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Schuyler v. Briner (12/8/00) sp-5341

     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
                                 

BILLY C. SCHUYLER,            )
f/k/a BILLY LEMON,            )    Supreme Court No. S-9460
                              )
             Appellant,       )    Superior Court No.
                              )    3AN-96-7125 CI
     v.                       )
                              )    O P I N I O N
FLORENCE BRINER and STATE     )
OF ALASKA, DEPARTMENT OF      )    [No. 5341 - December 8, 2000]
REVENUE, CHILD SUPPORT        )
ENFORCEMENT DIVISION,         )
                              )
             Appellees.       )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.


          Appearances: Billy C. Schuyler, pro se, Clear,
Appellant.  Mary-Ellen Zalewski, Anchorage, for Appellee Briner. 
Mary A. Gilson, Assistant Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee State of Alaska.


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

          
          FABE, Chief Justice.
          MATTHEWS, Justice, with whom CARPENETI,
Justice, joins, concurring in part and dissenting in part.


I.   INTRODUCTION
          When the Child Support Enforcement Division (CSED) moved
to increase Bill Schuyler's child support obligation, Bill opposed
the proposed increase, arguing that he had worked additional
overtime for the sole purpose of supporting his new family.  He
also requested a decrease in his child support and moved for a
modification of his daughter's legal custody.  The superior court
increased Bill's child support and denied his request for a change
in custody without holding a hearing.  Because the commentary to
Alaska Civil Rule 90.3 specifically contemplates that the court may
consider overtime or extra jobs taken for the express purpose of
providing for a new family, we remand to the superior court for
consideration of this defense to a motion to increase support
payments.  But because Bill did not allege the special
circumstances that would entitle him to a support reduction, we
affirm the superior court's decision denying him a downward
modification of support.  And because Bill failed to demonstrate
that awarding him sole legal custody would be in his daughter's
best interests, we affirm the superior court's decision to deny
Bill's request for a custody modification without a hearing.
II.  FACTS AND PROCEEDINGS
          Bill and Florence Lemon married in 1970 and had their
daughter, Valerie, in 1983.  Valerie was their only minor child at
the time of divorce, but they had an older son, Billy Lemon, who is
married and living in Anchorage.
          Florence filed for divorce in September 1996.  Bill
answered, and the superior court entered a decree of divorce in
June 1997.  Pursuant to the Lemons' agreement, the court awarded
sole legal and physical custody of Valerie to Florence, and awarded
Bill visitation "as mutually agreed upon by the parties."  The
court also required Bill to pay $752.73 per month in child support
pursuant to Civil Rule 90.3.
          After Bill and Florence divorced, Bill met and married
Candice Schuyler in 1998.  Candice has two minor children living at
home, Victoria and Sean, and one minor child in college, Kimberly. 
When Bill married Candice, he took her last name and is now known
as Bill Schuyler.  Florence is now known as Florence Briner.
          In June 1999 Valerie decided that she wanted to live with
her brother Billy and his wife in Anchorage.  After discussing it
with Billy and Valerie, Florence decided to allow Valerie to move
in with them.  Since June 1999, Valerie has spent most of her time
with Billy and his wife in Anchorage, although Florence continues
to keep "a close eye on things and stays in frequent contact with
Valerie and Billy."  Bill also supports Valerie's desire to live
with her brother.
          In addition, Florence has continued to assist Valerie
financially and has passed Bill's child support payments on to
Valerie's brother.  For example, in June and July of 1999, Florence
paid $200 for Valerie's driver's education training, $665 for her
camps, $250 for volleyball fees, $476 for an airline ticket, plus
additional money for clothing, shoes, photographs, and Valerie's
SAT examination.
          In September 1999 CSED moved for an upward modification
of Bill's child support order based on its review of his income
information.  Bill opposed CSED's motion, cross-moved for a
reduction in his child support payments, and moved for a custody
modification.
          In his motion to modify custody, Bill contended that
Valerie's move into her brother's home constituted "a material
change in circumstances and a violation of the parties' agreement."
He requested a hearing to determine whether the court should modify
custody, substituting Bill as the sole legal custodian.  Citing
Gallant v. Gallant, [Fn. 1] he argued that because Valerie was
living with a third party, "[c]ustody should be modified and
Florence should be ordered to pay 20 percent of her income to child
support."  Florence opposed Bill's cross-motion for custody
modification.
          Superior Court Judge Peter A. Michalski denied Bill's
motion to modify legal custody of Valerie, concluding that he had
"failed in his pleadings to establish a significant change of
circumstances justifying a modification or that a modification
would be in the minor child's best interest."
          With regard to child support, Bill opposed the upward
modification motion and cross-moved for a reduction in his support
obligation.  He argued that his support obligation should not be
increased because his rise in income was solely attributable to
overtime worked in an effort to provide for his new family.  He
alleged that he took the additional overtime because he is the only
source of income for his new family and that his stepchildren have
exceptional medical and educational needs.  He also used these
circumstances to support his argument that his support obligation
should be reduced.
          The court did not address Bill's argument regarding the
needs of his new family and ordered him to pay $919 per month in
child support, pursuant to CSED's request.  In addition, the court
ordered Florence to pay Valerie's brother $267 per month for
Valerie's support, and to pass all of Bill's child support payments
on to Billy as well.  Bill appeals.
III. STANDARD OF REVIEW
          Bill appeals the superior court's order denying a hearing
on his motion to modify custody.  A court may deny such a motion
"if it considers [the] motion and finds it plain that the facts
alleged in the moving papers, even if established, would not
warrant a change in custody."[Fn. 2]  We therefore review de novo
a court's decision to deny a hearing on a motion to modify custody.
[Fn. 3]  We will affirm if, in our independent judgment, "the facts
alleged, even if proved, cannot warrant modification, or if the
allegations are so general or conclusory, and so convincingly
refuted by competent evidence, as to create no genuine issue of
material fact requiring a hearing."[Fn. 4]
          Bill also appeals the superior court's upward
modification of his support obligation.  We review modification of
child support orders for an abuse of discretion. [Fn. 5]  An abuse
of discretion occurs when, based on a review of the whole record,
"we are left with a definite and firm conviction that a mistake has
been made."[Fn. 6] 
          In addition, Bill appeals the superior court's order
denying a hearing on his motion to reduce his support obligation.
Whether Bill has made "a prima facie showing sufficient to justify
a . . . child support modification hearing is a matter of law that
we review de novo."[Fn. 7]
IV.  DISCUSSION
     A.   The Superior Court Did Not Err in Denying Bill's Motion
to Modify Custody Without Holding an Evidentiary Hearing.

          Bill argues that he established a prima facie case for a
change in circumstances, requiring a hearing on his motion to
modify custody.  In his motion he essentially argued two things: 
first, that Valerie's move into her brother's home constitutes
changed circumstances that justify modifying legal custody; and
second, that because of the change in circumstances, both Bill and
Florence should have to pay child support.
          We first address Bill's argument that Valerie's new
living arrangement with her brother constitutes a change of
circumstances that justifies awarding him sole legal custody of
Valerie.  We have stated that in order to warrant a hearing to
modify custody, "a moving party must make a prima facie showing of
a substantial change in circumstances affecting the children's
welfare."[Fn. 8]  Because family law strives to create stability
for children, courts should not encourage unnecessary hearings in
custody cases, [Fn. 9] and we will affirm the superior court's
denial of a custody hearing when "it is plain that the facts
alleged in the moving papers, even if established, would not
warrant a change."[Fn. 10]
          We have recognized that in certain situations, a child's
change in residence qualifies as a material change in
circumstances. [Fn. 11]  Because Valerie has been living with her
brother, Billy, since June 1999, we agree that there has been a
change in circumstances.  But Bill must also make a showing that
this change in circumstances justifies a change in legal custody
and that awarding him legal custody is in Valerie's best interests.
[Fn. 12]
          Here, Bill has not demonstrated that Valerie's new living
arrangement with her older brother necessitates a custody
modification in order to serve her best interests.  Both Florence
and Bill agreed that Valerie should live with her brother, and that
was also Valerie's articulated preference.  Bill even stated in his
affidavit that he "support[s] Valerie's desire to live with her
brother and his wife."  Because Bill has failed to establish that
the change in circumstances justified a change in legal custody,
the trial court did not err by denying the motion without a
hearing.
          In his motion to modify custody, Bill also argued that
Florence should have forwarded the child support payments directly
to Billy for Valerie's benefit.  Yet the record indicates that
Florence did pass Bill's child support payments on to Billy and
that she made her own financial contributions to Valerie's care as
well.  Indeed, in response to Bill's motion, Florence volunteered
to make her own support payments to Billy pursuant to Rule 90.3.
          Florence therefore did not oppose Bill's second argument
in his motion to modify: that both he and Florence should have to
pay twenty percent of their incomes directly to Billy for child
support.  And the superior court ordered precisely that, by
requiring Florence to forward all of Bill's support payments to
Billy and requiring her to make monthly support payments of $267 to
Billy.  The superior court's order was appropriate in light of Rule
90.3's requirement that non-custodial parents pay support to third
parties who have physical custody of their children. [Fn. 13]  We
therefore conclude that the superior court properly granted Bill's
request that both he and Florence be required to pay child support
pursuant to Rule 90.3, and neither party challenges that order.
     B.   The Superior Court Should Have Considered Bill's Efforts
to Provide for His New Family as a Defense to an Increase in His
Support Obligation.

          1.   Bill properly raised a defense to the upward
support modification.

          In its November 1999 order for modification of child
support, the superior court required Bill to pay $919 per month for
Valerie's child support, up from $752.73 in 1997.  This increased
payment reflected CSED's more recent review of Bill's financial
information pursuant to Rule 90.3. [Fn. 14]  Bill argues that he is
entitled to a variance from the Rule 90.3 calculation because his
increase in income is directly attributable to extra overtime
worked for the sole purpose of providing for his stepchildren's
special medical and educational needs.  He contends that this
additional income should not be considered in determining his
support obligation for Valerie.
          The commentary to Rule 90.3 provides that "the interests
of the subsequent family may be taken into account as a defense to
a modification action where an obligor proves he or she has . . .
increased his or her income specifically to better provide for a
subsequent family."[Fn. 15]  But such a defense should not be
allowed to the extent that the "increase in income is limited to
ordinary salary increases,"or to the extent that the increase in
income is not expressly motivated by an attempt to care for the
subsequent family. [Fn. 16]
          Bill argued that his increased income is due to
additional overtime for which he has volunteered "only so he can
provide"for the needs of his stepchildren.  He stated in his
affidavit, "[m]y increase in income is because I volunteer for all
the overtime I can. . . .  The reason for my volunteering for extra
overtime is because my new family needs the money."
          We conclude that the superior court should have
considered Bill's defense to the upward modification when it
determined whether to increase his support obligation. [Fn. 17] 
Because the court failed to do so, we remand for a determination of
whether Bill increased his income for the express purpose of
providing for his new family, and whether CSED's request for an
increase should be denied on that basis.  In determining whether
the interests of Bill's subsequent family should defeat the motion
to increase child support, the superior court should also consider
"the income, including the potential income, of both parents"of
Bill's stepchildren, including that of the stepchildren's
biological father. [Fn. 18]
          2.   The needs of Bill's new family do not justify a
support reduction.

          Bill also argued that the increased needs of his new
family justified a reduction of the support obligation initially
established in 1997.  Although the commentary to Rule 90.3 provides
that Bill's motivation for taking on additional overtime may
provide a defense to an upward modification based on the increased
income resulting from that overtime, it does not provide a basis
for a reduction in child support.
          Under Rule 90.3, the court may only vary the support
obligation if the obligor parent establishes "first, that unusual
circumstances exist and, second, that these unusual circumstances
make application of the usual formula unjust."[Fn. 19]  In
addition, Rule 90.3 only allows a support variance when the obligor
parent demonstrates "good cause upon proof by clear and convincing
evidence that manifest injustice would result if the support award
were not varied."[Fn. 20]  A trial court may deny a motion to
modify child support without an evidentiary hearing if the moving
party does not allege facts that would establish a prima facie case
for modification. [Fn. 21]
          The commentary to Rule 90.3 states that in most
instances, a subsequent family will not present good cause to vary
the support guidelines:
          A parent with a support obligation may have
other children living with him or her who were born or adopted
after the support obligation arose.  The existence of such
"subsequent"children, even if the obligor has a legal obligation
to support these children, will not generally constitute good cause
to vary the guidelines.  However, the circumstances of a particular
case involving subsequent children might constitute unusual
circumstances justifying variation of support.  The court should
reduce child support if the failure to do so would cause
substantial hardship to the "subsequent"children.[ [Fn. 22]]

Thus, the obligor parent must show that unusual circumstances exist
such that the court's failure to vary the support obligation would
result in "substantial hardship"or "manifest injustice."  This is
true even if the obligor parent has a legal obligation to support
the subsequent children.
          Although Bill maintained that his stepchildren suffer
from health problems including asthma, Attention Deficit/
Hyperactivity Disorder (ADHD), and poor teeth, he has not
demonstrated that failure to reduce his support obligation would
result in substantial hardship.  Instead, he merely asserted in his
affidavit that "a reduction in my support for Valerie would help me
care for my new family."[Fn. 23]  But Rule 90.3 requires more than
such an assertion, for simply supporting a new family "will not
generally constitute good cause to vary the guidelines."[Fn. 24]
          Bill failed to establish a prima facie case for a
downward modification of his support obligation, and the superior
court therefore did not err in denying his request for a hearing.
[Fn. 25]
V.   CONCLUSION
          Because Bill failed to demonstrate a substantial change
in circumstances affecting Valerie's welfare, we conclude that the
superior court did not err in denying his request for a hearing on
his motion to modify custody.  With respect to Bill's defense to
CSED's motion to increase support, we REMAND for consideration of
Bill's defense that his increase in income is directly attributable
to his efforts to provide for his new family.  On remand, the
superior court should also consider the income and potential income
of the stepchildren's biological parents.  In addition, because
Bill failed to demonstrate that substantial hardship would result
from denying his motion to decrease his support obligation, we
conclude that the superior court did not err in denying his request
for a hearing on that motion.
MATTHEWS, Justice, with whom CARPENETI, Justice, joins, concurring
in part and dissenting in part. 
      The first part of this separate opinion argues that the
commentary to Civil Rule 90.3 should not be construed like a rule
or regulation.  This point does not conflict with the majority
opinion.  The second part takes the position that the good cause 
evidentiary hearing on remand should encompass Bill's defense to
CSED's motion to increase child support and Bill's cross-motion to
decrease child support.  In so far as the majority opinion excludes
the cross-motion from the evidentiary hearing, I dissent. 
                                I.
          CSED argued in this case that as a matter of law an
obligor's support of stepchildren, and the needs of stepchildren,
can not serve as a basis for a court-ordered variance from the
formula provided in Civil Rule 90.3(a) for calculation of child
support.  It founded this argument not on the rule, which provides
without limitation that support may be varied for good cause on a
showing by clear and convincing evidence that manifest injustice
would otherwise result, but on the commentary, specifically part
VI.B.2, captioned "Subsequent Children"which provides:
               A parent with a support obligation may
have other children living with him or her who were born or adopted
after the support obligation arose. The existence of such
"subsequent"children, even if the obligor has a legal obligation
to support these children, will not generally constitute good cause
to vary the guidelines. However, the circumstances of a particular
case involving subsequent children might constitute unusual
circumstances justifying variation of support. The court should
reduce child support if the failure to do so would cause
substantial hardship to the "subsequent"children.

               In addition, the interests of the
subsequent family may be taken into account as a defense to a
modification action where an obligor proves he or she has taken a
second job or otherwise increased his or her income specifically to
better provide for a subsequent family. This defense to an upward
modification action should not be allowed to the extent that the
prior support was set at a lower amount prior to the adoption of
this rule, or to the extent that the obligor's increase in income
is limited to ordinary salary increases.

               In considering whether substantial
hardship to "subsequent"children exists, or whether the existence
of a subsequent family should defeat a motion to increase child
support, the court should consider the income, including the
potential income, of both parents of the "subsequent"children.

(Emphasis placed on language discussed below.)
          Focusing on the "born or adopted after"language in the
first paragraph, CSED argues that stepchildren can not be
considered "subsequent children"within the terms of the commentary
and their needs in no circumstances can amount to good cause for
varying a formula-based award.  But other language in the
commentary seems inconsistent with this reading.  The "even if"
language of the second sentence of the first paragraph tells us 
that "subsequent children"may include children for whom the
obligor has no legal support obligation.  Stepchildren are the most
typical members of this class.  And the second paragraph permits
the needs of the "subsequent family"to be taken into account in
certain circumstances.  It is hard to think that this includes the
new spouse and in-laws, but excludes stepchildren.
          CSED does not mention the "even if"language.  But CSED
explains the second paragraph of the commentary by arguing that it
can only be made consistent with the first paragraph if "the
subsequent family"is construed to exclude stepchildren.  Today's
opinion rejects this argument, seeing "no reason to discourage a
parent from taking on additional work for the specific purpose of
caring for a new family"even where, as here, the children in the
new family are stepchildren.  Slip Op. at 11 n.17.  This is a
practical, common sense conclusion and I agree with it.  This
conclusion also implicitly rejects one premise of CSED's argument
which is that the commentary is to be construed like a rule or
regulation. 
          The commentary is the product of the Child Support
Guidelines Committee.  It is published for "informational purposes
to assist users of Rule 90.3"but it has "not been adopted or
approved by the Supreme Court."[Fn. 1]  Although we have
frequently relied on the commentary for guidance, we have also
rejected it in some respects and permitted support calculations
contrary to its  methods. [Fn. 2]  It is a mistake to parse the
language of the commentary as if it were a rule or a regulation or
to apply the rules of statutory construction to it.  Unlike rules
or regulations, the commentary has not been written with an eye
toward precise distinctions.  For these reasons, it is ultimately
unproductive to strive to determine the meaning of Rule 90.3 by
attempting to resolve inconsistencies or ambiguities in the
commentary.
                               II.
          The majority's conclusion that Bill may have a defense to
CSED's efforts to increase his child support necessarily means that
under appropriate circumstances good cause for varying formula
child support may be based on an obligor's assumed responsibilities
to stepchildren.  But the majority limits the permissible scope of
the variance in this case to a defense to the increase sought by
CSED.  Bill sought, in addition, a decrease in his current
obligation.  The majority concludes that no evidentiary hearing is
needed on this claim because "Bill did not allege the special
circumstances that would entitle him to a support reduction."  Slip
Op. at 2.  I disagree with this conclusion.  
          Trial courts should grant evidentiary hearings on support
modification motions where the movant alleges facts that, taken as
true, could warrant modification.  This is what we mean when we say
that the movant has established a prima facie case. [Fn. 3]
          Here the majority opinion says that Bill has not met this
standard because "he merely asserted in his affidavit that 'a
reduction in my support for Valerie would help me care for my new
family.'"  Slip Op. at 13.  But that is merely one of several
conclusory allegations made by Bill in his moving papers.  He also
claimed that "extraordinary expenses incurred in caring"for his
stepchildren made this case "one that falls squarely within the
unusual circumstances of Civil Rule 90.3, as explained in the
commentary."  He also stated, "strict application of the rule would
cause an undue hardship on defendant's subsequent family, and thus
unusual circumstances exist which warrants a considerable reduction
in defendant's child support obligation."
          These are, of course, merely conclusory allegations and
I mention them only because the majority opinion relies on one
modestly stated conclusory allegation made by Bill to justify
denying him a hearing.  But conclusory allegations can not make a
prima facie case.  Instead, facts must be alleged which, if true,
could warrant modification. [Fn. 4]  I believe Bill has met this
standard.
          Bill has alleged (1) in some detail that his stepchildren
have substantial and expensive medical and educational needs; [Fn.
5] (2) that he is the sole means of support of the stepchildren
[Fn. 6]; and (3) that he has taken on additional work to increase
his income in order to support the stepchildren but that the
increase in his income is not sufficient to provide for their
extraordinary needs. [Fn. 7] Thus Bill presents underlying facts
which if accepted as true could support a discretionary
determination by the trial court that unusual circumstances exist
requiring a variance in formula-mandated child support.  For these
reasons I believe that the inquiry on remand as to whether there is
good cause to deviate from formula child support should pertain
both to CSED's motion to increase support and Bill's cross-motion
to decrease support. 



                            FOOTNOTES


Footnote 1:

     882 P.2d 1252, 1257 (Alaska 1994) (requiring both parents to
pay support to third-party custodian).


Footnote 2:

     C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998) (internal
punctuation omitted).  In addition, a court may deny a motion for
custody modification "without holding a hearing, based solely on
the pleadings or after considering material beyond the pleadings --
e.g., affidavits."  Id.


Footnote 3:

     See id. 


Footnote 4:

     Id. 


Footnote 5:

     See State, Dep't of Revenue, CSED v. Pealatere, 996 P.2d 84,
86 (Alaska 2000).


Footnote 6:

     Id. (quotation omitted).


Footnote 7:

     Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999).


Footnote 8:

     Id.


Footnote 9:

     See C.R.B. v. C.C., 959 P.2d 375, 379 (Alaska 1998) (CINA laws
reflect "a legislative intent that permanent homes be found for the
children so that they can have a stable family life.") (internal
punctuation and quotations omitted).


Footnote 10:

     Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999) (internal
quotation omitted).


Footnote 11:

     See Boone v. Boone, 960 P.2d 579, 581-82 (Alaska 1998)
(holding that in the context of a modification of a child support
order, children's temporary and voluntary change in residence for
a period of 10 months was a material change in circumstances); Bunn
v. House, 934 P.2d 753, 758 (Alaska 1997) (stating that a change in
custodial or visitation patterns may constitute a material change
in circumstances); Karpuleon v. Karpuleon, 881 P.2d 318, 320
(Alaska 1994) (stating that a child's change in residence is a
material change of circumstances).


Footnote 12:

     See AS 25.20.110(a) ("An award of custody of a child . . . may
be modified if the court determines that a change in circumstances
requires the modification of the award and the modification is in
the best interests of the child."); C.R.B. v. C.C., 959 p.2d 375,
378 (Alaska 1998) ("The moving parent must show changes that affect
the child's welfare . . . reflect more than mere passage of time .
. . and overcome our deep reluctance to shuttle children back and
forth between parents.") (internal citations omitted).



Footnote 13:

     See Alaska R. Civ. P. 90.3(i)(1) ("When the state, or another
third party entitled to child support, has custody of all children
of a parent, the parent's support obligation to the third party is
an amount equal to the adjusted annual income of the parent
multiplied by the percentage specified in subparagraph (a)(2).");
Alaska R. Civ. P. 90.3(a)(2)(A) ("The percentage by which the non-
custodial parent's adjusted income must be multiplied in order to
calculate the child support award is . . . 20% (.20) for one
child.").


Footnote 14:

     The superior court granted CSED's motion for an upward
modification of Bill's support obligation because his increased
income amounted to a "material change of circumstances"under Rule
90.3(h)(1).  That is, the new support amount as calculated under
Rule 90.3 was more than 15 percent greater than Bill's previous
support order; indeed, it was 22 percent greater.


Footnote 15:

     Alaska R. Civ. P. 90.3 commentary VI.B.2.


Footnote 16:

     Id.


Footnote 17:

     CSED argues that an obligor parent may only raise this defense
when the "subsequent family"consists of biological or adopted
children.  In recognizing this defense to an upward modification
motion, Rule 90.3 sanctions a parent's decision to take on
additional work in order to care for subsequent biological or
adopted children.  We cannot conclude that the rule does not
provide the same sanction to a parent's explicit efforts to provide
for stepchildren.  Because we see no reason to discourage a parent
from taking on additional work for the specific purpose of caring
for a new family -- whether that family is biological, adopted, or
otherwise -- we need not address whether Rule 90.3 otherwise
distinguishes between biological or adopted children and
stepchildren. 


Footnote 18:

     Alaska R. Civ. P. 90.3 commentary VI.B.2.


Footnote 19:

     Alaska R. Civ. P. 90.3 commentary VI.B.


Footnote 20:

     State, Dep't of Revenue, CSED v. Pealatere, 996 P.2d 84, 87
(Alaska 2000) (quoting Alaska R. Civ. P. 90.3(c)(1)).


Footnote 21:

     See Acevedo v. Burley, 944 P.2d 473, 475 (Alaska 1997).


Footnote 22:

     Alaska R. Civ. P. 90.3 commentary VI.B.2. (emphasis added).


Footnote 23:

     Bill presented no other "evidence"of unusual circumstances
justifying a decrease in ordered support in his affidavit.  The
dissent's identification of other conclusory statements made by
Bill is derived from Bill's arguments in his supporting memorandum,
not his affidavit.  And in his affidavit, Bill supplies the facts
about his stepchildren's educational and medical needs in an effort
to explain his "reason for volunteering for extra overtime"and to
prevent an increase in child support based on that increase in
income.


Footnote 24:

     Id.


Footnote 25:

     Because we conclude that Bill failed to allege facts which
would justify a reduction in his support obligation, we need not
address whether the needs of stepchildren -- as opposed to
biological or adopted children for whom the parent has a legal
obligation to support -- may ever present the unusual circumstances
necessary to support a motion to decrease child support.  Compare 
Dewey v. Dewey, 886 P.2d 623, 625 (Alaska 1994) (stepparents have
no general duty to care for their stepchildren), and Burgess v.
Burgess, 710 P.2d 417, 422 (Alaska 1985) ("[A] stepparent-stepchild
relationship imposes no obligations and confers no benefits on
either the stepparent or the child."), with AS 25.20.030 ("Each
parent is bound to maintain the parent's children when poor and
unable to work to maintain themselves."), and Alaska R. Civ. P.
90.3 (requiring child support from non-custodial parents).



                FOOTNOTES (Concurrence / Dissent)


Footnote 1:

     Alaska R. Civ. P. 90.3 commentary I.A.


Footnote 2:

     See Eagley v. Eagley, 849 P.2d 777 (Alaska 1993); Bunn v.
House, 934 P.2d 753 (Alaska 1997), and cases there cited. 


Footnote 3:

     See Acevedo v. Burley, 944 P.2d 473, 475 (Alaska 1997); see
also Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999).


Footnote 4:

     See Morino, 970 P.2d at 428.


Footnote 5:

     In his affidavit, Bill states that his two youngest step-

children suffer from significant medical conditions, including
severe asthma, allergies, heart blockage, ADHD, ear blockages, and
dental problems.  Bill also alleges that both young stepchildren
require special education, and that he and his wife must pay part
of the cost of this as part of their home schooling arrangement. 
This affidavit was explicitly filed in support of both Bill's
cross-motion for downward modification of support and his
opposition to CSED's motion to increase support: "Both the
opposition and cross-motion are supported by the memorandum of
points and authorities filed herewith and the affidavit annexed
hereto."  Opposition to State's Motion to Modify Child Support and
Cross-Motion for Modification of Child Custody and for Order
Requiring Plaintiff to Pay Child Support.


Footnote 6:

     Affidavit, paragraphs 5 and 8.


Footnote 7:

     Affidavit, paragraph 8.