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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Scully v.Scully (9/10/99) sp-5175

Scully v.Scully (9/10/99) sp-5175

     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
                                 

GEOBY BULAWAN SUAN SCULLY,    )
                              )    Supreme Court No. S-8548
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-89-7699 CI
                              )
RAYE SCULLY,                  )    O P I N I O N
                              )
             Appellee.        )    [No. 5175 - September 10, 1999]
______________________________)
                              )
STATE OF ALASKA, DEPARTMENT   )
OF REVENUE, CHILD SUPPORT     )    Supreme Court No. S-8734
ENFORCEMENT DIVISION,         )
                              )    Superior Court No.
             Appellant,       )    3KO-91-190 CI
                              )
     v.                       )
                              )
JEFFREY VELTRI,               )
                              )
             Appellee.        )
______________________________)




          Appeal in File No. S-8548 from the Superior
Court of the State of Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.  Appeal in File No. S-8734 from the
Superior Court of the State of Alaska, Third Judicial District,
Kodiak, Donald D. Hopwood, Judge.


          Appearances: Michelle V. Minor and Andrew M.
Lebo, Anchorage, for Appellant Scully.  R. Scott Taylor, Rice,
Volland & Taylor, P.C., Anchorage, for Appellee Scully.  Diane L.
Wendlandt, Assistant Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellant State of Alaska.


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


          FABE, Justice.


I.   INTRODUCTION
          In 1992 the Alaska Legislature amended AS 25.24.170 to
permit trial courts to continue child support for eighteen-year-
olds who are finishing high school while still living at home. 
These consolidated appeals present the question whether this change
in the law constitutes a change in circumstances permitting
modification and extension of existing child support orders entered
before the legislature's action.  We conclude that it does.
II.  FACTS AND PROCEEDINGS
     A.   History of AS 25.24.170(a)
          Alaska Statute 25.24.170(a) formerly provided that if a
party moved for modification, a court could modify a judgment as to
the care and custody of minor children:
          Subject to AS 25.20.110, any time after
judgment the court, upon motion of either party, may set aside,
alter, or modify so much of the judgment as may provide for
alimony, for the appointment of trustees for the care and custody
of the minor children or for their nurture and education, or for
the maintenance of either party to the action.[ [Fn. 1]]

We held in 1984 that this statute did not authorize trial courts to
order a parent to pay support beyond the child's eighteenth
birthday, the age of majority. [Fn. 2] 
          In 1988 the legislature changed the age of entrance to
kindergarten for public school; in order to be eligible for
kindergarten, a child must now turn five before August 15 rather
than November 2. [Fn. 3]  This change has resulted in many children
turning eighteen before their high school graduation.  Glenda
Straube of the Association for Children for Enforcement of Support
testified before the House Committee on Health, Education and
Social Services that ninety percent of youth in the Anchorage
school system will turn eighteen during their senior year. [Fn. 4] 
Then Representative Fran Ulmer, the bill's sponsor, also noted that
"[t]he result is that many Alaska children must complete their
final year of high school without the benefit of financial support
from the non-custodial parent"and that many families will thus be
forced to turn to public assistance. [Fn. 5]
          Because of these concerns, the legislature amended AS
25.24.170(a) in 1992 to address this problem:
          Subject to AS 25.20.110, any time after
judgment the court, upon motion of either party, may set aside,
alter, or modify so much of the judgment as may provide for
alimony, for the appointment of trustees for the care and custody
of the minor children or for their nurture and education, for the
care, nurture, and education of unmarried 18-year-old children of
the marriage while they are actively pursuing a high school diploma
or an equivalent level of technical or vocational training and
living as dependents with a parent, guardian, or designee of the
parent or guardian, or for the maintenance of either party to the
action.[ [Fn. 6]]
          
Thus, as long as an eighteen-year-old child meets these statutory
conditions, a custodial parent may move for continued child
support.
     B.   Scully v. Scully [Fn. 7]
          James T. Scully and Raye Scully divorced in June 1991. 
At the time of the divorce, their twins, Amy and Jamie, were eleven
years old.
          In April 1991 the parties entered into a settlement
agreement that the court incorporated into the divorce decree.  The
parties agreed that Raye would have physical custody of the
children and that James would pay child support of $1,350 per month
for the minor children.
          The twins turned eighteen on August 25, 1997.  While Amy
had finished high school by this time, Jamie still had to complete
his senior year.  Because Jamie continued to live with his mother
during the school year, Raye moved to continue child support for
Jamie in September 1997.  James opposed the motion, claiming that
Raye had "utterly fail[ed] to make any showing of a material change
in circumstances"and that the settlement agreement
"accom[m]odate[d] post-majority educational support for Jamie by
. . . consider[ing] [James's] spousal support payments as family
support." 
          Judge Rene J. Gonzalez granted Raye's motion for
continued support.  After reviewing the settlement agreement, he
specifically found that "the spousal support was intended by the
parties to assist Raye Scully to 'eventually become economically
self-sufficient' and was not child support." James appeals.
     C.   Child Support Enforcement Division v. Veltri
          Jeffrey Veltri and Valinda Steffl are the parents of
Megan, who was born September 23, 1989.  In November 1991, as part
of ongoing child custody litigation, the parties entered into a
settlement agreement.  The court incorporated that agreement into
its final judgment in February 1992.  The court awarded primary
physical custody to Valinda and ordered Jeffrey to pay child
support of $228 per month. 
          The State provided public assistance to Valinda for Megan
beginning in 1989 and continuing intermittently during the
following years.  Because of this public assistance, the  State
through the Child Support Enforcement Division (CSED) sought a
review of the child support order in November 1996.
          CSED moved to modify the child support order, requesting
among other items a provision for post-majority support if Megan
met the statutory conditions when she turned eighteen -- namely,
that she be unmarried, actively pursuing a high school diploma, and
living as a dependent with a parent or guardian.
          Superior Court Judge Donald D. Hopwood refused to include
a provision for post-majority support, explaining that no material
change of circumstances justified the post-majority support order:
          CSED has not demonstrated a material change in
circumstances related to extending the period of support.  The
child is now 8  years old.  CSED presents no evidence that
justifies a modification of the support order for an event 9 
years in the future.

          CSED moved for reconsideration of the denial of a post-
majority provision in the order.  CSED argued that the change in
law to allow post-majority support in child support orders
qualified as a material change in circumstances, that the addition
of post-majority support was in Megan's best interests, and that
the requested provision was not premature because it remained
contingent on satisfaction of the statutory conditions.  The court
denied the motion, again reasoning that the amendment to the
statute did not qualify as a material change of circumstances:
          The change in AS 25.24.170 does not mandate a
change in child support, and, therefore, does not constitute a
change in circumstances.  Unlike Civil Rule 90.3, which is
mandatory, AS 25.24.170 is permissive.  The burden remains on CSED
here to show the change in circumstances sufficient to justify
extending the period of the support obligation.  CSED has failed to
show, for example, that the parties did not know when the child
would graduate from high school at the time the previous order
entered, or that the parties did not negotiate the period of
support.  

The State appeals.
III. DISCUSSION
     A.   Standard of Review
          In general, we will not overturn a trial court's decision
on a motion to modify child support absent an abuse of discretion.
[Fn. 8]  "We will disturb an award only if our review of the entire
record leaves us with a definite and firm conviction that a mistake
has been made."[Fn. 9]  
          But whether a change in law constitutes a material change
in circumstances is a question of law.  "We consider questions of
law de novo, adopting the rule that is most persuasive in light of
precedent, reason and policy."[Fn. 10]  
          Finally, we review de novo the interpretation of the
parties' settlement agreements, applying our independent judgment.
[Fn. 11]
     B.   The 1992 Amendment to AS 25.24.170(a) Constitutes a
Material Change in Circumstances.
          The central issue in both of these cases is whether the
1992 amendment to AS 25.24.170(a) constitutes a material change in
circumstances for the purpose of modifying a child support order to
extend beyond a child's eighteenth birthday. [Fn. 12]  We conclude
that it does.
          First, we note that the legislature has answered this
very question in its enactment of AS 25.24.170(b).  Alaska Statute
25.24.170(b) provides in part that "[f]or the purposes of a motion
to modify or terminate child support, the adoption or enactment of
guidelines or a significant amendment to guidelines for determining
support is a material change in circumstances if the guidelines are
relevant to the motion." Because the 1992 amendment to AS
25.24.170(a) extends the time during which a parent may be required
to pay child support, it qualifies as a change in the law governing
child support guidelines. [Fn. 13]
          Moreover, we relied upon subsection .170(b) as support
for our conclusion in Bunn v. House [Fn. 14] that "[i]n addition to
factual changes, certain changes in the law can constitute material
changes of circumstances permitting the modification of child
support orders."[Fn. 15]  While a change in legal theory [Fn. 16]
or a change in decisional law [Fn. 17] will not constitute a
material change in circumstances, an amendment to a statute, such
as AS 25.24.170, which guides the court in determining the period
during which child support must be paid, is the type of change in
the law that the legislature intended to cover with subsection (b). 
Thus, the 1992 amendment to AS 25.24.170(a) was a material change
in circumstances for any custodial parent who has an unmarried
child over eighteen, living at home, who is still attending high
school.
     C.   The Trial Court in Veltri Erred in Concluding that the
Post-Majority Provision Was Premature.

          The trial court in Veltri concluded that, even if CSED 
demonstrated a material change in circumstances supporting an
extension of Megan's child support, inclusion of a post-majority
provision in the support order would be premature because the child
would not turn eighteen for almost ten years.  The State responds
that a post-majority provision is indistinguishable from any other
contingent provision included in a standard child support order,
such as the requirement that parents provide health insurance if
the insurance becomes available at a reasonable cost.  CSED also
points out that it "simply does not have the resources to calendar
the dates on which each of the children in its more than 45,000
child support cases will turn 18 years of age and to file motions
to modify shortly before the applicable date in each case."
          Because of a legislative policy decision on the
appropriate age for children to enter kindergarten, a substantial
number of children will turn eighteen while still attending high
school and will need continued support.  If we were to require
parents to delay in filing requests for extension, it could leave
thousands of children without support while motions proceed through
the courts.  The contingent nature of the order adequately protects
an obligor parent, who will only be required to provide support if
a child meets the statutory requirements of being unmarried,
actively pursuing a high school diploma, and living as a dependent
with a parent or guardian.  And it should be the exceptional case
in which a court declines to extend child support payments beyond
the child's eighteenth birthday where these statutory requirements
have been met.  For these reasons, we hold that the trial court
erred in its refusal to include a post-majority provision in its
modification of the Veltri child support order. [Fn. 18]
     D.   The Scullys Did Not Provide for Continued Child Support
in Their Settlement Agreement.

          James Scully argues that the parties anticipated and
addressed the need for continued child support in their settlement
agreement.  He cites Dowling v. Dowling [Fn. 19] for the
proposition that at the time of settlement, "divorcing parents
[could still] 'enter into an agreement to provide for the post-
majority educational support of their children, and have the
agreement made part of the judgment so that it will be
enforceable.'"[Fn. 20]  Accordingly, he claims that he and Raye
accommodated post-majority educational support for Jamie by
considering the spousal support payments as "family support."
James maintains that the trial court erred by not holding an
evidentiary hearing to determine the parties' intent.
          But as Raye points out, the settlement agreement never
referred to post-majority child support.  And the spousal support
provisions give no indication that the spousal support was in lieu
of child support for Amy or Jamie after their eighteenth birthdays. 
Rather, as the trial court correctly noted, the only purpose of the
spousal support given in the agreement is "in order [for Raye] to
eventually become economically self-sufficient."
          Indeed, the only support for James's contention is his
own affidavit.  But "[d]ifferences of opinion among the parties as
to their subjective intent, expressed during the litigation, do not
establish an issue of fact regarding the parties' reasonable
expectations at the time they entered into the contract, since such
self-serving statements are not considered to be probative."[Fn.
21]  After reviewing the settlement agreement, the trial court
found that the parties did not intend the spousal support
provisions to serve as post-majority support.  We conclude that the
trial court did not err in this determination and thus affirm the
trial court's extension of child support beyond Jamie's eighteenth
birthday.
IV.  CONCLUSION
          We conclude that the 1992 amendment to AS 25.24.170
constitutes a material change in circumstances for the purpose of
extending child support beyond a child's eighteenth birthday and
that the inclusion of a post-majority provision in a support order
before a child's eighteenth birthday is not premature.  Moreover,
the Scullys did not provide for such support in their settlement
agreement.  Thus, we AFFIRM the superior court's decision to grant
the motion to continue child support past the age of majority in 
Scully and REVERSE the decision of the superior court to deny the
State's request for a post-majority support provision in Veltri.


                            FOOTNOTES


Footnote 1:

     AS 25.24.170(a) (1991).


Footnote 2:

     See Dowling v. Dowling, 679 P.2d 480, 483 (Alaska 1984).


Footnote 3:

     Compare AS 14.03.080(d), as adopted by Ch. 98, sec. 1, SLA
1966, with AS 14.03.080(d), as amended by Ch. 1, sec. 2, FSSLA
1987.


Footnote 4:

     See Hearing on H.B. 52 Before the House Comm. on Health,
Educ., and Soc. Servs., 17th Legis., 2nd Sess. Tape 66 No. 100
(Alaska 1992) (statement of Glenda Straube).


Footnote 5:

     Memorandum from Representative Fran Ulmer to Co-Chairs of
House Health, Education and Social Services Committee (Feb. 3,
1992).


Footnote 6:

     See Ch. 117, sec. 3, SLA 1992 (emphasis supplied).


Footnote 7:

     Due to James T. Scully's death, his estate, represented by
Geoby Bulawan Suan Scully, has assumed prosecution of this appeal.


Footnote 8:

     See Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998).


Footnote 9:

     Hilderbrand v. Hilderbrand, 962 P.2d 887, 888 (Alaska 1998)
(citations and internal quotation marks omitted).


Footnote 10:

     Taylor v. McGlothlin, 919 P.2d 1349, 1351 n.3 (Alaska 1996).


Footnote 11:

     See Flannery v. Flannery, 950 P.2d 126, 129 (Alaska 1997).


Footnote 12:

     Raye Scully also maintains that because the 1992 amendment to
AS 25.24.170(a) addresses continuation of existing child support,
rather than a recalculation of the support amount, she did not have
to show a material change in circumstances before the court could
extend the support order.  She contends that the test for modifying
a support order to provide for post-majority support should be
whether a child meets these statutory conditions, rather than
whether the custodial parent can prove a material change in
circumstances to justify an extension.  Because we conclude that
the change in law qualifies as a material change of circumstances
in this case, we need not decide this issue.


Footnote 13:

     The legislature omitted a proposed section of AS 25.24.170(a)
that would have explicitly provided that the amendment constituted
a material change in circumstances.  Indeed, an earlier version of
the bill included a section that stated:  "The changes made by this
Act constitute a material change in circumstances for purposes of
a motion to modify a child support determination under AS
25.20.110." CSHB 52, Work Draft, sec. 13 (May 3, 1991).  Still,
the
amendment as enacted specifically authorizes post-judgment
extensions of child support where the child meets the statutory
criteria.  Thus, the legislature most likely deleted the section
providing that the amendment constitutes a material change simply
because it was unnecessary.


Footnote 14:

     934 P.2d 753 (Alaska 1997).


Footnote 15:

     Id. at 758.


Footnote 16:

     See id.


Footnote 17:

     See Lawrence v. Lawrence, 718 P.2d 142, 144-45 (Alaska 1986).


Footnote 18:

     The trial judge in Veltri also suggested that the existence of
a settlement agreement on the issue of child support prevented
modification of the support order.  But if a movant demonstrates a
material change in circumstances, the court may modify a settlement
agreement's provisions on child custody or support after the court
has entered a final judgment or order.  In Flannery v. Flannery,
950 P.2d 126 (Alaska 1997), we emphasized that "[c]hild support is
a matter of public concern, and neither AS 25.24.170 nor Rule
90.3(h)(1) suggests that particular terms of an agreement can
totally restrict the court's ability to modify it so long as a
change in circumstances is proven." Id. at 130-31.


Footnote 19:

     679 P.2d 480 (Alaska 1984).


Footnote 20:

     Id. at 483 n.7.


Footnote 21:

     Peterson v. Wirum, 625 P.2d 866, 870 (Alaska 1981).  This rule
does not apply, as the opinion in Peterson v. Wirum itself
illustrates, to litigation affidavits of a party concerning the
party's intent which are supported by references to relevant
extrinsic evidence.  See id. at 871 n.8.