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Law Offices of Steven D. Smith, P.C. v. Ceccarelli

Supreme Court of Alaska

June 17, 2016


         Appeal from the Superior Court of the State of Alaska, No. 3AN-14-05219 CI Third Judicial District, Anchorage, Mark Rindner, Judge.

          Steven D. Smith, Law Offices of Steven D. Smith, P.C., Anchorage, for Appellant.

          Carl D. Cook, Law Office of Carl D. Cook, P.C., Anchorage, for Appellee.

          Before: Fabe, Winfree, Maassen, and Bolger, Justices.

          Stowers, Chief Justice, not participating.




         A superior court order required the Child Support Services Division (CSSD) to audit the child support and spousal support accounts of a divorced couple. The audits revealed that the agency had collected too much child support from the ex-wife and that the ex-husband owed her the overpayment as well as arrearages in spousal support. The ex-wife's attorney filed an attorney's lien on money in the ex-husband's possession that the attorney claimed was owed to his client, then filed a separate action to enforce the lien. The ex-husband paid the money to CSSD, which turned it over to the ex-wife.

         The superior court granted summary judgment to the ex-husband on the attorney's lien claim, concluding that the lien was invalid because the ex-husband was required to pay the money for the overpayment and the spousal support arrearages directly to CSSD. The attorney appeals.

         We conclude that the attorney's lien satisfied the requirements of the governing statute, AS 34.35.430(a)(3). We therefore reverse the superior court's summary judgment order and remand for further proceedings.


         Michelle and Dana Ceccarelli are divorced. Michelle initially had custody of their two children, but Dana took full custody while Michelle spent time in prison. Michelle and Dana have had disputes over child and spousal support for over ten years. Michelle moved for back payment of child support but in October 2005 the superior court denied her motion, then in November 2005 denied her motion for reconsideration.

         A. The June 2007 Superior Court Order

         In 2007 the superior court decided that it had based its November 2005 order on an incomplete record, omitting an October 2005 Notice of Adjustment from CSSD. The November 2005 order had concluded that Dana was current on his child support obligation, but it relied on a CSSD audit that predated the Notice of Adjustment. The Notice of Adjustment revealed that Dana was in arrears in the amount of $11, 244.02 at the time he took custody of the children. The court ordered that CSSD take into account these newly determined arrearages in offsetting the parties' CSSD accounts.

         B. The June 2008 Child Support Order

         A June 2008 order required Michelle to pay Dana monthly child support. The order erred in its child support calculation, however, and it failed to expressly state that it did not supersede the superior court's 2007 order taking into account the child support arrearages Dana owed Michelle. Because CSSD failed to credit Michelle with the $11, 244.02 in arrearages, her child support payments began to accrue immediately and for the wrong amount. These errors meant that Michelle incorrectly accrued approximately $18, 000 in child support arrearages while she was imprisoned.

         C. CSSD's Seizure Of Michelle's Funds

         After Michelle was released from prison, CSSD's accounts continued to show that she owed Dana approximately $18, 000 in unpaid child support. Dana asked for CSSD's help to recover this money after Michelle received a settlement in a personal injury case following a bike accident. CSSD apparently served an order to withhold and deliver on Michelle's personal injury attorney, [1] and in May 2012 CSSD seized a total of $18, 000 from the settlement funds and from Michelle's bank account. CSSD used the seized funds to pay Dana the child support arrearages that Michelle appeared to owe him.[2]

         D. The March 2013 Order Modifying Child Support

         In March 2013 the superior court issued an order modifying the June 2008 child support order and requiring CSSD to adjust Michelle's and Dana's accounts for two reasons. First, the court found that the June 2008 order should have stated "that previous orders issued by the court were not intended to be superseded, " and that because of this omission CSSD erroneously failed to credit Michelle's account with the $11, 244.02 in child support arrearages Dana had been ordered to pay her in 2007 - an error that persisted in 2012 when CSSD seized Michelle's funds. The superior court expressly reinstated the June 2007 order and required that CSSD audit the parties' accounts again and adjust them accordingly.

         The 2013 order also found that the 2008 order had the wrong amount for Michelle's monthly child support obligation. The court required CSSD to adjust her child support account to correct for the error in the 2008 order; it further found that she was physically incapacitated because of her bike accident, that because of her incapacity she should pay only the minimum child support obligation of $50 per month, and that her account should be adjusted to reflect this amount "as of May 2012 until further order of the court."

         This March 2013 order did not expressly require the parties to repay any excess funds to CSSD. It simply instructed CSSD to "notify the parties' attorneys" should the "credit plus the sums seized from [Michelle] in ...

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