Opinion
Supreme Court No. S-12536.
May 21, 2008.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Douglas L. Blankenship, Judge. Superior Court No. 4FA-89-911 CI.
David E. Paxton, pro se, Decorah, Iowa. Debra Bates Gavlak, pro se, Carmel, California.
Before: Fabe, Chief Justice, Matthews, Eastaugh, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
David Paxton has accrued large child support arrearages. After the state and Debra Gavlak sought to consolidate his arrearages into a single judgment, the superior court granted the consolidation motions and ultimately entered judgment against Paxton for $59,353.66. In response to the judgment, Paxton filed a "Petition for Order Invoking Statute of Limitations." The superior court denied Paxton's petition. Paxton appeals, arguing that AS 09.10.040 bars collection of arrearages accruing before 1997 and that AS 09.35.020 prevents Gavlak from obtaining a writ of execution for arrearages covered by the consolidated judgments entered in 2002 and 2005. Because neither statute prevents Gavlak from enforcing the judgment and because Paxton's other arguments are without merit, we affirm.
II. FACTS AND PROCEEDINGS
David Paxton and Debra Bates Gavlak are the parents of Megan Paxton, born in August 1983. Paxton and Gavlak divorced in 1989, and in November 1989 the superior court ordered Paxton to pay child support of $328 per month. The order also called for automatic child support increases of $100 per month as of September 1, 1993 and $200 per month as of September 1, 1998. Paxton did not appeal this order.
Much of this procedural history is described in Paxton v. Gavlak, 100 P.3d 7, 8-10 (Alaska 2004).
Gavlak applied in December 1989 for help from the State of Alaska, Child Support Enforcement Division in collecting payments from Paxton. She withdrew from CSSD services in July 1990, and CSSD closed its case.
The State of Alaska, Child Support Enforcement Division (CSED) is now known as the State of Alaska, Department of Revenue, Child Support Services Division (CSSD). For simplicity we refer to CSED and CSSD as CSSD.
In January 1997 Paxton or Gavlak, or perhaps both, asked CSSD to review the child support amount required by the 1989 order, and CSSD began to review the support amount. On January 22 CSSD mailed both Paxton and Gavlak a notice of a petition for modification of judicial support order and requested financial information. Paxton promptly sent CSSD child support guidelines affidavits stating that he earned $990 in 1995 and $1,030 in 1996; CSSD sent a letter to Paxton dated April 4, 1997 stating that he was "not in substantial compliance" with his child support order.
The 1997 request for CSSD review marks the beginning of numerous attempts by Paxton to modify the 1989 child support order. On May 13, 1997, September 9, 1999, September 16, 1999, and November 13, 1999, Paxton moved in the superior court for modification. During this period CSSD sent Paxton numerous confusing and contradictory statements about his arrearages and case status. Because Paxton had filed in the superior court his 1997 motion to modify the 1989 child support order, CSSD ceased its administrative review of the 1989 order in May 1997; even though CSSD ended its administrative review, CSSD failed to close its administrative file.
Paxton, 100 P.3d at 9-11.
Paxton's modification motions resulted in a March 2000 superior court order that granted primary physical custody to Gavlak and reduced Paxton's child support obligation to fifty dollars per month effective as of November 1999. In March 2001 the superior court entered an order ending Paxton's monthly child support obligation as of January 1, 2001.
In February 2002 CSSD moved for consolidation of Paxton's child support arrearages into a single judgment. It contended that his total arrearages, including interest, were $70,833.04 as of January 2002. Paxton, in response, asked the court to adjust his arrearages in a final judgment and to modify his support obligation from 1990 to January 2001. His main argument was that his income had changed, but he also pointed out that Gavlak had withdrawn from, and reapplied for, CSSD's services several times. CSSD opposed this motion.
In April 2002 the superior court granted CSSD's motion to consolidate Paxton's support arrearages. It denied Paxton's motion to adjust his accrued arrearages from 1990 forward. Paxton requested reconsideration stating, among other things, that the court failed to properly consider his motion and Alaska Civil Rule 90.3. The court denied Paxton's reconsideration request in April 2002. Paxton appealed these decisions. In October 2004 we held that CSSD's failure to send Paxton a closure letter satisfying Alaska Appellate Rule 602 had the consequence of keeping his administrative file open. Because Paxton's file remained open, we reasoned that any relief granted as of January 1997 in response to Paxton's January 1997 request for judicial modification would not have been retroactive. We therefore vacated the superior court's order to the extent it did not consider Paxton's financial situation as of January 1997. Were manded for consideration of Paxton's financial circumstances from January 1997 forward, and for correction of an arithmetic error in CSSD's accounting of Paxton's child support obligation.
See Alaska R. Civ. P. 90.3(h)(2); see also Paxton, 100 P.3d at 11. But see AS 25.27.166(d) (retroactive modification permitted if paternity disestablished).
Paxton, 100 P.3d at 12.
Alaska Civil Rule 90.3(h)(2) states that a modification effective on or after the date that a CSSD notice of petition for modification is served on the opposing party is not retroactive modification. Per Civil Rule 90.3(h)(2), modification effective as of January 22, 1997, when CSSD issued its notice of petition, would not be retroactive modification. Paxton's failure to seek relief before January 1997 meant that the arrearages accruing before that date could not be reduced without violating the prohibition on retroactive modification. Alaska R. Civ. P. 90.3(h)(2); Paxton, 100 P.3d at 12. The pre-1997 arrearages approximated $31,652.
Paxton, 100 P.3d at 13-14.
Id. at 14.
On remand, the superior court modified Paxton's arrearages from January 1997 forward and used the following payment schedule to calculate Paxton's support obligation: fifty dollars per month from February 1, 1997 to December 31, 1997; fifty dollars per month from January 1, 1998 to December 31, 1998; and $162 per month from January 1, 1999 to November 5, 1999. The court ordered the payments to begin on February 1, 1997.
On May 25, 2005 the superior court ruled on CSSD's motion to consolidate Paxton's arrearages and entered a consolidated judgment against Paxton for $59,353.66. In response, Paxton filed a "Petition for Order Invoking Statute of Limitations" and a "Motion for Order for Injunction" in the superior court. The caption of the motion for injunctive relief contained two superior court case numbers: 4FA-89-911 CI (Paxton v. Gavlak) and 4FA-05-2134 CI (Paxton v. CSSD). But the motion only requested "relief . . . in case no. 4FA-89-911 CI." Gavlak and CSSD each opposed Paxton's petition and motion.
On December 7, 2006 the superior court denied Paxton's petition and motion. Paxton moved for reconsideration. The superior court did not rule on the motion for reconsideration. Paxton's reconsideration motion was therefore deemed denied per Alaska Civil Rule 77(k)(4).
The order that denied Paxton's motion for injunctive relief contains one handwritten case number (4FA-89-911 CI) and one typewritten case number (4FA-05-2134 CI). Because the author of the handwritten case number is unknown, and because its date of authorship is unknown, we cannot determine whether the superior court explicitly denied Paxton's motion in 4FA-89-911 CI. But because Paxton only requested relief from judgment in 4FA-89-911 CI, we conclude that the court at least implicitly denied Paxton's motion in that case. Cf. Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1262 (Alaska 2007) (holding "a moving party forfeits the right to appeal an issue raised in a motion left unresolved by the trial court unless the party called the motion to the trial court's attention and insisted on a ruling before the court entered final judgment").
Alaska R. Civ. P. 77(k)(4) ("If the motion for reconsideration has not been ruled upon by the court within 30 days from the date of the filing . . . the motion shall be taken as denied.").
Paxton now appeals the denial of his "Petition for Order Invoking Statute of Limitations" in Gavlak's case (4FA-89-911 CI). Paxton does not appeal the denial of his motion for injunctive relief.
Paxton's appeal in the CSSD case (4FA-05-2134 CI) is currently in the briefing stage. Paxton v. State, Dep't of Revenue, Child Support Servs. Div., S-12769.
III. DISCUSSION
A. Standard of Review
We exercise our independent judgment when interpreting and applying statutes of limitation. Whether either AS 09.10.040 or AS 09.35.020 applies to bar Gavlak's collection of child support is a question of statutory interpretation to which we apply our independent judgment.
Koss v. Koss, 981 P.2d 106, 106-07 (Alaska 1999) (citing McDowell v. State, 957 P.2d 965, 968 n. 4 (Alaska 1998)).
Id. at 107.
We review rulings on motions for reconsideration for abuse of discretion. An abuse of discretion exists when we are "left with the definite and firm conviction on the whole record that a mistake has been made." B. Alaska Statute 09.10.040 Does Not Bar Gavlak's Enforcement of Her Child Support Judgments that Are More than Ten Years Old.
Harrelson v. Harrelson, 932 P.2d 247, 250 (Alaska 1997).
Wright v. Wright, 22 P.3d 875, 878 (Alaska 2001).
Paxton argues that AS 09.10.040 bars Gavlak from collecting Paxton's arrearages from 1990 to 1997 because those arrearages are more than ten years old. In support, Paxton cites State, Department of Revenue, Child Support Enforcement Division ex rel. Inman v. Dean.
AS 09.10.040 ("A person may not bring an action upon a judgment or decree of a court of the United States . . . unless the action is commenced within 10 years.").
State, Dep't of Revenue, Child Support Enforcement Div. ex rel. Inman v. Dean, 902 P.2d 1321 (Alaska 1995).
Because Dean holds that AS 09.10.040 does not apply to a motion to establish a judgment under AS 25.27.226 for support arrearages, Paxton's argument is without merit.
Id. at 1323-24.
In Dean we stated that each periodic child support obligation is a "judgment" that vests when an installment becomes due but remains unpaid. "Each unpaid child support obligation is considered a `judgment' because, like court-rendered judgments, child support arrearages are not subject to retroactive modification." And because the "right to the payment of support becomes vested as it becomes due," an order of child support is essentially a "judgment in installments."
Id. at 1323 (citing AS 25.27.225 and Young v. Williams, 583 P.2d 201, 205 n. 11 (Alaska 1978)).
Id.
Id. (quoting Britton v. Britton, 671 P.2d 1135, 1138-39 (N.M. 1983)).
We also stated in Dean that AS 09.10.040 does not apply to motions to consolidate support arrearages because a consolidation motion does not initiate a "new `action'" to establish the non-custodial parent's liability. Because a consolidation motion seeks to collect valid unsatisfied domestic judgments that the custodial parent already possesses, a consolidation motion under AS 25.27.226 is not "an action upon a judgment" under AS 09.10.040. Although AS 25.27.226 refers to the consolidation motion as a "motion requesting establishment of a judgment," the proceeding is in aid of enforcement of judgments already in existence. And "[i]t is well-settled that executing upon a judgment does not operate to commence an entirely new civil action."
Id. at 1323-24.
Id. at 1324.
Id. (citing 30 AM. JUR. 2D Executions and Enforcement of Judgments § 6 (1994)).
In short, AS 09.10.040 does not bar Gavlak from collecting on Paxton's child support arrearages that accrued before 1997.
C. Alaska Statute 09.35.020 Does Not Apply to Gavlak's Enforcement of Her Consolidated Child Support Judgments.
Paxton also argues that AS 09.35.020 bars Gavlak from obtaining a writ of execution for the judgment that consolidated Paxton's arrearages accruing from 1990 to 1997. In relevant part AS 09.35.020 states:
When a period of five years has elapsed after the entry of judgment and without an execution being issued on the judgment, no execution may issue except by order of the court in which judgment is entered. The court shall grant the motion if . . . there are just and sufficient reasons for the failure to obtain a writ of execution. . . .
Paxton's brief does not state clearly whether he contends that we should apply AS 09.35.020 to the consolidated judgment entered on April 3, 2002 or to the consolidated judgment entered on May 25, 2005. But even as to the earlier judgment, his contention is unavailing. Because Paxton commenced this appeal before five years had elapsed since entry of either judgment, Paxton's argument is without merit. Moreover, AS 09.35.020 is not an absolute bar to execution on judgments that are more than five years old. Per its text, whether that section bars execution on a judgment more than five years old is addressed to the discretion of the superior court. D. Paxton's Other Arguments Lack Merit.
In Paxton we vacated the April 3, 2002 consolidated judgment to the extent it precluded any possible reduction in Paxton's child support payments as of January 1997. Paxton, 100 P.3d at 13-14.
Paxton filed this appeal in January 2007.
AS 09.35.020.
Paxton raises numerous other arguments. These arguments are so tersely briefed that we would ordinarily decline review. But because Paxton is pro se and because we apply our independent judgment to determine whether the superior court erred in denying Paxton's petition, we have considered Paxton's arguments.
See generally State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980) ("When, in the argument portion of a brief, a major point has been given no more than cursory statement, we will not consider it further. Failure to argue a point constitutes an abandonment of it.").
Koss v. Koss, 981 P.2d 106, 106-07 (Alaska 1999). Pleadings submitted by pro se litigants are held to less stringent standards than the pleadings of lawyers. Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
Paxton argues that the superior court failed to consider: that "Title 25 is bound to Title 9 in the Civil Code" as to statutes of limitations; that "CSSD was [too] lax" or that "it is essentially undisputed" Paxton's child support was excessive given his income between 1990 and 1997; that collection of child support arrearages, in this case, may violate Alaska Civil Rule 90.3; that Gavlak profited from the marital home; that he has a defense of due diligence; that he was denied due process because CSSD did not give him a final appealable decision when CSSD closed its case in July 1990; that AS 09.10.070(a)(3) bars CSSD from collecting child support in this case; that Gavlak became bankrupt; and that waiver and estoppel bar the state from "collecting for Gavlak from July 1990-January 1997."
AS 09.10.070 "creates a general two-year statute of limitations for personal injury actions." Sands ex rel. Sands v. Green, 156 P.3d 1130, 1132 (Alaska 2007).
Having considered these contentions, we conclude that none of them foreclosed the superior court from ruling on and denying Paxton's petition to invoke a statute of limitations. We also conclude that the superior court did not abuse its discretion when it did not grant Paxton's reconsideration motion.
IV. CONCLUSION
Because AS 09.10.040 and AS 09.35.020 do not bar Gavlak's enforcement efforts and because Paxton's other arguments are without merit, we AFFIRM.