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Wright v. Gregorio (7/16/93), 855 P 2d 772
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
LYNIS WRIGHT, f/k/a )
LYNIS GREGORIO, ) Supreme Court File No. S-4885
) Superior Court File No.
Appellant, ) 4FA-90-1347 Civil
v. ) O P I N I O N
JAMES GREGORIO, ) [No. 3973 - July 16, 1993]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks, Niesje J. Steinkruger, Judge.
Appearances: Kathy J. Keck and Carol
Daniel, Alaska Legal Services Corporation,
Fairbanks, for Appellant. No appearance for
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
MOORE, Chief Justice.
In this divorce case, the trial court directed Lynis
Wright to pay James Gregorio $50.00 per month for child support.
Wright asserts that because she and Gregorio share physical
custody of their daughter, the trial court_s award of support is
erroneous. We reverse.
II. FACTS AND PROCEEDINGS
James Gregorio and Lynis Wright obtained a divorce in
1991. Judge Niesje J. Steinkruger awarded the couple joint legal
custody of their then three-year-old daughter, Keri. Though
Gregorio received primary physical custody, Judge Steinkruger
awarded Wright substantial visitation rights, allowing her to
have Keri from Wednesday at 5:00 PM to Thursday at 8:00 AM each
week, from Friday at 5:00 PM through Monday at 8:00 AM on
alternate weekends, and for six weeks in the summer. During the
six weeks that Wright has Keri over the summer, Judge Steinkruger
awarded Gregorio reciprocal weekend visitation rights, on the
same schedule that Wright has at other times. Judge Steinkruger
directed Wright to make monthly child support payments of $50.00.
Earlier in the proceedings, the judge remarked that
"[f]inancially both parents are able to meet this child_s
physical needs"and noted without comment her disagreement with
the Custody Investigator on this issue. Otherwise, she gave no
explanation for the child support award.
Wright moved to amend the judgment, arguing that
because the judgment directed that Keri reside with her at least
30 percent of the year, the court should have calculated child
support according to the formula for shared physical custody
under Alaska Civil Rule 90.3(b). Judge Steinkruger found that
Wright indeed had custody of Keri 38.9 percent of the time, but
nonetheless denied Wright_s motion to change the child support
award. Wright appeals.
A parent has shared physical custody of children if
they "reside with that parent for a period specified in writing
of at least 30 percent of the year, regardless of the status of
legal custody." Alaska R. Civ. P. 90.3(f). In such a
circumstance, the trial court must calculate child support using
the shared physical custody formula of Civil Rule 90.3(b), rather
than the sole custody formula of Rule 90.3(a).
The court cannot deviate from this formula except "for
good cause upon proof by clear and convincing evidence that
manifest injustice would result if the support award were not
varied." Alaska R. Civ. P. 90.3(c)(1). In addition, the judge
must explain 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 this rule." Id.
Good cause for deviating from a Rule 90.3 calculation
includes a finding that the obligor spouse's income is below the
poverty level. Alaska R. Civ. P. 90.3(c)(1)(B). However, a
parent who owes support but whose income is below the poverty
level must pay a minimum of $50.00 a month. Id. This minimum
monthly payment is mandatory, regardless of whether the Rule 90.3
analysis yields a lower figure, and even if the court does no
examination for good cause. See Rule 90.3 cmt. VI.C.1 However,
the express language of section (c)(1)(B) provides that if the
shared physical custody formula is applicable and results in a
smaller payment, then the obligor parent owes the smaller amount.2
Because Judge Steinkruger failed to make explicit
findings as to the income of each party and how she calculated
it, we cannot determine whether her award of child support was
proper under Rule 90.3. In addition, she failed to set out the
Rule 90.3 calculations themselves. Adequate findings of fact on
such matters are essential, so that a reviewing court may clearly
understand the grounds on which the lower court reached its
decision. Adrian v. Adrian, 838 P.2d 808, 811 (Alaska 1992).
Judge Steinkruger's only comment as to the incomes of the parties
was a cursory remark that Gregorio and Wright each had the
financial means to meet Keri's needs. We recently held that
"mere references to the parties' relative financial positions
fail to provide the raw numbers necessary for a Civil Rule 90.3
calculation." Id. at 812. Therefore, we must remand this case
for additional factual findings.
Nonetheless, the award itself gives a strong indication
of Judge Steinkruger's calculations. Most likely, Judge
Steinkruger calculated Wright_s support obligation as though
Gregorio had sole physical custody, used the formula provided in
Civil Rule 90.3(a), determined that Wright_s income was below
poverty level, and assessed her the $50.00 minimum monthly
obligation. However, Wright has physical custody of Keri 38.9
percent of the year, and therefore has shared physical custody of
her. Thus Judge Steinkruger should have used the shared custody
formula of Civil Rule 90.3(b),3 unless either party presented
clear and convincing evidence that the formula's application
would have led to manifest injustice, such that a variation in
the award under Rule 90.3(c) would be proper.
We REVERSE and REMAND the superior court's decision for
specific factual findings on the income of the parties, for
findings on the calculation of the parties' child support
obligations under Civil Rule 90.3, and for proceedings consistent
with this decision.4
1. Read literally, the text of Rule 90.3(c) directs a
$50.00 minimum monthly obligation only when the court departs
from a higher figure calculated under Rule 90.3(a) or (b), and
not when the formula of either paragraph (a) or paragraph (b)
itself yields a figure lower than $50.00. However, the
commentary to Rule 90.3 supports the reading that we have
adopted: "Even if the obligor has an income of less than the
poverty level, or no income at all, a minimum support of $50.00
per month applies." Cmt. VI.C. An examination of the rule's
history shows that the drafters intended to set up a minimum
support obligation, on the grounds that a parent could satisfy
this debt from his or her permanent fund dividend or from an AFDC
2. According to the commentary on Rule 90.3(c), "[t]he
minimum level may be reduced . . . under 90.3(b) based on the
offset of the other parent's support obligation." Cmt. VI.C.
The rule history indicates that the drafters intended such a
3. We offer the following sample calculation as a guide.
At the outset, we note that Judge Steinkruger made no express
findings of fact regarding the incomes of the parties. Though we
are using figures from the child support affidavits that Wright
and Gregorio provided, we do so for purposes of illustration
only. We do not reach the question of whether these figures
accurately state the income of each party.
To determine child support obligations under the shared
custody formula set out in Civil Rule 90.3(b), one first
calculates what each parent would owe if the other parent had
sole physical custody. Under the sole custody formula, a child
support award is calculated by taking a parent_s annual income--
less certain adjustments for mandatory deductions, child care,
and support payments from previous marriages--and multiplying it
by a percentage figure that varies according to the number of
children. See Alaska R. Civ. P. 90.3(a).
According to the child support guidelines affidavit
that Gregorio submitted to the court, his gross income is
after correction of a minor mathematical error. Subtracting
deductions results in an adjusted gross income (AGI) of
$22,940.67. Finally, one multiplies Gregorio's AGI by 20%, the
percentage set out for a couple with one child, Alaska R. Civ. P.
90.3(a)(2)(A), to arrive at an annual support award of $4,588.13.
Therefore, if Wright had sole custody, Gregorio would owe her
$4,588.13 per year.
Next, the court repeats these calculations for Wright.
Her gross income is $3,353.00, and her AGI after deductions is
$2,557.40. Thus, her child support obligation under the normal
calculations of Civil Rule 90.3(a) would be $2,557.40 x .20, or
$511.48 per year.
The poverty income guideline for one person in Alaska
was $8,290 in 1991. Annual Update of the HHS Poverty Income
Guidelines, 56 Fed. Reg. 6859, 6860 (1991). Very recently, the
U.S. Department of Health and Human Services increased this
figure to $8,700 for 1993. Annual Update of the HHS Poverty
Guidelines, 58 Fed. Reg. 8287, 8288 (1993). Wright_s gross
income of $3,353 is below the poverty level. Therefore, if
Gregorio had sole physical custody, then Wright's obligation
would be $600 per year, even though the normal Rule 90.3(a)
calculations would result in a smaller amount. See Alaska R.
Civ. P. 90.3(c)(1)(B) & cmt. VI.C; supra note 1.
Next, to figure out a child support award in a shared
custody case, one takes the amount of each parent's obligation if
the other had sole custody, and multiplies this figure by the
percentage of time that the other parent has physical custody of
the children. Alaska R. Civ. P. 90.3(b)(1)-(2). However, if the
court finds that the percentage of time each parent has physical
custody does not accurately reflect the ratio of funds that each
parent will directly spend on supporting the children, then the
court shall vary the percentage to reflect its findings. Id.
For Gregorio, this formula yields the following result:
$4,588.13 x .389 = $1,784.78
For Wright, the results are as follows:
$600 x .611 = $366.60
Finally, one takes the resulting two figures, and
assesses the parent with the larger figure child support. The
amount of support is the difference between the two figures
multiplied by 1.5. See Alaska R. Civ. P. 90.3(b)(3). However,
if the resulting figure is higher than the amount of support that
would be calculated under paragraph (a) assuming sole or primary
custody, then the annual support is the amount calculated under
paragraph (a). Id. Here, $1,784.78 > $366.60, so Gregorio owes
Wright child support. His total annual support obligation,
absent variance based on a finding of good cause, is as follows:
($1,784.78 - $366.60) x 1.5 = $2,127.27
Civil Rule 90.3(b)(4) governs whether Gregorio must pay
his child support in a lump sum or in installments:
The child support award is to be
paid in 12 equal monthly installments unless
shared custody is based on the obligor parent
having physical custody for periods of 30
consecutive days or more. In that case, the
total annual award will be paid in equal
installments over those months in which the
obligor parent does not have physical
(Emphasis added). Under the current visitation schedule,
Gregorio, the obligor parent, never has custody of Keri for 30
consecutive days or more. Therefore, under the income figures
that the parties provided in their child support affidavits,
Gregorio would owe child support in 12 monthly installments of
4. During the appeal, the trial court apparently ordered
that Wright have no overnight visits with Keri for at least 60
days. If this order has the effect of reducing Wright_s total
visitation time below 30% for the year, then Gregorio would have
sole physical custody. Nonetheless, Judge Steinkruger still
would have to provide findings as to her reasoning.