STATE, DEPT. OF REVENUE, CSED v. Leitch, No. S-8680.

CourtSupreme Court of Alaska (US)
Writing for the CourtMATTHEWS, Chief Justice.
Citation999 P.2d 782
PartiesSTATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant, v. Sanda LEITCH, Appellee.
Docket NumberNo. S-8680.
Decision Date14 April 2000

999 P.2d 782

STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant,
v.
Sanda LEITCH, Appellee

No. S-8680.

Supreme Court of Alaska.

April 14, 2000.


Diane L. Wendlandt, Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellant.

No appearance by Appellee.

Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.

OPINION

MATTHEWS, Chief Justice.

I. INTRODUCTION

The question in this case is whether the Child Support Enforcement Division may seek prospective modification of a child support order where a de facto change of custody has occurred. The superior court ruled that CSED lacked statutory authority to do so. We conclude that such authority exists and therefore reverse.

II. FACTS AND PROCEEDINGS

Thomas McKinnon and Sanda Leitch are parents of a minor child. In March 1993 the superior court found that Sanda had primary physical custody of the child and ordered Thomas to pay child support. Notwithstanding the order, Thomas assumed physical custody of the child for various periods and received public assistance on behalf of the child during these periods.

The Child Support Enforcement Division (CSED) moved for interim modification of the child support order in order to facilitate recovery of future payments from Sanda. CSED did not seek a change of custody but asked for $50 per month from Sanda "while the child receives public assistance" with Thomas. The superior court denied CSED's motion, concluding that CSED lacked the statutory authority to seek modification

999 P.2d 783
against an obligee under an existing support order. CSED has appealed

III. DISCUSSION

A. Standard of Review

Because the question of whether the trial court properly denied CSED's motion for modification turns on statutory interpretation, we review the issue de novo.1 In interpreting a statute, we will adopt the rule of law "most persuasive in light of precedent, reason and policy."2

B. Does AS 25.27.045 Authorize CSED's Motion for Modification?

The superior court denied CSED's motion to modify the order on the ground that the agency could only act on its own if the "obligor" were liable to the state for public assistance reimbursement. Since under the existing order Thomas—not Sanda—is the obligor, the court concluded that CSED lacked the statutory authority to seek modification.

Alaska Statute 25.27.045 provides in relevant part:

The agency may appear in an action seeking an award of support on behalf of a child owed a duty of support ... and may also appear in an action seeking modification of a support order, decree or judgment already entered. Action under this section may be undertaken upon application of an obligee, or at the agency's own discretion if the obligor is liable to the state under AS 25.27.120(a) or (b).

CSED contends that the term "obligor" in AS 25.27.045 includes "any noncustodial parent potentially liable to the state." CSED argues that the superior court's ruling leaves CSED powerless to obtain public assistance reimbursement from a noncustodial parent where the parents have switched custody without modifying a governing child support order. This result, argues CSED, conflicts with CSED's rights as an assignee of a public assistance applicant "to accrued and continuing child support."3

We substantially agree with CSED's position. It is consistent with the statutory definition of "obligor" as "a person owing a duty of support."4 A "duty of support," in turn, "includes a duty of support imposed or imposable by law, [or] by a court order...."5 Thus, the term "obligor" is not limited to those parents subject to an existing court order but also includes parents owing a duty imposable by a court order.

Sanda potentially falls within this description. Whether a duty of support will actually be imposed on her can only be determined after she has an opportunity to be heard on the merits of CSED's claim. Since actual imposition can only occur after proceedings on the merits, potential imposition is all that can be required when determining CSED's authority to bring a modification proceeding. Thus, CSED was authorized under section .045 to initiate this modification proceeding at its "own discretion."

Our conclusion on this point is also consistent with the statutory system under which CSED operates. CSED has the authority to collect from noncustodial parents reimbursement of public assistance paid for children.6 It is the assignee of "all rights to accrued and continuing child support"7 of public assistance applicants; it is the subrogee "to the rights of the obligee" and, as such, may seek and enforce orders of support;8 and it has a direct independent claim against obligors for reimbursement.9 CSED also has extraordinary powers to collect public assistance reimbursement, including lien rights against "all

999 P.2d 784
real and personal property" of a debtor,10 the right to proceed against a debtor's occupational and driver's licenses,11 and the right to order third parties to withhold and deliver a debtor's property under their control.12

In view of this broad authority and power, we do not believe that the legislature intended to bar CSED from seeking modifications of child support orders in cases of de facto custody changes. Unless CSED can seek modification in such cases, there is a good chance that no one will do so. Without modification, there can be no collection of public assistance reimbursement. The obligee under the order (here Sanda) has no incentive to seek modification, since she will be liable after the modification. The obligor under the order (here Thomas) may lack the incentive to seek modification because he is receiving public assistance and payments received after the modification will be applied first to reimburse CSED.

We conclude, based both on the statutory definition of the relevant terms and on inferences drawn from the statutory structure, that CSED has the authority to seek the modification of support orders in cases of de facto custodial change.

In its ruling, the trial court understandably relied on Hendren v. State, Department of Revenue.13 Like the present case, Hendren involved a de facto change of custody and an order requiring the original noncustodial parent to pay child support.14 We held that CSED could not obtain reimbursement from the obligee under the child support order for public assistance already paid.15 There were two main reasons for this conclusion. First, "[t]he term...

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