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Bennett v. Bennett (7/28/00) sp-5300

     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
                                 


RITA C. BENNETT,              )
                              )    Supreme Court No. S-8959
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3PA-85-497 DR
                              )
ALBERT B. BENNETT and STATE   )    O P I N I O N
OF ALASKA, DEPARTMENT OF      )
REVENUE, CHILD SUPPORT        )
ENFORCEMENT DIVISION,         )
                              )
             Appellees.       )    [No. 5300 - July 28, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
                        Eric Smith, Judge.


          Appearances:  Tara N. Logsdon, Tull &
Associates, Palmer, for Appellant.  Lynn E. Levengood, Downes,
MacDonald & Levengood, P.C., Fairbanks, for Appellee Albert
Bennett.  Diane L. Wendlandt, Assistant Attorney General,
Anchorage, Bruce M. Botelho, Attorney General, Juneau, for Appellee
State of Alaska, Department of Revenue, Child Support Enforcement
Division.


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


          MATTHEWS, Chief Justice.



I.   INTRODUCTION
          Rita Bennett appeals the superior court's denial of her
child support reimbursement claim for the year she had de facto
custody of her son, but her ex-husband, Albert Bennett, was
designated as custodian in a court order.  Because child support
orders should follow custody orders under the rule articulated in
Turinsky v. Long, [Fn. 1] we affirm the denial of Rita's
reimbursement claim.  However, we reverse the superior court's
retroactive award of child support to Albert for this same time
period.         
II.  FACTS AND PROCEDURAL HISTORY
          Rita and Albert Bennett were divorced by a decree of
dissolution on May 24, 1985.  The decree granted Rita primary
physical custody of the two minor children [Fn. 2] and granted
Albert reasonable visitation rights.  Albert was required to pay
$250 per month, per child, as child support.  Albert's child
support obligation was later changed to a single sum of $788 per
month, effective May 16, 1990.
          Eleven years after the divorce, thirteen-year-old Alec
expressed an interest in living with his father.  Albert filed a
motion to modify physical custody and child support, and Rita filed
a pro se response, agreeing to the change in custody but requesting
that Alec "be allowed to live with his father, Mr. Bennett, in
Mississippi for one year before making a decision regarding
physical custody."
          On September 17, 1996, the superior court granted
Albert's motion to modify custody and child support.  The order
stated that "because the mother consents to the child living with
the father, at least for one year IT IS HEREBY ORDERED that the
motion is granted."  At the end of the order, the judge handwrote
the following:
               This order is subject to review upon a
motion by Rita Bennett within one year of the date of this order. 
The court retains jurisdiction over this matter for one year after
the date of this order notwithstanding the child's residence in
Mississippi.

The order also stated that "child support shall be ordered pursuant
to Civil Rule 90.3 effective the date the motion was filed [July
1996]."  Despite this provision, the court did not issue a child
support order.  
          On September 30, 1996, Albert applied to CSED to collect
child support from Rita.  But, because there was no child support
order in place, CSED did nothing to collect the child support until
August 1998, when it filed a motion requesting that the court
establish a child support order.
          In the meantime, Albert's custody of Alec was not
successful.  In late July 1997 Alec moved back to Alaska to live
full time with his mother.  He has lived with her ever since.
          Despite regaining de facto physical custody of Alec in
July 1997, Rita did not move to modify the September 17, 1996
custody order until a year later, on July 8, 1998.  In her motion,
she requested custody and child support from August 1, 1997. 
Albert opposed her motion.  The court granted part of her motion,
awarding her primary physical custody of Alec but requiring Albert
to pay child support only from the date of her motion, July 1998. 
          A few days later, CSED filed a motion to establish Rita's
child support obligations for August 1996 through July 1998, the
two years that Albert had de jure custody. [Fn. 3]  Rita opposed
CSED's motion insofar as it required her to pay child support to
Albert during the year that she had de facto physical custody of
Alec but Albert had de jure physical custody.  She also filed a
cross-motion for reimbursement of her child care costs for that
year.
          The superior court denied Rita's request for
reimbursement, holding that "under Turinsky v. Long,[ [Fn. 4]] the
court cannot order Albert Bennett to pay child support
retroactively during a period of time when he was identified as the
custodial parent in an existing child custody order."  The court
later ruled that Rita owed Albert child support for the entire two
years that he had de jure custody.  The court assessed Rita's child
support obligations at $600 per month for August 1996 through
December 1996 and $714 per month for January 1997 through June
1998.
          This appeal followed.   
III. STANDARD OF REVIEW
          This court will generally not disturb a trial court's
decision on a motion for child support unless the trial court
abused its discretion. [Fn. 5]  We will set aside a lower court's
factual findings only when they are clearly erroneous. [Fn. 6] 
Findings are clearly erroneous when, "after reviewing the record as
a whole, this court is left with a definite and firm conviction
that a mistake has been made." [Fn. 7]
          However, whether the trial court used the correct method
of calculating child support is a matter of law, as is the proper
interpretation of a court order. [Fn. 8]  We apply de novo review
to questions of law, adopting the rule of law most persuasive in
light of precedent, reason, and policy. [Fn. 9]  
IV.  DISCUSSION
          This appeal presents two separate but interrelated
questions: (1) is Rita entitled to child care reimbursement for
August 1997 through June 1998, the year when she had de facto
physical custody of Alec but Albert had de jure physical custody?
and (2) does Rita have to pay child support to Albert for that same
time period?  
     A.   Rita Is Not Entitled to Child Care Reimbursement for the
Time That She Had De Facto Physical Custody of Alec But Albert Had
De Jure Custody.

          In Turinsky v. Long, [Fn. 10] we held that child support
awards should be based on the court-ordered custody or visitation,
rather than on the actual custody arrangement.  "If the parties do
not follow the custody order, they should ask the court to enforce
the custody order or should move to modify the child support
order." [Fn. 11]  We established this principle to prevent parents
from interfering with court-ordered custody and visitation in order
to gain an increase in child support payments. [Fn. 12]  We
intended as well to encourage parents to either comply with court
orders or move to modify them in a timely manner. [Fn. 13] 
          Rita concedes that, under Turinsky, she cannot collect
child care reimbursement for the time that she had de facto custody
of Alec but Albert had de jure custody.  She argues, however, that
Albert ceased to have de jure custody of Alec in September 1997.
According to Rita, the September 1996 custody order was a temporary
order that naturally expired at the end of one year.  CSED agrees
that if the custody order was temporary, Rita is entitled to child
support reimbursement after the date of its expiration. [Fn. 14]
          Yet there is little evidence to support Rita's claim that
the order was temporary.  Rita bases her argument for the temporary
nature of the order on the judge's handwritten comment that he is
granting the motion "because the mother consents to the child
living with the father, at least for one year."  But this sentence
is best understood as an explanation of the court's rationale in
granting the change in custody rather than as a limitation on the
length of that change.  Moreover, the judge's handwritten addition
at the end of the order clearly indicates that, barring an
affirmative action by Rita to move to modify the order, the change
in custody would become permanent: "This order is subject to review
upon a motion by Rita Bennett within one year of the date of this
order." (Emphasis added.)  Therefore, under the terms of the
custody order, de jure custody did not revert back to Rita until
she moved to modify the order in July 1998. 
          Because Rita did not have de jure custody of Alec from 
July 1997 to June 1998, she is barred from collecting child care
reimbursement for that time period. [Fn. 15] 
     B.   It Was Error to Grant a Retroactive Child Support Award
to Albert for the Year He Had De Jure Physical Custody of Alec but
Rita Had De Facto Physical Custody.

          Although Rita is barred from receiving child support for
the time before she moved for de jure custody, it was nonetheless
error for the court to retroactively grant Albert child support for
that same time period.
          The commentary to Civil Rule 90.3 cautions courts to
consider "all relevant factors" when retroactively establishing
child support awards for a time period where no order currently
exists. [Fn. 16]  Child support awards, by their very definition,
are intended to benefit the child, not provide a windfall to a
parent. [Fn. 17]  Awarding child support to a parent who has
relinquished de facto custody and no longer provides any financial
support to the child does not further the purposes of the child
support rule. [Fn. 18]  
          Here, Albert ceased to provide any financial support for
Alec after Alec left his custody in July 1997.  Rita provided the
sole support for Alec during the time that she had de facto
custody.  Given that the trial court was aware of these circum-

stances, it was an abuse of discretion to retroactively award
Albert child support for this time period. [Fn. 19] 
V.   CONCLUSION
          Child support awards should be based on custody orders. 
If parents do not follow the custody order, they bear the burden of
notifying the court of the change and applying for the appropriate
modifications. [Fn. 20]
          Because Rita did not move to modify the custody order
until a year after Alec came to live with her, she is barred from
receiving child care reimbursement for that year.  However, Rita
should not have to pay child support to Albert for the time when he
no longer had de facto physical custody of Alec and she was
providing sole financial support for Alec's welfare.   
          We therefore AFFIRM the superior court's denial of Rita's
reimbursement claim but REVERSE the superior court's retroactive
award of child support to Albert for the time that Albert had de
jure custody but Rita had de facto custody. 


                            FOOTNOTES


Footnote 1:

     910 P.2d 590, 595 (Alaska 1996).


Footnote 2:

          The second child turned eighteen in 1996 before the
events leading to this lawsuit took place.  Her custody and child
support are not at issue in this appeal.


Footnote 3:

     There is a terminology problem in this case that stems from
the fact that "legal custody" has two meanings.  In one sense
"legal custody" is distinct from court-ordered "physical custody"
and refers to the responsibility for making "major decisions
affecting the child's welfare."  Farrell v. Farrell, 819 P.2d 896,
899 (Alaska 1991) (internal quotations omitted).  "Physical cus-

tody" refers to the responsibility for physical care and the
immediate supervision of the child.  But "legal custody" may also
refer to custody under a court order which may, in turn, be either
"legal" in the former sense, or physical, or both.  In this opinion
we use "legal custody" in the former sense.  The parties in this
case had joint legal custody of their children.  We therefore use
the terms "de jure" and "de facto" custody to refer to court-
ordered and non-court-ordered physical custody statuses.


Footnote 4:

     910 P.2d 590, 595 (Alaska 1996).


Footnote 5:

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


Footnote 6:

          See Dodson v. Dodson, 955 P.2d 902, 905 (Alaska 1998). 


Footnote 7:

          Marine v. Marine, 957 P.2d 314, 316 (Alaska 1998)
(citation and internal quotations omitted). 


Footnote 8:

          See Crayton v. Crayton, 944 P.2d 487, 489 n.1 (Alaska
1997); Charlesworth v. State, Child Support Enforcement Div. ex
rel. Charlesworth, 779 P.2d 792, 793 (Alaska 1989).


Footnote 9:

          See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979). 


Footnote 10:

     910 P.2d 590, 595 (Alaska 1996).


Footnote 11:

     Id.; cf. Karpuleon v. Karpuleon, 881 P.2d 318, 320 (Alaska
1994) (burden is on parents to apply promptly for modification when
child changes residency). 


Footnote 12:

     See Turinsky, 910 P.2d at 594-95.


Footnote 13:

     See id.


Footnote 14:

     See Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska 1996)
(holding that in cases where no custody order exists, child support
should be awarded pursuant to Civil Rule 90.3).


Footnote 15:

     We are unpersuaded by Rita's other arguments for child support
reimbursement.  Unlike the parties in Karpuleon, 881 P.2d at 321-
22, Rita and Albert did not have an agreement that shifted child
support obligations when custody shifted.  Similarly, unlike the
father in Crayton v. Crayton, 944 P.2d 487, 488-89 (Alaska 1997),
who had both de jure and de facto custody of the children pursuant
to interim custody orders, Rita did not have de jure custody of
Alec until the court granted her motion to modify the 1996 custody
order.  


Footnote 16:

     Alaska Civil Rule 90.3 Commentary VI.E.  


Footnote 17:

     See generally Civil Rule 90.3. 


Footnote 18:

     See id. Commentary II ("Integral to [Civil Rule 90.3] is the
expectation that the custodial parent will contribute at least the
same percentage of income to support the child[].").


Footnote 19:

     Because no child support order existed, the trial court did
not have to concern itself with the prohibition against retroactive
modification of child support.  See, e.g., Hendren v. State, Dep't
of Revenue, Child Support Enforcement Div., 957 P.2d 1350, 1353
(Alaska 1998) (no retroactive modification of child support orders
except as allowed by statute).  We note, however, that even if a
support order had existed, the result might not have differed. 
Under the recently revised Civil Rule 90.3(h)(3), a de jure
custodial parent may be precluded from collecting arrearages that
accrue under an existing child support order if primary physical
custody shifts to the other parent for longer than nine months:

               The court may find that a parent and a
parent's assignee are precluded from collecting arrearages for
support of children that accumulated during a time period exceeding
nine months for which the parent agreed or acquiesced to the
obligor exercising primary custody of the children.  A finding that
preclusion is a defense must be based on clear and convincing
evidence.  


Footnote 20:

     See Turinsky v. Long, 910 P.2d 590, 595 (Alaska 1996).