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Robinson v. Robinson (2/6/98), 953 P 2d 880


     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


JIM L. ROBINSON a/k/a         )
KENNETH HARVEY ROBERTSON,     )    Supreme Court No. S-7532
                              )
             Appellant,       )    Superior Court No.
                              )    3AN-91-098460 DR
     v.                       )
                              )    O P I N I O N
CHARLOTTE A. ROBINSON,        )
                              )    [No. 4944 - February 6, 1998]
             Appellee.        )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                     Rene J. Gonzalez, Judge.


          Appearances: Jim L. Robinson, pro se,
Anchorage.  No appearance for Charlotte A. Robinson.


          Before:  Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.  


          EASTAUGH, Justice.


I.   INTRODUCTION 
          Jim and Charlotte Robinson's divorce decree and child
support order incorporated Jim's agreement to pay child support 
exceeding the amount Civil Rule 90.3 required.  At the time, Jim
was unemployed, had no income, had been charged with six felonies,
and had filed for bankruptcy.  Following conviction and again after
incarceration, Jim moved for a reduction of child support, alleging
material changes of circumstances under Civil Rule 90.3(h)(1).  The
superior court denied the motions.  We reverse and remand for fact
findings regarding the parties' expectations and assumptions when
they agreed to deviate from Rule 90.3.
II.  FACTS AND PROCEEDINGS 
          Jim and Charlotte Robinson married in 1982.  They have
one child, born in 1987.  They separated in 1991.
          Shortly before their March 1993 divorce trial was to
begin, Jim and Charlotte entered into a "Parenting and Property
Agreement"which required Jim to pay child support of $300 monthly
beginning in April 1993, and $900 monthly beginning in July "or
. . . an amount in accordance with Civil Rule 90.3, whichever is
greater."[Fn. 1]  In March 1993 the court incorporated these terms
into the divorce decree and the child support order.  The order
specified that child support was not calculated using the Rule 90.3
formula, and stated that "the reason for the variation is: Payor
spouse is unemployed but has agreed to amount greater than that
provided for under 90.3."  The record contains no contemporaneous
discussion of the parties' reasons for agreeing to child support
exceeding the minimum required by Rule 90.3, or their understanding
about the potential effect of any future changes in Jim's
circumstances.  The court did not inquire into these topics or make
findings on them.  It awarded Charlotte sole legal and physical
custody of the child.
          Jim faced a variety of vicissitudes when he agreed to pay
child support of $900 per month.  He was unemployed and apparently
without other sources of income.  He had filed bankruptcy petitions
in 1991 for himself and his solely-owned corporation.  He had been
charged with six felonies relating to a scheme to defraud Exxon
Company, U.S.A.  He was out of jail on bail and awaiting trial on
those charges when he entered into the agreement.  His bail was
conditioned on twenty-four hour third-party supervision.  He later
claimed that this condition kept him from working.
          In March 1994 Jim pled no contest to one count of
scheming to defraud Exxon.  The restrictive bail conditions
continued pending sentencing.  Exxon obtained a nondischargeable
federal civil judgment against Jim in December 1994 of more than
$500,000.  In February 1995 the superior court sentenced Jim to
eight years in prison, with four years suspended, fined him
$50,000, and ordered him to pay Exxon nearly $200,000 in
restitution.  Jim began serving his sentence on February 27, 1995. 
          Beginning in May 1994, Jim filed three motions to reduce
his child support obligation, claiming material changes of
circumstances; the court denied the first motion in August 1994,
but apparently never ruled on the second. [Fn. 2]  In May 1995
after he began serving his sentence, Jim filed his third motion,
which relied on his imprisonment.  At the request of the superior
court, Master Lucinda McBurney conducted an evidentiary hearing in
July 1995 regarding Jim's third motion.  The master's initial
report, issued in October, noted that the allegations in Jim's
first two motions did not support a finding of material change of
circumstances.  Those motions alleged that he was bankrupt and was
unable to work as a result of restrictive release conditions,
circumstances that predated the agreement.  The initial report,
however, also concluded that even if Jim was not imprisoned for the
full four years, the period of incarceration was substantial enough
to be considered permanent for purposes of a motion to modify child
support.  The master therefore recommended reducing child support
to $50 per month, effective as of the date of incarceration,
February 27, 1995.
          The master held this initial report in abeyance, however,
upon learning that Jim might be released from confinement in
December 1995.  Jim was released on parole in late December.
Shortly before Jim's release, the master issued amended
recommendations.  They concluded that because Jim "had only [been]
incarcerated for eight months,"[Fn. 3] there had been no material
change of circumstances justifying a reduction in child support. 
The amended recommendations also noted that Jim had "agreed to the
amount of child support ordered in the divorce when he was in third
party custody and knew he was facing prosecution and possible
imprisonment."
          While on parole, Jim was "subject to geographical and
curfew restrictions"for one year.  He obtained employment at $8 an
hour.  As of early 1996, he owed approximately $30,000 in child
support arrearages. 
          In January 1996 the superior court approved the master's
amended recommendations and denied Jim's third modification motion.
Jim appeals.
III. DISCUSSION 
     A.   Material Change of Circumstances
          Jim argues that the superior court erred: (1) by
approving the master's amended recommendations and denying Jim's
motion; (2) by failing to reduce child support to $50 per month
while Jim was on bail or incarcerated (between February 1993 and
late December 1995); (3) by failing to reduce child support to $256
beginning January 1, 1996; (4) by failing to hold an evidentiary
hearing before approving the master's amended recommendations; and
(5) by failing to stay collection by the Child Support Enforcement
Division (CSED) until we decide this appeal. [Fn. 4]
          The superior court, by approving the master's amended
recommendations, apparently concluded that Jim had not experienced
a permanent, material change of circumstances.  Jim contends that
the following were material changes of circumstances: (1) bail
condition of twenty-four hour third-party supervision; (2) personal
and corporate bankruptcy and Exxon's $500,000 judgment against him;
(3) incarceration; and (4) return to employment at a greatly
reduced income. [Fn. 5] 
          A final order awarding child support may be prospectively
modified "upon a showing of a material change of circumstances." 
Alaska R. Civ. P. 90.3(h)(1).  This rule "provides an exception to
the general principle that final judgments should not be
disturbed."  Bunn v. House, 934 P.2d 753, 757 (Alaska 1997).  "A
party should not be allowed to relitigate the same facts in the
hope of gaining a more favorable result.  There must be a material
change of circumstances before a support order can be modified." 
Id.  Temporary changes in income are generally not a basis for
modifying child support.  See Yerrington v. Yerrington, 933 P.2d
555, 557 (Alaska 1997); Patch v. Patch, 760 P.2d 526, 530 (Alaska
1988).
          When child support is awarded in accordance with Rule
90.3, the main variable is normally the obligor's adjusted annual
income, and resolution of a modification motion is relatively
straightforward.  But when the court awards support based on the
parties' agreement for support exceeding that required under Rule
90.3, the agreement complicates resolution of a modification
motion.  The agreement is essentially a contract.  See Aga v. Aga,
941 P.2d 1260, 1262 (Alaska 1997); Dewey v. Dewey, 886 P.2d 623,
625 (Alaska 1994).  An agreement for child support cannot prevent
modification, because the parties may not waive the application of
Rule 90.3.  Aga, 941 P.2d at 1262.  Nonetheless, a final order
incorporating the agreement should not be modified just because one
of the parties decides their bargain was improvident.  "The
principle of finality is a sound one."  Bunn, 934 P.2d at 757. 
Otherwise such an order would be subject to immediate modification
on the ground that the obligor's actual adjusted annual income is
less than the required income if the applicable Rule 90.3
percentage were applied. [Fn. 6]
          In agreeing to entry of an order for support exceeding
that required under Rule 90.3, parties may reach a bargained-for
result based on their understanding of the circumstances when they
enter into their agreement and their anticipation of contingent
future events.  For example, parties may realize that the obligor's
income is presently insufficient to justify the amount awarded, but
will likely increase enough to discharge any accumulating
arrearage. 
          Consequently, it is necessary in such a case to determine
what circumstances caused the parties to agree to enhanced support. 
Those circumstances are the baseline which must be compared with
the circumstances that allegedly justify modification.  If, for
example, a party agrees to enhanced support despite having no
realistic prospects of achieving income sufficient to satisfy the
award (and pay arrearages), an assertion that the party has not
realized the required income level does not raise a genuine claim
of changed circumstances; the motion is actually an attack on the
original order and the agreement underlying it. 
          This case illustrates the difficulties that can result
when an order that approves child support exceeding the minimum
required by Rule 90.3 does not explain what justified the variation
and contains no findings satisfying Rule 90.3(c)(1). [Fn. 7]
          When the parties agreed upon child support and the court
entered the support order and the divorce decree, Jim faced
multiple felony charges and was free on bail conditions that
restricted or prevented employment, was unemployed, and was in
bankruptcy.  The agreement divulges no income source whatever, let
alone income warranting monthly child support of $900.  It is
silent about any circumstances warranting that award. [Fn. 8]  It
does not discuss why the parties deviated from the Rule 90.3
guidelines. [Fn. 9]  Nor does it discuss whether possible future
events -- such as incarceration, imposition of civil liability or
criminal restitution, or continuation of restrictive bail
conditions -- would affect Jim's ability and obligation to pay the
child support ordered.  Because Jim had already been charged
criminally and released on restrictive bail conditions, the parties
may have recognized that Jim had no immediate prospects for earning
income sufficient to satisfy the support order.  They also may have
contemplated the possibility that Jim might be incarcerated for
many months. [Fn. 10]
          The support order contains no finding of good cause for
awarding $900 monthly rather than the $50 minimum seemingly
appropriate under Rule 90.3(c)(1)(B).  It does not specify the
reason for the variation.  Rule 90.3(c)(1) permits the court to
vary a child support award as calculated under Rule 90.3 for "good
cause upon proof by clear and convincing evidence that manifest
injustice would result if the award were not varied.  The court
must specify in writing the reason for the variation, the amount of
support which would have required but for the variation . . . ." 
Alaska R. Civ. P. 90.3(c)(1). 
          If there is a large relative and absolute disparity
between the minimum amount required under the rule and the amount
agreed upon, it is particularly important for the parties to
articulate their reasons for the variation, and for the court to
follow Rule 90.3(c)(1).  Even assuming that an agreement to pay
more child support than Rule 90.3 requires is of less public
concern than an agreement to pay less child support than the rule
requires, see Flannery v. Flannery, __ P.2d __, Op. No. 4922 at 7-9
(Alaska, December 19, 1997), it is still important for courts to
explain their reasons for departing from Rule 90.3 because motions
alleging changed circumstances as grounds to increase or reduce
child support are not infrequent.  If the parties have agreed upon
more support than Rule 90.3 requires, the superior court, in
assessing the claim of changed circumstances, may have to determine
what circumstances and assumptions motivated the parties' original
agreement.  Id. at 10-12.   If the contracting parties anticipated
contingent future events that, had they been unexpected, would have
constituted a material change in circumstances, it can be argued
that they bargained for the obligor's undertaking, and that the
court should enforce the bargain.
          To assist the trial court in the first instance and this
court on review to decide whether there has been a material change
in circumstances, parties agreeing upon support exceeding that
required by Rule 90.3 should express their understanding of the
relevant material circumstances.  Rule 90.3(c)(1) requires an
equivalent showing.  Likewise, the superior court should determine
the basis for the contract, when first approving the agreement or
when considering a modification motion that asserts changed
circumstances. 
          The master here made no express findings about the
parties' expectations when Jim moved to modify the support order,
but noted that the circumstances that occasioned Jim's first two
motions predated the 1993 divorce decree.  Of the three
circumstances on which Jim relied in his three motions to modify,
the only circumstance that changed after the court entered the
support order and the divorce decree in 1993 was Jim's
incarceration in 1995.  (His bankruptcy and restrictive release
conditions were unchanged.)  Although the parties may have expected
his incarceration, Jim was not convicted until 1994.  Based on the
record, we cannot say as a matter of law that relief must be denied
on the ground that the contingency of incarceration, and the risk
it would affect Jim's earning capacity, was part of the parties'
1993 bargain.  
          Although the master initially concluded that Jim's
incarceration was a permanent change of circumstances, her amended
recommendations implied that the change was too short to be
"permanent."  Absent any indication otherwise, the order approving
the master's amended recommendations and denying Jim's motion must
be taken as having adopted the master's apparent reasons for
denial.
          The superior court erred in applying the "temporary"
versus "permanent"change of circumstances analysis -- used when
the obligor has lost or changed jobs -- to the length of Jim's
imprisonment for purposes of determining whether support should be
reduced.  Cf. Patch, 760 P.2d at 529-30 (trial court appropriately
did not modify child support based on temporary change in obligor's
income).  When he filed his third motion, in May 1995, Jim had
begun serving his sentence of four years.  He was not granted
parole until October 1995 and was not released until December.  At
the time he filed his third motion, his incarceration was
sufficiently "permanent"to justify modification as long as the
change was material. [Fn. 11]
          Jim's imprisonment was a significant change in his
personal circumstances.  It is less obvious whether that change is
legally material.  In 1993 Jim had no identified income, was
unemployed, and was subject to restrictive bail conditions that
allegedly kept him from working.  His income and earning capacity
did not change before he made his third motion; apparently he had
none in 1993 and none in 1995.  If incarceration did not affect
Jim's earning capacity or income, it was arguably not a material
change.  We cannot say as a matter of law that Jim's incarceration
was material.  That question turns on what circumstances the
parties contemplated when they entered into their agreement, and on
whether incarceration actually reduced Jim's anticipated income or
earning capacity.
          Jim also argues that his obligation should have been
reduced to the $50 per month minimum required by Rule 90.3 during
the two years he was subject to constant third-party supervision
and during the ten months he was in prison.  The period when he was
subject to third-party supervision predated Jim's third motion.  He
cannot obtain retroactive modification of the 1993 child support
order.  See supra note 11.  Moreover, that condition predated the
support order.
          For these reasons, we remand for fact findings regarding
the parties' assumptions underlying the 1993 agreement, and for
reconsideration of Jim's claim of changed circumstances. [Fn. 12] 
     B.   The Applicability of the "Fifteen Percent Rule" 
          Jim also argues that he is entitled to the benefit of the
presumption found in Rule 90.3(h)(1), which states in part: "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."  On remand, the superior court
will again confront this issue. 
          Jim contends that because of the constraints of his
parole conditions, the only job he could find after his release in
December 1995 paid $8 per hour. [Fn. 13]  He argues that child
support should be $256 per month under the Rule 90.3 schedule. 
Because this amount is more than fifteen percent less than the
amount the present support order requires, he argues that he is
entitled to the presumption of a material change of circumstances. 
          We have recently noted that the "fifteen percent rule"
does not apply if an obligor initially agreed to pay an amount in
excess of that minimally required under Rule 90.3(a), or if the
court ordered an additional award under Rule 90.3(c)(2).  Aga, 941
P.2d at 1263 n.6; see also Flannery, Op. No. 4922 at 13.  As we
explained in Flannery:
          If the presumption were available in such a
case, an obligor who agreed to pay child support more than 15%
greater than the support required by Rule 90.3, could seek a
modification immediately after signing the agreement, arguing that
the 15% presumption had been triggered.  Likewise, the presumption
would immediately arise in any case in which a court ordered
additional payments under Rule 90.3(c)(2).  

Id. 
          Jim's case highlights the troublesome consequences of
applying the presumption if the initial award exceeds the
requirements of Rule 90.3 and there is no indication how or why the
parties agreed to such an award.  The agreement is silent about
their expectations regarding any source for support of $900 per
month.  Under these circumstances, any job would both increase
Jim's income from $0, and provide a theoretical basis for reducing
child support if the presumption applied. 
          As we stated in Bunn, "'[t]he 15% rule' is a rule of
materiality, not a definition of what constitutes a change of
circumstances.  There must be a change of circumstances, either
factual or legal."  934 P.2d at 758.  
          The rule can be used to demonstrate materiality, but the
court cannot compare the amount the obligor agreed to pay and what
the rule minimally requires.  Instead, it must compare the amount
the obligor agreed to pay and the amount the agreement would
require after the change in circumstances in light of the parties'
contracting intentions and expectations.  
          For example, one can imagine a case in which the only
change is a reduction in the obligor's adjusted income, and the
parties have specified child support equal to the product of the
pertinent percentage from Rule 90.3(a)(2) and the obligor's
uncapped income. [Fn. 14]  The equivalent calculation (multiplying
the obligor's uncapped changed income by the pertinent percentage)
yields the support the parties presumptively would have specified
had that been the obligor's income when they entered into their
agreement. [Fn. 15]  Flannery, Op. No. 4922 at 13-14.  If the
support so calculated is more than fifteen percent less than the
agreed-upon support, materiality exists for purposes of seeking
modification. [Fn. 16] 
          The "fifteen percent rule"does not apply in this case in
the way Jim claims. It simply provides a useful threshold for
distinguishing between material and immaterial changes.  This case
turns not on the fifteen percent standard, but on the circumstances
to be compared in deciding whether a material change has occurred.
IV.  CONCLUSION 
          We accordingly REVERSE and REMAND for fact findings
consistent with this opinion.


                            FOOTNOTES


Footnote 1:

     The agreement recited that each party had the advice of
independent counsel and had entered into the agreement voluntarily. 


Footnote 2:

     Charlotte opposed each motion, arguing that Jim knew when he
signed the agreement that he had no employment and was on
restrictive release, that Jim continued to spend money on himself
but had not paid even $50 monthly in child support, and that he
could have been released on less-restrictive conditions had he been
genuinely interested in employment.  She did not file a brief on
appeal.


Footnote 3:

     Jim had actually served ten months when he was released.  


Footnote 4:

     We review orders granting or denying modification of child
support orders for abuse of discretion.  Yerrington v. Yerrington,
933 P.2d 555, 557 n.3 (Alaska 1997); Patch v. Patch, 760 P.2d 526,
529 (Alaska 1988).  We will find an abuse of discretion only if
"the record as a whole [leaves us] with a 'definite and firm
conviction that a mistake has been made.'"  Richmond v. Richmond,
779 P.2d 1211, 1216 (Alaska 1989) (quoting Hunt v. Hunt, 698 P.2d
1168, 1172 (Alaska 1985)).  "Findings of fact shall not be set
aside unless clearly erroneous."  Alaska R. Civ. P. 52(a); see
Bergstrom v. Lindback, 779 P.2d 1235, 1237 (Alaska 1989).


Footnote 5:

     Jim appeals from the January 1996 order denying his motion and
approving the master's amended recommendations, but his appeal also
argues the grounds raised in his first motion (denied July 1994)
and his second motion (which was never decided).  He did not file
an appeal from the July 1994 order denying his first motion.  Even
though the court did not expressly rule on the second motion, that
motion asserted the same grounds for relief as the first motion. 
We must therefore deem it denied as of the date made (under the law
of the case doctrine) or deem it an untimely motion for
reconsideration.  We therefore limit our consideration to the order
denying the third motion.  This affects the effective date of any
relief.  As we will see, however, circumstances relating to the
first two motions continue to have some bearing on our analysis. 
No possible error in entering the 1993 order is before us.


Footnote 6:

     A court normally would not order support of $900 per month for
one child under Rule 90.3(a)(2)(A) unless the obligor's adjusted
annual income were $54,000.


Footnote 7:

     Civil Rule 90.3(c)(1) provides in pertinent part:

          The court may vary the child support award as
calculated under the other provisions of this rule for good cause
upon proof by clear and convincing evidence that manifest injustice
would result if the support award were not varied.  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 this rule.   Good cause
may include a finding:

               . . . .

               (B)  . . . that the parent with the child
support obligation has a gross income which is below the poverty
level as set forth in the Federal Register.  However, a parent who
would be required to pay child support . . . must be ordered to pay
a minimum child support amount of no less than $50.00 per month .
. . .


Footnote 8:

     The master later noted that Charlotte and participants in the
bankruptcy case suspected that Jim has undisclosed assets, a
suspicion the master characterized as "not unfounded."  If that
suspicion were valid, it might explain why Jim and Charlotte would
agree to support payments of $900 per month without revealing to
the superior court (or the bankruptcy creditors) that Jim's assets
permitted him to pay the agreed-upon support, even though he was
not employed.  


Footnote 9:

     The record contains no evidence supporting Jim's contention on
appeal that he agreed to $900 per month under duress and coercion.


Footnote 10:

     An expectation that Jim would soon be able to work might
account for the parties' agreement.  If that was their
understanding, Jim should have sought modification as soon as that
contingency failed, and should then have appealed from any denial
of relief on that ground.  By the time he filed his third motion,
Jim was incarcerated; his pre-incarceration release conditions are
consequently irrelevant.  


Footnote 11:

     A support order may not be retroactively modified.  Alaska R.
Civ. P. 90.3(h)(2).  Any relief to which Jim is entitled on remand
may not predate his May 1995 motion.  His prior motions are not
before us.


Footnote 12:

     Jim also argues that the superior court abused its discretion
by not holding an evidentiary hearing before approving the master's
recommendation.  Our remand on the change of circumstances issue
moots any objection to the adequacy of the proceedings.  We note,
however, that a hearing is not required for child support disputes
when there is no genuine issue of material fact before the court. 
See Turinsky v. Long, 910 P.2d 590, 594 (Alaska 1996).  The
superior court could properly rely on the hearing conducted and the
facts gathered by the master, as long as her findings decided the
issues in dispute. 

          Jim also argues that the superior court abused its
discretion by not staying collection by CSED until this court
decided his appeal.  Where there is no showing of irreparable harm
or of a probability of success on the merits, the superior court
does not abuse its discretion in denying a stay.  Keane v. Local
Boundary Comm'n, 893 P.2d 1239, 1250 (Alaska 1995).  It also
appears that CSED was not a party below.  (It is not a party in
this court.)


Footnote 13:

     We note, however, that the master indicated that the
geographical and curfew restrictions on his parole would last for
only one year after his release.


Footnote 14:

     The percentages and guidelines set forth in Rule 90.3(a) and
(b) "do not apply to the extent that the parent has an adjusted
annual income of over $72,000."  Alaska R. Civ. P. 90.3(c)(2).  A
court may, however, approve a support agreement that includes
income above this $72,000 "cap""only if it is just and proper,
taking into account the needs of the children, the standard of
living of the children and the extent to which that standard should
be reflective of the supporting parent's ability to pay."  Alaska
R. Civ. P. 90.3(c)(2).  


Footnote 15:

     For example, an obligor with one child and an annual income of
$100,000 might agree to a child support award of twenty percent of
his or her income ($20,000).  If the obligor's annual income
subsequently dropped to $80,000, the child support obligation would
drop to $16,000.  This would constitute a presumptive material
change in circumstances under the "fifteen percent rule,"because
the reduction would exceed fifteen percent of the agreed-upon
support.  To give effect to the parties' agreement, the obligor
would be entitled to relief but would nonetheless be required to
pay support based on his or her total income, including that
exceeding the $72,000 "cap."  For purposes of applying the fifteen
percent rule, the court would compare twenty percent of $100,000
and twenty percent of $80,000, not twenty percent of $100,000 and
twenty percent of $72,000.  


Footnote 16:

     More complicated situations will require preliminary
application of the Curley test to determine materiality.  See
Curley v. Curley, 588 P.2d 289, 292 (Alaska 1979).  Courts applying
this test consider the children's needs, and both parents'
financial needs and abilities, in determining whether to reduce one
parent's support obligation.  See id.  The materiality test
minimizes judicial tinkering with support obligations absent a
showing that a substantial change in amount will result if the
motion succeeds.  The test serves interests of judicial economy and
repose.