Martin v. Martin , 2013 Alas. LEXIS 75 ( 2013 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
GREGORY C. MARTIN, JR., )
) Supreme Court No. S-14508
Appellant, )
) Superior Court No. 3HO-06-00127 CI
v. )
) OPINION
MELODY C. MARTIN, )
)
Appellee. ) No. 6787 – June 14, 2013
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Homer, Peter G. Ashman, Judge pro tem.
Appearances: Gregory C. Martin, Jr., pro se, Homer,
Appellant. No appearance by Appellee.
Before: Fabe, Chief Justice, Carpeneti, Winfree, and
Stowers, Justices.
WINFREE, Justice.
I. INTRODUCTION
Five years after dissolving their marriage, the parents of two children
sought to change or clarify aspects of their original decree. The superior court found
circumstances had not changed sufficiently to modify the parties’ custody agreement, but
made changes to the visitation schedule. The superior court also ruled on child support,
life insurance, the children’s Permanent Fund Dividends, and attorney’s fees. The father
appeals. Because the superior court’s child support award was erroneously calculated,
and because the superior court linked its assignment of federal income tax deductions
with the erroneous calculation of child support, we reverse those parts of the superior
court’s order and remand for renewed consideration. We affirm the superior court’s
rulings in all other respects.
II. FACTS AND PROCEEDINGS
Gregory and Melody Martin married in 1996 and had two children. They
dissolved their marriage in 2006, when their children were seven and five years old.
With their dissolution petition the couple submitted a detailed parenting agreement
providing for joint legal and shared physical custody of the children. By the terms of the
agreement, the children would be with Melody during the week and Gregory on
weekends. For child support purposes, the parties calculated that Melody would have
the children 70% of the time and Gregory would have them 30% of the time, although,
based on computing three nights out of seven, their agreement was a 57% - 43% shared
custody arrangement. The parties agreed to “provide the children with visitation with
the grandparents and extended family on their own side of the family . . . during their
custody time.” They agreed that Melody would apply for the children’s Permanent Fund
Dividends each year and place the money in an investment account and that Melody
would claim the children on her federal income taxes each year.
In late 2010 the parties filed cross-motions to modify the child custody
terms of their dissolution. Gregory alleged that he actually had exercised physical
custody nearly 50% of the time and sought a change in the decree to reflect this. Melody
countered that she had the children 58% of the time, but she also asked the court to
modify the decree to give her some weekend time with the children.
The superior court held a hearing on the cross-motions in March 2011 and
issued findings of fact and conclusions of law in May. The parties “struggled with
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interpreting the summer schedule set out by the court,” so the court clarified its rulings
in an August 2011 order.
Gregory appeals.
III. STANDARD OF REVIEW
“The superior court has broad discretion in deciding child custody issues,”1
including whether a proposed custody modification is in the children’s best interests.2
We reverse the superior court “only if the record shows an abuse of discretion or if
controlling factual findings are clearly erroneous.”3 An abuse of discretion occurs when
“the superior court considers improper factors in making its custody determination, fails
to consider statutorily mandated factors, or assigns disproportionate weight to particular
factors while ignoring others.”4 “A factual finding is clearly erroneous if, after reviewing
the record as a whole, we are left with a definite and firm conviction that a mistake has
been made.”5 Whether tax credits or other sources of income are included as income for
purposes of Alaska Civil Rule 90.3 is a matter of law we review de novo.6 We review
1
Hunter v. Conwell, 276 P.3d 413, 418 (Alaska 2012) (quoting Wee v.
Eggener, 225 P.3d 1120, 1124 (Alaska 2010)) (internal quotation marks omitted).
2
Heather W. v. Rudy R., 274 P.3d 478, 481 (Alaska 2012) (quoting Rego v.
Rego, 259 P.3d 447, 452 (Alaska 2011)).
3
Havel v. Havel, 216 P.3d 1148, 1150-51 (quoting Long v. Long, 816 P.2d
145, 150 (Alaska 1991)) (internal quotation marks omitted).
4
Heather W., 274 P.3d at 481 (quoting Borchgrevink v. Borchgrevink, 941
P.2d 132, 134 (Alaska 1997)).
5
Havel, 216 P.3d at 1151 (citing Jenkins v. Handel, 10 P.3d 586, 589
(Alaska 2000)).
6
See Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002) (“The proper
method of calculating child support is a question of law, which we review de novo,
(continued...)
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an award of attorney’s fees for abuse of discretion,7 but “the determination of which
statute or rule applies to an award of attorney’s fees is a question of law that we review
de novo.”8
IV. DISCUSSION
A. The Superior Court Did Not Err In Modifying The Visitation Schedule.
The Martins’ 2006 agreement was that Gregory would have custody of the
children every weekend from Friday at 6:00 p.m. until Monday morning — three nights
a week. This arrangement resulted in a 57% - 43% physical custody division, but the
Martins’ child support calculation indicated a 70% - 30% division.
In 2010 the Martins cross-moved for custody modification. Gregory argued
the original order reflecting a 70% - 30% physical custody division was incorrect and the
computed division should have been 58% - 42%. He contended he actually had custody
46% to 48% of the time during the prior three years and requested a custody
modification providing an equal division, with each parent having the children in
alternating weeks. Melody agreed the decree should be modified to reflect a 58% - 42%
division, but opposed Gregory’s proposed modifications of the custody agreement. She
argued Gregory had custody only 42% of the prior three years, as set forth in the 2006
Parenting Agreement. Melody requested modifications also, asking for custody two
weekends each month and that weekends end on Sunday nights instead of Monday
mornings.
6
(...continued)
adopting the rule of law that is most persuasive in light of precedent, reason, and policy.”
(citing Spott v. Spott, 17 P.3d 52, 55 (Alaska 2001))).
7
McDonald v. Trihub, 173 P.3d 416, 420 (Alaska 2007) (citing Valley Hosp.
Ass’n v. Brauneis, 141 P.3d 726, 729 (Alaska 2006)).
8
Id. (citing Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003)).
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The court held a hearing on the parties’ motions in March 2011. In its May
2011 order the superior court stated that it was “concerned that a shared custody
agreement may not be appropriate” because the Martins “disagree on many . . . day-to­
day issues and seem to be unable to discuss any of their issues appropriately or
effectively.” Because it could not “see a way to make the children’s lives any better,”
the court felt “resigned to simply adjust and clarify the custody arrangement so as to
minimize the need for contact between the parties.” The court concluded there had been
no significant change in circumstances warranting a custody modification, and because
the existing arrangement had worked for several years, the court decided to “maintain
approximately the same division of time” but “reconsider the way in which that time is
actually allocated.” During the school year, the court decided Melody should have
custody one weekend each month, with that time being made up by awarding Gregory
additional summer visitation.
After the superior court’s ruling, Gregory contended that the court failed
to divide custody in the same percentage that had developed between the parties. In
August 2011 the court stated that its May 2011 decision had been an attempt “to fashion
a schedule that was in the best interests of the children and which would reduce the
number of encounters between parties who so plainly cannot get along.” The court
declined to change the percentage of time each parent had the children because it
considered the children’s best interests and fewer encounters between the Martins to be
“more important than any fractional advantage to one party or the other.” The court also
decided that “[b]ecause [Gregory] has most of the summer, any days that both of the
children spend overnight at camp shall be counted as part of the father’s weeks.”
Gregory contends the superior court erred in finding no substantial change
in circumstances yet modifying the visitation schedule in the parties’ original parenting
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agreement. He argues the court “reduced” his custody in its order and also claims he is
entitled to an equal custody division.
We conclude the superior court did not err in its order modifying the
custody schedule. Alaska Statute 25.20.110(a) provides that “[a]n award of custody of
a child or visitation with the child may be modified if the court determines that a change
of circumstances requires the modification of the award and the modification is in the
best interests of the child.” A party seeking custody modification must first make a
prima facie showing that a significant or substantial change in circumstances has
occurred “relative to the facts and circumstances that existed at the time of the prior
custody order.”9 However, “a lesser showing is required for a ‘change in circumstances’
determination when a parent seeks to modify visitation rather than custody.”10 The
superior court could therefore properly modify the time-sharing schedule as set out in the
parties’ agreement yet find that Gregory had not made a sufficient showing to modify the
underlying custody provisions of that agreement.
The superior court listed several factors that had not changed in the years
since approval of the parties’ dissolution agreement, and it consequently decided to
“maintain approximately the same division of time.” This ruling was both legally and
factually sound. But it also found a change in the visitation schedule would be in the
children’s best interests because of ongoing conflicts between the parents and the need
to minimize contact between the parents. Under the superior court’s May order, Gregory
was awarded custody 42% of the time, and Melody was awarded custody 58% of the
9
Heather W., 274 P.3d at 481 (citing Barrett v. Alguire, 35 P.3d 1, 6 (Alaska
2001); Jenkins, 10 P.3d at 589).
10
Collier v. Harris, 261 P.3d 397, 408 (Alaska 2011) (citing Havel, 216 P.3d
at 1151 n.6); see also id. at 408 n.35 (explaining “visitation” is synonymous with
“custody schedule” in shared physical custody context).
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time. This division is very close to the parties’ original agreement, and we see no abuse
of discretion in the superior court’s decision.
Gregory also argues the superior court erred in ordering that time spent at
overnight summer camps should be counted as part of his time. We might agree with
Gregory had the superior court’s order unfairly allowed Melody to enroll the children
in camps during Gregory’s physical custody time. We do not read the order as allowing
this, and we caution that neither party should commit the children to overnight camps
during the other parent’s physical custody period without the other parent’s consent. The
superior court appropriately fashioned a method for scheduling the children’s summer
activities, with the court to resolve any disputes, so it appears the superior court
fashioned a method to promote a clear summer schedule for the children and minimize
the risk of mid-summer scheduling conflicts.
B. The Superior Court Did Not Err In Declining To Grant Gregory’s
Parents Separate Visitation.
Gregory argues the superior court should have ordered “autonomous
visitation” for his parents under AS 23.30.065 and contends the court shortened his time
with the children because the children spend two weeks with his parents, with those
overnights counting as part of his custody.
The superior court did not err in declining to grant separate visitation for
Gregory’s parents. Under the terms of the parties’ agreement, each parent agreed to
“provide the children with visitation with the grandparents . . . on their own side of the
family . . . during their custody time.” The two weeks the children spend with Gregory’s
parents were part of Gregory’s custody under the initial agreement, and the superior
court did not err by declining to allocate separate time for Gregory’s parents as part of
its modification order. Furthermore, Gregory has no standing to assert any potential
rights his parents may have under AS 23.30.065.
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C. There Was Error In Calculating Child Support.
Gregory argues that the superior court incorrectly applied Alaska Civil Rule
90.3 when it calculated child support by: (1) ordering that Melody could claim both
children as dependents on her federal tax return after allowing Gregory a deduction for
health insurance payments; (2) excluding from Melody’s income a stipend she receives
for children she adopted after the dissolution; and (3) deciding the parties did not need
to report income tax refunds as income. We agree with Gregory on his first argument,
although not in the precise manner raised, but disagree with Gregory on the other
arguments.
1. Health insurance costs
The parties originally agreed that Melody could claim both children as
dependents on her federal income taxes. In his motion to modify, Gregory asked the
court to order each parent to claim one child as a dependent when filing his or her federal
tax return. Gregory also sought to deduct from his income the entire amount of his
monthly medical insurance premium, even though the premium was the same whether
he covered only himself or added his family. The court allowed Gregory to deduct the
entire amount of his medical insurance premium; because the court considered this
deduction from his gross income “a benefit” to Gregory, it decided that Melody could
continue to claim both children as dependents for federal income tax purposes.
Because the superior court concluded that allowing Melody to continue
claiming both children as dependents for federal income tax purposes was warranted by
its decision granting Gregory the “benefit” of deducting his entire medical insurance
premium from his gross income, deciding Gregory’s claim of error requires examining
the bases of both decisions. Gregory understandably did not challenge whether the
health insurance ruling was correct, but we may raise and consider an issue of law that
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is “critical to a proper and just decision.”11 “Plain error exists where an obvious mistake
has been made which creates a high likelihood that injustice has resulted.”12 Under
Rule 90.3(d)(1) the superior court shall “require health insurance for the children if
insurance is available to either parent at a reasonable cost.” The rule also provides in
relevant part:
The cost of insurance is the cost attributable to the children
for whom support is paid. If the cost to the employee of
covering the employee alone is the same as the cost to the
employee of covering the employee and dependents, then
there is no additional cost to the employee for adding the
children and no portion of the cost of coverage may be
allocated to the children.[13]
Although the insurance cost is allocated equally between the parents,14 “the cost to be
allocated is limited to that portion of the total cost necessary to insure the children
involved — not the parent.”15 Accordingly, it was plain error to allow Gregory to deduct
his insurance premium from his gross income.16 Because the cost of insurance is the
same whether or not the children are added, Gregory is not entitled to either a deduction
or a credit for the health insurance. We reverse the superior court’s treatment of the cost
11
See Vest v. First Nat’l Bank of Fairbanks, 659 P.2d 1233, 1234 n.2 (Alaska
1983) (explaining plain error rule and circumstances in which court will raise issue sua
sponte).
12
Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1124 (Alaska 1996) (quoting Miller
v. Sears, 636 P.2d 1183, 1189 (Alaska 1981)).
13
Alaska R. Civ. P. 90.3(d)(1).
14
Id.15
Alaska R. Civ. P. 90.3 Commentary, VII.A.
16
Rule 90.3(d) also states that the cost of health care coverage for the children
is subtracted from the amount of child support, not from gross income.
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of health care coverage and remand for recalculation of support. Because the superior
court linked the health care deduction and claiming dependents for tax purposes, the
superior court should reconsider its decision to permit Melody to continue to claim both
children as dependents on her federal income tax return.
2. Adoption subsidies
Gregory contends that the court erred in excluding from Melody’s income
a stipend from the state for children she adopted after the dissolution. The state pays
Melody an Alaska Adoption Subsidy for the children; these subsidies are paid when the
Department of Health and Social Services decides that children are hard to place.17
Although Rule 90.3 requires the court to consider a parent’s income “from
all sources,” certain payments are not considered income for purposes of the rule.18
Addressing whether adoption subsidies and foster care payments should be included in
a parent’s income when computing child support, other courts have held that “because
these payments are intended to benefit the adopted or foster child, they are considered
income to the child and not to the parent.”19 One court has explained that foster care
payments “are received by the foster parent acting in a fiduciary capacity” and “the
17
AS 25.23.190–.230.
18
Alaska R. Civ. P. 90.3(a); Alaska R. Civ. P. 90.3 Commentary, III.A.
19
In re Marriage of Dunkle, 194 P.3d 462, 465 (Colo. App. 2008); see also
Hamblen v. Hamblen, 54 P.3d 371, 374 (Ariz. App. 2002) (explaining such payments
“are made on the child’s behalf to meet his or her needs”); In re Marriage of Newberry,
805 N.E.2d 640, 643-44 (Ill. App. 2004) (adoption subsidies are benefits belonging to
the children); Strandberg v. Strandberg, 664 N.W.2d 887, 890 (Minn. App. 2003)
(same); A.E. v. J.I.E., 686 N.Y.S.2d 613, 615 (N.Y. Sup. 1999) (same); Gambill v.
Gambill, 137 P.3d 685, 690 (Okla. Civ. App. 2006) (same).
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money is not considered income available to the foster parent.”20 We consider the
adoption subsidies to be similar to child support received for other children and conclude
they should not be included in a parent’s income for purposes of Rule 90.3.21 The
superior court thus correctly decided that Melody is not required to include the adoption
subsidy as income for purposes of Rule 90.3.
3. Tax credits
Gregory next argues that the superior court erred in not counting Melody’s
tax refund as income. He specifically argues that Melody’s Earned Income Tax Credit
(EITC) should count as income. The superior court initially required Melody to “include
the amount of any tax refund in her calculations, or adjust her calculations to reduce the
monthly withholding to an amount that would result in a zero refund.” Melody asked the
court to clarify its ruling, arguing that the EITC was a means-based benefit that should
not be included in income when calculating child support.22 The court then decided that
neither party was required to declare income tax refunds as income.
We agree with Melody’s superior court argument and hold that the EITC
should not be considered income for calculating child support.23 Unlike tax credits that
20
Bryant v. Bryant, 218 S.W.3d 565, 569 (Mo. App. 2007) (citing In re
Paternity of M.L.B., 633 N.E.2d 1028, 1029 (Ind. App. 1994)).
21
Cf. Alaska R. Civ. P. 90.3 Commentary, III.A (“Child support is not
income.”).
22
See id. (“Means based sources of income . . . should not be considered as
income.”).
23
In an unpublished memorandum opinion we previously ruled that the
superior court should include any tax credits received by a parent when calculating
income under Rule 90.3. Wedman v. Wedman, Mem. Op. & J. No. 1206, 2005 WL
628806, at *4 (Alaska, Mar. 16, 2005). But in that case the argument that the EITC
(continued...)
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only reduce an individual’s tax, any EITC amount exceeding the actual tax obligation
can be refunded to that individual and is considered a payment.24 The EITC is available
only to low-income households,25 and the credit amount depends on household income
as well as the number of qualifying children.26 Federal courts have identified several
purposes of the EITC: (1) “to reduce the disincentive to work caused by the imposition
of Social Security taxes on earned income”; (2) “to stimulate the economy by funneling
funds to persons likely to spend the money immediately”; and (3) “to provide relief for
low-income families hurt by rising food and energy prices.”27 Several states exclude the
EITC from income for purposes of calculating child support, either through judicial
decision28 or rules and regulations.29 Because the EITC is only available to and intended
23
(...continued)
should be excluded from income because it was means based was not raised, and we
have not considered this specific issue before.
24
Sorenson v. Sec’y of the Treasury of U.S., 475 U.S. 851, 854 (1986).
25
See In re Steinmetz, 261 B.R. 32, 35 (Bankr. D. Idaho 2001) (noting that
EITC eligibility ends when income is $30,850).
26
26 U.S.C. § 32 (2006). In tax year 2012 the maximum credit is $5,891 for
households with three or more qualifying children, $5,236 for those with two children,
and $3,169 for those households with only one qualifying child. See http://www.irs.gov/
Individuals/EITC-Income-Limits,-Maximum-Credit-Amounts-and-Tax-Law-Updates.
27
Sorenson, 475 U.S. at 852.
28
Brausch v. Brausch, 265 S.W.3d 837, 840-41 (Ky. App. 2008); Riggs v.
Riggs, 622 N.W.2d 861, 867 (Neb. 2001). See also T.E.N. v. T.J.C., 2003 WL 22476257at *5 (Del. Fam. Ct., Aug. 20, 2003) (refusing to include EITC in mother’s income for
child support purposes because formula excluded needs-based credits).
29
See Marrocco v. Giardino, 767 A.2d 720, 724 n.6 (Conn. 2001) (quoting
regulation excluding EITC from income for child support purposes); Walker v. DeMoss,
(continued...)
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to benefit low-income families, we consider it a means-based source of income not
countable for calculating child support.30 The superior court therefore did not err in not
counting Melody’s EITC as income.
D. The Superior Court Did Not Err In Its Decision About The Children’s
Permanent Fund Dividends.
Gregory next argues that the superior court abused its discretion in
permitting Melody to deposit the children’s Permanent Fund Dividends “into investment
accounts of her choosing.” The parties’ initial agreement provided that Melody would
apply for the children’s Permanent Fund Dividends each year and place the money in an
investment account. In the litigation related to the cross-motions to modify, the parties
disputed whether either or both parents had borrowed money from the children’s
accounts and whether that money had been repaid. The superior court found that “any
loans taken by either parent from the children’s accounts [were] deemed satisfied.” The
court permitted Melody to move the money to different accounts, but prohibited
withdrawals except to pay the children’s taxes or for reinvestment. The court required
Melody to provide an accounting “in accordance with the original decree.” We see no
error in the superior court’s decision in light of the parties’ inability to cooperate and
their original agreement.
29
(...continued)
781 N.W.2d 101, 2010 WL 624237 at *2 (Iowa App., Feb. 24, 2010) (“Gross monthly
income does not include public assistance payments or the earned income tax credit.”
(quoting Iowa Ct. R. 9.5)).
30
Gregory did not mention other types of tax credits in this appeal. The
record reflects that both parties claimed other tax credits that were considered payments
on their federal tax returns. We express no opinion about the other credits.
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E. The Superior Court Did Not Err In Requiring Gregory To Maintain
A Life Insurance Policy.
Gregory contends the superior court erred in requiring him to maintain a
life insurance policy on himself for the children’s benefit. Gregory maintains that the
parties’ original agreement required only Melody to maintain a life insurance policy. He
also argues that his “current will and life insurance policy fulfill the obligation” and that
Social Security would “fulfill[] the obligation that the court feels is needed.” Gregory
thus raises two issues: whether the superior court correctly construed the original
dissolution agreement and whether it correctly found he was not in compliance with the
agreement.
The original agreement between the parties said that the “obligee will
maintain a life insurance policy which names the children as beneficiar[ies].” Because
Gregory had to pay monthly child support to Melody, he was the obligor, and she was
the obligee. In the litigation related to the parties’ cross-motions to modify, Melody
argued that under the terms of the agreement Gregory was required to obtain a life
insurance policy for the benefit of the children; she asked the court to require Gregory
to provide proof of that insurance. In response, Gregory did not deny that he was
required to obtain a life insurance policy — he argued instead that his will would provide
adequate financial protection for the children.
After the hearing on the cross-motions, Gregory filed a copy of his will
together with a pleading discussing Social Security benefits, which he thought would
“cover the concerns that ha[d] arisen at the trial in regard to support for [the] children
should [he] die prematurely.” Melody filed an affidavit indicating she had life insurance
in the amount of $75,000, with the children listed as beneficiaries.
The superior court found that the original agreement required Gregory “to
maintain life insurance on himself for the benefit of the children.” It further found that
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“[t]he provisions of [Gregory’s] will [were] insufficient to meet this requirement.” The
superior court ordered Gregory to “purchase and file proof of conforming life insurance
designating the children as direct beneficiaries” within 60 days of the date of the order.
We construe settlement agreements in dissolutions using traditional contract
principles.31 The goal of contract interpretation “is to give effect to the reasonable
expectations of the parties.”32 “We review the interpretation of a contract de novo, with
any inferences that the superior court has drawn from extrinsic evidence being reviewed
for ‘support[] by substantial evidence.’ ”33
Substantial evidence supports the superior court’s finding that the parties
intended Gregory to carry a life insurance policy for the children’s benefit. Gregory did
not dispute in his pre-hearing pleadings that the agreement required him to carry life
insurance with the children as beneficiaries, nor did he dispute that the purpose of the
insurance provision was to benefit the children in case Gregory died before they were
adults. Although the agreement said that the obligee was required to carry life insurance,
the parties used the wrong term to identify who had an obligation several places in the
agreement. For example, the dissolution petition said that rather than use income
withholding for child support payments, the “obligee will make automatic funds transfers
to obligor’s bank.” The petition also provided that the “obligee” would receive half of
the residential property equity; under the terms of the agreement, Melody retained the
house and paid Gregory his share of the equity. Given the purpose of the insurance
31
Villars v. Villars, 277 P.3d 763, 768 (Alaska 2012) (citing Zito v. Zito, 969
P.2d 1144, 1147 n.4 (Alaska 1998)).
32
Id. (quoting Knutson v. Knutson, 973 P.2d 596, 600 (Alaska 1999)).
33
Burns v. Burns, 157 P.3d 1037, 1039 (Alaska 2007) (quoting Wahl v. Wahl,
945 P.2d 1229, 1231 n.2, 1232 n.3 (Alaska 1997)) (alteration in original).
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provision and the other uses of “obligee” in the dissolution petition, the superior court
did not err in interpreting the parties’ agreement as requiring Gregory to purchase life
insurance naming his children as beneficiaries.
The superior court also did not clearly err in finding that Gregory’s will and
potential Social Security benefits did not fulfill his obligation under the dissolution
agreement. The agreement required Gregory to maintain a life insurance policy with the
parties’ two children as beneficiaries. Gregory’s will did not fulfill this obligation, nor
did the possibility of Social Security payments for the children. We thus affirm the
superior court’s order requiring Gregory to maintain a life insurance policy with the
children as beneficiaries.
Gregory asks in the alternative that Melody be ordered to carry a reciprocal
policy and that the superior court designate a policy coverage amount. The record
indicates that Melody already has a policy naming the children as beneficiaries. While
we have “approve[d] the use of [life] insurance as security for a support obligation where
appropriate,”34 the amount and type of insurance can be left “to the ingenuity of lawyers,
judges, insurance brokers and actuaries.”35 The superior court was not required to
specify a policy coverage amount differing from Melody’s existing policy.
F. The Superior Court Did Not Err In The Attorney’s Fees Award.
Gregory argues that the award of attorney’s fees to Melody was erroneous.
Melody’s actual attorney’s fees exceeded $20,000, and the court awarded her $7,500,
representing 75% of what the court found to be reasonable fees. The court initially
applied AS 25.24.140(a), authorizing the award of attorney’s fees while a divorce action
is pending. After Gregory moved for reconsideration, the superior court acknowledged
34
H.P.A. v. S.C.A., 704 P.2d 205, 210 (Alaska 1985).
35
Id. at 210 n.4.
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it had “identified the wrong statute” in its attorney’s fees ruling. The court noted that AS
25.20.115 was controlling,36 but after applying that statute decided the amount of fees
would remain unchanged.
Gregory argues on appeal that: (1) the superior court erred by applying the
Rule 82 divorce exception to award Melody fees; (2) he prevailed and is entitled to a
Rule 82 attorney’s fees award; and (3) he cannot afford to hire his own attorney, let alone
pay for Melody’s attorney. Gregory does not acknowledge that the superior court
changed the basis of its attorney’s fees award after Gregory’s motion for reconsideration.
Three types of attorney’s fees standards can apply in child custody and
support cases: (1) the “divorce exception to Rule 82” in initial custody determinations;
(2) AS 25.20.115 in proceedings to modify custody and visitation; and (3) Rule 82 in
postjudgment child support modification and enforcement proceedings.37 As the superior
court noted, the Martins were not before the court for an initial custody determination,
so AS 25.24.140(a) and the divorce exception to Rule 82 did not apply. And because the
primary focus of the Martins’ cross-motions concerned modification of child custody and
visitation, the superior court correctly relied on AS 25.20.115 as the basis for its fee
award. Finally, based on the record before us, we cannot conclude that the superior court
abused its discretion in awarding attorney’s fees to Melody under the statute.
36
AS 25.20.115 provides: “In an action to modify . . . [a custody or visitation
order], the court may . . . award attorney fees and costs . . . . In awarding attorney fees
and costs under this section, the court shall consider the relative financial resources of
the parties and whether the parties have acted in good faith.”
37
Collier v. Harris, 261 P.3d 397, 409 (Alaska 2011); see also Rowen v.
Rowen, 963 P.2d 249, 257 (Alaska 1998) (modifying custody or visitation); Bergstrom
v. Lindback, 779 P.2d 1235, 1238 (Alaska 1989) (determining initial custody and
support); Patch v. Patch, 760 P.2d 526, 531 (Alaska 1988) (deciding postjudgment child
support modification and enforcement).
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V. CONCLUSION
For the foregoing reasons, we REVERSE the child support award and
allocation of federal tax deductions for the children and REMAND to the superior court
for further proceedings on those issues. In all other respects, we AFFIRM the superior
court’s decisions.
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