Opinion
Supreme Court No. S-12505, No. 1329.
February 4, 2009.
Appeal from the Superior Court of the State of Alaska, First Judicial District, Ketchikan, Michael A. Thompson, Judge, Superior Court No. 1KE-05-340 CI.
Appearances: Harvey Skan, pro se, Ketchikan. Karen W. Ince, Assistant Attorney General, Talis J. Colberg, Attorney General, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti, and Winfree, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Harvey Skan was ordered to pay support for his two children beginning in 1989. His first child reached the age of majority in 2001, and his second child did so in 2003. In 2005 Skan filed a motion to vacate his original child support order because his children no longer received support. The superior court dismissed the motion as an impermissible retroactive modification of Skan's support arrearage. Skan appeals. We affirm.
II. FACTS AND PROCEEDINGS
In June 1989 the Department of Revenue, Child Support Services Division (CSSD), issued an administrative support order requiring Skan to pay $809 per month for the care of his two children, Christopher and Rochelle. The order also established arrearages from December 1, 1986. This order took effect on August 1, 1989.
At the time of the order, the agency was named the Child Support Enforcement Division. It was renamed the Child Support Services Division in 2004. Ch. 107, § 1, SLA 2004. For clarity, we refer to the agency only by its current name.
The Skan children resided in foster care from February 1990 to June 1993. Beginning June 28, 1993, the children lived with either their mother, Janice Peterson, or their grandmother, Pauline Hennefer. The children's custodians periodically received public assistance benefits for the children's benefit throughout the children's minority. Christopher and Rochelle were emancipated upon reaching the age of majority: Christopher, on July 1, 2001, and Rochelle, on May 20, 2003. Peterson passed away on July 9, 2002.
CSSD reviewed Skan's file in October 1995. The agency recalculated Skan's annual income and increased his support obligation to $853 per month as a result. The agency issued an informal conference decision on modification explaining the change. This document specified the amount of Skan's new obligation four times. The first reference mistakenly stated the obligation as $119.95 per month, but the other three references correctly stated it as $853 per month.
Skan made only three voluntary payments before October 1995. He made voluntary partial payments from October 1995 to 1997. In 1997 Skan was arrested and tried for sexual abuse and assault. He was convicted of second-degree sexual abuse of a minor. During his incarceration he made small payments. Skan did not make any voluntary payments from November 1999 until June 2003.
See State v. Skan, No. 1KE-97-00608 CR (Alaska Super., June 3, 1997).
See State v. Skan, No. 1KE-97-00608 CR (Alaska Super., January 30, 1998).
On May 29, 2003, CSSD sent Skan a notice of adjustment, which informed him that his arrearages had been decreased by $50,132.05 due to the death of the custodial parent, Peterson. The remaining arrearage was $107,982.96.
In December 2003 Skan filed an administrative request for review with CSSD, as well as a request for review of his original child support order in the superior court. In both matters Skan sought an end to his obligations to the agency and a refund of income garnished by the agency.
Apparently in response to Skan's request, CSSD initiated a review of his file. In May 2004 Skan's CSSD caseworker discovered the erroneous reference to $119.95 in the October 1995 informal conference decision on modification. At the same time, CSSD also learned that it had miscalculated the annual income figure on which it had based the October 1995 modification. On Skan's behalf, CSSD filed with its director a request for relief from an administrative order pursuant to 15 Alaska Administrative Code (AAC) 125.125(b)(1) (2) on the grounds of mistake and newly discovered evidence. CSSD calculated that Skan's monthly support obligation should be reduced to $616 retroactively beginning August 1, 1995. On December 7, 2004, CSSD issued an administrative review decision that restated Skan's arrearage using the new, reduced monthly obligation amount. This resulted in a decrease in Skan's arrearage.
On August 24, 2005, Skan filed an appeal of an administrative action in the superior court. His appeal did not challenge a specific administrative decision. Rather, he sought to vacate the original support order, arguing that his children had been emancipated, he had paid to the best of his ability, and he should not be responsible for repaying welfare payments received by Peterson on behalf of their children. The superior court appears to have interpreted Skan's filing as an appeal of the change in his support obligation, assuming that Skan incorrectly believed that the change had increased the amount he owed. The superior court therefore dismissed his appeal on December 2, 2005, stating that "Mr. Skan has received the relief he sought without the need for court intervention."
On January 25, 2006, Skan filed for reconsideration of the dismissal of his appeal. He simultaneously filed another motion to vacate the original support order. In this motion to vacate, Skan stated that he was not challenging the change in his support obligation. On May 16, 2006, Skan filed a request with the superior court that it make a decision on his January 25 motion to vacate. The superior court denied the motion to vacate on May 31, 2006. Skan appeals.
III. STANDARD OF REVIEW
We review a superior court's determinations of law "de novo, adopting the rule of law most persuasive in light of precedent, reason, and policy." We affirm a lower court's procedural decision unless the decision constitutes an abuse of discretion. We will find an abuse of discretion if we are "left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling."
Petrolane Inc. v. Robles, 154 P.3d 1014, 1018 (Alaska 2007).
Walker v. Walker, 151 P.3d 444, 447 (Alaska 2007).
Bethel Family Clinic v. Bethel Wellness Assocs., 160 P.3d 142, 144 (Alaska 2007) (quoting City of Kenai v. Friends of the Recreation Ctr., Inc., 129 P.3d 452, 455 (Alaska 2006)) (internal quotation marks omitted).
IV. DISCUSSION
The superior court interpreted Skan's filings as possibly presenting: (1) an appeal from an administrative agency ruling, (2) a motion for retroactive modification of child support, (3) a motion seeking credit for unrecorded payments, and (4) a motion for the superior court to hold that he is not responsible for reimbursing the government for welfare benefits provided to his children during their minority or for the interest on the debt itself. The superior court held that Skan could not prevail on any of these claims. On appeal to this court, Skan also raises an issue with respect to CSSD's arrears forgiveness program. We discuss each of these possible claims in turn.
A. The Superior Court Did Not Abuse Its Discretion in Denying Skan's Possible Administrative Appeal.
The superior court ruled that Skan's pleadings were inadequate to initiate an appeal from an administrative agency ruling. We review a lower court's dismissal of a pro se litigant's case on procedural grounds for abuse of discretion.
See Gilbert v. Nina Plaza Condo Ass'n, 64 P.3d 126, 129 (Alaska 2003) (reviewing superior court's dismissal of pro se litigant's case for failure to comply with pre-trial order for abuse of discretion); Collins v. Arctic Builders, 957 P.2d 980, 982 (Alaska 1998) (per curiam) (reviewing superior court's dismissal of pro se litigant's administrative appeal for inadequate pleading under Appellate Rule 511.5 for abuse of discretion).
We hold pleadings by a pro se litigant to "less stringent standards than those of lawyers." At the same time, a pro se litigant "is expected to make a good faith attempt to comply with judicial procedures and to acquire general familiarity with and attempt to comply with the rules of procedure — absent this effort, [the litigant] may be denied the leniency otherwise afforded pro se litigants." Where pro se litigants make a good faith attempt but still fail to comply with formal requirements, we have said that "a court `should inform a pro se litigant of the proper procedure for the action he or she is obviously attempting to accomplish' and should also `inform pro se litigants of defects in their pleadings'" and give the litigants an opportunity to correct such defects.
Wright v. Shorten, 964 P.2d 441, 444 (Alaska 1998) (quoting Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)) (internal quotation marks omitted).
Gilbert, 64 P.3d at 129 (quoting Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002)).
Id. (quoting Breck, 745 P.2d at 75; Wright, 964 P.2d at 444).
Wright, 964 P.2d at 444.
Skan's administrative appeal filings were defective because they did not identify the decision being appealed. Skan did not file a copy of the decision being appealed. Skan's statement of points on appeal does not identify the decision being appealed, nor do his other filings before the superior court. Skan's brief to this court also does not identify the decision being appealed. This defect is substantive and not merely technical. To address Skan's administrative appeal claim, at a minimum the court must be able to determine what decision he is appealing.
Typically, a party appealing an administrative decision notifies the court of the decision being appealed by naming that decision in the statement of points on appeal and filing a copy of the decision with the court. See Alaska R. App. P. 602(c) (requiring the filing of a notice of appeal and a copy of the agency decision being appealed).
It is not obvious how Skan's filings could be corrected so as to allow Skan to pursue his goal through an administrative appeal, as there is no recent adverse decision he could appeal. The last two administrative decisions in Skan's case were both in his favor, resulting in decreases in his arrearage. Furthermore, in an attempt to clarify the basis of his administrative appeal, Skan stated in his pleadings to the superior court that he did not seek to appeal the agency's most recent decision, but rather sought to vacate the original order establishing his support obligations. The original order cannot now be appealed because it was issued in 1989, making appeal time-barred.
A party may appeal a final decision of an administrative agency establishing or modifying support payments to a superior court by filing "within 30 days after the decision." AS 25.27.210(a). Skan has no colorable equitable argument to toll this time bar because he had actual notice of the decision, as is demonstrated by his voluntary payments under it in the early 1990s. Skan's pleadings do not suggest an alternative argument for tolling the time bar.
We do not think the leniency typically afforded pro se litigants requires reversal here. Because there is no recent adverse administrative decision from which he might conceivably be appealing, it is unlikely that intervention by the superior court would have allowed Skan to correct his failings. Furthermore, the superior court addressed what seem to be the merits of Skan's claim in its refusal to order retroactive modification of his support obligation. We are not "left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling." Accordingly, we hold the superior court did not abuse its discretion in denying Skan's possible administrative appeal rather than attempting to remedy it.
Bethel Family Clinic v. Bethel Wellness Assocs., 160 P.3d 142, 144 (Alaska 2007) (quoting City of Kenai v. Friends of the Recreation Ctr., Inc., 129 P.3d 452, 455 (Alaska 2006)) (internal quotation marks omitted).
B. Skan's Motion for Retroactive Modification of Child Support Must Be Denied.
The superior court ruled that Skan could not prevail on his motion for retroactive modification of child support because the superior court did not have the authority to grant such a motion. Whether the superior court has authority to order a particular form of relief is a question of law which we review de novo.
See State, Dep't of Revenue v. DeLeon, 103 P.3d 897 (Alaska 2004) (reviewing de novo whether superior court had authority to order party to apply for permanent fund dividend); Hodge v. Sorba, 31 P.3d 1273 (Alaska 2001) (reviewing de novo whether superior court had authority to award attorney's fees).
A court order for support payments "is a judgment that becomes vested when each payment becomes due and unpaid." In general, Alaska and federal law prohibit courts from retroactively modifying child support orders. There are limited exceptions to this rule: "Retroactive modification is statutorily permitted only when paternity is disestablished and the modification can be implemented without violating federal law, or on the motion of the obligor when there is a clerical mistake or the support order is based on a default amount."
AS 25.27.225.
See 42 U.S.C. § 666(a)(9) (2006); Alaska R. Civ. P. 90.3(h)(2); see also Teseniar v. Spicer, 74 P.3d 910, 915 (Alaska 2003).
Teseniar, 74 P.3d at 915 (quoting Hendren v. State, Dep't of Revenue, Child Support Enforcement Div., 957 P.2d 1350, 1352 (Alaska 1998)) (internal quotation marks omitted); see also AS 25.27.166(d) (allowing retroactive modification after disestablishment of paternity); AS 25.27.195 (allowing retroactive modification to conform support obligations to obligor's actual income where agency had previously calculated support obligations based on default estimate of income).
In his pleadings in the superior court, Skan asked the court to vacate his child support order and refund the child support payments that CSSD had collected from him. Because there has been no ongoing support order since Rochelle was emancipated in May 2003 and Skan is requesting a refund for payments previously collected by CSSD, Skan's motion is properly treated as a motion for retroactive modification o f child support arrearages.
Skan makes three arguments in support of his motion for retroactive modification: (1) he paid to the best of his ability, (2) his obligations ended when the children's mother died, and (3) his obligations ended when his children were emancipated. These arguments do not satisfy any of the few exceptions to the general prohibition on retroactive modification.
Payment to the best of one's abilities is not an exception to the prohibition on retroactive modification of support obligations. An inability to pay may have served as grounds for a timely motion for modification of future child support, but not for a motion for retroactive modification.
See Alaska R. Civ. P. 90.3(h)(1) (allowing modification of child support award based on a material change of circumstances).
The death of the children's mother did not end Skan's support obligation. The death of a custodial parent does not automatically terminate the support obligation. Similarly, a child support order does not automatically end because a third party assumes custody of the children. CSSD may substitute a third-party custodian as payee when a child support order does not specify that support obligations be paid to a specific individual. In this case, the administrative support order did not specify a specific individual, allowing CSSD to substitute the children's grandmother as the payee of the support upon the death of the children's mother. To the extent that Skan is arguing that he is not responsible for payments owed to the children's mother, CSSD has already stopped collection efforts on arrears owed to the deceased mother and removed these support arrearages from Skan's child support case. Peterson's death does not relieve Skan of his obligation to pay the arrearages owed to the children's grandmother.
See Webb v. State, Dep't of Revenue, Child Support Enforcement Div., 120 P.3d 197, 200-01 (Alaska 2005) (approving cases from other jurisdictions reaching this conclusion).
Id. at 200.
Id. at 201 n. 23.
Skan's obligation to pay ongoing monthly child support did end when both of his children were emancipated. However, the children's emancipations did not end Skan's obligation to pay off the arrearage he had accrued, which consists of the sum of support obligations that came due when the children were minors and which were still unpaid at the time of the youngest child's emancipation.
Because Skan does not argue that he meets any of the exceptions to the prohibition on retroactive modification, he cannot prevail on his motion for a retroactive modification of support arrearages. C. Skan Has Not Shown He Made Child Support Payments for Which He Was Not Credited.
The superior court ruled that if Skan sought credit for child support payments that had gone unrecorded, the claim failed because Skan had not provided any evidence to support it. We review the superior court's legal determination de novo.
See Petrolane, Inc. v. Robles, 154 P.3d 1014, 1018 (Alaska 2007).
In the superior court, Skan did not produce any copies of receipts, checks, or other evidence of payments for which he did not receive credit. In his brief to this court, Skan does not allege the existence of any such evidence. CSSD completed an audit of Skan's case on January 24, 2005. The audit does not suggest Skan is owed additional credit.
On independent review, we find that the superior court was correct to rule that Skan's claim cannot succeed without any evidence to support it. Because it does not appear that Skan presented any evidence to support his claim, the superior court correctly refused to grant relief on it. D. Skan Is Responsible for Reimbursing the Government for Welfare Benefits Provided to His Children During Their Minority.
We need not determine what standard of review governs the question whether Skan presented any evidence to support his claim, because under any standard the superior court's ruling was proper.
The superior court ruled that as a matter of law Skan was responsible for reimbursing the government for welfare benefits provided to his children during their minority. We review this decision de novo.
See id.
A parent's duty of support includes a duty to reimburse other persons who have provided support to his or her children. Alaska Statute 25.27.120(a) states that:
Webb, 120 P.3d at 199-200 199 n. 12.
An obligor is liable to the state in the amount of assistance granted under AS 47.07 and AS 47.27 to a child to whom the obligor owes a duty of support except that, if a support order has been entered, the liability of the obligor for assistance granted under AS 47.27 may not exceed the amount of support provided for in the support order.[]
AS 47.07 provides state funding for medical care for the indigent. AS 47.27 provides temporary financial assistance to low-income adults caring for related dependent children.
Thus, under the statute the state is entitled to reimbursement for public assistance it has given to a child to whom the parent owes a duty of support.
The state has provided such assistance to Skan's children. The children resided in foster care from February 1990 to June 1993. Beginning June 28, 1993, they resided with either their mother or their grandmother. Their custodians periodically received public assistance benefits for the children's benefit throughout the children's minority. The majority of the remaining arrears for which Skan is liable are owed to the state for this past public assistance. Under AS 25.27.120(a), Skan is responsible as a matter of law for reimbursing the government for the public assistance benefits received by his children's custodians for the children's benefit during their minority.
E. Skan Has Waived His Argument Regarding the Arrearages Forgiveness Program.
In his brief, Skan refers to the administrative regulations for the arrearages forgiveness program. If this reference is intended as a claim that Skan's support obligations should be forgiven under the arrearages forgiveness program, the claim seems premature, as Skan has not applied for the forgiveness program and so cannot have exhausted his administrative remedies. In any event, we find Skan waived this claim because he did not raise it before the superior court. Accordingly, we do not address it.
See AS 25.27.020(f) (authorizing the program); 15 AAC 125.650 — .695 (program regulations).
V. CONCLUSION
For the reasons stated above, we AFFIRM the decision of the superior court.