  


that he had 30 days to appeal, they also contained "dramatically erroneous information,"  


including notice that he was "in substantial compliance with his child support order."11  


We concluded that the father's confusion and his failure to timely appeal to the superior  


           7         Id.

           8         Skudrzyk v. Reynolds, 856 P.2d 462, 463 (Alaska 1993).

        Paxton , 100 P.3d at 12 (quoting id.) (internal quotation marks and alteration  


           10        Id.

       Id. (internal quotation marks omitted).  

                                                                 - 5 -                                                          6956

----------------------- Page 6-----------------------


court were reasonable under the circumstances.                                    We held that a modification of his  

child support obligation to the date CSSD issued its notice of petition would not be  




                     Unlike the father in Paxton , Kyte necessarily concedes that he was notified  

of his 30 days to appeal, as that fact is  expressly stated in the closing paragraph of  


CSSD's notice.                He argues, however, that the letter failed to satisfy the first, more  


fundamental requirement of Rule 602 - that it clearly convey that the agency decision  


is final.  Kyte's main quarrel with the letter is that it does not include the word "final"  

or a synonym of it.  But while use of the word "final" may well add clarity, we have  


never required the word itself, only that finality be "clearly indicate[d]."                                               Rule 602  



requires that the agency notice "clearly state[] that it is a final decision." 


form is important, whether a decision clearly is final depends more on its "substance and  


                                                                                                                        There  is  no  

effect,"  as  shown  by  "the  operational  or  decretal  language"  it  uses. 

question here that CSSD was giving Kyte notice of its final decision.  


                      The notice is clear, written in non-technical language, and contains at least  


three express indications of finality.  First, the notice is captioned, "Notice of Denial of  

Modification Review," clearly stating in bold letters that the agency has decided to deny  

           12        Id.  

           13        Id.  

           14         The letter's last paragraph includes this line:  "If you disagree with this   

decision, you must file an appeal in an Alaska court within 30 days of the date this  

Notice was mailed."  

           15        Skudrzyk v. Reynolds, 856 P.2d 462, 463 (Alaska 1993).  

           16        Alaska R. App. P. 602(a)(2).  

           17        Matanuska Maid, Inc. v. State , 620 P.2d 182, 184-85 (Alaska 1980).  

                                                                  - 6 -                                                            6956

----------------------- Page 7-----------------------


Kyte's  request.             Second,  the  notice  states,  "We  will  not  go  forward  with  the  


modification," giving its reasons (here, a lack of supporting documentation).  Finally, the  


notice concludes by informing Kyte that "[t]here is no administrative appeal process for  


this decision," and that if he disagrees with it he "must file an appeal in an Alaska court  


within 30 days of the date this Notice was mailed."  Taken as a whole, CSSD's notice  


clearly conveys to a reasonable reader that the agency's involvement with Kyte's request  


for modification is done - final - and any further action, such as "an appeal in an  

Alaska court," is up to him.  


                                                                                              The import of the agency  

                    The cases on which Kyte relies are inapposite. 


notice in this case was unmistakable:  CSSD's denial of his request for modification was  


its final action, and any further review had to be pursued in court within 30 days.  The  


superior court correctly ruled that Kyte was not entitled to a retroactive modification of  

his child support obligations based on his 2008 request.  

V.        CONCLUSION  

                    We AFFIRM the order of the superior court.  


                    Carlson  v.  Renkes,  113  P.3d  638,  642   (Alaska  2005)  (holding 30-day   

appeal period had not begun to run where letter did not state that it was a final decision          

or advise Carlson of his right to   appeal   within 30 days);  Skudrzyk, 856 P.2d at 463  

(relaxing  30-day  appeal  requirement  where  the  letter  "neither  indicated   that  [the]  

decision was the final order in Skudrzyk's tenure review nor advised Skudrzyk that he         

had thirty days to appeal"); Manning v. Alaska R.R. Corp. , 853 P.2d 1120, 1124 (Alaska  

1993) (relaxing 30-day appeal requirement where it was possible Manning had never  

received the decision letter, and "[t]he letter did not indicate it was an order, or that it was  


a final order, or that Manning had only thirty days to appeal from it"); Owsichek v. State,  


Guide Licensing & Control Bd., 627 P.2d 616, 622 (Alaska 1981) (allowing delay in  


filing where Owsichek was not notified by the agency "that the letter was its final order  


and that he could appeal from it, but only if he did so within the next thirty days").  

                                                               - 7 -                                                            6956  

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights