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Marine v. Marine (4/24/98), 957 P 2d 314


     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
                                 

RALPH J. MARINE,              )
                              )    Supreme Court No. S-7738
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-95-2554 CI
                              )
VALERIE D. MARINE,            )    O P I N I O N
                              )
             Appellee.        )    [No. 4976 - April 24, 1998]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                      Mary E. Greene, Judge.


          Appearances: Bonnie J. Coghlan, Fairbanks, for
Appellant.  John Foster Wallace, Call, Barrett & Burbank,
Fairbanks, for Appellee.


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


          FABE, Justice.


I.   INTRODUCTION
          Ralph J. Marine appeals the superior court's award of
child support to Valerie D. Marine under Alaska Civil Rule
90.3(b)(2).  He claims that the superior court's only authority to
vary the shared custody formula used in calculating an award of
child support is provided by Rule 90.3(c)(1), which requires a
showing of good cause upon proof by clear and convincing evidence. 
He asserts that Valerie failed to meet this burden and that the
superior court's variance of the shared custody percentages was an
abuse of discretion.  Rule 90.3(b)(2), however, expressly permits
the superior court to vary the shared custody formula upon a
finding that the percentage of time each parent will have physical
custody will not accurately reflect the amount each parent will
spend on supporting the children.  The superior court made factual
findings consistent with the appropriate legal standard.  We
therefore affirm its award of child support. 
II.  FACTS AND PROCEEDINGS
          Valerie and Ralph were married in 1987.  They had two
children together:  Drew, born in May 1988, and Beau, born in
December 1989.  The parties filed for divorce in November 1995.  In
December 1995 the court entered a decree of dissolution and a child
custody and support order incorporating a detailed custody and
visitation schedule submitted jointly by the parties.  The court
granted shared legal custody of both children to Valerie and Ralph
and primary physical custody to Valerie.  The court also required
Ralph to pay Valerie $370.40 per month in child support.  This
amount was calculated under the guidelines for sole or primary
physical custody in Rule 90.3(a). [Fn. 1]
          In February 1996 Ralph filed a motion to recalculate
child support based upon the guidelines in Rule 90.3(b) [Fn. 2] for
shared custody. [Fn. 3]  Ralph suggested that applying the shared
custody formula under Rule 90.3(b) to the same income figures
originally used by the court would result in a child support award
to him of $52.64. Valerie agreed that the shared custody guidelines
of Rule 90.3(b) applied, but disapproved of Ralph's calculation of
the award amount.  She asked the court to hold an evidentiary
hearing to determine the amounts each parent spends to support the
children and to vary the support calculation to reflect this
spending pursuant to Rule 90.3(b)(2).
          The superior court held a hearing in April 1996 to
determine whether the child support award should be recalculated. 
Ralph conceded that he had not fully paid the child support due for
the four months preceding the hearing and had failed to contribute
his half of the insurance and medical bills as required by the
December order. [Fn. 4]  Both Ralph and Valerie testified and
presented evidence documenting their respective incomes and
anticipated child support expenditures.
          In May 1996 the superior court issued a new child support
order.  The court found that it had erred in calculating the child
support award pursuant to Rule 90.3(a), rather than Rule 90.3(b).
The court set aside the original child custody and support order
pursuant to its authority under Rule 60(b)(1) to relieve a party
from an order due to a mistake.
          The court found that although Valerie and Ralph actually
had custody 60 percent and 40 percent of the time respectively,
these percentages did not reflect the amounts each would spend to
support the children.  The court then recalculated the child
support award under Rule 90.3(b) using the new percentages and
ordered Ralph to pay Valerie $212.63 per month.  Ralph appeals.
III. DISCUSSION
     A.   Standard of Review
          Courts must follow the legal standards set forth in Rule
90.3 in determining awards of child support.  Whether the trial
court applied the correct legal standard in making its child
support determination is a question of law we review de novo.  See
Sanders v. Sanders, 902 P.2d 310, 313 (Alaska 1995) (citing Lantz
v. Lantz, 845 P.2d 429, 431 n.1 (Alaska 1993)).   The trial court's
factual findings are reviewed under the clearly erroneous standard
and are not set aside unless, after reviewing the record as a
whole, this court is left with "a definite and firm conviction that
a mistake has been made."  Nass v. Seaton, 904 P.2d 412, 414
(Alaska 1995) (citations omitted).
     B.   Rule 90.3(b)(2) Authorizes the Superior Court to Vary the
Percentages Used to Calculate the Support Award to Reflect Actual
and Anticipated Expenditures.

          Ralph disputes the superior court's decision to vary the
percentages used to calculate the support award to reflect actual
and anticipated expenditures.  He contends that the superior
court's only authority to vary the custody percentages is provided
by Rule 90.3(c)(1), requiring a showing of "good cause upon proof
by clear and convincing evidence that manifest injustice would
result if the support award were not varied."  Valerie contends
that the court correctly varied the percentages used in calculating
the support award under its authority provided by Rule 90.3(b)(2). 
We agree.
          The pertinent language of Rule 90.3 is unambiguous. 
Section (b) of the rule calculates child support based upon the
income of the parties and the percentage of time each has custody
of the children.  Rule 90.3(b)(2) states that "if the court finds
that the percentage of time each parent will have physical custody
will not accurately reflect the ratio of funds each parent will
directly spend on supporting the children, the court shall vary
this percentage to reflect its findings."  The commentary to Rule
90.3 clarifies the rule's purpose by stating that the "calculation
[based on the custody percentages] assumes that the parents are
sharing expenses in roughly the same proportion as they are sharing
custody.  If this assumption is not true, the court should make an
appropriate adjustment in the calculation."  Alaska R. Civ. P. 90.3
commentary V.B. [Fn. 5]
          Rule 90.3(c)(1), on the other hand, states that "[t]he
court may vary the child support award as calculated under the
other provisions of this rule for good cause . . . ."(Emphasis
added.)  Ralph's argument that Rule 90.3(c)(1) provides the only
authority for the court to vary the percentages ignores the
existence of Rule 90.3(b)(2) and is inconsistent with the structure
of Rule 90.3.  Section (c) of Rule 90.3 details "exceptions"to the
methods of calculating awards in Rule 90.3(a) and 90.3(b).  Because
Rule 90.3(b)(2) provides independent authority to vary the custody
percentages, resorting to the exceptions contained in Rule
90.3(c)(1) is unnecessary.  To find otherwise would violate the
basic principle of statutory construction that "militate[s] against
interpreting a statute or rule in a manner that renders other
provisions meaningless."  M.R.S. v. State, 897 P.2d 63, 66 (Alaska
1995).
          We conclude that Rule 90.3(b)(2) permits the trial court
to undertake a prospective analysis of each parent's anticipated
child care expenses in relation to the percentage of time each will
have custody.  Therefore, the superior court correctly relied upon
Rule 90.3(b)(2) in varying the percentages used to calculate the
support award to reflect actual and anticipated expenditures. 
     C.   The Superior Court's Factual Findings under Rule
90.3(b)(2) Were Not Clearly Erroneous.
     
          Ralph contends that the factual findings underpinning the
trial court's decision to vary the percentages used in the
calculation of child support "are inadequately supported by the
evidence."  Ralph also argues that he "lacks the means of even
providing a home"for visitation because his child support
obligation was excessive under the first, miscalculated order.
          After a careful review of the record, including the oral
testimony elicited at the hearing, we conclude that the trial
court's factual findings under Rule 90.3(b)(2) were not clearly
erroneous.  The superior court's child support order reads, in
part:
               The amount[s] spent to provide care for
the children by each parent are very disparate.  Mr. Marine has
lived almost rent free.[]  He has paid no utilities.  He has bought
a few groceries.  He has no child care expense[s].  He has paid $10
toward school lunches for the children and has furnished Friday
snacks sometimes.  He has purchased a few books for them.  He has
not bought any clothing for the children.  He has paid no medical
expenses or insurance expense[s].  He provides money for recreation
when the children are with him and has given the children a dollar
now and then.

               Ms. Marine pays child care expenses of
between $125-$200 [a] month.  She pays $700 a month rent and also
utilities.[] She pays $300 a month for groceries beyond the amount
contributed by her boyfriend.  She almost always pays for school
lunches.  She does over 50% of the laundry for the children.  She
has purchased books for the children and some clothing.  She has
paid all costs of insurance.

               The court finds that Ms. Marine provides
more than 60% of the children's expenses.  The precise amount is
hard to quantify because the parties[] provided little hard
information.  However, based on the limited figures available, the
court finds that Ms. Marine pays approximately 73% of the
children's expenses and Mr. Marine pays approximately 27%.

          Rule 90.3(b)(2) requires the trial court to evaluate "the
ratio of funds each parent will directly spend on supporting the
children . . . ."  (Emphasis added.)  The rule thus requires a
prospective finding.  
          We recognize, however, that it would be impossible to
evaluate future child support expenses without some reference to
past conduct.  In this case, the trial court found that Ralph
contributed less than 40 percent of the total expenses in the past,
and Ralph has not pointed to any facts contradicting the superior
court's findings.  The court did not err in relying on Ralph's past
conduct to conclude that Ralph would be likely to contribute less
than 40 percent of the expenses in the future. [Fn. 6]
          Moreover, it is apparent from the record that the
superior court's evaluation of the evidence presented was not
merely retrospective.  In fact, Ralph was questioned about his
possibilities for future employment, prospective housing
opportunities, child care expenses for the coming summer, and
anticipated tax refunds and supplemental income.  This evidence
reveals little likelihood that Ralph's financial situation would
change.
          Based on all of the evidence, both historic and
prospective, we conclude that the trial court's decision to vary
the percentages used in the calculation of child support was not
clearly erroneous. [Fn. 7]  
IV.  CONCLUSION
          Alaska Civil Rule 90.3(b)(2) permits the superior court
to vary the percentages used in calculating an award of child
support upon a finding that the percentage of time each parent will
have physical custody will not correspond to the percentage of the
children's total expenses that each parent will directly pay.  In
calculating the child support award at issue, the superior court
made factual findings that were consistent with this legal
standard.  We therefore AFFIRM the superior court's award of child
support.


                            FOOTNOTES


Footnote 1:

     Civil Rule 90.3(a) provides in relevant part:

               A child support award in a case in which
one parent is awarded sole or primary physical custody . . . will
be calculated as an amount equal to the adjusted annual income of
the non-custodial parent multiplied by a percentage specified in
subparagraph (a)(2).

               . . . .

               (2)  The percentage by which the non-
          custodial parent's adjusted income must be
multiplied in order to calculate the child support award is:

               (A)  20% (.20) for one child;

               (B)  27% (.27) for two children;

               (C)  33% (.33) for three children; and

               (D)  an extra 3% (.03) for each
additional child.


Footnote 2:

     Civil Rule 90.3(b) provides in relevant part:

               A child support award in a case in which
the parents are awarded shared physical custody . . . will be
calculated by:

               (1)  Calculating the annual amount each
parent would pay to the other parent under [Rule 90.3(a)] assuming
the other parent had primary custody.

               (2)  Multiplying this amount for each
parent by the percentage of time the other parent will have
physical custody of the children.  However, if the court finds that
the percentage of time each parent will have physical custody will
not accurately reflect the ratio of funds each parent will directly
spend on supporting the children, the court shall vary this
percentage to reflect its findings.

               (3)  The parent with the larger figure
calculated in the preceding subparagraph is the obligor parent and
the annual award is equal to the difference between the two figures
multiplied by 1.5.


Footnote 3:

     "'Shared custody' as used in 90.3 has no relation to whether
a court has awarded sole or joint legal custody."  Alaska R. Civ.
P. 90.3 commentary V.A.  Although the court's order specified that
Valerie had "primary physical custody"of the children, the order
also included the parties' agreement that the children would reside
with Ralph approximately 40 percent of the time.  Under Rule
90.3(f), if the children reside with the non-custodial parent at
least 30 percent of the year, the parents have shared physical
custody.  The parties agree that they have shared physical custody
pursuant to Rule 90.3(f). 


Footnote 4:

     Of the $1,480 due, Ralph contributed $300, consisting of two
equal payments of $150.


Footnote 5:

     The commentary, prepared by the Child Support Guidelines
Committee, has not been adopted or approved by this court. See
Eagley v. Eagley, 849 P.2d 777, 779 (Alaska 1993).  "Nonetheless,
this court often relies upon the commentary for guidance in child
support matters."  Bunn v. House, 934 P.2d 753, 755 n.7 (Alaska
1997) (citing Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992)
and Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991)).


Footnote 6:

     Nor has Ralph shown that he would have contributed more toward
his children's expenses had the original child support award been
correctly calculated.  Although he testified that in the future he
would only be willing to pay $150 toward child support, the
superior court actually credited him with a contribution of $237 in
arriving at the 73%/27% ratio.


Footnote 7:

     Although the child support payment originally ordered by the
trial court was too high, Ralph's contention that the court should
have adjusted his anticipated child support expenses to reflect an
overpayment lacks merit because Ralph only paid $300 of the $1,480
that was due during the four months preceding the hearing.  We also
reject Ralph's argument that the superior court's award was unjust
because of his "impoverished condition."  The superior court
followed the Rule 90.3(b) guidelines, which account for a parent's
reduced financial circumstances by using his or her income to
determine the support due.  Ralph's arguments about the general
unfairness of the award are unrelated to any specific error of the
superior court.