Christopher D. v. Krislyn D. ( 2018 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CHRISTOPHER D., )
) Supreme Court Nos. S-16586/16626
Appellant and )
Cross-Appellee, ) Superior Court No. 4FA-14-01381 CI
)
v. ) OPINION
)
KRISLYN D., ) No. 7303 – September 21, 2018
)
Appellee and )
Cross-Appellant. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael P. McConahy,
Judge.
Appearances: Margaret O’Toole Rogers, Foster & Rogers,
LLC, Fairbanks, for Appellant and Cross-Appellee.
Daniel L. Callahan, Callahan Law Office, Fairbanks, for
Appellee and Cross-Appellant.
Before: Stowers, Chief Justice, Winfree, Maassen, and
Bolger, Justices. [Carney, Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
Following a protracted custody dispute, the superior court awarded the
mother primary physical custody of a couple’s two children and ordered the father to pay
child support. Both parents appeal. The father contends that the superior court abused
its discretion when it refused to vary his child support obligation pursuant to the “good
cause” exception of Alaska Civil Rule 90.3(c)(1), given the parents’ disparate incomes
and the expenses the father was incurring to comply with conditions on his visitation.
The mother contends that the superior court erred in setting the child support order’s
effective date.
We conclude that the superior court did not abuse its discretion by denying
a “good cause” variance because the evidence did not support it. But it was error not to
expressly consider child support for the period between the parties’ separation and the
order’s effective date. We remand the child support issue for further proceedings
consistent with this opinion.
II. FACTS AND PROCEEDINGS
Christopher D. and Krislyn D. were married in 1996 and have two minor
children.1 Christopher was a city police officer and Krislyn was a veterinarian who
owned her own practice. The couple separated in January 2014 after Christopher
allegedly committed an act of domestic violence while under the influence of alcohol.
In February Krislyn filed a complaint for legal separation, which was later converted to
a divorce. Both her complaint and Christopher’s answer asked that child support be set
pursuant to Alaska Civil Rule 90.3. The superior court approved an interim custody
schedule by which Krislyn had custody of the children 9 of every 14 nights on an
alternating two-week schedule. Neither party pursued a request for child support until
the custody trial over two years later.
Christopher resigned from the police force in August 2014, and the parties
briefly reconciled. But in November they separated again, this time for good, following
another alleged incident of domestic violence fueled by alcohol.
1
We use initials to protect the parties’ privacy.
-2- 7303
In January 2015 Christopher was arrested for driving under the influence
and possessing a firearm while intoxicated. In the divorce case the court approved the
parties’ stipulation to a temporary custody order which, among other things,
reestablished the alternating two-week custody schedule, prohibited Christopher from
driving with the children, and required him to submit to blood alcohol testing at
Krislyn’s request. A custody investigation was delayed because of Christopher’s
pending criminal charges, which in turn delayed the trial.
The parties settled their property issues in October 2015, but permanent
custody remained to be decided. A few weeks later Christopher was arrested for driving
under the influence, reckless endangerment, violating conditions of release, and resisting
arrest, and Krislyn moved for modification of the temporary custody order. The court
granted her motion in December: its order granted Krislyn sole legal and physical
custody, conditioned Christopher’s contact with the children on his wearing an ankle
monitor, and required that his visitation be supervised by a third party. Christopher
sought treatment for substance abuse and in March 2016 graduated successfully from a
chemical dependency program. He wore the ankle monitor as required for visitation and
continued with therapy. His pending criminal charges were ultimately resolved by a plea
agreement.
A custody trial was scheduled for November 2016. Krislyn asked for child
support effective November 1, 2015, the month after entry of the property settlement and
divorce decree, on grounds that “[p]rior to entry of the Decree of Divorce, there was an
informal interim financial arrangement . . . regarding on-going joint expenses such as . . .
child support,” and the decree “settled any potential claim by either party in regard to
interim financial matters, including child support.” Christopher asked that his child
support obligation be waived pursuant to the “good cause” exception of Civil
-3- 7303
Rule 90.3(c)(1), citing the disparity between his income and Krislyn’s and the ongoing
expenses of his therapy and the court-ordered conditions on visitation.
In December 2016 the superior court issued written findings of fact and
conclusions of law, a custody decree, and a child support order. The court adopted the
parties’ agreement that Krislyn continue to have sole legal and primary physical custody.
It found that Christopher had successfully maintained sobriety for at least six months, but
it approved his proposals — also recommended by the custody investigator — that he
continue to engage in “an after-care program regarding his alcohol abuse and addiction,”
complete a parenting class, undergo a psychological evaluation and follow all its
recommendations, and keep Krislyn informed of his progress in all these areas. But the
court released Christopher from both the ankle-monitor condition on contact with the
children and the third-party supervision requirement, allowing his father and his
significant other to act as visitation supervisors.
The court also ordered Christopher to pay child support pursuant to the
formula of Civil Rule 90.3. The court denied Christopher’s request for a variance,
concluding that “[d]isparity of earning potential does not, in this case, obviate the need
for support to be calculated pursuant to Civil Rule 90.3.” The child support order
provided that Christopher’s payments were to commence the next month, on January 1,
2017.
Both parties timely appealed. Christopher challenges the superior court’s
refusal to apply a variance to his child support obligation to reflect his ongoing expenses
and the parties’ disparity of income. Krislyn challenges the court’s selection of the child
support order’s effective date.
-4- 7303
III. STANDARD OF REVIEW
“ ‘[W]e reverse child support awards only if the superior court abused its
discretion or applied an incorrect legal standard,’ or if ‘its factual findings are clearly
erroneous.’ ”2 “A superior court abuses its discretion by making a decision that is
arbitrary, capricious, manifestly unreasonable, or . . . stem[s] from an improper motive.”3
“Abuse of discretion occurs when a trial court fails to consider statutorily mandated
factors, weighs factors improperly, or includes improper factors in its decision.”4
“We review de novo the trial court’s determination of the inception date for
a child support obligation.”5
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion By Declining To
Vary Christopher’s Child Support Obligation Pursuant To The “Good
Cause” Exception Of Civil Rule 90.3(c)(1).
Christopher contends that the superior court abused its discretion when it
refused to vary his child support obligation pursuant to the “good cause” exception of
Civil Rule 90.3(c)(1). In support of this argument he contends that Krislyn’s earning
capacity — which he asserts is over twenty times his own — “is more than adequate by
itself to provide for the children’s needs”; that the amount he is required to pay under the
child support order therefore “significantly exceeds the amount of the children’s
2
Mitchell v. Mitchell, 370 P.3d 1070, 1076 (Alaska 2016) (footnote omitted)
(first quoting Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003); and then quoting Limeres
v. Limeres, 320 P.3d 291, 296 (Alaska 2014)).
3
Sharpe v. Sharpe, 366 P.3d 66, 68 (Alaska 2016) (alterations in original)
(quoting Morris v. Horn, 219 P.3d 198, 203-04 (Alaska 2009)).
4
Ruppe v. Ruppe, 358 P.3d 1284, 1289 (Alaska 2015) (quoting Michele M.
v. Richard R., 177 P.3d 830, 834 (Alaska 2008)).
5
Skinner v. Hagberg, 183 P.3d 486, 488-89 (Alaska 2008).
-5- 7303
reasonable needs”; and that his contribution “provides little more than a token benefit to
the children.” Christopher further asserts that the substance abuse aftercare, parenting
classes, and other court-ordered visitation conditions “cost a substantial investment of
both time and money” and that he cannot afford to pay child support while also bearing
these costs and the expenses of daily living.
“The superior court may vary a support award calculated under Rule 90.3
only ‘for good cause upon proof by clear and convincing evidence that manifest injustice
would result if the support award were not varied.’ ”6 “Good cause may include a
finding that unusual circumstances exist which require variation of the award in order
to award an amount of support which is just and proper for the parties to contribute
toward the nurture and education of their children.”7 To justify a good cause variation,
a finding of unusual circumstances must be followed by a finding that “these unusual
circumstances make application of the usual formula unjust.”8
We conclude that the superior court did not abuse its discretion when it
found that the parties’ disparity in income did not justify a good cause variation. We
observed in Laughlin v. Laughlin that “[i]t is not unusual for one spouse to have a greater
income than the other.”9 The disparity in Laughlin was much less dramatic than it is
6
Berkbigler v. Berkbigler, 921 P.2d 628, 631 (Alaska 1996) (quoting Alaska
R. Civ. P. 90.3(c)(1)); see also Alaska R. Civ. P. 90.3 cmt. I.C. (“The support guidelines
in the rule may be varied only as provided by paragraph (c) of the rule.”).
7
Alaska R. Civ. P. 90.3(c)(1).
8
Alaska R. Civ. P. 90.3 cmt. VI.B.
9
229 P.3d 1002, 1006 (Alaska 2010).
-6- 7303
here, however;10 assuming, therefore, that this case presents “unusual circumstances”
because of the parties’ respective incomes, the question remains whether “these unusual
circumstances make application of the usual formula unjust.”11
First, that Krislyn can afford to support the children on her own, while
relevant to a good cause determination,12 does not by itself excuse Christopher’s own
obligation to contribute.13 “Rule 90.3 provides the presumptive formula for calculating
a non-custodial parent’s child support obligation.”14 One “expectation” of the rule is that
increases in the parents’ income will result in corresponding increases in the amount
available to spend on the children; “[t]hus, at least in the primary custodial situation, the
contribution of one parent does not affect the obligation of the other parent.”15 Both
continue to contribute a certain percentage of their income even as their incomes vary.
10
See id. at n.17 (noting that mother’s income was approximately $67,000
and father’s was approximately $32,000).
11
Alaska R. Civ. P. 90.3 cmt. VI.B.
12
Alaska R. Civ. P. 90.3(c)(1) (“The court shall consider the custodial
parent’s income in this determination.”).
13
Maloney v. Maloney, 969 P.2d 1148, 1152 (Alaska 1998) (“[N]on-custodial
parents should not be relieved of their child support obligations simply because custodial
parents can afford to maintain their children.”).
14
Morris v. Horn, 219 P.3d 198, 205 n.28 (Alaska 2009); see also Alaska R.
Civ. P. 90.3 cmt. I.B (“[T]he guidelines presumptively apply to all child support awards
. . . .”).
15
Alaska R. Civ. P. 90.3 cmt. II.
-7- 7303
Even a “token benefit” from the non-custodial parent serves to recognize that “[e]very
parent has a duty to support his or her child.”16
Christopher’s argument hinges not only on Krislyn’s ability to support the
children on her own but also his inability to help because of his debts and expenses. He
points to the “substantial investment of both time and money” he is required to make in
counseling and classes in order to comply with the court-imposed conditions on
visitation. But it was Christopher’s burden to demonstrate good cause by clear and
convincing evidence.17 “We do not intend that the [good cause] exception become the
rule.”18 And the fact that a party “has significant debts does not, by itself, mean that the
award amount should be reduced.”19
Christopher first raised the issue of a good cause variance in his pretrial
memorandum, in which he asserted that he was “required to take several classes, engage
in counseling, and pay for supervised visitation” such that “[h]e cannot afford the $763
per month” child support obligation calculated under Rule 90.3(a). He did not elaborate
on the actual costs of these requirements. He reasserted the argument at trial, testifying
that he was engaged in therapy and had started the classes recommended by the custody
16
Alaska R. Civ. P. 90.3 cmt. I.B; see Kestner v. Clark, 182 P.3d 1117, 1123
(Alaska 2008) (“As we have repeatedly recognized, a parent should not be relieved of
the obligation to support his or her children except under the most extreme
circumstances.”).
17
See Alaska R. Civ. P. 90.3(c)(1).
18
Coats v. Finn, 779 P.2d 775, 777-78 (Alaska 1989).
19
Berkbigler v. Berkbigler, 921 P.2d 628, 631 (Alaska 1996); see Alaska R.
Civ. P. 90.3 cmt. VI.B.4 (“Prior or subsequent debts of the obligor, even if substantial,
normally will not justify a reduction in support.”).
-8- 7303
investigator. But he again failed to present any evidence of the costs of these activities.
In closing argument he asserted that he was paying $500 per month for ankle monitoring
services and $1,300 per month for a visitation supervisor, but the superior court
eliminated these two expenses in its custody decree by recognizing Christopher’s
progress, terminating the ankle monitor requirement, and authorizing Christopher’s
father or significant other to supervise visitation. All that remains in the record now are
Christopher’s conclusory statements that his unspecified expenses are sufficient to
constitute good cause for a variance. This falls far short of the “clear and convincing
evidence” necessary to show “that manifest injustice would result if the support award
were not varied.”20
We conclude that the superior court did not abuse its discretion when it
denied the request for a good cause variance.
B. The Superior Court’s Selection Of January 1, 2017 As The Effective
Date For Christopher’s Child Support Obligation, Without
Explanation, Was Error.
In its December 2016 findings of fact and conclusions of law, the superior
court determined that Christopher’s child support obligation would be calculated on the
basis of his child support guidelines affidavit filed in November 2016; the accompanying
child support order required the first monthly payment to be made on January 1, 2017.
Krislyn argues that the court erred by selecting this effective date instead of
“November 1, 2015, the first month following entry of the property settlement and
20
Alaska R. Civ. P. 90.3(c)(1); see McDonald v. Trihub, 173 P.3d 416, 428­
29 (Alaska 2007) (affirming superior court’s refusal to find good cause for variance in
father’s claimed disability, where father “failed to offer sufficient evidence, through
further evidence of his medical disability or of his personal financial straits, that . . .
manifest injustice would result in his case.”).
-9- 7303
Decree of Divorce.” She contends that any claim for child support before that date was
“extinguished” by the parties’ settlement of their respective financial claims.
Christopher defends the order’s January 2017 effective date. He contends
that the parties’ “informal financial arrangements” reflect their “understanding that
interim child support would not be paid by either party”; that Krislyn “waived
entitlement to interim child support” by agreeing to the property settlement agreement
in October 2015 that was silent on child support; that Krislyn’s request is unfairly
retroactive; and that given these facts — along with the parties’ “relative personal and
financial circumstances,” Christopher’s court-ordered costs, and the late timing of
Krislyn’s request — it was within the superior court’s discretion to decline to award
child support for past periods.
We conclude that neither parent’s argument is correct, and that the superior
court must revisit the issue of child support for the entire interim period between
separation and January 1, 2017, the effective date of the existing order.
The obligation of parents to support their children “begins . . . on the date
the parents stop living together”;21 “[t]his duty exists even in the absence of a court order
of support.”22 We have repeatedly recognized that child support should be calculated
from the date of separation.23 Here, the superior court found in its October 2015 findings
21
Alaska R. Civ. P. 90.3 cmt. I.B.
22
Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987); see also
Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska 1996) (“[A]bsent extraordinary
circumstances, courts should apply the calculation methodology of Rule 90.3 to
determine amounts to be reimbursed to custodial parents for support of children during
periods not covered by support orders.”).
23
See, e.g., Spott v. Spott, 17 P.3d 52, 54 (Alaska 2001) (“[The parent] owed
back child support for the period not covered by the interim order — from the date of
(continued...)
-10- 7303
of fact and conclusions of law that “[t]he parties separated in November of 2014”;
though arguing for different effective dates, neither party appears to challenge the court’s
finding of when they separated.
Contrary to Christopher’s characterization of it, calculating child support
from the date of separation is not impermissibly retroactive. “The rule against retroactive
modification . . . only prohibits modifying ‘arrearage’ already due under a ‘final child
support award’ in existence when a motion to modify is filed.”24 When there is no child
support order covering the relevant time period, applying the methodology of Rule 90.3
“does not modify an existing arrearage.”25 Indeed, “[p]recluding a retroactive award
would create an incentive . . . to avoid . . . child support obligations for some period of
time by delaying the process . . . . The creation of such an incentive would, of course,
run counter to the statutory purpose of providing for the needs of children . . . .”26
We must also reject Christopher’s arguments that Krislyn waived interim
child support by entering into other “informal financial arrangements” with him or by
failing to address the issue in the parties’ 2015 property settlement agreement, as well
23
(...continued)
separation until December 1, 1995.”); State, Dep’t of Revenue, Child Support Enf’t Div.
v. Pealatere, 996 P.2d 84, 88 (Alaska 2000) (“The trial court, however, failed to
calculate the amount of back child support from the date of separation.”); Ogard v.
Ogard, 808 P.2d 815, 816 (Alaska 1991) (“[The parent] clearly owed some amount of
child support beginning with the date of separation.”).
24
Duffus v. Duffus, 72 P.3d 313, 320 (Alaska 2003).
25
Crayton v. Crayton, 944 P.2d 487, 490 (Alaska 1997) (quoting Vachon, 931
P.2d at 382).
26
State, Dep’t of Revenue, Child Support Enf’t Div., ex rel. Hawthorne v.
Rios, 938 P.2d 1013, 1015 (Alaska 1997) (quoting Cyrus v. Mondesir, 515 A.2d 736,
738-39 (D.C. 1986)).
-11- 7303
as Krislyn’s assumption that the settlement agreement resolved any earlier child support
claims. “[N]o parental agreement regarding child support is valid until it receives
judicial scrutiny under Rule 90.3.”27 From this rule follows a corollary: “a custodial
parent’s conduct cannot amount to an estoppel or waiver altering the obligation to pay
child support.”28
As explained above in section IV.A, the superior court does have discretion
to vary an award “for good cause upon proof by clear and convincing evidence that
manifest injustice would result if the support award were not varied.”29 Christopher
suggests reasons why the court may have decided to apply the “good cause” variance to
any obligation he had to pay child support before January 1, 2017. But any variance
must be explained. “The court must specify in writing the reason for the variation, the
amount of support which would have been required but for the variation, and the
estimated value of any property conveyed instead of support calculated under the other
provisions of [Rule 90.3].”30 The failure to “issue written reasons for deviating from the
guidelines” is error.31
For these reasons we remand the child support order for the superior court’s
explicit consideration of the unaddressed period between legal separation and January 1,
2017, the effective date of the existing order. Because support is being calculated
27
Laughlin v. Laughlin, 229 P.3d 1002, 1005 (Alaska 2010) (quoting Nix v.
Nix, 855 P.2d 1332, 1334 (Alaska 1993)).
28
Paxton v. Gavlak, 100 P.3d 7, 13 (Alaska 2004) (quoting Rios, 938 P.2d
at 1017 n.8)).
29
Alaska R. Civ. P. 90.3(c)(1).
30
Id.
31
Boone v. Boone, 960 P.2d 579, 584 (Alaska 1998).
-12- 7303
retrospectively rather than prospectively, “actual income rather than earlier predictions
as to income should be used” to set the amounts due.32
This decision is not intended to restrict the parties’ ability to mutually agree
on support arrearages and seek judicial approval of their agreement, nor is it intended to
limit the superior court’s discretion to vary the support obligation as required to prevent
“manifest injustice” pursuant to Rule 90.3(c)(1).
V. CONCLUSION
We AFFIRM that aspect of the superior court’s child support order that
applies prospectively. We REMAND the order to the superior court for explicit
consideration of child support for the interim period between the parties’ separation and
January 1, 2017.
32
Spott v. Spott, 17 P.3d 52, 56 (Alaska 2001).
-13- 7303