Opinion
Supreme Court No. S-13044.
March 4, 2009.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Jack W. Smith, Judge., Superior Court No. 3AN-96-00279 Civil.
Appearances: Susan L. Daniels, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellant.
Paul G. Kosto, pro se, Nome, Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti, and Winfree, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
This appeal arises from a modified child support order, in which the superior court declined to make the modification effective on the date that the Child Support Services Division (CSSD) served Paul Kosto with the notice of petition for modification. The superior court also denied post-majority support for the daughter of Kosto and Rachelle Peterson. CSSD appeals both the order's effective date and denial of post-majority support. Because we have previously held that the trial court must make a modification order effective on the date that CSSD serves the notice of petition for modification absent a finding of good cause for selecting a later effective date, and because we have previously held that post-majority support should be ordered in all but the exceptional case, we reverse the order of the superior court on both points.
II. FACTS AND PROCEEDINGS
A. Facts
In May 1996 Superior Court Judge John Reese ordered Paul Kosto to pay $318 a month in child support to Rachelle Peterson, who had primary custody of their two-year-old daughter. In filling out the form order, the superior court failed to check the box providing that Kosto's support would continue while his daughter was eighteen years old if she was unmarried, actively pursuing a high school degree or its equivalent level of training, and living as a dependent.
This provision on the form reflects the requirement of AS 25.24.170(a), which provides:
Subject to AS 25.20.110, any time after judgment the court, upon the motion of either party, may set aside, alter, or modify so much of the judgment as may provide . . . for the care, nurture, and education of unmarried 18-year-old children of the marriage while they are actively pursuing a high school diploma or an equivalent level of technical or vocational training and living as dependents with a parent, guardian, or designee of the parent or guardian. . . .
In August 2007 Peterson filed a request with CSSD asking that the 1996 child support order be modified. CSSD sent Kosto and Peterson a notice of petition for modification of judicial support order by first-class mail on August 16, 2007. The notice explained that CSSD was reviewing the support order because one of the parties had requested the review and that there were four circumstances under which CSSD would file a motion requesting that the court modify the order. Two of the circumstances listed in the notice were possible determinations by CSSD that post-majority support was needed or that there had been at least a fifteen percent change in the child support obligation. The notice requested that the parties submit income information, including W-2 forms, tax returns, and income affidavits, for CSSD to use in calculating the child support obligation pursuant to Alaska Civil Rule 90.3. According to the notice, if a party did not provide the requested information, CSSD would verify the party's income information through other sources. Instructing the parties to prepare for a possible change in the child support obligation, the notice said that the modification process could take months but "[t]he effective date of the new order will be the first day of the month after the parties are mailed this notice." (Emphasis added.)
Peterson responded to CSSD's request for documentation of her income, but Kosto did not. CSSD used information from the Department of Labor to impute income, calculating that Kosto should pay $1,036 in child support each month, a 226 percent increase over his original obligation of $318. B. Proceedings
When Kosto was ordered to pay $318 a month in child support, he was unemployed. In 2007 his annual wages were about $91,300, and he was eligible for the Alaska Permanent Fund Dividend, which increased his gross income to just over $92,000.
On December 3, 2007, CSSD filed a motion to modify Kosto's child support obligation pursuant to Civil Rule 90.3. On that date, it sent the motion, as well as its supporting memorandum and exhibits, by first-class mail to the parties' last known mailing addresses. CSSD asked that the modification of Kosto's support obligation be made effective on September 1, 2007, the first day of the month after Kosto and Peterson had been sent the notice of petition for modification. CSSD also requested that the superior court's order include a provision requiring Kosto to continue to pay child support after his daughter's eighteenth birthday as long as the conditions of AS 25.24.170(a) are met.
Kosto filed a pro se opposition to the motion in late December. While Kosto agreed that the substantial increase in his adjusted income warranted an increase in his child support obligation, he requested that the court consider additional information in calculating his obligation, such as his union dues and monthly health insurance expenses. Kosto also requested that the effective date of the modification be December 1, 2007, because this date would reflect when he was served with the motion to modify his support obligation. Although Kosto admitted receipt of CSSD's motion in December 2007, he did not mention whether he had received CSSD's notice of petition for modification. Kosto contested CSSD's request that his obligation continue after his daughter turned eighteen years old, asserting that CSSD had failed to justify this change to the original child support order.
In January 2008 Superior Court Judge Jack W. Smith entered a child support order requiring Kosto to pay $1,036 a month in child support. The superior court made its order effective on December 1, 2007, and provided that Kosto's support obligation would end after his daughter's eighteenth birthday "per the original court order" without further explanation of its denial of that request. CSSD filed a motion for reconsideration, arguing that Kosto failed to offer a good cause justification for varying the effective date of his modified support obligation from the proposed date of September 1, 2007, which was the first day of the month following service of the notice of petition, and that inclusion of the post-majority support provision would not constitute a retroactive modification of the original child support order. In making both of these arguments, CSSD cited our prior decisions addressing these issues. The superior court denied CSSD's motion for reconsideration, reasoning that Kosto "has established he received service of the proposed child support modification on 3 Dec 2007" and that "[t]he state has presented no evidence [that] the original order did not intend to have child support terminate at age 18."
CSSD appeals.
III. STANDARD OF REVIEW
A court's modification of a party's child support obligation is reviewed for abuse of discretion and will not be set aside unless "we are left with the definite and firm conviction on the whole record that a mistake has been made." On issues regarding whether the superior court applied the correct legal standard in determining a child support obligation, we apply our independent judgment.
Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008) (internal quotation marks omitted).
Id.
IV. DISCUSSION
A. It Was an Abuse of Discretion To Select December 1, 2007, as the Effective Date of the Child Support Modification.
The parties dispute whether the superior court should have used the date of the notice of petition for modification or the date of the motion to modify support as the basis for the effective date of its order. But we have already resolved this question. CSSD argues that the superior court should have used the date that the notice of petition was served, in accordance with our holding that "absent good cause, a modified child support order should be effective from the date the parent receives notice that a modification is being considered." Here, CSSD asked the superior court to make its order effective on September 1, 2007, which was the first day of the month after Kosto and Peterson had been sent the notice of petition for modification. Yet the superior court selected December 1, 2007, as the effective date of the child support modification without justifying selection of the later date.
State, Dep't of Revenue, Child Support Servs. Div. v. Wise, 122 P.3d 212, 214 (Alaska 2005).
Although CSSD served its notice of petition on August 16, 2007, it proposed the first day of the following month, September 1, 2007, as the effective date.
The superior court noted that Kosto "established he received service of the proposed child support modification on 3 Dec 2007." But as CSSD points out, September 1, 2007, was the first day of the month following the service of CSSD's notice of petition for modification, and Kosto never denies that he received CSSD's initial petition to modify on the earlier date. Moreover, CSSD provided proof that it mailed the earlier notice of petition for modification on August 16, 2007, and service was complete upon mailing.
Alaska R. Civ. P. 5(b). Kosto alternatively argues that CSSD's method of service was improper, asserting that CSSD should have complied with Civil Rule 4(h) by sending the petition by certified mail. But while Rule 4 governs service of a summons and complaint, the applicable rule in this case is Alaska Civil Rule 5, which governs service of pleadings and other papers. AS 25.27.265(a) provides that Rule 5 governs the service of CSSD's notices, papers, and other documents, and under Rule 5, service is accomplished "by mailing it to the attorney's or party's last known address." Therefore, CSSD satisfied Rule 5's service requirements by sending Kosto the petition to modify support by first-class mail.
Alaska Civil Rule 90.3(h)(2) provides the date upon which modification of a child support obligation becomes effective without violating the prohibition on retroactive modification of a support obligation:
No Retroactive Modification. Child support arrearage may not be modified retroactively, except as allowed by AS 25.27.166(d). A modification which is effective on or after the date that a motion for modification, or a notice of petition for modification by the Child Support Services Division, is served on the opposing party is not considered a retroactive modification.
Although the language of Rule 90.3(h)(2) does not favor a particular date for when modification of a support obligation becomes effective so long as it is after notice to the obligor, we established in Boone v. Boone that absent a finding of good cause, a court should make its modification order effective on the day the motion for modification was served to the obligor. In State, Department of Revenue, Child Support Enforcement Division v. Dillon, we extended the holding in Boone to include cases in which a request for modification was filed with CSSD rather than the superior court and CSSD sent the obligor a notice of petition for modification. Since our holding in Dillon, we have continued to apply the presumptive effective date of the first day of the month after the notice of petition for modification was served on the obligor.
960 P.2d 579, 585 (Alaska 1998).
977 P.2d 118, 120 (Alaska 1999) (remanding the case for amendment of the modified child support order to provide for an effective date of June 1, 1996, the first day of the month after the notice of petition for modification was served).
Wise, 122 P.3d at 214; Crumpler v. State, Dep't of Revenue, Child Support Enforcement Div. ex rel. Armstrong, 117 P.3d 730, 732-33 (Alaska 2005).
CSSD served Kosto and Peterson with a notice of petition for modification on August 16, 2007; the notice expressly warned Kosto that the amount of his child support obligation might change and that while the modification process could take months, "[t]he effective date of the new order will be the first day of the month after the parties are mailed this notice."
Under our rule regarding the presumptive effective date for modification of a child support obligation, the effective date of Kosto's modified support obligation should be based on service of the notice of petition for modification. To depart from this date, the superior court was required to explain the good cause basis for selecting a later effective date, but it did not. And there does not appear to be good cause justifying a date other than September 1, 2007.
B. It Was an Abuse of Discretion To Deny Post-Majority Support for Kosto's Daughter.
We have held that "it should be the exceptional case in which a court declines to extend child support payments beyond the child's eighteenth birthday where [AS 25.24.170(a)'s] requirements have been met." Here, the superior court did not conclude that this was an exceptional case, and thus its decision must be reversed.
Scully v. Scully, 987 P.2d 743, 747 (Alaska 1999).
If a party requests this modification, AS 25.24.170(a) authorizes the court to modify a child support order to require support to continue while the child is eighteen years old if the child is unmarried, actively pursuing a high school degree or its equivalent level of training, and living as a dependent. We have recognized that a motion to extend the duration of support under the conditions of AS 25.24.170(a) is not a motion to modify the original child support order and does not require a change of circumstances unless there is "an affirmative provision in the original support order or in an incorporated agreement establishing that the issue of post-majority support was expressly considered and decided." In Scully v. Scully, we held that post-majority support should be ordered in all but "the exceptional case."
See supra note 1 for the relevant text of AS 25.24.170(a).
State, Dep't of Revenue, Child Support Enforcement Div. v. McCormick, 3 P.3d 930, 931 (Alaska 2000).
Although CSSD pointed out this controlling authority when it filed its motion for reconsideration, the superior court denied reconsideration on the issue of post-majority support, reasoning that "[t]he state has presented no evidence the original order did not intend to have child support terminate at age 18." But as CSSD contends, this ruling incorrectly shifted the burden for establishing the requirement of post-majority support.
Kosto responds that the superior court did not abuse its discretion because CSSD failed to show any change in circumstances or any change to the statute governing post-majority support that would require the superior court to order Kosto to pay post-majority support. But a change in circumstances is not necessary in this case because the parties' original child support order does not contain an affirmative provision establishing that post-majority support was expressly considered and decided. The form used for the original support order required the superior court to affirmatively check a box to order Kosto to pay post-majority support, and the superior court simply left this box blank. Failing to check a box is not equivalent to affirmatively deciding and ordering that a parent is not required to pay post-majority support. According to CSSD, "it is just as easy to assume that the court overlooked checking the box as it is to assume that the court intentionally decided there was to be no post majority support." And as CSSD points out, it is not surprising that post-majority support was not considered when the form order was filled out because the parties' daughter was only two years old at the time.
V. CONCLUSION
Because it was error to select December 1, 2007, as the effective date of the child support modification and to deny post-majority support for Kosto's daughter, we REVERSE the superior court's order on the issues of the effective date and post-majority support. Applying the standards articulated by our prior decisions, the superior court's order is effective on September 1, 2007, and Kosto is obligated to pay post-majority support as long as the conditions of AS 25.24.170(a) are met.