Kilpper v. State, Department of Revenue, Child Support Enforcement Division

COMPTON, Justice,

with whom MATTHEWS, Chief Justice, joins, dissenting in part.

CSED’s motion to reduce arrears to judgment was brought under AS 25.27.226, which governs the collection of past-due support. It requires that the obligor, in response to a motion to establish judgment, file an affidavit with the court. If the affidavit “states that the obligor has paid any of the amounts claimed to be delinquent, describes in detail the method of payment or offers any other defense to the petition, then the obligor is entitled to a hearing.”

Kilpper’s opposition to CSED’s motion to reduce arrears to judgment and accompanying affidavit “vaguely suggest[] waiver and estoppel.”1 His “vague and cryptic description of his proposed defenses raises a serious question as to whether they are sufficient, as described, to require an evidentiary hearing.” 2

Kilpper’s primary contention is that arrears should not be reduced to judgment, because doing so would violate the prior court order disestablishing paternity. This is not a meritorious defense. The trial court had explained that its prior order only prospectively eliminated Kilpper’s obligation to provide support to Keith.

Kilpper’s affidavit concludes with the following language: “I believe I have an equitable defense to these claimed arrearages. I request a hearing prior to April 26, 1996.” This court holds that what it has termed as “vague and cryptic” is sufficient to require that the trial court do something. The rationale for this holding is questionable.

Civil Rule 77(c)(2) provides that, to oppose a motion, a party must “[sjerve and file a brief, complete written statement of the reasons in opposition to the motion, which shall include an adequate answering brief of points and authorities.” Kilpper’s opposition and affidavit did not comply with this rule. No points and authorities were provided and the defense he desired to assert was not made clear.

State v. Alaska International Air, Inc.3 provides some guidance. In that case we were required to decide whether a motion to dismiss was adequate to “join the issue be*735fore the court.”4 We looked to Civil Rule 77(b)(2), which contains the same requirements as Civil Rule 77(e)(2), but applies to motions rather than oppositions.5 The motion to dismiss at issue in Alaska International Air contained only a one-and-a-half page memorandum which was “devoid of any authorities and merely raised three somewhat dubious issues.”6 We concluded that the motion was “so sparse as to prove frivolous.”7 Kilpper’s opposition was similarly devoid of authority and failed to specify the defenses he wished to put at issue.

The court notes that no prior decision has explicitly held that Civil Rule 77 modifies the language of AS 25.27.226.8 However, there is no authority suggesting that compliance with civil motion practice rules is rendered unnecessary by a simple statutory acknowledgment that an individual offering a defense is entitled to a hearing. Alaska Statute 25.27.226 does not purport to modify Civil Rule 77.

The court notes that “holding an evidentia-ry hearing in the absence of any genuinely disputed material facts makes little sense.”9 It also notes the trial court had the discretion to require Kilpper to “offer prima facie evidence of a successful defense under standards set out in Civil Rule 77(c)(2),”10 a rule which the court may have just held does not apply to the statute. Since Kilpper may have taken the statute at face value, opines the court, he may have assumed he was going to get a hearing at which he could “flesh out his claims,”11 whatever they might be. While the court is skeptical of Kilpper’s ability to allege or prove circumstances warranting relief, he is entitled to advance notice “of what he is required to do to obtain a hearing.”12 He was not given “fair notice or a fair opportunity to be heard.”13 The court holds that he must be given an opportunity to meet the requirements of Civil Rule 77(c)(2).

We are left to wonder whether the legislature has inadvertently amended a rule of court, or whether Kilpper has inadvertently successfully argued that he was denied due process of law.

If the rule does not apply of its own force to require Kilpper to file pleadings that are more than “vague and cryptic,” then the statute has amended the rule. If the statute standing alone does not give Kilpper “fair notice and an opportunity to be heard,” then it must be unconstitutional as applied to Kilp-per. Yet Kilpper does not claim he was misled by the statutory language, or that the statute is unconstitutional. However, once we have entered the realm of speculation, what Kilpper claims may be of little importance. Indeed, Kilpper does not even ask for a hearing at which he can establish claims concerning the nature of which this court can only speculate. He asks that the trial court’s “judgment be vacated and this matter be remanded to CSED for a determination of who is the biological father ... so that proper and just support can be assessed against that individual.” And we must assume that if the trial court had discretion to require more of Kilpper before it proceeded with a hearing, it could have proceeded without requiring more of him.

Were Kilpper a pro per litigant, arguably the court’s decision could be justified on the basis of simple fairness to the uninformed. However, as Kilpper was represented by an attorney, the pro per standard does not apply. In my view the court’s analysis is not sound. Since it is not clear what the court has held, I cannot agree with this part of its decision.

In my view Kilpper’s opposition did not adequately raise a defense which would have *736required a hearing pursuant to AS 25.27.226, since Kilpper did not comply with Civil Rule 77(c)(2). The statute and rule must be read together. The superior court did not err in entering judgment without conducting a hearing.

. Op. at 733.

. Id.

. 562 P.2d 1064 (Alaska 1977).

. Id. at 1068.

. Id. at 1068-69.

. Id. at 1069.

. Id. at 1068.

. Op. at 733.

. Id.

. Id.

. Id. at 733.

. Id.

. Id.