Heustess v. Kelley-Heustess

WINFREE, Justice,

dissenting in part.

I respectfully disagree with the court's ruling regarding application of the statute of limitations to Bonnie's reimbursement claim for child-rearing expenditures incurred when no child support order was in place. As the court states, AS 09.10.100(a) sets out a ten-year statute of limitations for the claim.1 In my view the court over-stretches existing precedent and creates inconsistencies in our case law by holding that the claim actually belongs to the child and is tolled during the child's minority under AS 09.10.140.2 The claim belongs to Bonnie and the ten-year statute of limitations should apply.

In State, Department of Revenue, Child Support Enforcement Division ex rel. Inman v. Deam we consolidated two appeals arising from the Child Support Enforeement Division's (CSED) attempts to reduce to judgment child support arrearages owed by noncustodial parents.3 In each case the superior court ruled CSED could not recover support installments that were more than ten years old, reasoning that "AS 09.10.040, the statute of limitations applicable to 'an action upon a judgment, bars the collection of past-due child support when a judicial enforcement *483action is not commenced within ten years of the missed payment." 4

On appeal we held the superior courts misapplied AS 09.10.040.5 We began by noting that the cases involved enforcement of existing child support orders and that by statute each unpaid support obligation is considered a judgment.6 We then rejected the superior courts' application of AS 09.10.040 because CSED "did not initiate a new 'action' to establish the non-custodial parent's liability. Rather, CSED sought to collect a valid, unsatisfied domestic judgment...." 7 We explained that execution on a judgment is not a commencement of an entirely new civil action, and that AS 09.35.020 provides the relevant time limitations on judgment executions.8 Because CSED's efforts to collect the owed support were "in aid of enforcement of a judgment which was already in existence" and "executing upon a judgment does not operate to commence an entirely new civil action," we vacated the superior courts' decisions.9

In State, Department of Revenue, Child Support Enforcement Division ex rel. Valdez v. Valdez, as part of Alfonzo and Linda Valdez's 1988 divorce, Alfonzo was ordered to pay child support.10 In 1994 Linda moved to modify the original support order.11 The superior court granted the motion, increasing Alfonzo's ongoing support obligation.12 But that court also considered Alfonzo's motion to clarify the amount of his support arrearages, entering an order stating CSED "may not attempt to collect arrearages older than June 1, 1984.13

On appeal we relied on Dean and held that AS 09.10.040 did not bar CSED from attempting to collect pre-June 1984 arrear-ages owed under the existing child support order, and noted that any assessment of timeliness under AS 09.85.020 was "premature." 14 We then considered the doctrines of laches, estoppel, and waiver.15 Although we determined that the doctrine of laches was unavailable in the context of child support collection actions, we acknowledged that Alfonzo's arguments concerning waiver and estoppel had support in the record.16 But we stated in a footnote:

Where CSED is acting on behalf of the custodial parent to collect child support which is then passed through to that parent, CSED's conduct cannot amount to waiver or estoppel. The right to support is that of the child and thus cannot be waived by CSED. However, where CSED is collecting support as reimbursement to the State for AFDC payments made to the custodial parent, the doctrines of waiver or *484estoppel may apply.[17]

Today the court relies on Vaidez's footnoted statement that "[the right to support is that of the child" to hold the statute of limitations for Bonnie's claim is tolled,18 but Valdes is distinguishable: in Valdes the initial support order was already established, while the case before us concerns the establishment of an initial order and the reimbursement of past child-rearing expenses. The court ignores this distinction. The court then builds on its Valdes reliance with Grober v. State, Department of Revenue, Child Support Enforcement Division ex rel. C.J.W., stating that there, in connection with an action to establish paternity, "we held that the tolling provision in AS 09.10.140 applies even when another brings the action on behalf of a minor."19 But the court ignores Grober's subject matter-paternity establishment, not child support.20

The application of Vaidez and Grober to a reimbursement claim for child-rearing expenditures incurred absent a support order is unsustainable. Assume that no child support order is ever established during a child's minority and that a reimbursement claim actually belongs to the child and can be brought after the child reaches the age of majority. - It follows that the child may reach majority, file an action against a non-supporting parent, and obtain a judgment for the amount of the Alaska Civil Rule 90.3 child support that would have been due the custodial parent during the child's minority had a support order been in place.21 Yet the custodial parent incurred the child-rearing expenses, not the child. The simple fact is that a reimbursement claim belongs to whomever incurred the expenses-in this case Bonnie-not the child.22

Today's decision undermines the rationale behind statutes of limitations, which serve "to encourage promptness in the prosecution of actions and thus avoid the injustice which may result from the prosecution of stale claims ... [and] attempt to protect against the difficulties caused by lost evidence, faded memories and disappearing witnesses."23 As this case aptly demonstrates, it is difficult to acquire or recreate financial records from 10 to 20 years earlier to calculate reimbursement under Rule 90.3.

Today's decision also creates inconsistencies with other case law. Under the court's application of Grober, the custodial parent's failure to seek reimbursement for child-rearing expenses prior to a support order's establishment cannot be a waiver of the reimbursement claim. Yet we have previously held that a custodial parent's failure to properly assert a reimbursement claim for such expenses constituted a waiver of that claim. In Harvey v. Cook a mother listed a reimbursement claim in a counterclaim against the father, but did not pursue the claim at trial.24 She argued on appeal that she was entitled to the reimbursement.25 Relying on the rule that "issues not properly raised in the trial court will not ordinarily be consid*485ered on appeal," we held the mother waived her claim to the reimbursement.26 Likewise, in Jaymot v. Skillings-Donat, a mother did not raise a reimbursement claim in her pretrial pleadings or at trial.27 We concluded the mother waived the claim, stating "[wle recognize that a parent may not waive the right to receive child support payments by acquiescence or private agreement unless that agreement is approved by the court. But when a parent does not assert a right to past-due support payments at trial, that right cannot be considered on appeal.28 It is inconsistent to hold that a parent cannot waive a reimbursement claim by failing to bring it within the statute of limitations but can waive it by failing to raise it at trial.

For the foregoing reasons, I would reverse the superior court's determination that Bonnie's claim was not limited by AS 09.10.100(a)'s ten-year statute of limitations.

. AS 09.10.100(a) provides that "(aln action for a cause not otherwise provided for may be commenced within [ten] years after the cause of action has accrued."

. AS 09.10.140 provides in relevant part: "if a person entitled to bring an action ... is at the time the cause of action accrues ... under the age of majority ... the time [during which the person is under the age of majority] is not a part of the time limit for the commencement of the action."

. 902 P.2d 1321, 1322-23 (Alaska 1995). CSED relied on AS 25.27.226, which provides:

To collect the payment due, the custodian of a child, or the agency on behalf of that person, shall file with the court (1) a motion requesting establishment of a judgment; (2) an affidavit that states that one or more payments of support are 30 or more days past due and that specifies the amounts past due and the dates they became past due; and (3) notice of the obligor's right to respond. Service on the obli-gor must be in the manner provided in AS 25.27.265. The child's custodian, or the agency on behalf of the custodian, shall file with the court proof of service of the petition, affidavit, and notice. The obligor shall respond no later than 15 days after service by filing an affidavit with the court. If the obligor's 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. After the hearing, if any, the court shall enter a judgment for the amount of money owed. If the obligor does not file an affidavit under this section, the court shall enter a default judgment against the obligor.

. Dean, 902 P.2d at 1322 (footnote omitted).

. Id. at 1323.

. - Id. at 1323-24 (noting AS 25.27.225).

. Id. at 1324 (emphasis in original).

. Id. AS 09.35.020 provides:

When a period of five years has elapsed after the entry of judgment and without an execution being issued on the judgment, no execution may issue except by order of the court in which judgment is entered. The court shall grant the motion if the court determines that there are just and sufficient reasons for the failure to obtain the writ of execution within five years after the entry of judgment.

. Dean, 902 P.2d at 1324, 1326. We also noted that the legislature in 1994 had amended AS 09.10.040 to add a subsection specifically controlling actions to collect child support arrearag-es, but that the statutory change became effective after CSED filed its original motions. Id. at 1322 n. 1 (citing AS 09.10.040, as amended by ch. 86, §§ 1-2, SLA 1994). The added subsection provided that "[aln action may be brought to establish a judgment for child support payments that are 30 or more days past due under a support order ... if the action is commenced by the date on which the youngest child covered by the support order becomes 21 years of age." Ch. 86, § 2, SLA 1994 (codified at AS 09.10.140(b)). This subsection was repealed effective June 1998. Ch. 132, § 54, SLA 1998.

. 941 P.2d 144, 146 (Alaska 1997).

. Id. at 147.

. Id.

. Id. (emphasis in original).

. Id. at 151-52.

, Id. at 152-54.

. Id.

. Id. at 154 n. 14 (emphasis added).

. The court also notes that "[o)ther states have reached the same conclusion." But this approach is not universal. See, e.g., Kimble v. Ellis, 101 P.3d 950, 953 (Wyo.2004) ("[Wle conclude that the right to obtain support is not waived by the custodial parent's inability to act, inaction, or acquiescence to the nonpayment of child support if an action is brought within the statute of limitations." (quoting Hammond v. Hammond, 14 P.3d 199, 202-03 (Wyo.2000))).

. 956 P.2d 1230, 1232 (Alaska 1998) (holding that "child, upon reaching the age of majority, may bring a paternity action, and that prior to the age of majority a parent or guardian ad litem may maintain a paternity action on behalf of a child").

. Id.

. In Vachon v. Pugliese, 931 P.2d 371, 381-82 (Alaska 1996), we held that reimbursement of child-rearing expenses during periods where no child support order is in place is calculated under Rule 90.3.

. We recognized this in Valdez by noting that the State could waive reimbursement of child support it provided indigent custodial parents even when a child support order was in place. 941 P.2d at 154 n. 14.

. Alakayak v. British Columbia Packers, Ltd., 48 P.3d 432, 461 n. 121 (Alaska 2002) (quoting Byrne v. Ogle, 488 P.2d 716, 718 (Alaska 1971)).

. 172 P.3d 794, 802 (Alaska 2007).

. Id.

. Id. at 802-03.

. 216 P.3d 534, 546 (Alaska 2009).

. Id. at 546-47 (citing Paxton v. Gavlak, 100 P.3d 7, 13 (Alaska 2004)).