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Spott v. Spott (2/16/01) sp-5361

     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

                                 

MARVIN F. SPOTT,              )
                              )    Supreme Court No. S-8867
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-95-7690 CI
                              )
CHERYLE ANN SPOTT,            )    O P I N I O N
                              )
             Appellee.        )    [No. 5361 - February 16, 2001]
______________________________)


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Brian C. Shortell, Judge.


          Appearances:  Kenneth Kirk, Anchorage, for
Appellant.  Maryann E. Foley, Anchorage, for Appellee.


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


          MATTHEWS, Justice.


I.   INTRODUCTION
          Marvin Spott appeals the superior court's modification of
his child support obligations.  Because the trial court should have
used actual income to calculate Marvin's retrospective obligation
of interim support, we vacate the award of arrearages for the
period between December 1, 1995, and July 1, 1997, and remand for
recalculation based on actual income.
II.  FACTS AND PROCEEDINGS
          Marvin and Cheryle Spott were married in 1962 and
separated on March 1, 1994.  When Cheryle filed for divorce in
September of 1995, two of their five children, Seth and Ethan, were
still minors.  They resided with Cheryle.  In March of 1996 a
master of the superior court held a hearing and filed a report
concerning, among other things, interim child support.  But the
master erred in concluding that Seth was not in the physical
custody of his mother.  Because of this mistake interim child
support was ordered only for Ethan.  That support was to commence
on December 1, 1995, in the amount of $654.20 per month.  Marvin's
adjusted income for Civil Rule 90.3 purposes was found by the
master to be $39,252.33, based on Marvin's 1995 earnings.  At the
time of the hearing Marvin was unemployed but the master determined
that Marvin should be able to obtain work similar to that which he
had in 1995.  The superior court approved the master's report May
1, 1996, and the report thus became an order requiring Marvin to
pay interim child support.
          The case was tried on July 7, 8, 9, and September 12,
1997.  The master's mistake regarding Seth's residence was brought
to the court's attention and Cheryle requested that an additional
$228.98 per month for Seth be paid.  The trial court entered
findings of fact and conclusions of law on October 21, 1997.  In
the findings and conclusions the court found that the master had
made a mistake and ordered payment of the additional $228.98 per
month for Seth for interim support from December 1, 1995, through
July 1, 1997.  This figure was based on the adjusted income as
determined by the master in 1996.  
          The October 21, 1997, findings and conclusions left two
issues unresolved.  Marvin owed back child support for the period
not covered by the interim order -- from the date of separation
until December 1, 1995.  The trial court ruled that Cheryle was
entitled to judgment for back child support for this period and
that the amount "will be decided after further submissions of the
parties." 
          Prospective child support -- support for both children
after August 1, 1997 -- was also unresolved.  The court found that
"[c]hild support shall be paid by Marvin F. Spott pursuant to Civil
Rule 90.3.  Mr. Spott has filed an updated Child Support Guidelines
Affidavit with this court (October 13, 1997)."  But the trial court
did not determine the amount of prospective child support that
Marvin should pay.  Instead, it ordered:
          Within ten days the parties shall confer and
determine whether they can stipulate to a Rule 90.3 calculation. 
If they cannot do so, each shall provide within five additional
days detailed additional findings that include a calculation of
those amounts not covered by existing court order(s) and that are
consistent with these findings and conclusions.
 
          Neither of the outstanding issues was resolved as
promptly as the court contemplated.  On November 25, 1997, Cheryle
moved for an order establishing pre-December 1, 1995, arrearages. 
On December 17, 1997, Marvin filed a cross-motion requesting that
all arrearages, including those for Seth, after December 1, 1995,
be based on his actual income rather than the predicted income
figure developed by the master.  This cross-motion was not ruled
on, at least explicitly.  On January 20, 1998, a judgment and
decree were entered, but these did not resolve the issues of pre-
December 1, 1995, child support or prospective child support.  No
certificate was issued pursuant to Civil Rule 54(b). 
          The issue as to pre-December 1, 1995, arrearages was
finally resolved by agreement and a judgment against Marvin for
those arrearages was entered on April 17, 1998.  No certificate
pursuant to Civil Rule 54(b) was entered with respect to this
judgment.  The issue of prospective child support was not resolved
until October 27, 1998, when the court ordered that Marvin pay
$452.60 per month for the two children beginning August 1, 1997. 
This was based on a determination that Marvin's adjusted annual
income was $20,115.48. 
          Entry of the child support order on October 27, 1998,
resolved the final issue in this case.  Meanwhile, on June 24,
1998, Marvin appealed, claiming that the April 17, 1998, judgment
was a final appealable judgment.
III. DISCUSSION
          Marvin's appeal was prematurely brought.  A case does not
become final and appealable until all claims are resolved. [Fn. 1] 
The issue of child support for Ethan and Seth beginning August 1,
1997, and continuing until the support obligation for each should
terminate was not resolved until October 27, 1998.  This appeal
therefore either should have been dismissed with notice that it
should be refiled when timely, or it should have been held in
abeyance until a final judgment was entered. [Fn. 2]  But since "a
party taking an early appeal in circumstances where there is
uncertainty as to whether a final judgment exists does not risk
losing the right to appeal," [Fn. 3] we will treat this case as if
the appeal had been taken after the October 27, 1998, final
judgment.
          On appeal, Marvin argues that the trial court violated
Civil Rule 90.3(h)(2) by retroactively modifying his child support
obligation.  He also argues that if this court finds the trial
court's award of support for Seth permissible, the trial court
erred in using Marvin's predicted income, rather than his actual
income, to determine the amount he owed.
     A.   Standard of Review
          This court normally reviews awards of child support for
abuse of discretion. [Fn. 4]  This case, however, involves the
proper method of calculating child support, which is a question of
law, reviewed de novo. [Fn. 5]  In reviewing questions of law, this
court will "adopt the rule of law that is most persuasive in light
of precedent, reason, and policy." [Fn. 6] 
     B.   The Trial Court's Award of Interim Child Support for Seth
Was Not a Retroactive Modification of Child Support.

          Marvin claims that the trial court's award of interim
child support for Seth constituted a retroactive modification of
child support in violation of Civil Rule 90.3(h)(2). [Fn. 7] 
Marvin's position is that because the court had already awarded
interim child support for Ethan for the period from December 1,
1995, through July 1, 1997, the court could not later award support
for Seth for the same period without violating Rule 90.3(h)(2).
          In our view the prohibition against retroactive
modifications does not extend to cases such as this one where
support for one child is not ordered.  As to that child there is no
child support order and thus no order to retroactively modify.
          Whether or not there exists a support order, "[a] parent
is obligated both by statute and at common law to support his or
her children." [Fn. 8]  Where "no support order is in effect during
[the] relevant period, the amount of the obligation must be
calculated under Rule 90.3." [Fn. 9]  "[A]pplying Rule 90.3 under
these circumstances does not modify any existing arrearage." [Fn.
10]  The superior court in this case correctly determined that
there was a support order in effect for Ethan, and no support order
for Seth.  The superior court's calculation of the interim support
Marvin owed Cheryle for Seth could have been expressed in a
separate order.  The fact that it was combined with the amount
already ordered for Ethan is a matter of form rather than
substance, and does not violate the prohibition on retroactivity.
          Marvin also asserts that if the court was modifying
interim child support under Rule 60(b)(1), the court failed to
observe the one-year limitation period expressed in that rule.  But
Rule 60(b) does not apply to interim orders, so this point lacks
merit. 
          Marvin also advances an argument that separate support
orders for children within one family are "contrary to the concept
of child support in Alaska."  He asserts that "all of the children
of two parents, should be covered under one support order."  While
we agree that one support order is standard practice, we know of no
reason why separate orders may not properly be issued. 
     C.   The Trial Court Erred in Using Marvin's Predicted Income
to Determine Interim Child Support for Seth.

          Marvin next argues that, assuming the trial court's award
of interim support for Seth was proper, the superior court should
have used Marvin's actual rather than predicted income.
          In making retrospective rather than prospective child
support awards actual income rather than earlier predictions as to
income should be used. [Fn. 11]  When the court awarded
retrospective interim support for Seth, the question of prospective
child support both for Ethan and Seth was left unresolved.  Marvin
had filed an updated child support affidavit on October 13, 1997,
showing his adjusted yearly income to be $20,814.84.  Although the
trial court mentioned this affidavit, it neither accepted nor
rejected it, leaving the issue as to Marvin's earnings for future
resolution.  Ultimately, after oral argument and a review of
Marvin's actual earnings, the trial court determined that Marvin's
adjusted income was $20,115.48 and awarded on-going child support
based on this figure, beginning August 1, 1997.  Because
retrospective support should be based on actual rather than
predicted income, and actual income remained for resolution as of
the entry of the October 21, 1997, findings and conclusions, we
believe that the court erred in failing to defer the question as to
the amount of interim support owed for Seth until Marvin's actual
income was determined. [Fn. 12]
IV.  CONCLUSION
          For the above reasons, the award of arrearages for Seth
between December 1, 1995, through July 1, 1997, is VACATED with
directions to recalculate such arrearages based on appellant's
actual income for that period.
          VACATED and REMANDED


                            FOOTNOTES


Footnote 1:

     See Alaska R. Civ. P. 54(b).


Footnote 2:

     See Egemo v. Egemo Constr. Co., 998 P.2d 434, 441 (Alaska
2000); Evron v. Gilo, 777 P.2d 182, 185 (Alaska 1989).


Footnote 3:

     Evron, 777 P.2d at 185.


Footnote 4:

     State, Dep't of Revenue, Child Support Enforcement Div. v.
Pealatere, 996 P.2d 84, 86 (Alaska 2000).


Footnote 5:

     See State, Child Support Enforcement Div. v. Bromley, 987 P.2d
183, 191 (Alaska 1999).


Footnote 6:

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


Footnote 7:

     Civil Rule 90.3(h)(2) prohibits the retroactive modification
of child support, subject to the exceptions contained in AS
25.27.166(d).


Footnote 8:

     Matthew v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987).


Footnote 9:

     Benson v. Benson, 977 P.2d 88, 92 (Alaska 1999).


Footnote 10:

     Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska 1996).


Footnote 11:

     See Crayton v. Crayton, 944 P.2d 487, 490 (Alaska 1997)
(requiring that retrospective support be calculated based on actual
income).


Footnote 12:

     Not a great deal seems to turn on this point.  The marginal
child support rate applicable to Seth under Civil Rule 90.3(a) is
seven percent.  Using the adjusted income figure developed by the
master, $39,252.33, this meant that an additional $228.97 per month
should have been paid or, over the 20-month period in question,
$4,579.40.  By contrast, if the adjusted income figure used by the
court for prospective support as of August 1, 1997 ($20,115.48)
were used, this would mean a monthly obligation of $117.34, or a
total arrearage of $2,346.80.  Of course, actual earnings during
the 20-month period were not necessarily identical to the earnings
found by the court to apply as of August 1, 1997.