Edwards v. State, 101212 AKCSS, 3AN-11-5401CI

Docket Nº:3AN-11-5401CI
Opinion Judge:PAT DOUGLUS, Judge.
Party Name:GERALD EDWARDS, Appellant, v. STATE OF ALASKA, DEPARTMENT OF REVENUE CHILD SUPPORT SERVICES DIVISION, Appellee.
Case Date:October 12, 2012
Court:Superior Court of Alaska
 
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GERALD EDWARDS, Appellant,

v.

STATE OF ALASKA, DEPARTMENT OF REVENUE CHILD SUPPORT SERVICES DIVISION, Appellee.

No. 3AN-11-5401CI

Superior Court Of Alaska, Third Judicial District, Anchorage

October 12, 2012

ORDER ON ADMINISTRATIVE APPEAL

PAT DOUGLUS, Judge.

Appellant, Gerald Edwards, appeals the April 27, 20001 child support order issued by an Administrative Hearing Officer within the Child Support Services Division (CSSO) of the State of Alaska Department of Revenue (Appellee) and upheld by the November 19, 2010 decision of an Administrative Law Judge (ALJ) within the Office of Administrative Hearings and approved by the Commissioner on December 28, 2010. The Court finds that the April 27, 2000 child support order is VOID due to lack of notice on Appellant of the February 9, 2000 hearing. The Court finds that Appellant is entitled to a formal administrative hearing under AS 25.27.170 and REMANDS back to the agency for a hearing in front of an Administrative Hearing Officer.

STATUTORY BACKGROUND

The statutes governing the ability of CSSD to establish child support for a falls under AS 2S.27.160.2 Before initiating a child support order, the agency sends a request for financial information to the parents.3 After receipt of this information, or after die expiration of the period, die agency determines the child support amount.4 The child support amount is determined using a percentage of the parent's adjusted annual income as outlined in Civil Rule 90.3 5 If CSSD has determined that the parent is voluntarily underemployed or unemployed, they can base support on an estimate of the parent's potential income6 Additionally, if CSSD has no income information, they can estimate income using a default amount based on average income for persons with that parent's skills.7

Once the child support amount is determined, the agency serves8 the Notice and Finding of Financial Responsibly (NFFR.) on the non-custodial parent.9This notice tells the obligor that they may appear and show cause in a hearing why the finding is incorrect or should be modified.10

The parent may also request an administrative review of the NFFR with in thirty days of the receipt to prove that the amount is incorrect.11 If the review officer believes that an adjustment is necessary, it will direct the agency to adjust the NFFR.12 If the review officer does not believe mat an adjustment is necessary, the NFFR by the agency will stand.

The parent is entitled to formal hearing before a hearing officer if requested within 30 days of the date of service of the final NFFR.13 This hearing officer shall consider the needs of the obligee, the amount of the obligor's liability, the intent of the legislature that children be supported as much as possible by their natural parents, and the ability of the obligor to pay.14 If the person requesting the hearing fails to appear, then the hearing officer shall enter a decision in the amount stated in the NFFR. 15 If no hearing is requested, the obligor's property and income may be subject to execution under AS 25.27.062 and 25.27.270.16

The statute allows CSSD to vacate an administrative support order issued by the agency under AS 2S.27.160 at any time if the order was based on a default amount17 A default order is defined in the regulations as based on "average annual wage income by age group statistics or other group wage statistics provided by the Department of Labor and Workforce development.”18

FACT AND PROCEDURAL HISTORY 19

Appellant has two children with Ms. Corso. In January 1999, Ms. Cone applied for CSSD services, and in Marco 1999, CSSD issued a NFFR requiring Appellant to pay monthly child support for the first child.20 Appellant was served with the NFFR while he was incarcerated at Cook Inlet Pretrial Facility in Anchorage.21 The monthly support was based on the avenge annual income for Alaska because Mr. Edwards did not provide income information to CSSD.22

Appellant requested an administrative review, and provided a mailing address within Anchorage.23 CSSD undertook an administrative review24 and Appellant dropped off documents attempting to prove that he was living with Mrs. Corso and that his income was incorrect25 CSSD determined a new child support figure using the Alaska Department of Labor hourly wage for an auto mechanic based on a resume of Appellant26 and his business license. This decision was mailed to Mr. Edwards at his Anchorage address on December 10, 1999.27

Based on this decision, Appellant requested a formal hearing and listed his mailing address within Anchorage.28 He also listed a New Jersey physical address, where he was staying with Ms. Corso.29 On January 24, 2000, Appellant called and inquired about the status of the hearing, and was told a date had not yet been set.30 On January 26, 2000 a notice of the hearing was mailed to both and Ms. Corso at the New Jersey address.31 Neither party was present for at the February 9, 2000 appeal hearing.32 The hearing officer issued a corrected child support decision on April 27, 2000 and found that Appellant had received notice of the hearing.33 This decision was mailed to Appellant to New Jersey address, but the decision was returned to CSSD marked "Unclaimed".34

In October 2000, Ms. Corso filed an application for modification of the administrative support order to add the second child.35 Appellant did not respond to CSSD'8 request for income information but it is not clear mat Appellant was aware of this request36 Appellant filed a request for modification of administrative support order on September 10, 2001 .37 On January 8, 2002 CSSD issued a Modified Administrative Child Support Order which added the second child to the administrative order.38 Attempts to serve this order on Appellant were unsuccessful and this order was never adopted.39

In 2008, Appellant filed a Motion to Vacate Default Order with CSSD.40 CSSD sent notice to Ms. Corso of bis request and held an administrative review.41 On May 6, 2010, CSSD issued an administrative review decision granting Appellant relief from the administrative child support order because it was based on a default amount.42 Both Ms. Corso and Appellant appealed this order.43

A formal hearing was held on September 1, 2010 and October 25, 2010 before ALJ Jeffrey Friedman. ALT Friedman made a decision that Appellant was not entitled to relief because the April 27, 2000 order had been issued AS 25.27.170 not under AS 25.27.160.44 Because Appellant was not entitled to vacation of the order, the ALJ found that the order could only be modified prospectively based on income, and therefore modified from February 2009 onwards upon evidence provided at the hearing.45

In response to the ALJ's decision, CSSD filed a "Proposal for Agency Action" to the Commissioner submitting that CSSD had the authority under 15 AAC 125.121 to vacate default orders regardless where the order was an original NFPR or an order following a formal hearing.46 Appellant also filed a Proposal for Agency Action.47 On December 28, 2000, the AJLJ decision was adopted by Deputy Commissioner Jerry Burnett holding that Appellant was not entitled to a default order vacated because an administrative hearing officer had issued the April 27, 2000 order, not the agency.48

Standard or Review

For child support appeals, the superior court may inquire whether the agency has proceeded without or in excess of jurisdiction, whether there was a fair hearing, and whether there was prejudicial abuse of discretion.49 "Abuse of discretion is established if 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.50 The court may exercise its independent judgment on the evidence, and may find abuse of discretion if the findings are not supported by (1) the weight of the evidence; or (2) substantial evidence m light of the whole record .51 If the court finds that the there is evidence which was improperly excluded, the court may remand the case to be reconsidered in light of that evidence.52

For legal questions where agency expertise is implicated, such as when: an agency interprets its own regulations, the Court applies a reasonable basis test.53The Court must defer to the agency's interpretation "unless it is unreasonable."54

For legal questions where agency expertise is not implicated, the Court applies a substitution of judgment test55 Statutory and constitutional claims are evaluated using this test56 Even if the decision "has a reasonable basis in law, " the Court substitutes "its own judgment for that of the agency" to determine the meaning of the applicable law.57

DECISION ON APPEAL

Appellants bring forth three main arguments on appeal First, they argue that Appellant's due process right to a fair hearing was denied by lack of notice about the appeal hearing.58 Second, they argue the statutory scheme gives an ALJ authority to vacate default orders when those orders were affirmed by a formal hearing officer with the Department of Revenue.59 Third, they argue that CSSD should have reduced the child support for the periods that Appellant was living with Ms. Corso.60

Appellee argues that CSSD provided proper notice as required under due process because they sent the notice to the address in New Jersey.61 They argue that die statute only allows vacation of orders created under AS 2S.27.160.62Finally, they argue Appellant did not prove that he was Irving with Ms. Corso at the 2000 appeal hearing, (since he did not appear), and that...

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