Perry v. Child Support Services Division, 051012 AKCSS, 3AN-11-05894 CI

Docket Nº:3AN-11-05894 CI
Opinion Judge:SEN K. TAN, Superior Court Judge.
Party Name:GARLAND C. PERRY, Appellant, v. CHILD SUPPORT SERVICES DIVISION, STATE OF ALASKA, Appellee.
Case Date:May 10, 2012
Court:Superior Court of Alaska
 
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GARLAND C. PERRY, Appellant,

v.

CHILD SUPPORT SERVICES DIVISION, STATE OF ALASKA, Appellee.

No. 3AN-11-05894 CI

Superior Court Of Alaska, Third Judicial District, Anchorage

May 10, 2012

ORDER ON APPEAL

SEN K. TAN, Superior Court Judge.

INTRODUCTION

Before the court is Mr. Perry's Appeal from the Office of Administrative Hearing's ("OAH") October 6, 2010 Decision and Order, which was adopted by the Commissioner of Revenue on November 1, 2010 as the final administrative determination in the matter. In that Decision and Order, the OAH affirmed CSSD's Notice of Denial of Modification Review requested by Mr. Perry. On appeal, Mr. Perry disputes CSSD's calculation of child support for his child, Isiah Perry.

FACTS

This case arises out of Mr. Perry's request for a downward modification of CSSD's determination of child support payments for his child, Isiah I. Perry. There is substantial confusion because Mr. Perry has another child and a separate child support order.

Mr. Perry currently pays child support for two children: his daughter Tyler Kearney, born August 10, 1994, and his son Isiah Perry, born April 18, 1999. In 1996, the Anchorage Superior Court set Mr. Perry's child support payments for Tyler at $487.00 per month. On March 6, 2001, CSSD set child support payments for Isiah in the amount of $294.00 per month. In 2010, Mr. Perry requested a modification review in both cases. Given that one review was judicial and one was administrative, they were processed by different CSSD caseworkers and the reviews proceeded independently of one another.

Modification Review Involving Payments for Tyler

In November 2010, there was a judicial modification hearing involving Tyler. Case No. 3AN-96-2711CI. In that case, Judge Aarseth modified Mr. Perry's support order, and, based on calculations prepared by CSSD, reduced his monthly support payment to $156.00. When CSSD calculated Tyler's child support, CSSD excluded the amount paid by Mr. Perry to his former spouse. CSSD set Mr. Perry's adjusted annual income at $9340.80. In accordance with Judge Aarseth's decision, CSSD sent Mr. Perry a Notice of Modification Adjustment on December 28, 2010, informing him that his monthly child support obligation for Tyler had been reduced from $487.00 to $156.00, effective July 1, 2010.

However, according to CSSD, when it had recalculated Tyler's child support, it mistakenly deducted monthly Social Security/Medicare taxes of $65.47 and State Unemployment Tax of $4.28 from Mr. Perry's gross income. CSSD maintains that it did not discover this mistake until Mr. Perry brought the current appeal with respect to modifying child support payments for Isiah.1

Modification Review Involving Payments for Isiah

On May 20, 2010, Mr. Perry filed a request to modify the 2001 child support order for Isiah. CSSD issued a Notice of Denial of Modification Review on August 26, 2010, based on a determination that there would not be a 15% change in Isiah's ongoing child support amount.

Mr. Perry appealed CSSD's initial denial on September 13, 2010, on the basis that CSSD had used the wrong gross income. CSSD had included military retirement benefits automatically garnished and paid to a former spouse. This is the opposite of what CSSD did in Tyler's case. A hearing was held before the OAH on October 6, 2010. Ketina Poe (custodian on record for Isiah), Mr. Perry, and CSSD (represented by Erinn Brian) all participated at the hearing.

The Administrative Law Judge who heard the case issued a Decision and Order affirming CSSD's denial of Modification of Administrative Support Order. Mr. Perry's request for a downward modification of Isiah's child support order was denied. The issue of whether Mr. Perry's adjusted income should not have included the separate property of his former spouse was never discussed or raised at the administrative hearing.

On November 1, 2010, the Commissioner of Revenue adopted the OAH's Decision and Order as the final administrative decision in the matter.

On February 28, 2011, Mr. Perry appealed the OHA's final determination of Isiah's child support. Mr. Perry initially argued that CSSD erred by not ruling that Mr. Perry's gross income was $10, 269.84, and that CSSD erred by disbursing child support payments to his younger child Isiah before disbursing child support payments to his older child Tyler.

On May 23, 2011, CSSD filed a Motion for Remand, moving this court to remand the case to CSSD to reconsider its calculation of child support...

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