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Allen v. State of Alaska12/15/2000
[No. 5342 - December 15, 2000]
I. INTRODUCTION
Lloyd Allen filed an appeal in superior court, seeking review of two decisions by the Child Support Enforcement Division (CSED). The superior court dismissed Allen's appeal as untimely. Allen appeals. Although CSED now acknowledges that Allen did file his appeal within the time limit prescribed by Alaska Appellate Rule 602(a), it argues that the superior court's dismissal should stand because one of Allen's claims challenges an unreviewable CSED order and the other has been rendered moot by a subsequent intermediate appeal. We hold that the superior court erred in dismissing the appeal as untimely and reverse as to one of Allen's claims; as to the other, we hold that this error was harmless.
II. FACTS AND PROCEEDINGS
Allen is the obligor parent under a 1988 superior court child support order. In October 1997 he informally requested CSED to seek a superior court order reducing his support obligation. Under 15 Alaska Administrative Code (AAC) 125.316 and .326, CSED has authority to seek judicial modification of a child support order if recalculation under the child support guidelines set out in Alaska Rule of Civil Procedure 90.3 would yield current payments that differ by more than fifteen percent from payments required under the existing order. In response to Allen's request, CSED sent Allen a form entitled "Petition for Modification of Judicial Support Order."
Allen submitted his completed petition to CSED on February 3, 1998. On February 11 CSED sent Allen and the child's mother notices acknowledging its receipt of the petition and explaining that any modification resulting from Allen's petition would apply retroactively as of "the 1st day of the month after the person who does not request the review receives the Notice of Petition for Modification." The notice also stated that CSED would review Allen's proposed petition for modification on March 12, 1998.
CSED failed to complete its review until November 17, 1998. Meanwhile, Allen tried twice to spur the agency to action. First, he wrote to ascertain the status of his case. On August 5, 1998, CSED responded that its delay was attributable to a backlog of claims:
Due to the volume of Reviews requested and scheduled, CSED is experiencing a severe backlog in their accomplishment. Currently, CSED is working Modification Reviews scheduled for May of 1997. It will be several months before the review for this case will be worked.
Soon after receiving this response, Allen moved to compel CSED to review his petition. The superior court denied Allen's motion but noted that "Mr. Allen may move to compel again, if CSED does not review his obligation within 60 days" of September 14, 1998.
Two months passed without CSED action. Then, on November 17, 1998, CSED issued a form letter "Response to Request for Modification Review." The letter explained that Allen's review had been "Ceased/Denied" because his "Petition failed to make a showing of good cause and material change in circumstances sufficient to justify proceeding with the Review. (No 15% change in the amount.)" The letter concluded: "If you believe the decision is an error of fact, please explain in detail below and return this form to CSED."
Two days later, Allen wrote CSED that " our decision to deny my Petition for Modification of Administrative/Judicial Child Support Order based on your finding that there is no 15% change in amounts of income is in error." CSED never responded to this letter. Allen waited four months. Then, on April 5, 1999, he filed a notice of appeal in superior court, seeking review of CSED's refusal to pr
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