Opinion
Supreme Court No. S-11328.
April 6, 2005.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Dale O. Curda, Judge, Superior Court Nos. 4BE-02-301 CI, 4BE-83-008 CI.
Sidney R. Hertz, pro se, Juneau.
Pamela Hartnell, Assistant Attorney General, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for Appellee Child Support Enforcement Division, State of Alaska.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
1. Sidney Hertz appeals the superior court's dismissal of his administrative appeal regarding an income withholding order issued by the Alaska Child Support Enforcement Division (CSED). He also appeals the superior court's dismissal of his claims for damages and the denial of his motion to disqualify the superior court judge assigned to the case.
2. Hertz is currently incarcerated by the Alaska Department of Corrections. A 1997 court order set Hertz's monthly child support obligation at $50. In April 2002 CSED issued an order to withhold up to forty percent of Hertz's prison salary in order to collect child support arrearages. Hertz filed an administrative appeal challenging the order and also claimed that CSED was in contempt of court and was committing fraud. Hertz sought emotional distress damages. He also claimed in a separate pleading that Superior Court Judge Dale O. Curda should have been disqualified from the case. The superior court dismissed all of Hertz's claims and denied the motion for disqualification. Hertz appeals.
Hertz v. State, Dep't of Revenue, Mem. Op. J. No. 1004 at 4 (Alaska, Nov. 22, 2000), 2000 WL 34012485, *2.
3. Hertz argues that the income withholding order is invalid because (1) his daughter was emancipated in 1999 and (2) CSED does not have the authority to collect more than $50 per month. Hertz also claims that he does not earn any wages from the prison, only a "gratuity . . . if there is money to pay the prisoner. . . ." But CSED is not collecting current child support payments; rather, it is attempting to recover arrearages. Alaska law explicitly authorizes CSED to collect arrearages through an income withholding order and CSED is not collecting more than is permitted by law. The $50 per month collection limit on which Hertz relies applied only to current child support payments. Finally, Hertz's prison "gratuity" falls within the definition of "net disposable earnings." The superior court therefore did not err in dismissing Hertz's administrative appeal.
See AS 25.27.250 ("[T]he agency may issue to any person . . . an order to withhold and deliver property . . . (1) immediately after an arrearage occurs under a support order. . . . (b) All real or personal property belonging to the obligor is subject to an order to withhold and deliver, including, but not limited to, earnings that are due, owing, or belonging to the debtor. . . .").
15 Alaska Administrative Code (AAC) 125.540(c) provides that "[u]nless state or federal law requires a lesser percentage, an order to withhold and deliver issued by the agency . . . may not exceed 40 percent of an obligor's net disposable earnings. . . ."
Hertz, Mem. Op. J. No. 1004 at 4, 2000 WL 34012485, *2.
15 AAC 125.540(c) refers to 15 U.S.C. § 1672 for the definition of "net disposable earnings." 15 U.S.C. § 1672(a) provides: "The term `earnings' means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program." 15 U.S.C. § 1672(b) provides: "The term `disposable earnings' means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld."
4. Hertz claims that the superior court erred by dismissing his claim that CSED is in contempt of court. He alleges that CSED is in violation of the 1997 court order setting his child support payments at $50 per month. As stated above, however, CSED is not violating the 1997 court order because it is collecting arrearages, not monthly child support obligations. The superior court did not err in dismissing Hertz's contempt claim.
Hertz, Mem. Op. J. No. 1004 at 4, 2000 WL 34012485, *2.
5. Hertz claims that the superior court erred by dismissing his claim that CSED has committed fraud. He contends that because his ex-wife and daughter are not currently receiving benefits, CSED is illegally keeping the funds it collects under the income withholding order. Hertz also alleges that CSED doubled the amount of his monthly obligation. CSED points out that the state is entitled to reimbursement for assistance granted in the past. Because CSED is permitted by statute to do the things Hertz claims it cannot, his fraud claim is without merit. The superior court correctly dismissed Hertz's fraud claim.
See AS 25.27.120(a) ("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. . . ."); see also State, Child Support Enforcement Div. v. Gammons, 774 P.2d 181, 184 (Alaska 1989).
6. Hertz argues that he is entitled to damages for emotional distress suffered as a result of CSED's actions. The superior court construed this argument as a claim for intentional infliction of emotional distress (IIED). One of the requirements for IIED is extreme and outrageous conduct; the valid issuance of an income withholding order could not satisfy that standard of conduct. The superior court did not err in dismissing Hertz's emotional distress claim.
Chizmar v. Mackie, 898 P.2d 196, 208 (Alaska 1995).
7. Hertz argues that the superior court erred in denying his "challenge for cause," contending that Judge Curda should have been disqualified because he is biased. Hertz points to the superior court's failure to act promptly on his case, as well as to several of Judge Curda's decisions that were adverse to Hertz. The superior court explained that the delay in acting on Hertz's case was due to clerical error. Such an error is inconsistent with the standards of judicial administration, especially in cases involving incarcerated pro se litigants, but there is no evidence that any delay in Hertz's case was the product of bias or even that the delay was personally attributable to Judge Curda. We also detect no indication of bias in the decisions cited by Hertz and agree with Superior Court Judge Mark I. Wood's comments when he reviewed Judge Curda's denial of Hertz's disqualification arguments presented in a motion for reconsideration.
Alaska Code of Judicial Conduct Canon 3(B)(5) provides that "[i]n the performance of judicial duties, a judge shall act without bias or prejudice. . . ." We have stated that "[t]o succeed on a motion to disqualify a judge for bias, the movant must show that the judge's actions `were the result of personal bias developed from a nonjudicial source.'" Hanson v. Hanson, 36 P.3d 1181, 1184 (Alaska 2001) (quoting Nelson v. Jones, 781 P.2d 964, 972 (Alaska 1989)).
Judge Wood concluded that "there is no reason to remove Judge Curda from this case. If anything, Judge Curda's order on reconsideration demonstrates a serious and sincere effort by the court to understand Hertz's arguments, to fully consider them, and to carefully articulate a reason for the court's decision."
8. We AFFIRM the superior court's dismissal of Hertz's administrative appeal and related claims.