Barney v. State, Department of Revenue Child Support Enforcement Division, 080712 AKCSS, 3AN-1M0497 CI

Docket Nº:3AN-1M0497 CI
Opinion Judge:MARKRINDNER Superior Court Judge
Case Date:August 07, 2012
Court:Superior Court of Alaska




No. 3AN-1M0497 CI

Superior Court of Alaska, Third Judicial District, Anchorage

August 7, 2012


MARKRINDNER Superior Court Judge


This case involves an appeal from a final determination of the Commissioner of Revenue calculating the child support Paul Prevost should pay to Dorothy Barney, custodian of D.K.B. The central question is whether the administrative law judge ("ALJ") improperly failed to consider Prevost's 2010 personal injury settlement in calculating child support. Barney also accuses the ALJ of (1) improperly shifting the burden to her to demonstrate that some portion of the settlement money should have been included in the child support calculations and (2) giving Prevost improper credits on his child support obligations. The Court hereby affirms the ALJ's decision for the reasons stated below.

Factual History

With one exception, 1 the parties do not dispute the facts underlying this case as described in the ALJ's recitation of material facts. Barney's Br. at 5; compare R. at 196-97 with State's Br. at 2-11. The ALJ found as follows:

Mr. Prevost was formerly a pile driver. His career ended in 2008 as the result of injuries he received in an automobile accident on March 6, 2008. With the exception of an attempt to return to light duty work in July 2008, he has not worked since his accident. Mr. Prevost subsequently applied for and was awarded Social Security disability benefits (SSI) in the amount of $1, 591 per month, effective September 2008. Ms. Barney also applied for CIB (Children's Insurance Benefits) payments on [D.K.B.'s] behalf and the child was awarded $851 per month, effective September 2008. Because of the length of time between the onset of Mr. Prevost's disability in 2008 and the payment of disability benefits, both parties received lump sum payments from Social Security. Mr. Prevost testified that he received $10, 000 in December 2010 and approximately $24, 000 after that. Ms. Barney received $25, 348 in March 2011.

While he was waiting for his application for Social Security benefits to be acted upon, Mr. Prevost supported himseif by withdrawing his union pension and settling the personal injury action related to his automobile accident. In 2009, he withdrew all of his retirement assets consisting of $68, 303.51 from the Northern Alaska Carpenters Union, Local 2520's defined contribution plan. Also in 2009, after attorney fees, costs, and various liens were paid, he received settlement proceeds of $22, 285.60. In 2010, after fees, costs and a child support lien were paid, Mr. Prevost received a second settlement of $51, 146.50 .

Mr. Prevost currently owns a home with his sister, who handles his financial matters. They live in the home with her boyfriend and the three of them share the household expenses on an equal basis. Mr. Prevost testified during the first hearing that he had about 315, 000 remaining from his retirement proceeds, personal injury settlements and the lump sum Social Security payout, but at the final hearing, he said he does not have any money in the bank. He said the reason is that he used most of his settlement to pay the people who had been loaning him money, mostly his sister.

Little is known of Ms. Barney's and [D.K.B.'s] circumstances. The custodian testified that [D.K.B] is disabled because he was seriously hurt in a snow machine accident two years ago and has had several surgeries since then. She did not provide any other evidence of hers or {D.K.B.'s] current situation.

R. at 196-97 (citations omitted).

Prevost requested modification of his child support on March 17, 2010 based on his financial situation. R. at 19. Prior to that request, he had been paying child support based on the child support calculations in effect prior to his accident and disability. See R. at 195. By March 25, 2010, CSSD had begun evaluating Prevost's request and asked both Prevost and Barney to provide additional information. R. at 20-21. CSSD initially denied Prevost's request on the basis that he failed to provide CSSD with certain additional information regarding his medical condition and employment. R. at 64, 195. Prevost appealed the denial and the matter was referred to the ALJ. R. at 9, 67.

The ALJ held hearings on the matter on March 15, 2011, April 13, 2011, and May 25, 2011. See Trans, of Appeal Proceedings 1. In those hearings, Prevost was represented by counsel, Barney represented herself in the first and second hearings, but obtained counsel for the third hearing. See Tr. 1 (Vol. 1A), 1 (Vol. 1B), 1 (Vol. 1C).

At the end of the hearings and after receiving all of the evidence, the ALJ found that Prevost had met his burden to show that CSSD improperly denied his motion for modification. R. at 199. Moreover, the ALJ found that CSSD, after receiving further information from Prevost, had correctly calculated Prevost's child support at $510 per month, effective April 1, 2010. The ALJ further concluded that the amounts Prevost received through the persona! injury settlements were not income for the purposes of child support calculation. R. at 199. The ALJ finally found that Prevost was entitled to a credit against his child support obligation because Barney was receiving $851 from the CIB program, which was $341 more than Prevost owed under the new child support calculations. R. at 200. The Commissioner of Revenue adopted the ALJ's findings on August 11, 2011. R. at 201.

Procedural History

Barney filed her Notice of Appeal on September 2, 2011 seeking review of the final child support order. The agency record and transcripts of the proceedings were filed with the Court on October 19, 2011. Barney filed her appeal brief on November 22, 2011. The State filed its brief on January 20, 2012. Barney replied on March 19, 2012. The Court held oral argument on July 30, 2012.

Standard of Review

AS 25.27.220 generally sets the standard for reviewing an administrative determination of child support. AS 25.27.220(b) states that the Court may only examine three questions: "(1) whether the agency has proceeded without or in excess of jurisdiction; (2) whether there was a fair hearing; and (3) whether there was a prejudicial abuse of discretion." AS 25.27.220(b). Abuse of discretion means that "the agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." Id.

However, "whether an item qualifies as income for the purposes of Rule 90.3 is a question of law . . ." Robinson v. Robinson, 961 P.2d 1000, 1002 (Alaska 1998). Alaska courts adopt "the rule that 'is most persuasive in light of precedent, reason and policy" when deciding questions of law. Id. (quoting Nass v. Seaton, 904 P.2d 412, 414 (Alaska 1995)).


Barney argues four points on appeal. First, she asserts that the ALJ should have included Prevost's 2010 personal injury settlement in the new child support calculations. Barney's Br. at 3. Second, she argues that the ALJ improperly required Barney, and not Prevost, to demonstrate which part of the personal injury settlement should be part of Prevost's income. Id. Third, Barney argues that the ALJ...

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