State of Alaska, Department of Revenue, Child Support Enforcement Division Ex Rel. Constance L. Gause, v. Thomas Gause

STATE of DEPARTMENT OF

REVENUE, CHILD EN- SUPPORT ex

FORCEMENT rel. Con- DIVISION GAUSE, Appellant, L.

stance GAUSE, Appellee.

Thomas

No. S-7953. Court Alaska.

Nov. Wendlandt, L. Attorney

Diane Assistant General, Anchorage, Botelho, and Bruce M. General, Juneau, Attorney Appellant. Shaddy, Anchorage, Martha C. Appel- lee. MATTHEWS, C.J.,

Before COMPTON, EASTAUGH, FABE and BRYNER, JJ.

OPINION FABE, Justice.

I. INTRODUCTION In an effort to collect child Gause, Support owed the Child (CSED) Enforcement Division filed a motion seeking to establish a past payments. due motion, ruling court denied the it was barred the statute of set limitations out in applies to “ac- Dean,1 tions.” In rel. State ex Inman v. held that AS 25.27.226 motions to collect arrears do not as “ac- tions.” The view to the con- .040(b), trary, expressed on erroneous lower court decisions issued prior to Dean. Because statutes based on a 1. 902 P.2d 1323-24

600 by support arrears owed Thomas. CSED legal the not premise do mistaken enactment, original Alaska sought based on the prior to their we arrears in effect rules .040(b) motion, opposed to AS support Thomas conclude that order. reverse. by therefore of arguing 25.27.226motions. We it was barred statute out in AS limitations set II. AND PROCEEDINGS FACTS judg- a an “action” to establish provides that be com- child arrears must ment for Gause mar- and Constance Thomas Gause by youngest the date on which the In the menced in 1967 and divorced ried by order turns decree, covered superior court awarded child divorce Alternatively, children to Con- Thomas claimed custody twenty-one.4 three of Gauses’ per pay reduced and ordered Thomas of arrears should be $150 stance that the amount (i) The court each child. claim- estopped month in for from CSED separate order, occasions this order on two modified under the Alaska rather (ii) of changes in the Gwendo- order; to reflect Carolina and than the South In the last lyn, child. the Gauses’ oldest collecting precluded be CSED should February approved modification support owed on children’s behalf a pay Thomas to Constance court ordered they with him. when resided months support for per in child total of month $300 Superior Judge Karen L. Hunt de- him, Gwendolyn and lived with months when entering find- motion without nied CSED’s Gwendolyn per months when month $500 ings of law. When of fact or conclusions her. lived with clarify requested her that she deci- CSED subsequently moved to South Car- sion, specified her reliance on Thomas’s she move, a petition filed olina. After his CSED of of the statute limitations discussion Recip- the Uniform under South Carolina appeals, arguing issues. (URESA), Support Act of rocal Enforcement motion was not time both that its barred Based on the Alaska.2 then effect arrears should be reduced that Thomas’s Carolina court is- petition, South URESA he raised on the claims below. requiring pay Thomas to an order sued support. per in child month total $175 III. DISCUSSION accounting changed its CSED thereafter per accruing arrears of Thomas as $175 show Limitations Set A. Does Statute of month, per month than or $500 rather CSED’s in AS Bar Out required the Alaska order. The as Judgment Establish a Motion to by to Thomas re- sent Support Arrears Owed Child accounting change in this flected Thomas? practices. meaning parties’ dispute over the youngest after the Gauses’ month One 09.10.040(b) lies at center of this twenty-one, filed a mo- turned appeal.5 the context superior Because asking tion under AS particularly this is legislature passed judgment for the child court to establish a order, days past (repealed due under a more AS 25.25 See former 25.27.900, if is com- in AS the action defined provides: 3. AS 25.27.226 youngest by the date on which the menced due, payment the custodian of To collect the child, order becomes child covered person, agency on behalf of or the age. An after the establishment action (1) requesting the court a motion shall file with (a) governed of this of the (2) judgment; an affidavit establishment section. payments one or more that states that days past due and that port 30 or more are question statute is 5.Because past due and the dates specifies the amounts law, de review novo due; (3) they past of the notice became State, interpretation of respond.... obligor's right to Gerke, Dep’t Revenue v. 09.10.040(b) provides: brought judg- establish An action payments that are ment for interpret relevant to how we it in legislature passed After the new subsec- begin discussing (b), the circumstances we decided State ex rel. Inman v. surrounding its enactment. appeal which resolved CSED’s rulings interpreting lower court former AS judges In 1993 two ruled 09.10.040. Because the CSED motions at former 09.10.0406 AS barred CSED prior issue Dean had been filed recovering arrears that (b), effective date of subsection our decision years had accrued more than ten before the interpreted the statute’s former version.13 date of its AS 25.27.226 motion.7 In the explained, As we former AS 09.10.040 be- courts, argued lower CSED had not part statutory came of Alaska’s law in the ten-year apply limit did to its motions to Oregon late 1800s and stemmed from the arrears; instead, collect it claimed that the opinion code.14 our relied on common statute of limitations should be tolled based interpretations of the terms used in the timely on its commencement of administra- statute. tive enforcement actions.8 The judges rejected court argument, CSED’s began statutory analysis our in Dean appealed to this court.9 by stating that a decreed child appeal, leg- Before we decided port payment judgment CSED’s ais that vests when islature amended former by AS 09.10.040 the installment becomes due but remains un- (b).10 adding Therefore, subsection paid.15 The new subsection explained, although provides may brought “[a]n action be to AS 25.27.226 describes motions to collect ar- judgment support pay- establish a for child “establish[ing] judgment,” rears as such days past ments that are 30 or more actually proceedings due motions are to enforce already under a order ... if the existing judgment.16 action is thenWe young- commenced the date on enforcing judgment held that est child covered order “bring[ing] be- an action” within the years age.”11 states, comes As of former AS 09.10.040 because an “purpose legislation of the new was to “action” under common proceeding law is a lengthen period of time in filing which motions commenced complaint.17 of a judgment to reduce arrears could be We thus concluded that the former statute (b) fact, filed.” In apply subsection was created at did not to CSED’s motions under AS request Instead, CSED’s because it feared the loss of 25.27.226 to collect arrears.18 authority its collection governed over a substantial ruled that such motions were 09.35.020, amount of arrears if we affirmed the applies deci- AS to executions of judges.12 judgments.19 sions of the judgment Under this (Alaska 1994) (statement provided: 6. Former AS 09.10.040 Mary Gay, 2nd Sess. CSED). Director of person may bring upon judg- No an action States, ment or decree of a court of the United Dean, 13. See 902 P.2d at 1322 territory n. 1. or of a state or States, within the United brought upon and no action sealed instrument unless commenced within 14. See id. at 1324 n. 9. years. 25.27.225). (citing 15. See id. at 1323 AS 7. See State ex rel. Inman v. added). (emphasis 16. Id. at 1324 8. See id. at 1323. 17. Id. at 1323-24. however, suggested, 18. See id. We that former apply attempts 86, 2, AS 09.10.040 would 10. See ch. SLA 1994. foreign collect child arrears based on enforcing judg- orders because such required ments under the common law com- mencing a new action. See id. at 1323. Support: Hearing 12. See Child on House Bill Health, 362 Before the House Education Comm., Standing Legis., Social Services 18th 19. See id. at 1324. 09.10.0Jf0(b) judgment Construing AS attempts to execute a

creditor who good of five must show lapse after a arguments parties’ Each of about the delay; cause As scope of has merit. time limit on enforcement places no absolute claims, motion to establish proceedings.20 arrears under AS 25.27.226 term was not an “action” as that understood n parties’arguments But Thomas is correct that common law. drafted Dean n argues construction understanding that it would “action” former term motions.23 interpretation of new sub- govern our must (b) refers however, the subsection also section because point, The is that crucial Thus, argues, bringing (b) to an action.21 it legislature added new subsection because not, to collect arrears is because motion of the lower erroneous conclusion that courts’ (b) action, not apply subsection applied former to mo- AS 09.10.040 AS filed this 25.27.226 motion case. previously to tions collect arrears. We have analyze considered how to a statute when the replies that our construction of the premise. acts based on mistaken in Dean is irrelevant to inter- word “action” n 09.10.040(b) Schaible,24 pretation City Fairbanks v. we because Dean of of on the of were asked to whether the could holding former version decide was injuries resulting held from the which did include subsection hable for (b).22 negligence department.25 claims that the of fire He further its (b) urged request to us it immune from passed at CSED’s to find that was subsection evidence, Thus, pointed liability; he tort it to a apply to AS 25.27.226 motions. legislative statute in 1957 that that concludes that it would contradict enacted assumed enjoyed fire-fighting the new imm organizations to subsection as intent construe unity.26 recognized legisla to collect filed applying to the motion We understanding of ture’s summer, provides: 20. Then we had two court cases AS 09.35.020 last Anchorage judge come down where the said years elapsed period five after When a of has actions did administrative enforcement not toll entry judgment of and without an execu- limitations, put the statute of us judgment, being on the no execu- tion issued have a catch-22 situation where we substantial except by issue order of the court cases, 8,785 representing $43 number cases judgment is entered. The court shall which grant change effectively will million that without this if the motion determines evaporate off of the books. just there are and sufficient reasons for appealing We have—we both of those cases are the writ of execution within failure to obtain now; but that's [to] years entry judgment. five after lengthy process. we And looked other state realized we statute limitations and 21. See needed ours to a more to extend reasonable (amended period going so we aren't back of time 22. See former AS officially judgment. into court to establish now, See, And the we would have case Support: Hearing e.g., Child on House Comm., approximately the lifetime of twice in normal Judiciary Bill 362 Before the Senate child, assuming [years]. Because there’s a Legis. 1994) (April (testimony 18th 2nd Sess. year Petrie, of limitation. So Philip Operations ten statute that’s of CSED). Chief Officer purpose part of of the first it. Mr. Petrie stated: Judiciary Transcript of Senate Committee [Tjhis purposes. part has two bill The first Meeting, April change it is limitations.... ago About due five to our—a limitation (Alaska 1962), 24. 375 overruled on other P.2d 201 resources, AG decision was at the made City Anchorage, grounds by Scheele Support not to send Division Child cases judgments, court to establish al- which would against low us to enforce them. It 25. See id. at 206. time, thought at that and it lasted for several years, that our enforcement—administrative actually enforcement actions tolled the statute. at 209. of the territorial dis- rears to constitute “actions.” But from decisions stemmed they had held that in Dean held that do not. As in trict court Schaible, liable in tort for their exercise cities were not we decline to broaden the concluded, governmental functions.27 recognized scope of the word “action” to court had misin- that the territorial conform to the “erroneous be- mu- terpreted the law of our state and that lief’ about the law. enjoy immunity nicipalities in Alaska did not (b) liability.28 implicitly from tort We also held hold that new subsection that the 1957 statute did not the law to AS 25.27.226 motions to emphasized on an was based collect arrears such motions are not “erroneous belief.”29 term is understood in the “actions” as that court therefore common law. Schaible, The circumstances in al concluding erred in new though different from those are 25.27.226 motion in this barred CSED’s AS sufficiently analogous provide guidance case.32 resolving legisla the issue before us. The passed ture that the AS amend

ment, like B. Other Issues relying 1957 statute in on an CSED also discusses the other claims erroneous construction of the law a lower regarding raised below the court. A statute based on a mistaken (i) argues amount of arrears owed. It that it premise change legal the rule in estopped seeking should not be from arrears passage.30 Although effect before its the accounting under the Alaska order on based in 1957 statute Schaible was not an amend (ii) Thomas; sent to the preexisting ment to the that case modify URESA order did not the Alaska presented opportunity us with an to broaden (iii) order; that, because he beyond scope municipal immunity the modify custody failed to file a motion to the preexisting legis in the statute based on the order, Thomas’s obli- immunity implied recognition lature’s of such gation suspended during periods was not Instead, in the later statute. we declined to custody physical when he had of the children. change recognized meaning the legislature’s to conform to the mis superior court’s clarification order taken of the law.31 view suggests only that it considered the statute estoppel reaching of limitations and in case, issues legislature’s

In this the decision to its decision. We therefore limit our discus- amend AS does not relieve us of duty sion of the other claims raised CSED to interpreting the term in “action” remand, estoppel superior issue. On provision. Understandably, legisla- court should address the merits of CSED’s ture relied on erroneous trial court decisions arguments.33 assumption remaining ar- two its motions to reduce deciding maining arguments. In whether the See id. previous Alaska URESA order modified 28. See id. order, port superior helpful court should find State, Department our recent decision in Reve- 29. See id. Valdez, (Alaska P.2d 154 n. 14 nue v. 30. See id. concerning respect argument With to its during support obligation periods Thomas's children, physical when he had .040, like former section will Thomas’s CSED now concedes that apply only attempts to collect child to to reflect months in which should be decreased foreign support arrears based on orders Gwendolyn Recognizing him. lived with enforcing judgments such shifting in this case assumed a order at issue requires commencing common law a new action. Gwendolyn’s obligation based on resi 902 P.2d at 1325. dence, precluded agrees that Constance is seeking guidance support for in which Gwen provide from months 33. We would like to court, however, Karpuleon evaluating dolyn v. lived with Thomas. See Kar these re- support arrears owed rely to argument by collect analyze the (b) applies only to “ac- recent Thomas. Subsection our the rule established on judgment, and AS establishing a State, Revenue v. tions” Department decision as “actions.” Valdez, that when motions do In we stated Valdez.34 contrary view to collecting behalf CSED is conclusion of the erroneous its actions cannot based on the parent, the custodial on a estoppel because it has courts. Because statutes waiver or lower amount to legal premise do not right support.35 mistaken power waive a child’s no enactment, we contrast, prior to their suggested that the doctrines rules in effect apply when estoppel could conclude that waiver they are not for seeking AFDC 25.27.226 motions because reimbursement rights therefore REVERSE de- only State’s payments, because “actions.” We and REMAND stake in situations.36 cision of would be at opinion. with this proceedings consistent our Recognizing applicability of ruling in to the facts of this Valdez J., COMPTON, dissenting part. that CSED’s actions Thomas now concedes accounting sending state him erroneous Justice, COMPTON, dissenting part. justify pay ar ments cannot refusal III.A.2. It is agree I do not with Section argues, how He rears owed to his ex-wife. Fairbanks based on ever, is not entitled to the that CSED (Alaska 1962), distinguish- which is P.2d he AFDC reimburse owes the State way significant from and material able theoretically Although could ment. I is either not believe Schaible recovering un estopped such funds controlling persuasive. Valdez,37 estop- Thomas’s the rationale of der 56-2-2 In we held that respect “[s]ection these funds fails Schaible pel claim with plain imposes lia language in detrimental relia A.C.L.A.1949 he cannot show out, injury rights of the bility an to the points Thomas’s debt ‘for As CSED nce.38 plaintiff arising from act or omission’ of in some payments AFDC accrued 1980 City 1981, City.” Noting at order was issued Id. 208. before the URESA City Fair began sending heavily him ac “relies [Gilbertson and before (9th Cir.1959) ], banks, 734, showing 262 F.2d counting his arrears as Therefore, Appeals for the Ninth accruing be where the Court of under that order. municipal reasonably ... mantle of not have re Circuit held cause Thomas could activity of the firefighting in accounting statements conclud covers lied on the Fairbanks,” in id. at we observed ing not owe the AFDC that he did § may payments, recover these funds. 56-2-2 totally opin- in ignored the Gilbertson was IV. CONCLUSION in reach- ion. Whether it was considered decision, Assum- ing we do not know. concluding erred in court considered, cannot in had not been of limitations set out AS that the statute 09.10.040(b) speculate a different result mo- as whether barred CSED’s (Alaska 1997).

puleon, 34. 941 P.2d 144 321-22 that Thomas’s arrears should But CSED claims youngest for months when his not be credited at n. 14. 35. See id. with him because it was child Vanessa resided duty to seek a modification changed. See support order when circumstances id, claim, addressing at 320. In at 154 n. 14. 37. id. may would wish to decide whether a credit appropriate be provides obligor that an can receive an offset require- (setting See id. 152 n. 9 out payments against made owed for claims). ments of directly obligee obligee's custodi to the or an. 56-2-2, history referring municipal- § if would have been reached the 1949 statute, liability meaning of that statute had been exam- as “the law” that a lower event, any “erroneously] ined. In it would make no court had But constru[ed].” leg- difference here. The Court of Schaible never determined that the 1957 did, fact, pass § in the State of Alaska is not bound islature 40-14-1 reli- any § Ninth decision Gilbertson. ance on construction of 56-2-2 [C]ircuit may lower court. said “it be true” that We (footnotes omitted). Id. § the drafter of 40-14-1 and the City’s following then addressed the We relying it were on an erroneous argument: law; say view of the we did not that it was Finally, contends that a 1957 Moreover, City’s argument true. was legislature impliedly statute of the Alaska 40-14-1, impli- § the later had recognized municipal immunity in this edly recognized municipal immunity from It person area.38 be true that liability negligent firefighting; tort con- this act and the who drafted trary view, City’s held that enacted it immuni- believed liability imposed plain that such “in lan- ty light This existed. is understandable guage” by § 56-2-2. did not determine prevailing of the then view of the Territori- that the later statute had in fact established city al district court that a was not liable immunity. recognized municipal And we governmental tort in the exercise of a func- did not determine that the 1957 tion. But we hold that this is not the law recognize had intended to establish or munic- Alaska. most can be said ipal immunity, only that the “1957 statute represents for the 1957 statute is that it represents ... an erroneous belief that cities erroneous belief that cities are not liable negligence are not liable tort for connected negligence tort connected fire- with fire-fighting Id. at with activities.” fighting activities. intent, legislative Had that been the the anal- 38. S.L.A.1957, ch. 40-14-1 [Sec. ogy might persuasive. A.C.L.A.Cum.Supp.1957]provides fire-fight- sum, my disagreement focuses on the ing organizations engaged when out- districts, side their home “shall have the same equation of AS privileges performing the immunities and as if 40-14-1, says which the court was “the cities, respective [functions] same within their statute in It not. The Schaible.” “stat- towns, incorporated territory." area or 56-2-2, § gov- ute in Schaible” was City's argument as to the of this lan- guage finds in Gilbertson.... erned the case and made the liable “in (footnotes Id. at 209-10 and citations omit- plain language.” City unsuccessfully added). noted; ted, emphasis except as put by pointing § tried to 40-14-1 “at issue” legislature to it as evidence that a later had purport 40-14-1 did not to amend Section thought municipalities that were immune § City argued § that 40-14-1’s 56-2-2. The liability. case, from such In this implied recognition of mu- enactment was an 09.10.040(b), issue, the statute at is not evi- immunity. not clear from the nicipal It is interpret dence of how to other some arguing that opinion whether the case; governs fact it is the statute impliedly municipal § immu- 40-14-1 created governs the case. nity implied it evidence of the or that was Regardless, § neither meaning of 56-2-2. us, question the case before there is no interpretation is material legislature what the intended. The fact that court, say, as does the its intention was motivated trial courts It is not correct to having interpreted legislature way the AS a statute in a “[t]he 09.10.040(b) amendment, legislature legislature or, in this like the executive — branch —found unwise or unworkable no passed the 1957 statute is ignore legislature construction of reason what intend- relying on an erroneous Op. prerogative. at 603. I assume ed. That is not our We cannot court.” law a lower 40-14-1, that, suppose referring to had the known we the court is Schaible,” disagree interpre- the trial and would courts’ as “the statute a distinction without to be. is not en- law This it would have tations ASof difference. statute. Yet that is acted different opinion. import me, by its own it Since is clear to well, legis- that the admission be said for Schaible that can The best intending the re- the statute lature amended acquiesced in federal enforce, we must asks us sult State law, interpretation of Alaska appellate court’s so. the Alaska interpretation wanting. In the case ultimately found bar, emphatically disagreed law, interpretations of a courts’ with trial govern it wanted to

enacted a parties

rights responsibilities judi- acquiesce in It did not

given situation. determinations; rejected those deter-

cial what it wanted and declared

minations

Case Details

Case Name: State of Alaska, Department of Revenue, Child Support Enforcement Division Ex Rel. Constance L. Gause, v. Thomas Gause

Court Name: Alaska Supreme Court

Date Published: Nov 20, 1998

Citation: 967 P.2d 599

Docket Number: S-7953

Court Abbreviation: Alaska