D.A. V. D.R.L.
727 P2d 763 (1936)


FACTS: H and W were married in 1980 They had a child in 1981 The couple separated in 1982 and were divorced H visited his daughter twice in the three-month period between separation and divorce and visited his daughter just once a month until W remarried After that, the only contact for over a year was H calling to arrange visits that never occurred In 1984, W's new husband filed a petition to adopt the child After putting on the evidence, the trial court dismissed the petition as there was no showing by clear and convincing evidence that the natural father's failure to communicate was without justifiable cause The facts were that the child was in Arizona for three months of the year, meaningful communication could not be had with a 2-3 year old over the phone, and the natural father had seen the child once per month in 1983 The court also considered the effect of the natural father visiting the child in the presence of his ex wife and her new husband This appeal was taken

ISSUE: If a child is too young to read or communicate over the phone is the requirement of meaningful communication under the without justifiable cause language of the statute relaxed1?

RULE: If a child is too young to read or communicate over the phone the requirement of meaningful communication under the without justifiable cause language of the statute is relaxed

HOLDING: (Rabinowitz, Chief Justice) If a child is too young to read or communicate over the phone is the requirement of meaningful communication under the without justifiable cause language of the statute relaxed1? Yes The burden was on the petitioners to show by clear and convincing evidence that the natural father had failed to communicate meaningfully without justifiable cause for a period of one year We cannot find that the lower court abused its discretion when it found that the natural father's failure to communicate was justified since the child was too young to talk on the phone, or to understand gifts or letters from her father Furthermore, W's postponement of certain requested visitations and H's emotional difficulty in visiting the new family and their residing in Arizona for three months of the year justified his failure to communicate Affirmed.

ANALYSIS:PROCEDURAL POSTURE: Appellant taxpayer sought review of a decision from the Superior Court of the State of Alaska, Ketchikan, which held that it did not have jurisdiction over the taxpayer's suit against appellee employer for "trover and conversion" involving the withholding of the taxpayer's earnings under a levy by the Internal Revenue Service (IRS) to recover delinquent income taxes.

ANALYSIS: The taxpayer, claiming to be immune from all taxes, directed his employer not to withhold taxes from his paycheck. The IRS served the employer with a notice of levy, contending that the taxpayer owed $ 46,862.23 in back taxes. The employer withheld a portion of the taxpayer's wages as required by 26 U.S.C.S. § 6332. The taxpayer sued the employer and individual members of the employer's financial department for "trover and conversion." The employer moved to dismiss for lack of subject matter jurisdiction. The trial court granted the motion. In affirming on appeal, the court held that: (1) although the taxpayer styled his complaint as one for damages against his employer, the purpose of the suit was to regain money detained by the IRS, which was clearly prohibited by 26 U.S.C.S. § 7421(a); and (2) the taxpayer's suit was frivolous and thus it was appropriate to grant reasonable attorney's fees and costs to the employer.