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Yerrington v. Yerrington (3/14/97), 933 P 2d 555
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, telephone (907) 264-0607, fax (907) 264-
THE SUPREME COURT OF THE STATE OF ALASKA
LUBA YERRINGTON, )
) Supreme Court No. S-7196
) Superior Court No.
v. ) 3AN-89-7266 CI
SETH YERRINGTON, ) O P I N I O N
Appellee. ) [No. 4791 - March 14, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene Gonzalez, Judge.
Appearances: J. Mitchell Joyner, Law Office
of J. Mitchell Joyner, Anchorage, for
Appellant. Gayle J. Brown, Law Office of
Gayle J. Brown, Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
We consider here whether the superior court erred in
refusing to modify Luba Yerrington's child support in 1995 after
she demonstrated that her 1994 income was less than one-sixth the
1993 income which was the basis for setting her child support
obligation under Civil Rule 90.3(a)(1). Alaska R. Civ. P.
90.3(a)(1). We reverse and remand for further findings regarding
the appropriate rate of child support.
II. FACTS AND PROCEEDINGS
Seth and Luba Yerrington were divorced in 1990. The
divorce decree awarded custody of the Yerringtons' only child,
David, to Luba. In 1993 Seth requested and received custody of
David; Luba was granted reasonable rights of visitation. Although
Luba submitted a child support guidelines affidavit, (EN1) the
superior court apparently failed to enter an order requiring her to
pay child support.
In 1994 Seth filed a motion for child support. Luba
filed a new child support guidelines affidavit showing an adjusted
annual income of less than $2,000. However, the federal income tax
return supporting the affidavit indicated that Luba had received
Native corporation dividends totaling $41,300 in 1993. (EN2)
Therefore, the superior court calculated Luba's total income to be
$42,995 and established monthly child support payments of $716.58
in accordance with the formula set out in Civil Rule 90.3(a)(1).
In January 1995 Luba moved for a modification of the
child support order. She supported her motion with her new child
support guidelines affidavit and federal tax forms showing that her
1994 adjusted annual income was $6,708.24. Luba's Native
corporation dividends accounted for $3,685.40 of this sum. Luba
argued that based upon her 1994 income her child support obligation
would be $50 per month under Rule 90.3. Because this was a
reduction of more than fifteen percent from the current child
support order, Luba contended that her income decline constituted
a material change of circumstances justifying modification of the
support order under Civil Rule 90.3(h)(1).
The superior court denied Luba's motion to modify her
child support obligation, stating as its reason that plaintiff's
arguments in support of her motion had been "previously considered"
by the court. Luba appeals.
Luba argues that under Civil Rule 90.3(h)(1) she was
entitled to a modification of her child support based upon the
dramatic decrease in her income between 1993 and 1994. (EN3) A
child support award may be modified upon a showing of a material
change in circumstances. Alaska R. Civ. P. 90.3(h)(1). "A
material change of circumstances will be presumed if support as
calculated under this rule is more than 15 percent greater or less
than the outstanding support order." Id. Luba was required to pay
$716.58 per month in child support based upon her 1993 income of
$42,995. Child support based on Luba's 1994 income of $6,708.24
would have been more than fifteen percent lower than the amount
Seth does not dispute this evidence, but argues that the
changes in Luba's income are temporary and therefore not a sound
basis for modification of the 1994 order. We have held that
temporary changes in income are generally not a basis for
modification of child support. Patch v. Patch, 760 P.2d 526, 530
(Alaska 1988). However, Patch involved a change in occupation.
Id. We held that because the variation in income in such cases is
temporary, earlier income remains an accurate estimate of earning
capacity. Id. This case presents a different situation; the
variation in dividends paid by Luba's Native corporation stock is
likely to continue into the future. Patch therefore does not apply
to this case.
The trial court apparently reasoned that Luba's Native
corporation dividends, amounting to $41,300 in 1993, but only
$3,685 in 1994, justified the denial of Luba's motion for
modification. The trial court evidently assumed that Luba's
reduced income in 1994 was an aberration, and that her income from
1993 was characteristic of her earning ability. A review of the
record as a whole leads us to conclude that no factual basis
existed for such an assumption. To the contrary, Luba demonstrated
that her income varies widely, based upon the size of the dividends
paid by her Native corporation stock. In 1992 her total income was
only $5,388.78, including $2,793 in Native corporation dividends.
Although, she only received $3,580 in Native corporation dividends
in 1994, when her total income was $6,708.24.
Absent any evidence that the 1994 dividend was
artificially reduced, and that the 1995 dividend would be
comparable to the substantial dividend in 1993, Civil Rule
90.3(h)(1) required modification of the existing support order, and
the trial court erred by denying Luba's motion.
Given that Luba's income tends to fluctuate from year to
year based upon the amount of her Native corporation dividends,
upon remand the trial court may properly average Luba's income in
order to determine an appropriate amount of child support. We have
approved an income-averaging approach in calculating child support
where an obligor parent demonstrates an erratic or fluctuating
income. Zimin v. Zimin, 837 P.2d 118, 123 (Alaska 1992) (approving
a child support order based on income retrospectively averaged over
a three-year period). In addition, the commentary to Civil Rule
90.3 states that in cases where an obligor's income is erratic, the
trial court may choose to average the obligor's past income over a
number of years. Alaska R. Civ. P. 90.3, Commentary III.E. This
possible method reflects an understanding that a single year's
income may not be a reliable indicator of future earning potential
where an obligor's income is highly variable.
In Zimin, this court approved a retrospective averaging
of the obligor parent's income to calculate child support. Zimin,
837 P.2d at 123. Luba's income cannot be retrospectively averaged
to include the income she received in 1993 because that income has
already been the basis for child support payable under the
presumptive schedule of Civil Rule 90.3(a)(2). That year cannot
equitably be included in averaging income for subsequent years.
The court may, however, take into account income received after
1993 (EN4) to obtain a more accurate picture of the amounts Luba
normally receives, and to calculate the appropriate child support
to be paid. See Adrian v. Adrian, 838 P.2d 808, 811 (Alaska 1992)
("[T]he goal is to arrive at an income figure reflective of
economic reality. As a necessary corollary, trial courts must take
all evidence necessary to accurately accomplish this task."
In addition, it is implicit, assuming no stay was
ordered, that Luba has been required to pay substantially too much
child support since January 1995, when she filed her unsuccessful
motion for modification. "Child support arrearage may not be
modified retroactively . . . . A modification which is effective on
or after the date that a motion for modification . . . is served on
the opposing party is not considered a retroactive modification."
Alaska R. Civ. P. 90.3(h)(2). Although the plain language of the
rule applies only to arrearages, we have held that, appropriately
interpreted, this rule prohibits both retroactive decreases and
increases in child support awards prior to the date the
modification motion is served on the opposing party. Boone v.
Gipson, 920 P.2d 746, 749 (Alaska 1996) (asserting that Civil Rule
90.3(h)(2) allows the superior court to increase child support
obligations from the date the obligor parent was served with the
motion for modification); see also Epperson v. Epperson, 835 P.2d
451, 453 (Alaska 1992) (affirming the trial court's award of
increased child support beginning on the date the modification
motion was served on the obligor parent).
Since Civil Rule 90.3(h)(2) allows for child support
decreases from the time the motion for modification is served, to
the extent that any arrearages have accrued from the time Luba
filed her motion for modification to date, upon remand the trial
court should offset the amount of overpayment against the
arrearages. (EN5) Cf. Arndt v. Arndt, 777 P.2d 668, 671 (Alaska
1989) (affirming the trial court's decision to allow obligor parent
to offset voluntary contributions in excess of support obligation
against past due child support).
We REVERSE the decision of the superior court, and REMAND
for further proceedings consistent with this opinion.
1. This affidavit showed adjusted annual income of $5,388.78 in
1992, including $2,793.00 received in Native corporation dividends.
2. Luba's child support guidelines affidavit showed an annual
adjusted income of $1,530.62. Luba's federal tax return reported
adjusted gross income of $1,695. The superior court used the
higher figure to calculate Luba's monthly child support obligation.
The trial court failed to deduct social security taxes from Luba's
gross annual income.
3. We generally review a trial court's decision on a motion to
modify child support for an abuse of discretion. Karpuleon v.
Karpuleon, 881 P.2d 318, 320 n.3 (Alaska 1994).
4. David was born on March 20, 1978, and reached the age of
majority on March 20, 1996. Thus, the trial court may only need to
consider Luba's income from 1994 to mid-1996, depending upon when
the child support obligation ceased.
5. In September 1995 Seth filed a Motion for Entry of Judgment
against Luba, alleging that she owes $9,566.89 for child support
arrearages based upon the 1993 child support order. Seth alleges
that Luba has not voluntarily paid any child support since that
order was entered. Seth further contends that the Child Support
Enforcement Division currently garnishes approximately one hundred
dollars per month from Luba's wages for child support.