author: PER CURIAM. BRYNER, Justice,

text:
    CHILD SUPPORT RECOVERY SERVICES, INC., ex rel. S.C., A Minor, Appellant, v. INN AT THE WATERFRONT, INC., Appellee.
    No. S-8691.
    Supreme Court of Alaska.
    Aug. 18, 2000.
    Kenneth Kirk, Anchorage, for Appellant.
    Dennis C. Bailey, Dillon & Findley, Juneau, for Appellee.
    Diane L. Wendlandt, Assistant Aftorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Amicus Curiae State of Alaska, Department of Revenue, Child Support Enforcement Division.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

PER CURIAM.

Child Support Recovery Services, Inc. (CSRS) appeals the grant of summary judgment by the superior court in favor of Inn at the Waterfront, Inc. For the reasons stated in Judge Larry Weeks's thorough and thoughtful summary judgment decision, relevant portions of which we set out in Appendix A, we affirm the grant of summary judgment. We add the following with respect to points specifically raised on the appeal:

1. At oral argument, counsel for appellant CSRS abandoned reliance on AS 25.27.260(b) Accordingly, we have excised Judge Weeks's analysis of the legislature's 1994 amendment of AS 25.27.260, which added subsection (b).

2. CSRS first appeared in this case in 1993 when the Child Support Enforcement Division assigned its enforeement right to 'CSRS. The sole defendant at the time, Cul-Tinane, did not object to this substitution, and the superior court allowed it. No question of CSRS's standing to pursue this case was raised until the superior court's summary judgment ruling. There, Judge Weeks ruled:

Finally, AS 25.27.260(b) which permits recovery by an individual as opposed to the state, was not enacted until a year after the last [order to withhold and deliver] was served in this case. The court believes that this fact precludes the individual plaintiff CSR[S] from recovery.

CSRS appealed the superior court's conclusion that it lacked standing to bring this action and argued in this court that Inn at the Waterfront should be equitably estopped from arguing lack of standing. Because at oral argument CSRS abandoned reliance on AS 25.27.260(b), and because we conclude that summary judgment was properly granted on the merits, we do not address CSRS's argument that Inn at the Waterfront should be equitably estopped from arguing that CSRS did not have the right to maintain its action. For this reason, and because the parties have not briefed the issue, we decline to address whether the state may assign its enforcement right to a private collection agency such as CSRS.

The judgment entered by the superior court is AFFIRMED.

APPENDIX A

MEMORANDUM AND ORDER

I. INTRODUCTION

This case is before the court on defendant Inn at the Waterfront's motion for summary judgment, or in the alternative, for relief from judgment under Civil Rule 60(b)(5), and for costs and fees. CSRS opposes both motions.. Resolution of the pending issues depends on the court's interpretation of AS 25.27.260:; Civil Hability upon failure to comply with an order or lien.

A. Factual Background

In 1981, a Nevada court established a child support obligation for William J. Cullinane, the non-custodial parent of a minor child, S.C. In 1986, the Alaska Child Support Enforcement Division (CSED) began efforts to collect unpaid child support due under the Nevada order. Those efforts included the issuance of three Orders to Withhold [Income] and Deliver Property (WIDs) to Inn at the Waterfront, Inc., based on CSED's understanding that Inn was Cullinane's employer. The WIDs were issued pursuant to AS 25.27.250, formerly AS 47.28.250

The first WID, dated May 12, 1988, instructed Inn inter alia to withhold and deliver to CSED all of Cullinane's real or personal property in its possession, fifty-five percent of his wages and earnings when payable, and fifty percent of any unemployment insurance benefits when payable, up to $28,-321.74, the amount of arrearage, interest and penalties due as of the date of the WID. The second WID, dated April 5, 1989, set forth the same withholding instructions but raised the maximum allowable withholding to $81,807.74 to reflect Cullinane's arrearage, interest and penalties due as of the date of the second WID. The third WID, dated September 30, 1993, instructed Inn to withhold and deliver by the same terms as the first two WIDs, with the exeeption that Inn should withhold sixty percent of Cullinane's wages and earnings when payable, up to $57,455.05, the amount of arrearage, interest and penalties due as of the date of the third WID. The legal sufficiency of the WIDs has not been argued. Likewise, Inn has not argued about whether it received the WIDs or whether it failed to withhold or deliver Cullinane's income or assets in its possession as required by the terms of the WIDs, On a motion for summary judgment the court infers CSRS prevails on this issue.

CSED initiated litigation in 1989 against Cullinane. Additional parties, including Inn, Ann House and Cullinane Corporation, were joined in the litigation as a result of their association with Cullinane. Prosecution of the case was assumed by CSRS in 1998. On February 27, 1995, in the context of a cross motion for summary judgment on the issue of liability, this court determined Inn was "liable for any unpaid WIDs accruing from the time the first WID was served."

Cullinane's outstanding arrearage obligation was reduced to judgment on January 2, 1996. On July 22, 1996, Cullinane paid $70,658.33 in full satisfaction of the outstanding judgment for child support arrearage plus interest and costs of execution. CSED issued a notice of intent to close the case, addressed to Cullinane, on November 6, 1996. CSED filed notice of full satisfaction of the judgment against Cullinane on November 15, 1996. On March 12, 1997, CSED notified Inn that the September 30, 1998 withholding order (WID No. 3) was terminated.

B. Summary of Parties' Arguments

Inn argues summary judgment is appropriate in this case because it was liable only for "unpaid WIDs" which no longer exist. Inn interprets AS 25.27.260 to impose joint and several liability on the obligor-employee and his or her employer for the accrued and unpaid support arrearage indicated in the WIDs. According to Inn, this court's January 1996 judgment was "fully executable either against Mr. Cullinane or Inn to the extent of the unpaid WIDs." According to Inn, satisfaction of the underlying judgment against Cullinane necessarily relieves Inn of continuing liability.

CSRS argues Inn's liability for failure to comply with the WIDs in violation of AS 25.27.260 is continuing and independent of Cullinane's Hability. It says that Inn's liability may be as much as $70,658.33. According to CSRS, Cullinane's satisfaction of the underlying arrearage obligation terminated the withholding requirement of the WIDs but did not erase Inn's liability based on its previous non-compliance.

Inn also argues AS 25.27.260 should not be construed as a penalty absent express legislative intent. Inn argues against permitting a double recovery or a civil penalty in excess of the eriminal fine provided in AS 11.51.122 for "aiding the nonpayment of child support. CSRS argues AS 25.27.260 should be construed as a penalty in that its purpose is to encourage employers to obey WIDs. According to CSRS, employers should not be permitted to disobey WIDs without consequence.

Inn argues a construction of AS 25.27.260 which permits double recovery is inconsistent with other provisions of the child support enforcement act and the statute's express purpose of enforcing the child support obligations of responsible parents. CSRS argues it does not seek a double recovery from the same person. CSRS also argues the policies underlying the legislative enactment of strong enforcement mechanisms would warrant a double recovery.

As an alternative to summary judgment, Inn argues the full satisfaction of the arrear-age obligation underlying the WIDs operates as a release of Inn's liability and Inn should therefore be granted relief from judgment pursuant to Civil Rule 60(b)(5b). CSRS argues relief from judgment under Civil Rule 60(b)(5) is inappropriate because no judgment yet exists against Inn from which the court can give it relief.

C. Summary Judgment and Civil Rule 60(b) Standards

The court may grant summary judgment pursuant to Civil Rule 56 when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Onee the moving party establishes by competent evidence the absence of genuine issues of material fact, the non-moving party must clearly and specifically demonstrate that it can produce admissible evidence disputing the moving party's evidence. All reasonable inferences of fact are drawn in favor of the non-moving party.

Civil Rule 60(b)(5) provides for relief from a final judgment, order, or proceeding where "the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application."

II. ISSUE

Is Inn's civil liability under AS 25.27.260 for failure to comply with the WIDs continuing and independent of or joint and several with the full satisfaction of William Cullinane's child support judgment?

III. DISCUSSION

The legislative intent of AS 25.27.260 is ambiguous, but suggests that Inn's liability for failure to comply with the WIDs is joint and several with William Culli-name's support obligation.

In the context of a prior summary judgment motion by defendant Ann House, this court found Inn liable for its failure to comply with the terms of the three WIDs it received concerning Cullinane. That finding was based on application of AS 25.27.260 to facts in this case which are not in dispute. Alaska Statute 25.27.260 provides:

Civil liability upon failure to comply with an order or lien. (a) If a person, political subdivision, or department of the state (1) fails to make an answer to an order to withhold and deliver within the time prescribed in AS 25.27.9250; (2) fails or refuses to deliver property in accordance with an order issued under AS 25.27.250; (8) pays over, releases, sells, transfers, or conveys real property subject to a lien recorded under AS 25.27.2830 to or for the benefit of the obligor or any other person; (4) fails or refuses to surrender upon demand property attached; or (5) intentionally fails or refuses to honor an assignment of wages or an income withholding order under AS 25.27.062 that was served by the agency through personal service by a process server or through certified mail, return receipt requested, the person, political subdivision, or department of the state is Hable to the agency in an amount equal to 100 percent of the amount constituting the basis of the lien, order to withhold and deliver, attachment, or withholding of wages or income, together with costs, interest, and reasonable attorney fees. (Emphasis added.)

Inn's liability arose from its failure to answer and to withhold and deliver income and property in accordance with the three WIDs issued pursuant to AS 25.27.250. Inn does not contest its liability for "unpaid WIDs" as established in this court's order of February 1995, but argues its liability has since been extinguished by Cullinane's payment in full of his child support arrearage. The legislative intent behind Chapter 27 of Title 25 and the meaning conveyed by the statute's language and context are ambiguous, but do support a finding of joint and several liability.

A. Legislative Intent

In interpreting a statute, the court's goal is to give effect to the intent of the law-making body with due regard for the meaning that the language employed in the statute conveys to others. Alaska Statute 25.27.260 is one of numerous enforcement provisions enacted in 1977 by the state legislature to increase the effectiveness of child support collections. The express purpose of the 1977 act is as follows:

PURPOSE. Common law and statutory procedures governing the remedies for enforcement of support for financially dependent minor children by responsible parents have not proven sufficiently effective or efficient to cope with the increasing incidence of financial dependency. The increasing workload of courts, district attorneys, and the attorney general has made such remedies uncertain, slow and inadequate, thereby resulting in a growing burden on the financial resources of the state which is required to provide public assistance grants for basic maintenance requirements when parents fail to meet their primary obligations. The state, therefore, exercising its police and sovereign power, declares that the common law and Alaska statutes pertaining to the establishment and enforcement of child support obligations shall be augmented by additional remedies in order to meet the needs of minor children. It is declared to be the public policy of this state that this Act be construed and administered to the end that children shall be maintained from the resources of responsible parents, thereby relieving, at least in part, the burden presently born by the general citizenry through welfare and welfare-related programs.

Subsequent amendments to the provisions of Chapter 27 have been accompanied by similar statements of purpose and intent:

LEGISLATIVE FINDINGS AND PURPOSE. (a) The legislature finds that the effect on the general public of the failure of parents to support their children is vast and far reaching. The harmful effects of unpaid child support touch not only the poor but reach far beyond, diminishing the overall quality of life for all Alaskans. The purpose of the amendments in this Act is to enbanee the efforts of those persons who seek to enforce the payment of child support obligations by noncustodial parents having the duty of support.
(c) The legislature also finds that the hardship experienced by children in families who may rely on support from a noncustodial parent should not be a necessary condition that must be endured by those families. Statutory tools have been provided to enable the child support enforcement agency to collect unpaid child support owed by a parent, including the authority to order an employer to withhold and deliver part of an employee's earnings. This tool, however, is not usable against a self-employed parent who owes child support. The legislature finds that if delinquency in making child support payments could be reflected in a person's credit history, an effective collection and deterrent tool would exist-a tool that would be effective against those self-employed parents who owe child support.

The Senate adopted the following letter of intent to accompany the 1994 amendments to the Act:

Apart from the statutory changes enacted in this bill, the legislature wishes to convey its intent that the Child Support Enforeement Division distinguish between obli-gors, employers and others who voluntarily meet their support, withholding or other obligations under this chapter and those who do not. To the extent allowed by this chapter and federal law, this distinction should be actively reflected in all ageney communications as well as in the nature, extent and timing of enforcement actions, subject to reasonable precautions to avoid uncollectability of funds necessary for support.

Chapter 27 as amended was enacted to satisfy the federal mandate for compliance with 42 U.S.C. §§ 651-667." The relevant portion of the federal statute, 42 U.S.C. § 666(b)(6)(C), requires:

The employer must be held liable to the State for any amount which such employer fails to withhold from income due an employee following receipt by such employer of proper notice under [the previous sub-paragraph requiring employers to withhold and deliver the amount specified in the notice to the agency or other entity authorized to collect].

Federal regulations promulgated by the federal Office of Child Support Enforcement also require:

(iv) That the withholding [provision created by the state] is binding upon the employer until further notice by the State;
(vi) That, if the employer fails to withhold wages in accordance with the provisions of the notice, the employer is liable for the accumulated amount the employer should have withheld from the absent parent's wages[.]

Thus, the express intent of the legislature with regard to the provisions of Chapter 27 has consistently been to increase the ability of the state to enforce child support obligations and, toward that goal, to impose federally mandated lability on employers who fail to aid in that enforcement effort. The imposition of joint and several liability on the employer comports with that intent. The employer becomes a readily available source of funds in cases where funds are not available from the obligor. This responsibility on employers is new and significant It is a "penalty" even with joint and several Hiability; the non-compliant employer ends up paying the employee's child support.

B. Statutory Enforcement Obligations

In effect, the state has recruited employers as private child support enforcement agen-cles. The WID statute is one of several provisions in Chapter 27 which impose enforcement obligations on employers. For example, AS 25.27.062 provides for income withholding orders which must be implemented by employers. Alaska Statute 25.27.0638 limits an employer's discretion with regard to health care coverage required under a medical support order. Alaska Statute 25.27.070 provides for assignment of wages which must be implemented by the employer. Alaska Statute 25.27.062(k) requires employers subject to withholding orders to maintain independent records on obli-gor-employees and notify CSED in the event of termination. Alaska Statute 25.27.075 requires employers with 20 or more employees to report hirings to CSED .

These statutory enforcement obligations are not voluntary; an employer is subject to civil penalties and liability for failure to comply. In addition to civil liability under AS 25.27.260, an employer is subject to a civil penalty of up to $1,000 for failure to comply with the reporting statute. An employer is subject to a maximum $1,000 civil penalty for retaliatory discharge of an obligor-employee based on receipt of a withholding or reporting order. The WID provision likewise provides for employer liability for failure to comply. Alaska Statute 25.27.250(J) provides: "A person, political subdivision, or department that fails to comply with an order to withhold and deliver served under this subsection is subject to penalties under AS 25.27.260." Imposition of this liability is a significant change to child support enforeement law and provides material benefit to the state's ability to collect support. The state has the option of pursuing recovery from the obligor and/or the non-compliant employer. In either event, the support obligation may be met.

C. Statute Creates Joint, not Independent Liability

Under AS 25.27.260(a), liability is measured by the extent of the employer's noncompliance with the WID. A noncompliant employer is liable "to the agency" for "100 percent of the amount" due under the WID, plus costs, interest and fees. Each of the WIDs expressly state: "this order is binding until you receive a notice of satisfaction of requirement from the State of Alaska." Pri- or to receiving notice of satisfaction, the employer can satisfy its obligation by "delivery to the agency of the money or other property due, owing, or belonging to the obligor." Property turned over to the state is held in trust for application against the Hability of the obligor or for return to the obligor depending on a final determination of liability or nonliability under the chapter.

The employer's liability for failure to comply therefore depends on the terms of the WID. In a case where CSED issues a WID and pursues a recovery against the employer within a relatively short period of time, the employer's liability would be limited. The enforcement statute in a case like that would operate like a civil contempt order; the employer could avoid increased liability by complying with the WID. This is not that type of case.

In this case, Inn failed to withhold or deliver beginning in May 1988. Inn's Hiability under the statute potentially equaled Cul-linane's $70,000 support arrears obligation. To permit CSRS to recover a windfall of $70,000 from an employer is a new and onerous burden and should be found only if it is clear that the legislature intended that burden. Neither the express legislative intent nor the language of the statute supports this application of the penalty.

In Alaska, the law tries to avoid double recovery unless it is clearly intended as a policy matter. Reading AS 25.27.260 to create joint and several liability for the unpaid WIDs in this case is consistent with that policy in the law. The court believes Inn is lable for unpaid WIDs under the statute. There are now no unpaid WIDs.

D. Limited Case Law from Other Jurisdictions Suggests Reluctance to Impose Inability

The Alaska Supreme Court has not construed AS 25.27.260, and there are very few cases dealing with similar statutes in other jurisdictions. This may be a function of judicial reluctance to recognize this form of statutory liability. In any event, the federal mandate is very broad and the resulting state statutes are widely variant. As noted below, some state statutes provide for Hability to the obligee instead of or in addition to liability to the state. Several provide for a specific fine while others appear to rely on traditional contempt proceedings to enforce the support orders.

In Dunahee v. Chenoa Welding & Fabrication, Inc., the court imposed a statutory $100 per day fine on an employer who failed to timely comply with a withholding order. Although the applicable statute required the employer to forward withheld child support "within 10 days of paying the employee, " the employer wrote out a check each week but only mailed them once a month to the obligee. The obligee sued to impose the statutory penalty.

The court considered the statute's legislative history and the federal mandate of Title 42 before concluding the imposition of a penalty was appropriate. According to the court, "the penalty will serve to compensate the plaintiff for any hardship and will deter future noncompliance by the employer." The court also noted,

without the application of a penalty, employers would have an incentive to mot send in a withheld child support payment in a timely manner. The longer a withheld child support check is not mailed to the obligee, the longer those funds are available for the employer to use to its own advantage.

In Crenshaw v. Refuse Service, Inc., the Missouri Court of Appeals considered a case arising from a contempt prosecution by the county attorney against an employer, Refuse Service, Inc., for failure to comply with an Order to Withhold and Pay Over issued by the Division of Child Support Enforcement. In dicta, the court noted the Missouri statute "imposes liability on an employer who fails or refuses to withhold or pay over the amounts as ordered. Under subsection 8, the employer is liable to the party holding the support rights for the amount which should have been withheld and paid over under the order." The statute authorizes an action by the director of the enforcement department against the employer or "other payor." The Missouri statute provides for a fine, not to exceed $500, in addition to potential liability for "the amounts to be withheld or paid, court costs and reasonable attorney's fees.

However, the Crenshaw court did not impose either the fine or the liability. Instead it held the contempt order was not a "final judgment" until enforced by actual incareeration or imposition of a per diem fine. Therefore, the court found the order was not amenable to appellate review and dismissed the appeal.

In Burrs v. Burrs, the Court of Appeals of Ohio, Second District, affirmed a trial court judgment fining a corporate employer and holding it civilly Hable for failure to obey a notification requirement of a withholding order issued by the Montgomery County Bureau of Support. The Ohio statute required an employer to notify the county enforcement agency of any lump-sum payments over $500 to be paid to an obligor-employee. The holding focused on the necessary mental state for the corporate employer, but the court noted a distinction between the fine, which it considered "in the nature of a criminal contempt, since ... it is neither intended to coerce future compliance nor to compensate [the obligee] for [the employer's] past failure to comply." By contrast, the court noted the employer's statutory liability "would appear to be in the nature of a civil contempt." The employer's civil liability was measured by the total amount of the arrearage in child support and alimony.

<_ Although the court did not directly address the issue, the Ohio notification statute in Burrs appears to impose joint and several liability. The purpose of the notification statute is to prevent disbursements to the obligor-employee which should go to the obli-gee under the support order. In the event the employer does not notify the support enforcement agency and the money is paid to the obligor, the employer is liable to the extent the money disbursed could have satisfied the arrearages. Arguably, the same logic could be applied to the Alaska WID statute.

These cases illustrate the difficult situation courts face when construing statutes like AS 25.27,260. The Alaska legislature provided for a specific penalty amount in addition to other duties in AS 25.27.062(j), the income withholding order statute. If they had wanted to make sure AS 25.27.260 provided for an additional penalty above and beyond joint liability the legislature could have said so. It did not. The lack of guidance from other jurisdictions reinforces this court's conclusion to not find independent lability or allow a double recovery in this case under that statute absent clear legislative direction.

IV. CONCLUSION

An employer or other person, political subdivision, or department of the state is Hable to the state under AS 25.27.260(a) for failure to comply with a WID. Given the lack of a clear legislative intent that the statute should be construed to impose liability independent of the support obligation, the court finds Inn's liability for failure to comply with the WIDs regarding William Cullinane was joint and several with Cullinane's. Summary judgment as to CSRS's claim under AS 25.27.260 is GRANTED. ~

/s/ Larry Weeks

Larry Weeks

Superior Court Judge

BRYNER, Justice,

with whom EASTAUGH, Justice,

joins, concurring.

I agree with the court's decision to afﬁr‘J-rn the summary judgment but would rely on a narrower ground for affirming.

In the present case, counsel for CSRS substituted for the attorney general's office as plaintiff's counsel of record and, contemporaneously, substituted CSRS for CSED as the nominal plaintiff, In so doing, counsel for CSRS made it clear that CSRS was serving in the capacity of a private collection agency representing the obligee parent, Nancy Bowen. And counsel represented that "[the State of Alaska has always been merely a nominal party in this matter, prosecuting on behalf of the custodial parent and the dependant [sic] child. This substitution of parties is intended only to replace the nominal party."

The attorney general's office confirmed the narrow scope of the substitution, indicating that this case was one of "several collection cases" prosecuted by CSED with the attorney general's representation, that CSED had instructed the attorney general's office to cooperate with CSRS and CSRS's attorney "in turning collection of the child support arrearages in this case over to CSRS," and that the attorney general's office agreed, "Itloward that end," that substitution of counsel and of the nominal party was appropriate "in this instance."

By the explicit and unambiguous terms of this substitution agreement, the state authorized CSRS to replace CSED and to assert the agency's legal interests only to the extent that CSED had acted in Bowen's stead to collect her past due child support; the stipulation unequivocally contemplated that CSRS would only assert Bowen's right to collect "child support arrearages."

Assuming, then, that AS 25.27.260(a) goes beyond creating joint and several liability and literally holds noncompliant employers liable for a penalty equivalent to the amount of outstanding child support arrearages, CSRS simply had no authority to prosecute an action to enforce this penalty. Any penalty authorized by AS 25.27.260(a) under joint and several employer liability could not plausibly be characterized as "child support ar-rearages." Under AS 25.27.260(a), this penalty would be payable to the state, and would not be due or owed to Bowen. CSED's right to recover the penalty for the state thus differs markedly from its right to recover past due child support for Bowen. Accordingly, I would affirm on this narrow basis: no matter how broad AS 25.27.260(a)'s penalty might be, the penalty action belonged to the state, the state never assigned it to CSRS, and CSRS had no right to pursue it under the substitution agreement.'

Interpretation of AS 25.27.260(a) presents a close and difficult question that we need not answer here. In my view, we would best leave the question open for a case in which we must decide it.

      . The principal effect of this provision, for purposes of this discussion, was to permit recovery by an individual, as opposed to the state. Alaska Statute 25.27.260(b) provides:
      (b) A person, political subdivision, or department of the state that intentionally fails or refuses to honor a properly served income withholding order under AS 25.27.062 that is not being enforced by the agency is liable to the obligee in an amount equal to 100 percent of the amount ordered to be withheld together with costs, interest, and reasonable attorney fees.

       As reprinted in this Appendix, the superior court's summary judgment order has been redacted to delete extraneous discussion. The original labeling of the section headings of the superior court order has been retained, but footnotes and page numbers have been renumbered. The order has also been technically edited in accordance with this court's Manual of Technical Rules for Publication. In addition, quotations of relevant statutory provisions have been added in some footnotes.

      . CSED may issue a WID upon "reason to believe that there is in the possession of a person, political subdivision, or department of the state property that is due, owing or belonging to the obligor." AS 25.27.250(c). The WID must be properly served and contain all necessary information. See AS 25.27.250(d). The recipient of the WID is given 14 days to respond. This gives the employer an opportunity to communicate to the state in the event the employer no longer employs the obligor or for some other reason does not believe it should be bound by the WID. The state expressly assumes liability "for such actions [by] people withholding or delivering money or property to the agency in accordance with this section." Former AS 25.27.250(h).

      . See Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787 P.2d 109, 116 (Alaska 1990). ‘

      . According to Ann House, president and principal owner of defendant Inn, Cullinane obtained the funds to satisfy the judgment as part of a $100,000 loan assumed by Inn in July 1996. See Affidavit of Ann House, filed December 15, 1997 in support of Inn's reply to motion for summary judgment.

      . Inn does not indicate whether or not it has been criminally fined.

      . See Geolar, Inc. v. Gilbert/Commonwealth Inc. of Mich., 874 P.2d 937, 940 n. 5 (Alaska 1994) (citations omitted).

      . See Southeast Alaska Constr. Co. v. State, Dep't pf Transp. and Pub. Facilities, 791 P.2d 339, 342 (Alaska 1990) (citations omitted).

      . See Sea Lion Corp., 787 P.2d at 116 (citation omitted).

      . At oral argument CSRS argued the basis for Inn's liability under AS 25.27.260 was Inn's wilful and intentional failure or refusal to obey the WIDs. The "intentional" language in (a)(5) refers to wage assignment and income withholding orders under AS 25.27.062, not WIDs. The court finds Inn's liability arises under AS 25.27.260(a)(1) and (2).

      . See Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787 (Alaska 1996) (citation omitted); Cook v. Botelho, 921 P.2d 1126, 1129 (Alaska 1996) (citation omitted).

      . Ch. 126, § 1, SLA 1977. The court does not agree with Inn's argument that the language in this statement precludes a recovery from someone other than the "responsible" obligor-parent. This position is also in conflict with Inn's argument that AS 25.27.260 imposes joint and several liability on an employer.

      . Ch. 144, § 1, SLA 1984. The 1984 act added AS 25,27.273, Reporting of payment information concerning delinquent obligors.

      . Committee Substitute for Senate Bill (C.S.$.B.) 190, 18th Leg.2d Sess. (1994), 1994 Senate Journal 3463.

      . Alaska's receipt of federal funding for Aid to Families with Dependent Children has been conditioned on compliance with the child support enforcement provisions of federal Title 42 and the regulations promulgated thereunder.

      . 45 C.F.R. § (vi) (1997).

      . AS 25.27.062 provides, in relevant part:
      (a) A judgment, court order, or order of the agency under this chapter providing for support must contain an income withholding order. Except as provided in (m) of this section, the income withholding order must provide for immediate income withholding if the support order is
      (1) being enforced by the agency and was issued or modified on or after July 8, 1994; or
      (2) not being enforced by the agency and was issued on or after July 8, 1994.
      (b) An income withholding order must direct the obligor, the obligor's employer, future employer, and any person, political subdivision, or department of the state to withhold money due or to be due the obligor and pay the money to the agency, in an amount determined under (i) of this section. A court that issues a support order on or after July 8, 1994 shall send a copy of the order to the agency.

      . AS 25.27.063 provides:
      (a) A medical support order issued under AS 25.27.020(a)(9) or 25.27.060(c) must require that the obligor provide health care coverage for the child to whom the duty of support is owed.
      (b) If an obligor who is required to provide health care coverage under a medical support order is eligible for family health coverage through an employer, the court or agency issuing the medical support order shall send a copy of the medical support order to the employer. If the agency has notice that the obli-gor has changed or will be changing employment and is or will be eligible for family health coverage through the new employer, the agency shall send a copy of the medical support order to the new employer.
      (c) An employer who receives a copy of a medical support order under (b) of this section
      (1) shall allow the employee named in the order to enroll the child under the family coverage without regard to restrictions relating to enrollment periods if the child is otherwise eligible and is not already enrolled under the family coverage; *
      (2) shall, if the employee fails to apply for enrollment of a child under (1) of this subsection, enroll the child under the employee's family coverage upon application by the child's other parent or custodian, the child support enforcement agency, or the Department of Health and Social Services;
      (3) may not disenroll or eliminate coverage of the child while the employee is still employed by the employer unless the employer has eliminated family health coverage for all of its employees or has received written evidence that
      (A) the employee is no longer required by court order or administrative order to provide the child's insurance coverage; or
      (B) the child is or will be enrolled in comparable health coverage through another insurer that will take effect not later than the effective date of the disenrollment or elimination of coverage; and
      (4) shall withhold from the employee's compensation the employee's share, if any, of premiums for health coverage to the extent permitted under 15 U.S.C. 1673(b) (Consumer Credit Protection Act) and pay the withheld amount to the appropriate insurer; if federal regulations allow the employer to withhold less than the employee's share of the insurance premium, the employer may withhold the lesser amount and pay it to the appropriate insurer.
      Effective July 1, 2001, subsection (b) will provide:
      (b) If an obligor who is required to provide health care coverage under a medical support order is eligible for family health coverage through an employer doing business in the state, the court or agency issuing the medical support order shall send a copy of the medical support order to the employer.
      Ch. 132, § 54(b), SLA 1998.

      . The employer must permit enrollment regardless of restrictions relating to enrollment periods and cannot disenroll or eliminate a child's coverage without satisfying certain statutory requirements.

      . AS 25.27.070 provides:
      (a) In a proceeding in which the court has ordered either or both parents to pay for the support of a child, the court may, on its own motion or motion of a party or the agency on behalf of a party, after notice and an opportunity for hearing, order either parent or both parents to assign to the custodian of the child that portion of salary or wages of either parent due them currently and in the future sufficient to pay the amount ordered by the court for the support, maintenance, nurture and education of the child.
      (b) The order of assignment is binding upon an employer upon service of a copy of the order upon the employer and until further order of the court,. The employer may, for each payment made under the order, deduct $1 from other wages or salary owed to the employee.
      (c) The assignment made under court order has priority as against an attachment, execution or other assignment unless otherwise ordered by the court.
      (d) An employer may not terminate an employee's employment because wages of the employee are subject to an order under this section.

      . AS 25.27.062(k) provides:
      An employer who is withholding income of an obligor under an order that provides that the withheld income shall be paid to the agency shall notify the agency promptly when the obli-gor gives or receives notice of termination of employment and provide to the agency the obligor's last known home address and the name and address of the obligor's new employer, if known. The employer shall keep a record of the order to withhold income from the obligor for three years after the employer notifies the agency that the obligor has terminated employment. If, within that three-year period, the obligor is reemployed by the former employer, the employer shall immediately implement the order against the obligor's earnings unless the employer has received notice from the agency that the order is no longer applicable to the obligor. If the obligor is reemployed by the former employer after that three-year period, the employer is not required to implement a withholding order against the obligor's earnings until the employer receives a new order to withhold the obligor's income under this chapter.

      . AS 25.27.075 provides, in relevant part:
      (a) An employer doing business in the state shall report to the agency the hiring, rehiring, or return to work of each employee. The report shall be made within the time limits set out in (b) of this section. The report must contain the name, address, and social security number of the newly hired employee, the name and address of the employer, and the identifying number assigned to the employer by the United States Department of the Treasury, Internal Revenue Service.

      . See Ch. 132, § 54(b), SLA 1998 (stating the amended AS 25.27.075(h), which becomes effective July 1, 2001).

      . AS

      . AS 25.27.260(a).

      . AS 25.27.250(g); see also AS 25.27.253(a) ("A person, political subdivision, or department of the state shall withhold the earnings of the obli-gor subject to an order or lien at each succeeding interval of payment until the entire amount of the debt stated in the order to withhold and deliver has been withheld.").

      . See AS 25.27.250(f).

      . See Maynard v. State Farm Mut. Auto. Ins. Co., 902 P.2d 1328, 1334 (Alaska 1995) (citation omitted). See also State Farm Fire & Cas. Co. v. Nicholson, 777 P.2d 1152, 1158-59 (Alaska 1989); Murray v. Feight, 741 P.2d 1148, 1160 (Alaska 1987); Schreiner v. Fruit, 519 P.2d 462, 466 (Alaska 1974).

      . 273 Ill.App.3d 201, 209 Ill.Dec. 898, 652 N.E.2d 438 (1995). Here, the employer paid the withheld wages directly to the obligee-this is essentially a wage assignment although the court uses the term "withholding."

      . Id. at 441, 209 Ill.Dec. 898.

      . Id. at 445, 209 Ill.Dec. 898.

      . See id. at 440, 209 Ill.Dec. 898.

      . See id. at 442-45, 209 Ill.Dec. 898.

      . Id. at 444, 209 Ill.Dec. 898.

      . Id. at 444-45, 209 Ill.Dec. 898.

      . 908 S.W.2d 845 (Mo.App.1995).

      . Id. at 846.

      . Mo.Rev.Stat. § 454.505.1 (1994).

      . Id. § 454.505.8.

      . Crenshaw, 908 S.W.2d at 846.

      . See id.

      . 66 Ohio App.3d 628, 585 N.E.2d 918 (1991).

      . See id. at 919.

      . Id. at 920.

      . Id.

      . See id. at 919-21.

      . As the court correctly notes, CSRS has disclaimed reliance on AS 25.27.260(b)'s provision giving Bowen the right to maintain a direct penalty action. See Opinion at 64.

      . The court's decision to resolve this question when it could be readily avoided seems particularly unfortunate because the question is one of great significance to CSED, which is not a party here. Although CSED has filed an amicus brief forcefully arguing that the superior court's interpretation of the statute is unduly narrow, and although the superior court did not have the benefit of this briefing when it ruled, this court today adopts by reference the superior court's decision without addressing CSED's arguments, thus precluding full consideration of the agency's position.


source: Caselaw Access Project

author: BRYNER, Justice.

license: Public Domain

text:
    STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellant and Cross-Appellee, v. Richard C. BUTTON, Appellee and Cross-Appellant.
    Nos. S-8792, S-8942.
    Supreme Court of Alaska.
    Aug. 18, 2000.

      Diane L. Wendlandt, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellant/Cross-Appellee. *
    Mary-Elien Zalewski, Anchorage, for Ap-pellee/Cross-Appellant.
    Before MATTHEWS, Chief Justice, EASTAUGH, FABE, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Richard Button acknowledged his paternity of Vickie Hansen in 1986 because he erroncously believed he was her father. Nine years later, the Child Support Enforcement Division (CSED) served Button with a Notice and Finding of Financial Responsibility assessing support arrears in excess of $40,000. Button pursued an administrative appeal and disestablished his paternity in superior court. Because CSED's support order remained open to review, and because Button rebutted the presumption of paternity created by his legal acknowledgment at his first formal opportunity, we affirm the superior court's decision prohibiting CSED from collecting arrears.

II. FACTS AND PROCEEDINGS

Richard Button acknowledged paternity of Vickie in 1986, shortly after she was born, based on his former fiancée's assertions that Vickie was his child. Subsequently, Vickie's mother, Cathy Hansen, applied for public assistance on Vickie's behalf. On the application forms, Hansen provided conflicting information about Vickie's father. First, she asserted that he was unknown. Then she identified Button as the father. Finally, in July 1991, Hansen named Bryan Roussell as the father, and specified that Button was not.

Initially, Button treated Vickie as his child, visiting her and voluntarily paying child support. But in 1988, Button received an anonymous tip that he was not Vickie's biological father. He then met with a friend of Hansen's, who largely confirmed his doubts. By 1991 at the latest, Button resolved that Vickie was not his child, and decided to end their relationship.

In 1995 CSED learned from Hansen that Button was listed as Vickie's father on her birth certificate-though Hansen indicated, again, that Roussell, not Button, was Vickie's biological father. Based on this information, CSED issued Button a Notice and Finding of Financial Responsibility (NFFR) for ongoing support of $587 per month and arrears of $40,684 for public assistance paid on Vickie's behalf. Button timely appealed this administrative notice and filed a complaint to disestablish paternity in superior court.

After paternity tests demonstrated that Button was not Vickie's biological father, the superior court disestablished paternity, relieving Button of any ongoing child support duty. The court also held that Button was not liable for arrears because, due to Button's pending administrative appeal, CSED never issued a final support order.

CSED appeals the superior court's decision that Button owes no child support arrears.

III, DISCUSSION

A. Standard of Review

Two issues are raised by this appeal: (1) whether there was a valid support order in effect before Button disestablished his paternity; and (2) if no support order was in effect, whether an independent duty of support exists based on Button's formal acknowledgment of paternity. Because these are issues of law, we exercise our independent judgment and "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

B. CSHWD Never Issued a Final Support Order.

The superior court found that Button was not required to pay arrears that accrued before the disestablishment order because no final support order had been in effect. In reaching this decision, the court ruled that Button's appeal of the agency's informal conference decision prevented CSED's support order from becoming final CSED argues that this decision was erroneous, because an informal conference decision is a final order regardless of pending administrative or judicial appeals.

Alaska Statute 25.27.170(b) resolves this question in Button's favor:

If a request for a formal hearing under (a)! of this section is made, the execution under AS 25.27.062 and 25.27.230-25.27.270 may not be stayed unless the obligor posts security or a bond in the amount of child support that would have been due under the finding of financial responsibility pending the decision on the hearing. If no request for a hearing is made, the finding of responsibility is final at the expiration of the 30-day period.

A plain reading of AS 25.27.170(b) indicates that a support order becomes final after thirty days only if no formal hearing is requested. Indeed, if an informal conference decision were a final order, then any change in support pursuant to a formal hearing would be a prohibited retroactive modification of child support.

The legislative history of AS 25.27.170 supports this plain reading of the statute. As originally enacted in 1977, former AS 47.28.170(b) (now AS 25.27.1770) provided:

If a request [for a hearing] under (a) is made, the execution under sees. 280-270 of this chapter shall be stayed pending the decision on the hearing, or the decision of a court, if appealed. If no request for a hearing is made, the finding of responsibility is final at the expiration of the 80-day period.

Thus, the statute at its inception explicitly provided that a support order was not final pending administrative or judicial review. In 1994 the legislature substituted the current version of AS 25.27.170-inserting the requirement that a bond be posted-in order to comply with requirements for federal funding. A CSED representative testified at a state house committee hearing that the 1994 changes to the Alaska statute were aimed at complying with federal law; there was no suggestion that the amendment was designed instead to make a statute intended to stay the execution of a support order pending appeal into a provision that had the opposite effect."

CSED's second argument-that AS 25.27.170(b) pertains only to NFFR appeals, not to appeals of informal conference deci-gions, which are immediately enforceable-is contradicted by the administrative regulations governing the hearing process. Those regulations provide that a putative obligor may request a formal hearing after an informal conference decision. The regulations state that informal conference decisions are final "for purposes of appeal to a formal hearing" but not for purposes of appeal to superior court. Thus, AS 25.27.170(b) serves to convert a NFFR or an informal conference decision into a final order only if no formal hearing is requested.

Because Button appealed the informal conference decision within thirty days, and his administrative appeal was stayed pending a decision by the superior court, the superior court correctly held that there was never an enforceable support order.

C. Button's Legal Acknowledgment Created No Duty of Support.

CSED argues that Button nevertheless has a duty of support stemming from his formal acknowledgment of paternity. It is true that an acknowledgment of paternity presumptively establishes a legal parent-child relationship regardless of biological parenthood and even in the absence of a court order requiring child support payments. But CSED confuses this presumption of paternity with a paternity judgment. A duty of support may be conclusively imposed on a father by an order of support or a paternity judgment, since such judgments and orders are entered in formal proceedings that provide the father with notice and an opportunity to be heard on the paternity issue. By contrast, before being served with the NFFR notifying him of arrears in excess of $40,000-nine years after he acknowledged paternity-Button had no notice that the state would seek arrears or future child support. Until then, he was a presumptive father, but his duty of support had not been established. This was Button's first formal opportunity to rebut the presumption, which he did in a timely manner. Absent notice of CSED's claim for support and arrears and an opportunity to be heard on the issue, Button's earlier acknowledgment of paternity alone did not suffice to convert his presumptive parent-child relationship into an established duty of support.

In appropriate circumstances, CSED still might have asserted that Button was estopped from denying his child support debt. But a successful claim of paternity by estoppel requires proof of reasonable reliance and economic prejudice. Here, CSED claims that it could not have sought reimbursement from the biological father until Button, the presumed father, disestablished his paternity. But we rejected an identical claim in State, CSED v. Kovac, allowing biological fatherhood to be established independently of-and before-disestablishment of presumptive fatherhood. A biological father's duty of support arises at the birth of his child and does not depend upon the lack of a legally presumed father. We thus find no merit to CSED's claim that Button's acknowledgment of paternity prevented it from pursuing the biological father for reimbursement of child support arrears.

IV. CONCLUSION

Because Button rebutted the presumption of paternity raised by his legal acknowledgment of paternity at his first formal opportunity and before a final support order was issued, the judgment of the superior court is AFFIRMED.

      . We use pseudonyms for the names of the mother and child.

      . CSED issued Button a Notice and Finding of Financial Responsibility on December 12, 1995. Button appealed that order by requesting an informal conference within 30 days. See AS 25.27.170(b). He also timely appealed the informal conference decision affirming his support obligation. See id.; see also former 15 Alaska Administrative Code (AAC) 05.030(a)(1994). On February 22, 1996, the day before he filed his administrative appeal of the informal conference decision, Button filed a complaint to disestablish paternity in superior court. The court granted a stay of enforcement of the support order pending resolution of the paternity issue. The Department of Revenue remanded the administrative appeal to CSED until the court determined that Button was the father, or determined that the stay should be lifted. Because paternity was disestablished and the court found that Button owed no support arrears, no further action was taken on Button's administrative appeal.

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979); see also State, Dep't of Revenue, CSED v. Gerke, 942 P.2d 423, 425 (Alaska 1997).

      4. AS 25.27.170(a) provides:
      A person served with a notice and finding of financial responsibility is entitled to a hearing if a request in writing for a hearing is served on the agency by registered mail, return receipt requested, within 30 days of the date of service of the notice of financial responsibility.

      5. AS 25.27.170(b) (emphasis added).

      . See Alaska R. Civ. P. 90.3(W)(@); 42 U.S.C. § 666(a)(9) (1994). By "final order" we mean one no longer subject to direct administrative or judicial review. Any modification that occurs on direct review, or in timely parallel proceedings that are functionally the equivalent of direct review, is not retroactive in the prohibited sense. We recognize that in the absence of a stay CSED's informal conference decision was an enforceable order while further review was pending. AS 25.27.170(b).

      7. Ch. 126, § 29, SLA 1977.

      . See Committee Minutes, Alaska House State Affairs Standing Committee (May 3, 1994) (testimony of Phillip Petrie, CSED). Federal law requires states to enact

        [pJrocedures which require that a noncustodial parent give security, post a bond, or give some other guarantee to secure payment of overdue support, after notice has been sent to such noncustodial parent of the proposed action and of the procedures to be followed to contest it (and after full compliance with all procedural due process requirements of the State).
      42 U.S.C. § 666(a)(6) (Supp. III 1998).

      . See Committee Minutes, Alaska House State Affairs Standing Committee (May 3, 1994).

      . See former 15 AAC 05.030 (1994).

      . See former 15 AAC 05.020 (1994).

      . Because there was no final support order issued against Button, Civil Rule 90.3(h)(2) and 42 U.S.C. § 666(a)(9) do not bar the court from modifying or extinguishing his arrears. See Kilp-per v. State, CSED, 983 P.2d 729, 734 n. 17 (Alaska 1999). In Kilpper, we noted that altering child support arrears does not amount to a retroactive modification of child support if no support order is in effect during the period covered by the judgment establishing the arrears. See id.

      . See id. at 732.

      . See State, Dep't of Revenue, CSED v. Maxwell, 6 P.3d 733, 737-138 (Alaska) (presumed father must be given opportunity for fair and impartial hearing before support order becomes final).

      . See B.E.B. v. R.L.B., 979 P.2d 514, 516, 520 (Alaska 1999).

      . See 984 P.2d 1109, 1112 (Alaska 1999).

      . See id.


author: Chief Justice MULLARKEY Justice COATS, specially

text:
    Melvin Leroy CLARK, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    No. 99SC175.
    Supreme Court of Colorado, En Banc.
    Aug. 21, 2000.
    Rehearing Denied Sept. 11, 2000.

      David Kaplan, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
    Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Alan J. Gilbert, Solicitor General, John D. Seidel, Assistant Attorney General, Appellate Division, Denver, Colorado, Attorneys for Respondent.
   Chief Justice MULLARKEY

delivered the Opinion of the Court,

We granted certiorari to the court of appeals to determine whether the trial court erred by denying the petitioner's Crim. P. 35(c) motion for post-conviction relief, The court of appeals affirmed the trial court's judgment in an unpublished opinion. See People v. Clark, No. 98CA0249 (Colo.App. Dec. 31, 1998) (not selected for official publication). We now reverse the court of appeals' judgment and remand the case for further proceedings consistent with this opinion.

I.

In 1996 petitioner Melvin Clark ("Clark") pled guilty to one count of first degree criminal trespass, a class five felony. See § 18-4-502, 6 C.R.S. (1997). Clark's plea agreement provided in part:

I know that if I plead GUILTY, the maximum sentence of incarceration is: extraordinary aggravating cireumstances-6 years-cap 3 under plea [agreement] plus parole and fine $100,000.

At Clark's providency hearing, the parties confirmed the three-year "cap" on Clark's sentence of incarceration. The following exchange ensued during Clark's Crim. P. 11 advisement:

THE COURT: Now, pursuant to the disposition, if I accept your plea, I'll find you guilty, [and] this matter will be set for a sentencing hearing. Do you understand that?
CLARK: Yes.
THE COURT: At that hearing, a presen-tence probation report will be received by me. You can suggest amendments, corree-tions, or additions to it. You can then present evidence. As part of the evidence, you can either testify, make a statement, or remain silent. That will be your decision to make. Your counsel can make a recommendation, the People can then present evidence, make a recommendation, and I will then decide what sentence is to be imposed. If it's to the Department of Corrections, it will not exceed three years. Do you understand that?
CLARK: Yes.
THE COURT: Now this is a Class 5 Felony, punishable in a presumptive range of up to three years. If extraordinary aggravating cireumstances exist, it could have been [punishable by] as much as six years, and we're looking at a minimum of one year, but also a term of parole, and [there] could be a fine not to exceed $100,000. Do you understand the possible penalties for this offense?
CLARK: Yes.

Neither the prosecution nor the trial court advised Clark on the record of the exact length of mandatory parole he would face by pleading guilty. In fact, Clark's class five felony offense carried a two-year term of mandatory parole following incarceration. See § 18-1-105(1)(a)(V)(A), 6 C.R.S. (1999).

At the conclusion of the providency hearing, the trial court found that Clark had waived his right to trial and entered his plea knowingly, intelligently, and voluntarily. The trial court then accepted Clark's plea of guilty. In a subsequent proceeding, Clark was sentenced to a two-and-one-half-year term in the Department of Corrections (“DOC”).

In 1997, Clark filed 'a Crim. P. 85(c) motion for post-conviction relief, alleging that his sentence to two-and-one-half years in the DOC plus two years of mandatory parole exceeded the three-year cap for which he bargained in his plea agreement. He also alleged that he never was advised that he would be subject to a two-year term of mandatory parole after completing his term of incarceration.

The trial court denied Clark's motion without a hearing. In its written order, the trial court concluded that Clark's plea agreement and Crim. P. 11 advisement adequately notified him that a term of parole would follow incarceration. The trial court also determined that, in any event, the term of Clark's combined sentence to incarceration and parole was less than the maximum term that Clark was advised he could receive.

The court of appeals affirmed the trial court's denial of Clark's petition, agreeing with the trial court that Clark's plea agreement and Crim. P. 11 advisement adequately notified him that he would be required to serve a period of parole in addition to any sentence to the DOC. The court of appeals further found that although Clark was not advised of the length of his parole term, the law did not require that he be so advised. Finally, the court of appeals found that the imposition of mandatory parole did not violate Clark's plea agreement because the agreement called for a three-year cap on his sentence to incarceration and did not purport to limit Clark's mandatory term of parole. The court of appeals remanded the case to the trial court for entry of the mandatory parole tern on the mittimus.

IL.

In Craig v. People, 986 P.2d 951 (Colo.1999), and its companion case, Benavidez v. People, 986 P.2d 943 (Colo.1999), we considered post-conviction challenges to sentences where the petitioners alleged that the mandatory parole portion of their sentences violated the terms of their plea agreements with the People and that they were inadequately advised that mandatory parole would be a consequence of pleading guilty. We held that such cases require courts to examine two considerations related to the requirement that pleas be entered knowingly, voluntarily, and intelligently. See Craig, 986 P.2d at 957-59; Benavidez, 986 P.2d at 947.

First, the court must determine whether the defendant was promised, as a material inducement to his plea, a sentence related to mandatory parole that was statutorily prohibited. See Craig, 986 P.2d at 957; Benavidez, 986 P.2d at 947. If so, the plea cannot stand in light of this illegal inducement and may be withdrawn. See Craig, 986 P.2d at 959-60; Benavidez, 986 P.2d at 947.

Second, the court must determine whether the defendant was properly advised of mandatory parole and its length, See Craig, 986 P.2d at 957-59, 963; Benavidez, 986 P.2d at 947. If the advisement was improper in this respect, the defendant must be given the opportunity to withdraw his plea, unless the error in the advisement is harmless or can be rendered harmless. See Craig, 986 P.2d at 964; Benavidez, 986 P.2d at 947-48. The error is harmless if the length of the prison sentence and the mandatory parole term, combined, falls within the range of penalties that the defendant was advised he could receive as a consequence of his plea. See Craig, 986 P.2d at 964-65; Benavidez, 986 P.2d at 948. Similarly, the error can be rendered harmless by substituting a legal prison sentence so that the length of the substituted prison sentence and the parole term, combined, falls within the range of penalties of which the defendant was advised and risked receiving as a result of his decision to plead guilty. See Craig, 986 P.2d at 964-65; Benavidez, 986 P.2d at 948.

This approach to analyzing and remedying erroncous advisements regarding mandatory parole applies with equal force to situations where a defendant has agreed to plead guilty in return for a sentencing concession, such as a stipulated term of imprisonment. Under our case law and rules of criminal procedure, sentencing concessions included in a plea bargain fundamentally alter the penalties that a defendant risks receiving by pleading guilty.

Where the defendant's guilty plea is induced by a plea agreement that includes a sentencing stipulation, the trial court must describe not only the penalties that could attach were the case to proceed to trial, but also the specific points where the stipulated sentence would differ from the general Crim. P. 11 advisement. See Craig, 986 P.2d at 951. If the trial court ultimately rejects sentencing concessions contemplated by a plea agreement, the defendant may withdraw his guilty plea. See Crim. P. 832(d).

Accordingly, when engaging in a harmless error analysis in a case where the defendant pled guilty pursuant to a plea agreement that included a stipulated term of imprisonment, we assess the extent of the defendant's risk by combining the stipulated maximum term of imprisonment with any period of mandatory parole of which the defendant was advised at the providency hearing. For purposes of assessing the full range of penalties that the defendant risked receiving, the stipulated maximum term of imprisonment supplants the statutory maximum term of imprisonment described by the trial court during the Crim. P. 11 advisement.

IIL

In this case, neither party argues that the People induced Clark's plea by offering him a sentence without mandatory parole. Accordingly, we address only whether Clark was properly advised of mandatory parole and its length.

A.

The record clearly indicates that Clark was advised that he would be placed on parole after he was released from incarceration. The People concede, however, that Clark was not advised of the length of mandatory parole that he would have to serve after completing his sentence to the DOC. Nevertheless, the People argue that Clark's plea must not be vacated unless Clark can prove (1) that he did not have actual knowledge that a two-year term of mandatory parole would follow his sentence of incarceration and (2) that he would not have pled guilty had he understood the parole consequences of the plea.

Some jurisdictions have held that inadequate advisements regarding mandatory parole do not justify relief from a conviction on a guilty plea unless the defendant alleges and proves three facts: (1) that neither the defendant's counsel nor the trial court advised the defendant that parole automatically would follow any term of incarceration; (2) that the defendant did not have actual knowledge that parole automatically would follow any term of incarceration; and (8) that the defendant would not have pled guilty had he understood that parole automatically would follow any term of incarceration. See, eg., United States v. Timmreck, 441 U.S. 780, 783-84, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); In re Moser, 6 Cal.4th 342, 24 Cal.Rptr.2d 723, 862 P.2d 723, 729 (1993); People v. Miller, 107 Ill.App.3d 1078, 63 Ill.Dec. 712, 483 N.E.2d 643, 650 (1982).

We decline to require Clark to prove his subjective knowledge at the time he entered his plea. See Westendorf v. People, 171 Colo. 123, 125, 464 P.2d 866, 867-68 (1970). Likewise, we will not demand evidence that Clark would not have entered his plea if he had known that he would be required to serve a term of mandatory parole. Such requirements would be inconsistent with our decisions in Craig and Benavidez, in which we held that the appropriate inquiry is whether the record as a whole indicates that the defendant received sufficient notice of the direct consequences of a guilty plea. See Craig, 986 P.2d at 964; Benavidez, 986 P.2d at 951.

B.

Having found Clark's advisement inadequate because he was not informed that his plea would subject him to a mandatory term of two years of parole, we must address whether the error was harmless or can be rendered harmless.

1.

An error in a defendant's Crim. P. 11 advisement regarding mandatory parole is harmless ab initio if the length of the defendant's sentence to incarceration and the term of mandatory parole, combined, does not exceed the length of the sentence of imprisonment and term of parole that the defendant risked receiving as a direct consequence of his plea of guilty. See Craig, 986 P.2d at 964. In this case, the trial court accepted the stipulated sentence as part of Clark's plea bargain. It advised Clark that it would sentence him to no more than three years in the DOC if he entered a plea of guilty. Both Clark's Crim. P. 11 advisement and his written plea agreement indicated that he also would serve a term of parole in addition to his sentence of incarceration. Accordingly, Clark was advised that by entering a plea of guilty, he risked receiving a maximum sentence of three years in the DOC followed by an unspecified term of parole.

Because neither Clark's agreement nor the Crim. P. 11 advisement specified the duration of the term of mandatory parole that Clark would serve as a consequence of pleading guilty, we are unable to determine the length of the sentence of incarceration and term of parole that Clark was advised he could receive. Nevertheless, the inadequate advisement would be harmless ab imitto if the total length of Clark's sentence to incarceration and his term of mandatory parole did not exceed the length of the term of incarceration he risked receiving by pleading guilty. See Benavidez, 986 P.2d at 948; Craig, 986 P.2d at 964. Where the defendant's term of incarceration plus the term of mandatory parole is less than the maximum term of incarceration he or she risked receiving, the defendant is not prejudiced by the failure to advise of the length of mandatory parole.

Here, the trial court advised Clark that the crime of first degree criminal trespass carried a maximum sentence of six years if aggravated circumstances were found. Clark's plea agreement, however, provided for a stipulated maximum term of incarceration of three years. Accordingly, under our case law and rules of criminal procedure, the maximum term of imprisonment that Clark risked by pleading guilty was three years.

For purposes of determining the full range of penalties that Clark risked by pleading guilty, the three-year stipulated term of imprisonment supplanted the six-year statutory maximum term of incarceration mentioned by the trial court during the Crim. P. 11 advisement. The combined length of Clark's actual sentence to incarceration (two-and-one-half years) and mandatory parole (two years) is four-and-one-half years, which is longer than the three-year maximum term of incarceration he risked receiving under his Crim. P. 11 advisement and the terms of his plea bargain. Accordingly, we cannot deem harmless the trial court's failure to advise Clark of the length of mandatory parole that he would serve as a consequence of his plea.

2.

We further find that the inadequacy of the trial court's advisement cannot be rendered harmless by modifying Clark's sentence. As we noted in Craig, "the failure to advise of the 'correct and complete penalty may be rendered harmless by imposing a modified sentence that removes the burden of the undisclosed consequence." Craig, 986 P.2d at 964 (quoting People v. Baca, 179 Colo. 156, 158, 499 P.2d 317, 318 (1972)).

By pleading guilty under an agreement that included a stipulated sentence, Clark risked a maximum term of three years in the DOC plus an unspecified term of parole. The "undisclosed consequence" of Clark's guilty plea was two years of mandatory parole. By contrast, however, the fact that Clark would serve some parole following his incarceration was disclosed, both in the written plea agreement and by the trial court during Clark's Crim. P. 11 advisement.

We can find no reasonable standard for modifying Clark's sentence in a way that removes the burden of the undisclosed term of parole without disregarding Clark's plea agreement and the Crim. P. 11 advisement given by the trial court. Modifying Clark's sentence so that the combined length of his term of incarceration and his term of mandatory parole is less than or equal to the length of the stipulated term of incarceration would be inconsistent with the terms of the Crim. P. 11 advisement and Clark's plea agreement. Such a modification would treat Clark's plea agreement and the Crim. P. 11 advisement as limiting his maximum sentence to one year in the DOC plus two years of parole, even though the trial court unambiguously advised Clark that he would face a maximum of three years in the DOC plus an additional period of parole.

The facts here differ significantly from a case in which a defendant's Crim. P. 11 advisement and plea agreement contain no mention of parole. In that type of case, it is reasonable to hold that the full range of penalties that the defendant risked receiving by pleading guilty was equal to the maximum term of incarceration specified in his plea agreement or Crim. P. 11 advisement. Under such cireumstances, the court may modify the defendant's sentence to render harmless an inadequate advisement regarding the length of mandatory parole.

Where, however, a defendant was advised that his sentence would include a term of parole in addition to a stipulated maximum term of incarceration, it would not be reasonable to hold that the full range of penalties that the defendant risked receiving is limited to the term of incarceration specified in his plea agreement or the Crim. P. 11 advisement. -If the length of mandatory parole is specified but incorrect, the court may combine that length with the advised maximum term of incarceration and use the total as the basis for modifying the defendant's sentence. If the defendant is advised of mandatory parole but not its duration, however, the court simply cannot calculate the maximum length of the full range of penalties that the defendant risked receiving for the purpose of modifying the sentence.

Because Clark was advised that he would serve a term of parole following incarceration, his sentence cannot be modified. Thus, Clark's only available remedy for the inadequate advisement under these facts is withdrawal of his guilty plea. Accordingly, Clark must be given the opportunity to withdraw his guilty plea upon remand to the trial court.

We reverse the judgment of the court of appeals and remand the case for further proceedings consistent with this opinion.

Justice COATS specially concurs.

Justice COATS, specially

concurring:

I concur in the result but write separately to make clear my own reasons for not finding harmless the trial court's failure to advise the defendant of the length of his mandatory parole term.

In order for a guilty plea to be constitutionally effective, the record as a whole must reflect that the defendant was given sufficient notice of, among other things, the possible penalties. See Craig v. People, 986 P.2d 951, 963-64 (Colo.1999). A period of mandatory parole over and above the possible term of imprisonment to which the defendant could be sentenced has been construed to be a "direct consequence" of the resulting conviction, and therefore the length of such a mandatory parole term is one of the possible penalties of which the defendant must be made aware. Id. Even a failure to advise the defendant of the length of a mandatory parole term, however, does not render the plea unintelligent and therefore ineffective as long as the sum of the mandatory parole term and the term of years to which the defendant is actually sentenced does not exceed the maximum sentence he was advised that he risked receiving by pleading guilty. Id. at 964. Where the defendant is not made to suffer the burden of an undisclosed consequence, the failure to advise of the "correct and complete penalty" has been characterized as harmless. Id.

Guilty pleas may of course be entered as the result of plea agreements in which the prosecutor makes sentence recommendations or concessions. See § 16-7-301(2)(a), 6 C.R.S. (1999); Crim. P. 11(F)(2)(I); see also People v. Wright, 194 Colo. 448, 573 P.2d 551 (1978) (equating sentence "concessions" and "recommendations". These sentence concessions do not, however, alter the range of possible penalties to which the defendant may be sentenced for the particular offense to which he pleads guilty. The trial judge in every case must exercise an independent judgment in deciding whether to grant charge and sentence concessions, and even though the judge may initially concur, if he ultimately decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, the effect of that decision is merely to permit the defendant to withdraw his guilty plea. Section 16-7-802@)and(8); Crim. P. 11(f)(5); 82(d).

Unlike the majority, I read the record as demonstrating that the sentencing court never advised the defendant of the maximum sentence permitted by statute for his offense. Instead, it expressly told him that any sentence to the Department of Corrections would not exceed the sentence concession or "cap" of three years and further that the crime to which he was pleading "could have been" punishable by as many as six years. The combination of these two statements amounted to nothing less than an advisement that a six-year sentence would not be possible in the defendant's case. In the face of this advisement at the providency hearing, even the record as a whole could not evidence adequate notice to the defendant that by pleading guilty he risked total punishment of six years. ,

Because his two and one-half-year sentence to the Department of Corrections plus bis statutory two-year mandatory parole term exceeded the highest number of years of punishment the defendant was advised that he risked receiving by pleading guilty, the failure of the record as a whole to reflect any notice of the length of the statutorily mandated parole term could not be considered harmless. If, however, I understood the defendant to have been advised, as the majority does, "that the crime of first degree criminal trespass carried a maximum sentence of six years," see maj. op. at 168, I would find that his ultimate sentence, including mandatory parole, did not exceed the possible penalty he was advised that he risked receiving.

The majority opinion states that in assessing the extent of the defendant's risk in cases involving a guilty plea entered pursuant to a plea agreement, a stipulated maximum term of imprisonment "supplants" the statutory maximum term of imprisonment described by the trial court during the Crim. P. 11 advisement. -It therefore concludes that a failure to advise of a mandatory parole term will be harmless only if the term of years to which the defendant is sentenced and his mandatory parole term fall within the sentence stipulation. To the extent that the majority intends merely to expressly indicate that a defendant has not been advised, for purposes of this harmless error analysis, that he risks receiving a sentence by pleading guilty if that sentence is one that he is also advised he can avoid by moving to withdraw his plea upon sentencing, I agree.

In its analysis, however, the majority uses the terms "sentence," "incarceration," and "imprisonment" interchangeably. In my view, in an advisement about possible penalty ranges, terms like "sentence," "punishment," and "penalties," communicate something far different from a reasonable understanding of terms like "incarceration," and "imprisonment." For purposes of this harmless error analysis, the relevant question is whether the defendant actually receives a sentence outside the range of which he was advised. Therefore, whether a failure to adequately advise a defendant about a mandatory parole term is harmless depends, in my view, entirely upon the specific conditions of the plea agreement and the specific content of the advisement.

In Craig v. People, 986 P.2d 951 (Colo.1999), and Benavidez v. People, 986 P.2d 943 (Colo.1999), this court found that the specific plea agreements in those cases were not violated precisely for the reason that a sentence recommendation, concession, stipulation, or "cap" to a number of years in the Department of Corrections or prison could only be reasonably understood to refer to the number of years of incarceration the defendant could be made to serve. We held that such a plea agreement could not reasonably be understood to place any limitation on that portion of a sentence that is prescribed by statute and over which the sentencing court has no control. A defendant pleading guilty pursuant to such a sentence concession therefore eannot reasonably understand that he is at risk of receiving only the bargained-for sentence. Instead, a reasonable person in this position understands that only his risk of incarceration is limited by the sentence "cap" and that he may still be subject to some additional form of punishment, like mandatory parole, that is automatically required by statute as part of every sentence.

Rather than being "supplanted" by a plea agreement, an advisement purporting to advise the defendant about the maximum possible sentence for his offense can serve to put him on notice that the total punishment he risks by pleading involves more than incarceration. An advisement that is limited to the maximum possible "incarceration" or "prison" term, without more, is unlikely to change a defendant's reasonable understanding of his risk if he is pleading pursuant to a stipulation to a lesser period of incarceration. However, an advisement in terms of a maximum "penalty" or "punishment" or "sentence," especially when given after acknowl-edgement of a "cap" on actual incarceration, or, as in this case, when given in conjunction with an advisement of a mandatory parole term of unspecified length, should be understood to put a defendant on notice that a mandatory parole term, not limited by his bargain, can extend to this greater period of punishment.

A defendant has been adequately advised of the possible penalties, and therefore the failure to specifically advise him of the length of a mandatory parole term is harmless, as long as his actual sentence, the total sum of his terms of incarceration and mandatory parole, does not exeeed the maximum punishment he was advised that he risked receiving. A stipulation to only one component of a defendant's sentence can never alone be determinative of that risk. A defendant's reasonable understanding of the punishment he risks receiving is clearly dependent upon both his plea agreement and his full advisement, including his advisement of the maximum sentence that is possible for his offense.

The question whether a violation of Rule 11 should be treated as harmless cannot be separated from the nature of the proceeding in which review is sought. The federal courts have drawn a clear distinction between violations of Fed.R.Crim.P. 11 that are purely formal and those that are variously described as "constitutional," or "jurisdictional," or as resulting in "a complete miscarriage of justice," or "a proceeding inconsistent with the rudimentary demands of fair procedure." See United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). For important reasons of finality and confidence in the integrity of judicial procedures, see id. at 784, 99 S.Ct. 2085, only the latter group of Rule 11 violations is subject to collateral attack by motion for post-conviction relief.

While this court has never expressly articulated the same distinction, it has similarly recognized that postconviction relief pursuant to Crim. P. 85(c) is limited to error of a certain type and magnitude. See People v. Rodriguez, 914 P.2d 230, 254-55 (Colo.1996) (constitutional error); People v. Crawford, 183 Colo. 166, 515 P.2d 631 (1973) (constitutional dimension); People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973) (constitutional magnitude). Likewise, we have regularly held that Crim. P. 11 will not be treated as a ritualistic litany or formula. See, e.g., People v. Drake, 785 P.2d 1257, 1268 (Colo.1990) (quoting Henderson v. Morgan, 426 U.S. 637, 644, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976)).

A providency hearing is designed to evidence the constitutional validity of guilty pleas. See People v. Leonard, 673 P.2d 37 (Colo.1983). While compliance with the requirements of Crim. P. 11 will therefore normally satisfy constitutional due process concerns, see People v. District Court, 868 P.2d 400 (Colo.1994), violations of the rule do not necessarily amount to a constitutional violation. At least since Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed2d 274 (1969), a debate has raged over the extent and nature of the advisement that is constitutionally required. Our failure to tailor our analysis of harmfulness as nearly as possible to include only deficiencies that actually affect the constitutional validity of a plea results in a windfall to uninjured defendants at considerable cost to the entire justice system.

I am reluctant to join any analysis of harmlessness that does not permit examination of the record as a whole and instead allows a defendant's stipulation to a term of imprisonment to supplant an advisement of his maximum possible sentence. I therefore specially concur in the judgment.

      . In Craig and Benavidez, we noted that a failure to advise a defendant of the fact of mandatory parole is harmless ab initio if the "prison sentence imposed and the mandatory parole term, combined, do not exceed the prison term the defendant was advised of and risked receiving." Benavidez, 986 P.2d at 948; see also Craig, 986 P.2d at 964. Similarly, in a case where the defendant is advised that pleading guilty will subject him to a term of mandatory parole less than that required by law, the error may be harmless if the length of the defendant's sentence to incarceration and his term of mandatory parole, combined, does not exceed the length of the term of incarceration plus the term of mandatory parole of which he was advised and risked receiving.

      . For example, had the trial court erroneously advised Clark that he would serve only one year of parole after completing his sentence of incarceration, his sentence could have been modified to render such an erroneous advisement harmless. Under these hypothetical facts, the combined length of the stipulated sentence of incarceration and the (erroneously) advised term of mandatory parole would be four years. Clark's sentence then could have been modified to two years in the DOC plus two years of mandatory parole.

      . -We recognize that the court of appeals recently reached the opposite conclusion in a virtually identical case. See People v. Priester, 996 P.2d 766, 770 (Colo.App.2000). To the extent that the court of appeals' decision in Priester conflicts with our resolution of this case, it is disapproved.