ALLEN v. STATE, S-11527 (Alaska 6-7-2006)


Supreme Court No. S-11527.Supreme Court of Alaska.
June 7, 2006.

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge, Superior Court No. 3AN-01-9601 CI.

Larry Allen, Anchorage, pro se.

D. Kevin Williams, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.

Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.

MEMORANDUM OPINION AND JUDGMENT[fn*][fn*] Entered pursuant to Appellate Rule 214.

MARK RINDNER, Superior Court Judge.

1. In March 1995 the superior court entered a default order establishing that Larry Allen was the father of two children. On June 5, 1995, the Department of Revenue’s Child Support Enforcement Division sent Allen a notice that he was responsible for the children’s support. The notice informed Allen that unless he sought review of the division’s calculations by requesting an informal conference within thirty days of receiving the notice, he would be obliged to pay accrued child support of $27,566 from January 1991 through June 1995 and future support of $693 per month as of July 1, 1995.

2. In calculating Allen’s support obligation, the division relied on his actual income for 1991-1993. The division knew that Allen had spent most of 1994 in jail awaiting disposition on criminal charges, and it assumed that he would have no income until he was released, so it charged him the minimum allowable payment of $50 per month for 1995.[fn1] Because Allen was released from jail near the end of 1994, the division set his support from January 1995 onward based on his annual earnings for 1991-1993. But by June 5, 1995, the date the division issued its notice of financial responsibility, Allen had just returned to prison to begin serving a sixteen-year sentence. Unaware of his reincarceration, the division initially tried to deliver the notice to Allen’s home address; ultimately, Allen received the notice in jail on July 12, 1995 — about five weeks after it was issued. He did not submit a request for an informal conference within thirty days of receiving the notice, so the support order took effect, and the division began to enforce it.

3. In November 1995 Allen wrote to the division, objecting that he could not afford his new child support obligation and questioning whether he was actually the children’s father. In March 1996 he asked the division for a blood test to establish paternity. The test confirmed Allen was the children’s father. In July 1996, soon after learning the results of the tests, Allen wrote the division a note complaining about the amount of his support obligation and asking, “[w]here in the world did all these high figures come from?” In response, on July 24, 1996, the division sent Allen a letter explaining that his support obligation was based on its previously served notice of financial responsibility; attached to its letter, the division also sent Allen a copy of the original notice.

4. Over the next five years, Allen and the division exchanged numerous letters. Allen’s letters generally complained about the amount of his child support obligation, asked when the division would reduce his payments, and accused it of ignoring his situation. The division’s responses consistently told Allen that he could obtain review and modification of his future payments by submitting a signed petition for modification and information disclosing his current financial status; the division repeatedly sent Allen its standard “modification packet,” which included a form petition for modification and other necessary paperwork.

5. Allen nonetheless failed to submit a petition for modification with the required documentation until September 2001. Upon receiving Allen’s petition and reviewing his current financial information, the division reduced Allen’s ongoing monthly support from $693 to $536 as of December 2001. Allen did not pursue an administrative appeal of this modified order.

6. Allen also filed a superior court action in 2001, seeking to have his accrued child support debt reduced. The division opposed Allen’s action and moved for summary judgment, arguing that its 1995 child support order had been validly issued and served, that Allen had failed to appeal the order, and that it could not be retroactively changed. Allen did not respond to the division’s motion for summary judgment. On December 2, 2002, Superior Court Judge Mark Rindner granted the motion, dismissing Allen’s claim with prejudice because “[t]he support that has accrued under the administrative support order constitutes a valid judgment under AS 25.27.225 and may not be retroactively modified.” Allen did not appeal the dismissal.

7. A year later, Allen, through counsel, moved for relief from the summary judgment order, alleging fraud and misrepresentation under Civil Rule 60(b)(3). Specifically, Allen’s motion alleged that, in moving for summary judgment, the division had misrepresented applicable law by failing to disclose a recent Alaska Supreme Court decision — Faulkner v. Goldfuss[fn2] — that, according to Allen, made it clear that the division had miscalculated his child support arrears by failing to deduct losses he suffered on his rental properties from his total income. The division countered that it had properly appliedFaulkner; alternatively, it claimed that Faulkner had no bearing on Allen’s request to reduce his accrued child support debt: even if it had misrepresented the law governing calculation of net income in 2002, the division argued, Allen would have had no right to retroactive modification. In reply, Allen maintained that the division’s failure to mention Faulkner amounted to a fraudulent misrepresentation; he further alleged that the division had denied him due process by failing to properly serve him with the original administrative child support order in 1995 and by later thwarting his efforts to have that order administratively reviewed.

8. After hearing oral argument on Allen’s Rule 60(b) motion and asking the parties to submit further briefing, Judge Rindner issued a comprehensive decision that summarized the history of Allen’s case, carefully discussed all of his claims, and denied his request for relief from the December 2002 summary judgment. Judge Rindner emphasized that his 2002 order was based on the prohibition against retroactive modification of child support, not on a finding that the division’s 1995 order had correctly calculated Allen’s child support. The judge likened the situation to the one addressed by this court in Wright v.Wright,[fn3] reasoning that Allen’s claim of recent misrepresentation did not establish grounds for retroactively modifying the division’s 1995 order — an order that the division had properly issued and served; an order that Allen had failed to appeal; and one that he had inexplicably not petitioned to modify until 2001.

9. On appeal, Allen devotes most of his efforts to restating the points he advanced before the superior court. Our review of the record convinces us that the superior court’s well-reasoned order denying Allen’s motion for relief from judgment correctly decides these points. We thus attach the superior court’s order as Appendix A, and incorporate it as part of our decision. In addition, we must address two remaining points that the superior court could not consider, because they were not raised below.

10. As a threshold issue, Allen contends that the superior court failed to enter adequate findings to support its decision. The state responds that the court’s findings are sufficient because they fully explain its ruling on the crucial points at issue here: the validity of the 1995 support order and the absence of grounds to set aside that order under Rule 60(b). We agree.

a. Civil Rule 52 directs a court sitting without a jury to “find the facts specially and state separately its conclusions of law thereon.” In Crittell v. Bingo,[fn4] we observed that this rule does not require express findings on every issue, but that the record should at least reflect that the court considered and resolved each critical factual dispute, and the court’s decision should at a minimum provide a “clear understanding of the basis for the decision made.”[fn5]

b. The superior court’s May 2004 order denying Allen’s motion for relief from judgment — the decision at issue here — easily meets this standard. Although Allen criticizes the superior court’s decision for failing to address his contention that the 1995 child support order miscalculated his support, his criticism misses the mark: an error in calculating support does not by itself provide grounds for retroactive modification. Here, because the superior court correctly decided that Allen had failed to establish any ground for retroactive modification, the court had no need to decide whether the 1995 order correctly calculated Allen’s support.

c. Allen also faults the court for “fail[ing] to explain why CSED never had to provide proof it had sent Mr. Allen information about how to request a motion for modification or what alternative financial records he could submit.” But this criticism misplaces the burden of proof: “One who asserts fraud, misrepresentation or misconduct as a ground for relief under Civil Rule 60(b)(3) has the burden of proving those assertions by clear and convincing evidence.”[fn6] Moreover, the superior court’s itemized description of the division’s extensive correspondence with Allen provides an ample basis for concluding that Allen was well informed about how to submit a petition for modification.

11. Allen’s other new point pertains to due process. In his opening brief, Allen advances a due process argument that broadly compares Allen’s case to Bostic v. State, Department of Revenue,CSED.[fn7] As set out in Allen’s opening brief, this argument simply builds on issues that Allen raised below in his reply to the division’s opposition to his motion for relief from judgment. In our view, the superior court’s order denying Allen’s Rule 60(b) motion adequately addresses this part of Allen’s due process argument. In response to this argument, however, the division’s brief sought to distinguish Allen’s case fromBostic, arguing that, “[u]nlike the obligor in Bostic, Allen did not request an informal conference. If he had, CSED would have been obligated to provide an informal conference to review Allen’s position.” In his reply brief, Allen seizes on this concession, insisting that he actually did request an informal conference.

a. In advancing this claim, Allen relies primarily on a copy of a form requesting an informal hearing that Allen apparently submitted to the division on August 26, 1996. This document appears at page 43 of Allen’s excerpt of record. Relying on this request, Allen’s reply brief insists that “[b]oth the State and CSED know [Allen] requested an informal conference.” But Allen’s argument is not properly raised; and the record reveals that it is meritless, in any event.

b. We note initially Allen did not argue or even suggest in the superior court that he had sought administrative review of the 1995 child support order by requesting an informal conference in July 1996. Moreover, the document on which Allen’s claim relies in pressing his claim on appeal — the request for an informal conference appearing at page 43 of Allen’s excerpt — is not part of the appellate record certified by the superior court. The document does not seem to have been offered into evidence or discussed during the superior court proceedings; indeed, we find no trace of it ever being mentioned below. Apparently, then, Allen unilaterally injected the document into the case by simply putting it into his excerpt. Given Allen’s failure to produce, identify, and introduce the request for an informal hearing below, he cannot properly rely on the document now.

c. More important, the request appears on its face to have no bearing on Allen’s present case. An informal conference is the first step of the administrative review process in the division; the right to request an informal conference arises when the division issues a notice and finding of financial responsibility, and the request must be made within thirty days after the obligor receives the notice. Here, as already mentioned, Allen’s 1995 child support order established his obligation to pay support for two children. The 1995 notice was issued on June 5, after the superior court established Allen’s paternity by default in March 1995. Allen was personally served with the notice on July 12, 1995. But he did not request an informal conference, so the order took effect as a final administrative judgment thirty days later.[fn8] After that, Allen had no further right to request an informal hearing on the 1995 notice.

d. The request for an informal conference appearing at excerpt page 43 bears a different CSED case number than the number assigned to Allen’s case involving the two children at issue in this appeal. And the request seeks review of a notice of financial responsibility issued on July 2, 1996 — more than a year after the division issued the notice of financial responsibility for the two children. Furthermore, other documents in the record show that the 1996 notice pertained to a different child whom Allen fathered with another mother. Given the totality of these circumstances, the current record provides no meaningful support for Allen’s claim that he requested an informal conference to appeal the 1995 notice.[fn9]

e. In summary, Allen’s claim that he requested an informal conference to review his 1995 support order cannot properly be raised for the first time on appeal; nor can it properly be substantiated by a document that was not admitted into the superior court record — especially not by a document that conflicts with the asserted claim.

12. Because we conclude that the superior court did not abuse its discretion in denying Allen’s motion for relief from the order dismissing his claim on summary judgment, we AFFIRM the superior court’s order.


LARRY ALLEN, ) Plaintiff, ) vs. ) STATE OF ALASKA, DEPARTMENT ) OF REVENUE, CHILD SUPPORT ) ENFORCEMENT DIVISION, ) Defendant. ) _________________________________) Case No. 3AN-01-9601 CI

Plaintiff Larry Allen filed this case in 2001 requesting relief from child support determinations made administratively by the Child Support Enforcement Division. On December 2, 2002 this Court granted the State’s Motion for Summary Judgment and on December 10 entered the final judgment pursuant to that decision. Allen now requests relief from that judgment pursuant to Alaska Civil Rules of Procedure 60(b)(3). For the reasons stated below, Allen’s motion is denied.

Larry Allen is the father of two minor children. Default judgment and later blood testing established Allen’s paternity. In June 1995, the Child Support Enforcement Division (CSED) issued an administrative support order requiring Allen to pay ongoing support of $693.00/month effective July 1, 1995. This order also required Allen to pay arrears of $27,566 for the period from January 1991-June 1995, based on Allen’s reported wages, as reflected by the Department of Labor Records, and evidence that Allen was incarcerated in 1994. CSED did not have current information for 1995 so it based the ongoing support amount on the numbers from 1993 (before Allen’s incarceration). These documents were served on Allen by leaving a copy with the Shift Supervisor at Cook Inlet Pretrial Facility, where Allen was then residing on July 12, 1995. Exhibit E, State’s Motion for Summary Judgment.

The following is a chart documenting the resulting communication between Allen and CSED (all exhibits refer to the State’s Motion for Summary Judgment):

| June 1995 | Allen enters Cook Inlet Pretrial Facility |
|—————————————|————————————————- |
| July 12, 1995 | Exhibit E — CSED serves Allen (at Cook |
| | Inlet) with “cover letters, notice and |
| | finding of financial responsibility, request |
| | for informal conference, summary of |
| | support obligation, child support guidelines |
| | worksheet.” |
| March 1996 | Allen moves to Hiland Mountain |
| | Correctional Center. |
|—————————————|————————————————- |
| July 24, 1996 | Exhibit F — CSED sends Allen (at Hiland) |
| | a copy of the notice and finding. The |
| | accompanying letter states to contact |
| | CSED if Allen has any further questions. |
|—————————————|————————————————- |
| September 18, 1996 | Allen submits medical insurance payments, |
| | states he is unable to get an updated copy |
| | of his available pay. |
| 35337 | CSED responds to Allen’s 9/18 letter (at |
| | Hiland) stating it does not understand why |
| | the documents were submitted. CSED |
| | says it assumes that Allen wants a |
| | modification. Says the packet will be |
| | coming under separate cover. Tells Allen |
| | he will need to complete and return the |
| | information to begin the review process. |
| April 29, 1997 | Allen writes CSED wanting to know how |
| | long they will keep overcharging. Makes |
| | no mention of the packet. |
| May 5, 1997 | CSED responds, restating information |
| | from the 9/20/96 letter, and includes a |
| | copy of it. Also informs Allen another |
| | packet will be mailed to him. |
| June 6, 1997 | Allen writes CSED for help getting federal |
| | tax returns. |
| 35597 | CSED tells Allen it received his Income |
| | info, but no petition for modification. It is |
| | returning the income information. Allen |
| | must sign and return petition for CSED to |
| | review the income information. Responds |
| | to Allen’s request about getting tax returns. |
| November 1998 | Allen moves to Palmer Corr. Center |
| 36126 | Allen sends letter to CSED referencing |
| | CSED letter dated 10/9/1998 (not part of |
| | Exhibit F). Requests “administrative |
| | review.” |
| July 27, 1999 | Allen sends letter to CSED. Encloses form |
| | 04-1810 requesting an administrative |
| | review. |
| August 2, 1999 | CSED issues administrative review |
| | decision (mails to Allen’s address at |
| | Palmer). Denied Allen’s appeal because |
| | he did not provide supporting documents. |
| | Informs Allen if he disagrees, he must file |
| | an appeal within 30 days of decision. |
| November 20, 1999 | Allen writes CSED thanking them for |
| | recalculating his child support. |
| November 23, 1999 | CSED responds to Allen’s letter stating |
| | that child support has not been modified |
| | yet. Says he must fill out and return the |
| | appropriate paperwork. Allen sent the |
| | paperwork on 8/5/1999, and Allen still has |
| | not filled it out. Also sent it on 9/20/96 |
| | and 5/5/97 — Allen never filled out |
| | paperwork. Allen must fill out the |
| | paperwork. “Unless you fill it out and |
| | return it, your monthly support obligation |
| | will not be reviewed and/or modified.” |
| January 17, 2000 | Allen sends a letter to CSED complaining |
| | he cannot comply with its orders and |
| | stating he really does not understand the |
| | hold up in changing the amount he owes. |
| January 25, 2000 | CSED responds to Allen (Palmer). States |
| | what needs to be done to change and why |
| | can’t change until it is done. |

Allen filed the appropriate paperwork by October 2001. Exhibit G, attached to State’s Memorandum in Support of Summary Judgment. In December of that year his monthly obligation was recalculated. Allen does not dispute this new amount.

Procedural History
Allen filed the present case in August 2001 requesting relief from the amounts owed CSED. As stated above, Allen submitted enough paperwork for CSED to recalculate the monthly obligation amount in October 2001. The amount was recalculated for December 2001 forward. The State moved for summary judgment in November 2002. This Court found that Allen did not properly request modification until October 2001 and granted summary judgment based on the recognized principle that child support orders may not be retroactively modified. This Court ordered Summary Judgment on December 2, 2002 and entered judgment on December 10, 2002.

On December 10, 2003, Allen filed the present motion for relief from judgment. He based this motion on 60(b)(3) alleging fraud by the Attorney General’s Office for not mentioning the most recent case on the subject in its Motion for Summary Judgment. The State opposed Allen’s Motion on December 15 and Allen filed his Reply on December 23. Oral arguments were heard on March 15, 2004. At Oral Arguments, the Court ordered additional briefing on the applicability of Wright v. Wright, 22 P.3d 875 (Alaska 2001). Both parties submitted their supplemental briefs by the court-ordered deadline of April 9, 2004.

Standard of Review
A party moving for relief from judgment under Civil Rule 60(b)(3) bears the burden of proving the asserted fraud, misrepresentation, or misconduct by clear and convincing evidence. Babinec v. Yabuki, 799 P.2d 1325, 1333 (Alaska 1990). “The conduct complained of must be material in the sense that it prevented the losing party from fully and fairly presenting his case or defense.” Id. It is not necessary for an intent to deceive to be present. Id. However, if there is such an intent, then the burden shifts “to the non-moving party to prove that the misconduct did not interfere with the full and fair presentation of the case.” Id. In cases where there is no such deceitful intent, then the burden remains on the moving party to show he was prevented from a full and fair presentation of his case.Id.

Allen argues that the State misrepresented material facts in its motion for summary judgment. Specifically, Allen charges that CSED did not follow the statutory requirements when it issued its administrative support order of June 1995. He claims the state failed to take into account the loss he experienced from his rental properties when it determined his income. He contends that the State, if not deliberately, then carelessly, failed to mention the then-recent decision of the Alaska Supreme Court inFaulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002). In his Reply, Allen raises additional allegations that CSED is not a neutral party in the case because it is the direct recipient of much of the money that is due, as the money is for public assistance reimbursement. Reply at 1.

1. Orders for Child Support May Not be Retroactively Modified

As a general matter and one that Allen has consistently overlooked in his pleadings in all stages of this matter is that Child Support Orders may only be retroactively modified in cases where paternity has been disestablished. Alaska Rules of Civil Procedure 90(h)(2).[fn1] This Court must first have the authority to retroactively modify Allen’s support obligations if his complaints against the State’s conduct are to be properly entertained. If this Court did not have the authority to retroactively modify Allen’s support obligation, then whether the State committed any fraud when presenting its arguments in support of its calculations had nothing to do with Allen’s ability to fully present his case.

The case most directly on-point with the present situation isWright v. Wright, 22 P.3d 875 (Alaska 2001). Its facts are remarkably similar to those in the case at bar. The parties, Mark and Tracy Wright, had 4 children together before they divorced in 1988. The parties agreed to an amount of child support owed on June 6, 1988, based on Mark’s imminent departure from the Army and his pending move Outside. On June 7, 1988, Tracy applied for public assistance and assigned her rights to child support to CSED. Mark was notified that the children were receiving public assistance and the state would seek reimbursement. He was also advised that prior agreements between the parties had no force or effect. On October 13, 1988, CSED sought modification of the child support agreement. Mark was served with the motion, but did not file a response. On November 1, the court set Mark’s monthly support for the four children at $1188, effective June 7, 1988.

Mark did not appeal the order even though his impending release from the Army resulted in a lower annual income than CSED used when calculating the support obligation. He did contact CSED on two occasions after the order was entered about this discrepancy and error. CSED informed Mark that if he wanted it reconsidered within a year of the date of the order, he would have to file a motion with the court. On December 28, 1988, Mark filed such a motion with the court, but due to deficiencies it was rejected. However, the court gave Mark clear instructions on how to cure the defects in his motion. He did not follow up on these suggestions and he moved to Ohio after his discharge from the army in December.

In October 1992, Mark again filed a motion to modify child support. This motion was also defective. Again, the court informed Mark of his motion’s defects and how to cure them. Mark did not act on these suggestions either.

In 1996 CSED undertook a review of the child support order at Tracy’s request. Notice of the review was sent to both parties. An order modifying the obligation was entered January 30, 1997 and effective May 1, 1996.

In December 1997, Mark filed a motion to modify child support. After a trial on this matter in February 1999, the court found that child support should be set in accordance with Alaska Rule of Civil Procedure 90.3, although it did not specify a specific amount. In July 1999, Mark filed a motion for retroactive modification of child support for the time period from June 7, 1988 — May 1, 1996 to reflect his actual earnings. CSED and Tracy both opposed the motion claiming 90.3(h) and federal law preclude retroactive modification. The trial court denied Mark’s motion in November of 1999 stating that retroactive modification is prohibited and that there was no reason to set aside the order under Rule 60(b).

Mark argued that the specific circumstances of his case required retroactive modification of the child support order. The Court clearly rejected this claim.

We have made it clear that parties must strictly adhere to Rule 90.3’s procedural requirements. Even when CSED and the obligor agree that the child support obligation is incorrect, Civil Rule 90.3 prohibits retroactive modification of the obligation without a motion to modify child support. The only documents that satisfy the requirements of Rule 90.3 are motions or petitions for modification; these establish the date from which a modification can be made.

Wright, 22 P.3d at 879 (emphasis added).

The Supreme Court noted that while Mark attempted twice to officially request modification of the 1988 order, he never successfully completed these attempts. He failed to correct the deficiencies even though the superior court told him how to correct them. Id. “Without a valid motion before the court, a modification would be retroactive and thus prohibited. Mark’s accumulated debt cannot be changed at this stage through a motion to modify child support.” Id.

In the case at bar, the child support obligation was entered through an administrative order and not a court order as inWright. However, this Court sees no reason not to apply the same reasoning to the present case. There is no authority in Alaska statutes or case law to do otherwise. Throughout its correspondence with Allen, CSED was indeed aware that Allen wanted to modify his support obligation. It explained to him on numerous occasions what he needed to do in order for the modification to occur. It provided him with the appropriate forms. Allen failed to follow CSED’s instructions for six years. Summary Judgment was proper for these reasons.

2. Allen’s Other Contentions

In both his Motion for Relief from Judgment and his supplemental memorandum discussing the applicability of Wrightv. Wright, Allen raises several other points that this Court now takes this opportunity to address.

a. Applicability of Faulkner v. Goldfuss and Gallant v. Gallant and Rule 60(b)(3)

Allen supported his Motion for Relief from Judgment by arguing that because the Attorney General’s Office did not discuss the Alaska Supreme Court’s most recent decision on calculation of child support obligations, Faulkner v. Goldfuss, it deceived the court and prevented Allen from fully presenting his case.

The court in Faulkner v. Goldfuss held that a deduction for the straight-line depreciation of rental properties should be included in child support calculations. 46 P.3d 993 (Alaska 2002). Allen argues that this case applies to his support obligations because income from his rental properties was one of the factors used by CSED in determining his support obligation. As evidence of nefarious intent, Allen offers Assistant Attorney General Diane Wendlandt’s credentials as proof that she should have brought this case to the Court’s attention. Motion for Relief at 5. The State contends it did not mention Faulkner
because it was not applicable and even if it were applicable, it does not apply to Allen. Opposition at 4. While it is generally good practice to anticipate your opponents’ arguments and cut them off at the head, the State was under no requirement to do so.

Allen also contends that the State’s reliance on Gallant v.Gallant mislead this Court. 945 P.2d 793 (Alaska 1997) (holding that no deductions should be allowed for losses from closely held corporations). Motion for Relief at 8-9. CSED merely cited toGallant in a footnote explaining how it determined the amount owed. Whether or not the amount currently owed was correct was never an issue properly before the court. The State’s Motion for Summary Judgment focused on the fact that Allen sought retroactive modification of the 1995 child support order.

Additionally, Allen insinuates that because CSED is the beneficiary of Allen’s obligations (because the payments were for public assistance reimbursement), it cannot be a neutral party and therefore has an ulterior motive. CSED is often the recipient of Child Support obligations and arrears. Often state agencies can be on two sides of a dispute (as both the enforcer of a statute and a beneficiary). The Supreme Court has not yet mentioned that anything is inherently wrong with this practice.See Wright, 22 P.3d at 877.

Thus, the burden remains with Allen to show that the State’s “misrepresentation” barred him from fully and fairly presenting his case. He fails to do so. First, it is difficult to make such a case when he never opposed the Summary Judgment motion. Next, Allen, while expressing a general unhappiness with CSED and the total amount he owes, did not request a modification of the 2001 order. Third, the State’s Motion for Summary Judgment was entirely based on the fact that Allen was barred from seeking retroactive modification of the child support order. What case the State relied on in making its determination is outside the purview of that context. If Allen wants to modify his support obligations again, using the Faulkner analysis, then he must file an appropriate motion to modify. However, such calculations cannot be applied retroactively, even if Allen and CSED agree that the current amount is incorrect. Wright, 22 P.3d at 879, Alaska Rule of Civil Procedure 90.3(h)(2).[fn2]

b. “Default” Order and Allen’s Ability to Pay

Allen contends that his case is distinguishable from Wright
because while the Child Support Order at issue in that case was delivered in the course of litigation, Allen’s Order was established by “default.” AS 25.27.195 allows for relief from administrative orders. It allows CSED to correct administrative orders due to clerical mistakes or if the order were based on a default amount. In relevant part, part (b) of the statute states, “Upon the motion of an obligor, the agency may, at any time, vacate an administrative support order issued by the agency under AS 25.27.160 that was based on a default amount rather than on the obligor’s actual ability to pay.” Thus, under this statute, an administrative order established by default may be vacated under this statute and child support recalculated as of the date of the order.

Allen contends that the 1995 order set the obligation by default and that CSED did not take into account his losses from his rental properties when it determined the obligation. It is unclear from the record if this amount was indeed established through “default.” CSED claims that it determined the amount Allen owed based on his “reported wages, as reflected in Department of Labor records, and evidence that Allen was incarcerated in 1994.” CSED Motion in Support of Summary Judgment at 2. Whether Allen himself provided any of this information himself remains doubtful.

Regardless, even if this was a default order, the plain language of the statute does not mandate CSED recalculate orders in every case of a default determination. Merely, it may recalculate upon the motion of the obligor. In addition, while “motion” is also not defined in the statute, the process of recalculation no doubt requires information from Allen regarding his income; otherwise, CSED would be at risk of issuing another default order.

In the present case, Allen requested an agency review (which CSED, on its website, refers to as an “appeal”) in July 1999. CSED denied the appeal because he did not provide it with information. CSED explained to Allen on several other occasions that the order against him would not be changed until he provided more documentation. It told him specifically what material he needed to provide. Allen did not provide the information until October 2001. Once he provided the appropriate information, CSED modified the amount he owes and Allen does not contest the new amount. CSED was under no duty to modify Allen’s obligation. If the legislature had wanted otherwise, it would have used “shall” instead of “may” when it created the law.

c. Notice to Allen of Entry of 1995 Support Order

Allen argues he never received proper notice of the notice of withholding because it was served not on him personally, but on Sgt. Corbin Fields, a shift supervisor at Cook Inlet Pretrial Facility. He cites to AS 25.27.265(a), stating “when a notice, paper, or other document is required by this chapter to be given or served upon a person by the agency, the notice . . . may be served as required by Rule 5, Alaska Rules of Civil Procedure or any other permitted by law.” Allen argues that because he did not receive notice pursuant to Rule 5, he did not receive proper notice. However, Allen was incarcerated at the time this notice was sent to him.

AS 09.05.050 addresses service of process on state prisoners. It states that when, in civil action, a prisoner “is a party or witness, service of process shall be made by delivering a copy of the summons and the complaint or pleadings, together with a form for affidavit of proof of service, to the shift supervisor of the correctional facility in which the person is housed.” Thus, CSED properly served Allen by leaving the papers with Sgt. Fields.

d. Allegations of Denial of Due Process

Allen alleges CSED has deprived him of his property without due process. The Supreme Court has held firm that it is the responsibility of the party who wishes to change the payment amount to go through the proper channels to do so. Wright,22 P.3d at 879.

As discussed above, Allen had notice of the order and he was afforded several opportunities to be heard. The record clearly indicates that CSED explained to Allen many times exactly what needed to be done in order to change his obligation and how to do it. The fact that Allen never followed through on it is his own fault. Due Process was at no point denied. CSED determined the amount Allen owed based on the best financial information it had available to it at the time. It was Allen’s responsibility to perfect his rights if he wanted to alter the amount he owed. When Allen did so CSED acted promptly to modify his child support obligation prospectively.

Allen brought this lawsuit in part to retroactively modify his child support obligation. Once the amount had been prospectively modified in December 2001, only the retroactive request for modification remained. Thus, upon CSED’s motion, this Court granted Summary Judgment in December 2002. Allen requests relief from judgment because CSED did not cite the most recent case on the topic of incorporating income from rental properties into child support obligations and instead cited an older case and because CSED did not take Allen’s income loss into consideration of its 1995 order. This Court did not base its decision to dismiss this case because of these particular cases or facts, but rather on the oft-cited principle that child support orders may not be retroactively modified (except in a few select circumstances). Even if all the parties agree that the amount owed is incorrect, child support orders may only be modified prospectively. Thus, the State’s actions did not preclude Allen in anyway from fully presenting his case. Additionally, the other factors Allen now raises have no impact on his case. CSED properly served him and afforded him due process. Although CSED has the authority to modify some child support obligations, it is not mandated to do so.

Thus, for the reasons stated above, Allen’s Motion for Relief from Judgment is DENIED.

[fn1] as the division would learn six years later in 2001, Allen received substantial income from pensions and rental properties while he was in jail during 1994, and he continued to receive income from these sources throughout his subsequent imprisonment in 1995-2001.

[fn2] 46 P.3d 993, 996 (Alaska 2002).

[fn3] 22 P.3d 875 (Alaska 2001).

[fn4] 36 P.3d 634 (Alaska 2001).

[fn5] Id. at 639.

[fn6] Babinec v. Yabuki, 799 P.2d 1325, 1333 (Alaska 1990).

[fn7] 968 P. 2d 564 (Alaska 1998).

[fn8] Although Allen continues to argue that he never actually received the 1995 notice of responsibility, the record contradicts his assertion. The record contains a copy of an affidavit of service executed by an Alaska State Trooper, who attests that he delivered the notice to the shift supervisor at Allen’s jail, and further purports to attach a second affidavit, prepared by Allen’s jailer, attesting to personal service on Allen. In addition, the record includes an affidavit signed by Allen on December 1, 2003, expressly admitting that he received personal service of the notice: “I received notice of the Child Support action against me for the support of [the two children], which gives rise to their mother’s claim for child support, on July 12, 1995.” Last, the record includes a letter written to the division by Allen acknowledging that he had the notice in his possession in November 1995: “I’m presently with a copy of a letter to withhold income for child support. I do not believe these children to be mine.”

[fn9] After hearing oral argument in this case, we ordered supplemental briefing to clarify the circumstances surrounding the request for informal conference reflected at excerpt page 43. The division’s supplemental briefing tended to confirm the separate and unrelated nature of the 1996 request, but was hotly disputed by Allen. Since it is not our function as an appellate court to receive new evidence and resolve factual disputes, we have elected to disregard the conflicting assertions in the supplemental briefs and to rest our decision on the current appellate record, treating excerpt 43 as though it is part of the record.

[fn1] Actually, Mr. Allen has made several references to the “exceptions” to this general rule. However, he has pointed this Court to no authority other than those that acknowledge the disestablishment of paternity exception and the prerogative of CSED to correct clerical mistakes and vacate an administrative order based upon default if the obligor requests it. See AS25.27.195. This Court has found no other exceptions in its own research.

[fn2] Whether Faulkner or Gallant applies in a non-retroactive modification of Mr. Allen’s support obligation is not before this Court.