Opinion
Supreme Court No. S-11082.
November 3, 2004.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Joel H. Bolger, Judge. Superior Court No. 3AN-01-12938 Civil.
Robert Weber, pro se, Wasilla.
Susan L. Daniels, Assistant Attorney General, Anchorage, Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Robert Weber appeals the superior court's decision affirming the Child Support Enforcement Division's (CSED) modification of his child support obligation from $158 per month to $452 per month. Because no substantial evidence in the record supports the hearing officer's decision to base his calculation of support on a level of income higher than that agreed to by both Weber and CSED at the formal hearing, we reverse the decision to set support at $452.
II. FACTS AND PROCEEDINGS
The State of Texas recognized the common law marriage of Mary L. Weber and Robert M. Weber in 1972. The couple had three children: Robert born in November 1978, Max born in April 1981, and Veronica born in February 1984. Robert turned eighteen in November 1996, Max in April 1999, and Veronica in February 2002. When the Webers divorced in 1992 in Alaska, Mary Weber received sole custody of the children, and Robert Weber (Weber) received liberal visitation rights. The court ordered Weber to "pay child support pursuant to Civil Rule 90.3 through the Child Support Enforcement Division, where an active file ha[d] previously been established."
In 1988 CSED found Weber financially responsible for the support of the three children and ordered him to pay child support of $866 per month. In 1990 CSED modified this support order, ordering ongoing support in the amount of $262 per month. Max and Robert Weber moved in with their father in October 1995. Weber never petitioned the court for a change in the custody order. Weber apparently informed CSED of the change in the living situation of the boys in August 1996. At first CSED stated in letters that it could modify Weber's child support obligation to reflect the change in actual custody. Weber petitioned for modification of his administrative support order in April 1997. In a letter dated July 24, 1997, CSED informed Weber that, having been informed by Mary Weber of the existence of a court order granting sole custody to her, it would not be able to consider the change in custody of Max in Weber's requested modification unless Weber obtained a court order granting him custody. CSED denied modification in September 1997 because Weber failed to provide the information needed to complete the modification. Weber never appealed this denial.
On May 21, 2001, Mary Weber filed a request for modification of the administrative support order. CSED issued a Modified Administrative Child Support and Medical Support Order on August 23, 2001, raising Weber's support obligation to $354.00 for one child. Weber filed a request for appeal of the modification on September 7, 2001. A hearing was held before Revenue Hearing Officer Dale Whitney on October 15, 2001. Weber appeared telephonically. In his decision of November 16, 2001, Hearing Officer Whitney found that a modification was warranted because the new level of support was more than fifteen percent higher than the level previously set. He found Weber's adjusted annual income to be $27,146 which resulted in support being set at $452 per month. Weber appealed this decision to the superior court. The superior court affirmed the decision of the hearing officer. This appeal follows.
III. STANDARD OF REVIEW
We review de novo the decision of a superior court when it is acting as an intermediate court of appeal from an agency decision. We substitute our judgment for that of the agency on issues of statutory and constitutional interpretation, adopting the "rule of law that is most persuasive in light of precedent, reason, and policy." We review an agency's factual determinations under the substantial evidence test. Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Bostic v. State, Dep't of Revenue, Child Support Enforcement Div., 968 P.2d 564, 567 (Alaska 1998).
Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).
Id.
Id.
IV. DISCUSSION
Weber makes a number of interrelated arguments concerning the child support obligations that CSED has imposed on him. He argues that it was an abuse of discretion for the agency to raise his support amount for one child to $452. Weber also challenges the agency's order for post-majority support, claiming that CSED lacks authority to order such support and that even if it has the authority, it was an abuse of discretion to require Weber to pay support for the month of June when Veronica's classes ended in May. In a tangentially related argument, Weber asks that this court hold that "no parent should ever be forced to pay child support on children living in their own home," presumably arguing that his current support obligation to Veronica should be offset by support he previously paid on his two sons after they began living with him in October 1995. Finally, Weber argues that the hearing before the agency was unfair, denying him due process of law.
A. CSED's Decision To Base Weber's Support Obligation for One Child on a Higher Income Level than that Agreed to at the Hearing Is Not Supported by Substantial Evidence.
On May 21, 2001, Mary Weber filed a request for modification of the administrative support order. CSED issued a Modified Administrative Child Support and Medical Support Order on August 23, 2001, raising Weber's support obligation to $354 for one child. This figure was based on "Department of Labor wages, unemployment benefits 3rd quarter 2000 through 2nd quarter 2001 and the Alaska Permanent Fund Dividend," which added up to a gross income of $25,675.86. Weber filed a request for appeal of the modification on September 7, 2001. Weber listed as his reasons for appeal:
(1) I have a letter from the commissioner's office.
(2) My income has not changed much, let alone 125%.
(3) I have been forced to pay support to the state for 2 sons living in my house for the better part of five years with none of the extra money going to their mother.
(4) I am still the resident parent of one son in full time school.
(5) This latest action would be considered harassment by CSED in some circles.
On October 8, 2001, CSED recalculated Weber's support. This time CSED found that Weber had a total gross income of $33,066.78. At the hearing Weber testified that $25,000 per year was a good estimate of his yearly income. Both Weber and the CSED representative at the hearing agreed that there was no dispute as to Weber's income being about $25,000. The hearing officer stated that there was no more information for anyone to submit and then closed the record.
In issuing his opinion, Hearing Officer Whitney found that Weber's adjusted annual income was $27,146, and that since Weber presented no facts that would support a lower level of support, he applied the Rule 90.3 schedule and ordered support to be paid in the amount of $452 per month. This figure was taken directly from the calculations CSED made on October 8, 2001. Nothing in the record explains why these calculations differ from those CSED made on August 28, 2001, which found Weber's gross income to be $25,675.86, resulting in a support obligation of $354.13. The hearing officer's opinion does not explain why he chose the higher estimates or why he disregarded Weber's testimony that his income was about $25,000 per year. Most troubling of all is the fact that at the hearing both Weber and the CSED representative agreed that the estimate of $25,000 was correct. Neither CSED nor the hearing officer gave Weber any indication that his income level was in dispute. Therefore, he had no incentive to provide additional evidence to prove that his gross income was $25,000, rather than the $33,066.78 attributed to him by the hearing officer. The hearing officer's calculation using an income higher than that agreed to by both parties at the hearing is not supported by substantial evidence and as such is reversed.
B. It Was Not Error for CSED To Modify Weber's Support Obligation in Accordance with Rule 90.3's Schedule.
Weber next argues that it was unreasonable for CSED to set his support obligation at $452 per month because to do so would place his family below the poverty level, and because in doing so the hearing officer ignored Weber's testimony at the hearing. With respect to the poverty level argument, Civil Rule 90.3(c)(1) provides that "the court may vary the child support award as calculated under the other provisions of this rule for good cause upon proof by clear and convincing evidence that manifest injustice would result if the support award were not varied." Section (c)(1)(B) provides that good cause may include "that the parent with the child support obligation has a gross income which is below the poverty level as set forth in the Federal Register." Although he did not provide any documentation of his income, Weber testified at his hearing that he would estimate his yearly income as $25,000. The 2000 United States Department of Health and Human Services Poverty Guidelines provide that the poverty level in Alaska of a family of four is $21,320. Civil Rule 90.3(c)(1)(B) mentions a gross income below the poverty level as an example of good cause, but in this case Weber effectively conceded that his gross income is above the poverty level when he testified to an income of $25,000. Therefore, Weber has advanced no convincing argument that the support amount was unreasonable on this basis.
CSED has expressly adopted Rule 90.3 for purposes of its own administrative child support determinations. 15 AAC 125.010.
Weber claims himself, his wife, a daughter, and a son, which results in a family of four.
C. Persily's Letter Could Not Waive Mary Weber's Right To Request Modification, but Might Constitute Waiver of CSED's Right to Reimbursement from Weber for Money Owed to the State.
At the hearing, Weber's main objection to the support modification was that it contradicted a letter written to him by Larry Persily, Deputy Commissioner, stating that his support obligations would remain the same. This letter is dated August 14, 2000, and is in response to a dispute over the propriety of a wage-withholding order. Persily states that he is cancelling the order because it is "not worth wasting my time to argue it with [Weber] anymore." Persily writes that he and the child support staff will not answer any more letters from Weber, unless there is something new to discuss. The letter ends telling Weber to send in his payment each month and then the case will close in February 2002.
Hearing Officer Whitney found Weber's argument to be "understandable," but found that the letter was an agreement only by CSED not to itself initiate a support modification. In this case Mary Weber initiated the modification, and CSED had no power to waive her right to modification of support. The superior court agreed with this conclusion, noting that Mary Weber was statutorily authorized to seek modification of the administrative support order under AS 25.27.190(a), (e). In State, Department of Revenue, Child Support Enforcement Division, ex rel. Valdez v. Valdez, this court held that while CSED could waive its right to seek reimbursement from an obligor for state welfare benefits paid on behalf of the child, "the right to support is that of the child and thus cannot be waived by CSED." The record is unclear whether this child support money would be paid to Mary Weber for the support of Veronica or whether it would go to the State as reimbursement for AFDC. Weber alleges that Mary requested the modification only because she was required to do so before receiving state welfare benefits. But Weber presents no evidence showing whether Mary was actually receiving AFDC for Veronica. This is similar to the situation in Valdez, where the court noted that the briefing and record were unclear as to whether the amounts collected would go to the mother or the state. The court held that
Former AS 25.27.190 (amended 6/29/04) states:
(a) Unless a support order has been entered by a court and except as provided in AS 25.25, the obligor, or the obligee or the obligee's custodian, may petition the agency or its designee for a modification of the administrative finding or decision of responsibility previously entered with regard to future periodic support payments. In addition, the agency may initiate a modification and grant a hearing under (c) — (e) of this section.
. . . .
(e) Modification or termination of future periodic support payments may be ordered upon a showing of good cause and material change in circumstances. The adoption or enactment of guidelines or a significant amendment to guidelines for determining child support is a material change in circumstances, if the guidelines are relevant to the petition.
941 P.2d 144, 154 n. 14 (Alaska 1997).
[i]f . . . the arrearages are payable to Linda, then the defenses of waiver and estoppel would not be available to Alfonso. If, on the other hand, some portion of the arrearages constitute reimbursement to the State for AFDC payments made to Linda, then the court should determine on remand whether CSED waived or should be estopped from collecting those amounts.
Id.
Similarly, the superior court should on remand consider the argument that the letter constitutes estoppel or waiver if it finds that some portion of the support collected was to reimburse the State.
D. Weber Cannot Now Challenge His Payment of Support for Periods His Sons Lived with Him Because He Failed Either To Appeal CSED's Denial of Modification or To Petition a Court for a Change in Custody.
Weber's final argument concerning the amount of child support owed is that he should be given credit for the support he paid for his two sons while they were living with him. Both of his sons lived with him from October 1995 onward. Because Weber never petitioned the court to modify the child custody order giving physical custody of all three children to Mary Weber, CSED required Weber to continue paying child support on his sons. Hearing Officer Whitney did not mention this argument in his decision. Weber mentioned the issue briefly at the hearing, stating that he was never "given an accounting of the support I paid on Robert and Max or where the money went while they were living with me. I don't think their mother got any of it." The only other mention of the issue is when Weber admits that he "was going to write off the thousands of dollars that I've spent on their support when they lived with me but — you know, I guess somebody couldn't let well enough alone so here we are." The superior court found this issue waived on appeal because Weber failed to list it in his points on appeal and because the record and briefing were inadequate to allow the court to fairly address it.
In his Notice of Appeal from Administrative Agency, Weber stated his reasons for appeal as follows:
(1) appellee has increased appellant's child support obligations, resulting in his income being below the poverty level, without good cause, not for the benefit of the obligee, and contrary to Civil Rule 90.3 and the written statement/agreement of Larry Persily, Deputy Commissioner of appellee.
(2) appellee has withheld from or refused to provide appellant with documents material to his case, in violation of state and federal law, and due process clauses of federal and state constitutions.
One could argue that Weber's argument falls within his contention that raising his child support obligation was contrary to Rule 90.3. Rule 90.3(h)(3) states:
The court may find that a parent and a parent's assignee are precluded from collecting arrearages for support of children that accumulated during a time period exceeding nine months for which the parent agreed or acquiesced to the obligor exercising primary custody of the children. A finding that preclusion is a defense must be based on clear and convincing evidence.
CSED's collection of arrearages for the period when Weber's two sons lived with him might violate this provision of Rule 90.3. But this court need not reach this issue because Weber failed to appeal CSED's decision not to modify his support obligation. On April 8, 1997, Weber filed a petition for modification of his administrative support order. On September 29, 1997, CSED sent Weber a Notice of Denial of Modification. This notice included the proper procedures to appeal. Our review of the record does not reveal any documents suggesting that Weber appealed this decision. In his hearing, he stated that he "was going to write off the thousands of dollars" that he spent on the support of his sons, which suggests that he acquiesced to CSED's decision. Weber cannot now in this proceeding try to reopen an issue that has been finally decided and not appealed.
E. CSED Has the Authority To Order Post-Majority Support.
The August 23, 2001 Modified Administrative Child Support and Medical Support Order set Weber's child support obligation at $354 per month. The order also called for post-majority support while a child is eighteen so long as that child is unmarried, actively pursuing a high school diploma, and is living as a dependent with the obligee parent or guardian. In his appeal from this order Weber did not mention the issue of post-majority support. At his hearing, the only mention of post-majority support was when Weber testified that "from what I gather from this letter, it's not going to end when she turns 18." The CSED representative clarified for Weber that since Veronica was still in high school, he would probably pay until she finishes high school. Weber asked, "Well, worst case scenario, how long do I have to pay?" After being told it would be until Veronica finishes high school, Weber replied "Okay. This stuff is not clear." The superior court found that the order to pay post-majority support became effective when Weber failed to appeal that aspect of the order. Because it was not appealed to the superior court, this aspect of the order is not properly before this court. Additionally AS 25.27.061 clearly contemplates that CSED has the authority to make administrative orders for post-majority support:
Issues not raised below are waived on appeal. Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001).
A judgment, court order, or order of the agency under this chapter that provides for child support to be paid for the care of an unmarried 18-year-old child who is actively pursuing a high school diploma or an equivalent level of technical or vocational training while living as a dependent with a parent, guardian, or designee of the parent or guardian, may provide for the support to be paid directly to the child upon terms and conditions considered appropriate by the court or agency.
In a related argument, Weber asserts that it was an abuse of discretion for CSED to order him to pay support for June when Veronica finished her classes in May and only had her graduation ceremony in June. On March 18, 2002, Weber received a notice of adjustment stating that charges would be owed through June 2002. We find it reasonable for CSED to interpret "actively pursuing a high school diploma" as extending until graduation day. But the propriety of this decision is not properly before this court at this time because Weber did not appeal this aspect of CSED's decision to the superior court.
F. Weber Was Not Deprived of Due Process of Law.
Weber's main argument regarding due process was that he was denied a copy of his file. He also argues that his hearing was unfair because CSED represented his ex-wife's interest and ignored his testimony at the hearing, and because all present received paychecks from CSED. "Due process of law requires that before valuable property rights can be taken directly or infringed upon by governmental action, there must be notice and an opportunity to be heard." Because due process is a flexible concept, we must evaluate the entire set of safeguards CSED provided. Weber does not argue that he was not given adequate notice of his hearing. However, if he were denied access to his record, then he might not have been given an adequate opportunity to prepare for his hearing so that he was effectively denied a meaningful opportunity to be heard. But the first documented instance where Weber requested a copy of his record occurred during the hearing itself. At the end of the hearing, Weber asked how he could get a copy of his file. On October 26, 2001, CSED replied to this request stating that it would send Weber the parts of his file not protected by statute (514 of 613 pages) as soon as it received a copy fee of $128.50. Nothing in the record suggests that Weber paid this fee and never received his file, or that Weber attempted to have this fee waived based on indigency. Additionally, since Weber did not even request a copy of his file until the end of his hearing, he cannot now claim that his hearing was unfair because he was not given a copy of his file.
Bostic v. State, Dep't of Revenue, Child Support Enforcement Div., 968 P.2d 564, 568 (Alaska 1998) (quoting Frontier Saloon, Inc. v. Alcoholic Beverage Control Bd., 524 P.2d 657, 659 (Alaska 1974)).
Id. at 568.
Weber's unsubstantiated argument that the hearing officer and the CSED representative were improperly advancing Mary Weber's interests and that the hearing was unfair and lopsided in CSED's favor is not supported by our reading of the transcript.
V. CONCLUSION
For the reasons stated the decision of the superior court is AFFIRMED in part, REVERSED in part, and REMANDED to the superior court with instructions to REMAND the case to CSED for further proceedings consistent with this opinion.