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Faulkner v. Goldfuss (5/10/2002) sp-5565
Faulkner v. Goldfuss (5/10/2002) sp-5565
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,
e-mail corrections @appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KIMBERLY FAULKNER, )
) Supreme Court No. S-9658
Appellant, )
) Superior Court No. 4FA-99-189
CI
v. )
) O P I N I O N
STEVEN GOLDFUSS, )
) [No. 5565 - May 10, 2002]
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: Kimberly L. Faulkner, pro se,
North Pole. Lynn E. Levengood, Downes,
MacDonald & Levengood, P.C., for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
I. Kimberly (Kim) Faulkner raises numerous issues
concerning child support, child custody, and property division in
her divorce from Steven Goldfuss. We affirm as to most of these
issues, including child custody. But because it was error to
disallow Kim a deduction for the depreciation of several rental
properties, to include as gross income child support Kim received
for a child from a previous relationship, and to subtract the
amount of that child support from her proposed deduction under
Alaska Civil Rule 90.3(a)(1)(C), we vacate the child support
award and remand for a recalculation of child support. And
because the superior court valued the marital share of Kims
military retirement based on the number of months she was
employed during coverture, rather than the number of points she
earned during coverture, we remand for additional findings.
II. FACTS AND PROCEEDINGS
Kimberly Faulkner and Steven Goldfuss married in
October 1995 in Anchorage. They had two children, Ryan and
Adrian. Kim also had two minor children from previous
relationships, Dominique (Nick) and Lolitta. Steven adopted
Lolitta soon after he married Kim.
During a 1997 separation Kim and Steven entered into a
post-nuptial agreement, which stipulated to the distribution of
their separate and marital property upon dissolution or divorce.
They also agreed to sell their jointly owned business, Sail N
Fun.
In January 1999 Kim filed a complaint for divorce. In
December 1999 the parties entered into a written settlement
agreement regarding child custody and visitation. Among other
things, it provided that the parties would share physical custody
of the children; it also specified the percentage of time each
child was to spend with each parent.
After a trial in January 2000, the superior court
granted the parties a divorce. It awarded Steven sole legal
custody of Ryan, Adrian, and Lolitta. Stating that it was
attempting [t]o effectuate as closely as . . . it [could] . . .
the [December 1999 settlement] agreement between the parties, the
court awarded the parties shared physical custody of the
children. The superior court quantified the percentage of time
each child would reside with each parent under the custody order.
It also divided the parties real and personal property, and
ordered Kim to pay child support of $288.39 per month. Kim
appeals.
III. DISCUSSION
A. Standard of Review
We review a child support award for abuse of
discretion.1 We will find an abuse of discretion only when,
based on a review of the whole record, we are left with a
definite and firm conviction that a mistake has been made. 2 The
proper method of calculating child support is a question of law,
which we review de novo, adopting the rule of law that is most
persuasive in light of precedent, reason, and policy.3
The superior court has broad discretion in child
custody matters.4 We will reverse the superior courts resolution
of custody issues only if we are convinced that the record shows
an abuse of discretion, or if controlling factual findings are
clearly erroneous.5 An abuse of discretion is established if the
superior court has considered improper factors in making its
custody determination, has failed to consider statutorily
mandated factors, or has assigned disproportionate weight to
particular statutory factors while ignoring others.6 A factual
finding is clearly erroneous if a review of the entire record
leaves us with a definite and firm conviction that the trial
court has made a mistake.7
The superior court has broad discretion when dividing
property in a divorce action.8 Property division in a divorce
action consists of three steps: (1) determining what property is
available for distribution; (2) valuing the property; and (3)
allocating the property equitably.9 We review the superior
courts determination of the property available for distribution
for abuse of discretion; we review de novo the legal conclusions
the superior court reaches while making this determination.10 The
valuation of available property is a factual determination that
we review under the clearly erroneous standard.11 We review the
superior courts equitable allocation of property for abuse of
discretion, reversing only if the allocation is clearly unjust.12
B. Child Support
The superior court ordered Kim to pay child support of
$288.39 per month. Kim contends that the superior court
erroneously calculated her child support obligation, because the
court (1) disallowed a deduction for depreciation; (2) imputed as
income to her the rental value of her apartment; (3) included as
income child support she receives for a child of a previous
marriage; (4) failed to make findings regarding her claimed
deduction for net operating losses; and (5) miscalculated the
percentage of time each parent has physical custody of the
children.13
1. It was error to deny Kim a deduction for the depreciation of
her rental properties.
Kims child support guidelines affidavit claimed a
$15,000 deduction for the depreciation of several rental
properties.14 Citing Hilderbrand v. Hilderbrand,15 the superior
court disallowed Kims proposed depreciation deduction. Kim
appeals this ruling.
The commentary to Alaska Civil Rule 90.3 states: Income
from self-employment, rent, royalties, or joint ownership of a
partnership or closely held corporation includes the gross
receipts minus the ordinary and necessary expenses required to
produce the income.16 We have held that the superior court
should normally allow a deduction for the straight line
depreciation the difference between the original cost of an
asset and its scrap value divided by the estimated useful life of
the asset of a child support obligors business real estate as an
ordinary and necessary business expense.17
But we held in Hilderbrand that a depreciation
deduction is not allowed if it could not be claimed for tax
purposes.18 Citing Hilderbrand, the trial court disallowed Kims
proposed depreciation deduction. The court did not find,
however, that the proposed deduction could not be claimed for tax
purposes. Indeed, Schedule E of the parties 1995-97 federal
income tax returns, which Kim submitted to the superior court,
claimed a depreciation deduction for the same rental properties,
and the record contains no evidence that the Internal Revenue
Service denied those deductions. We therefore vacate the child
support award and remand for recalculation of Kims child support
obligation, allowing Kim a deduction for the straight line
depreciation of her rental properties.
2. The fair market rental value of Kims apartment was not
imputed as income to her.
1. Kim asserts that the superior court erred by imputing as
income to her the fair market rental value of the apartment in
which she resides. Kim lives rent-free in one unit of a duplex
her brother owns. In return, she manages the property, collects
the rent, and pays the mortgage, utilities, and taxes. Steven
argued below that the superior court should impute as income to
Kim the difference between the fair market rental value of the
apartment and Kims expenses managing the property. Although the
superior courts amended child support order disallowed a
$4,867.11 deduction for Kims expenses attributable to managing
the duplex, the court imputed no income to Kim. We therefore
perceive no error that harmed Kim.19
3. It was error to include as gross income and to subtract from
Kims proposed Civil Rule 90.3(a)(1)(C) deduction the child
support Kim receives for Nick.
Kim received $1,770 in child support for Nick, a child
of a previous marriage. The child support order in the present
case included this amount in Kims gross income. The order also
subtracted $1,770 from Kims proposed deduction under Civil Rule
90.3(a)(1)(C) for child support for children from prior
relationships living with the parent. Kim argues that it was
error to include as income child support she received for Nick,
and to reduce her Civil Rule 90.3(a)(1)(C) deduction by this
amount. We agree.
The commentary to Civil Rule 90.3 states that [c]hild
support is not income.20 Although we have not adopted or approved
the commentary, we often rely upon it for guidance in child
support matters. 21 We conclude here that it was error to include
as gross income child support Kim received for Nick.
We also agree that it was error to reduce Kims Civil
Rule 90.3(a)(1)(C) deduction by $1,770 the amount of child
support she received from Nicks non-custodial parent. Civil Rule
90.3(a)(1)(C) provides that a child support obligor may deduct
from gross income child support for children from prior
relationships living with the parent, calculated by using the
formula provided by [Rule 90.3.] The commentary elaborates:
A deduction . . . is allowed for the support
of the children of prior relationships even
if the party is the custodial parent of the
prior children and does not make child
support payments to the other parent of the
children. In this situation support provided
directly to the children is calculated by
Rule 90.3 as if the children from the prior
relationship were the only children.[22]
Neither Civil Rule 90.3 nor its commentary provides
that the amount of a Rule 90.3(a)(1)(C) deduction must be reduced
by the amount of child support a custodial parent receives for
the child for whom the deduction is claimed. Rather, Rule
90.3(a)(1)(C) provides that a custodial parents gross income may
be reduced by that parents contribution, as calculated under Rule
90.3, to the support of a child from a previous relationship.
The total cost of supporting a child is the sum of both parents
contributions as calculated under Rule 90.3, and the custodial
parents contribution is independent of and in addition to the non-
custodial parents contribution. It was therefore error to reduce
Kims proposed Rule 90.3(a)(1)(C) deduction by the amount of child
support she received from Nicks non-custodial parent.
These two errors require remand for the purpose of
recalculating Kims support obligation based on her adjusted
annual income.
4. It was not error to fail to make findings regarding the
deductibility of net operating losses.
Kim next argues that the superior court erred by
failing to make findings regarding whether and to what extent she
could deduct previously incurred net operating losses from gross
income. Federal taxpayers are permitted by 26 U.S.C. 172 to
carry over and deduct net operating losses for a period of twenty
taxable years following the taxable year of the loss. Civil Rule
90.3 and its commentary do not specify whether previously
incurred net operating losses may be deducted from an obligors
gross income when calculating child support. But not all
deductions that the IRS allows may be deducted from an obligors
income as determined under Rule 90.3.23 Because previously
incurred net operating losses do not reflect upon an obligors
present ability to pay child support,24 we hold that they may not
be deducted from an obligors income when calculating child
support. The superior court did not err.
5. When child support is recalculated on remand, it should be
based on the actual physical custody awarded.
1. Kim also contends that the superior court miscalculated the
percentage of time each parent has physical custody of the
children under the courts child custody order. Under Civil Rule
90.3(b)(2), when parents are awarded shared physical custody, a
parents child support obligation depends in part on the
percentage of time the other parent will have physical custody of
the children. The superior court based its child support award
on its physical custody award, and assumed that the two boys
would be in Stevens custody sixty-three percent of the year and
in Kims custody thirty-seven percent of the year, and that
Lolitta would be in Stevens custody sixty percent of the year and
in Kims custody forty percent of the year. Kim argues that she
actually has custody of Lolitta only thirty-six percent of the
year and custody of the boys only twenty-nine percent of the
year. Steven does not offer different figures, but argues that
this issue was raised and resolved after trial and asserts that
the courts calculations were based on the time the children
actually spent with each parent.
Kims terse appellate arguments simply refer us to the
record and contain no meaningful discussion of the issue. Kim
bears the burden of demonstrating on appeal that the superior
court erred. Accurately counting the days awarded requires access
to the Fairbanks North Star Borough school calendar, and neither
party has included it in the record. We therefore cannot
definitively count the days. But as far as we can tell, it
appears that per the award Lolitta was actually to be in Kims
physical custody about thirty-nine percent of the year. And it
appears that per the award the boys were actually to be in Kims
physical custody about thirty-five percent of the year. It
therefore appears that Kims child support obligation may have
been based on custody divisions that were slightly inaccurate.
We assume that these minor differences would not
justify reversal. But because child support must be recalculated
anyway for the reasons discussed above, the recalculated award
should be based on the exact physical custody actually awarded
the parties.25
C. Child Custody
1. The superior court did not err when it deviated
from the parties custody agreement, because it did
so after expressly finding that the childrens
bests interests required that deviation, and
because those findings were not clearly erroneous.
Kim argues that it was an abuse of discretion to enter
the custody award because it deviated significantly from the
terms of the parties settlement agreement.
In making any custody determination whether following
a contested trial or upon the parties agreement the superior
court must base its decision on the best interests of the child.26
Although a custody agreement does not bind the superior court,
the court should deviate from the terms of a custody agreement
only upon finding on the record that the childs best interests
justify a deviation.27 The legislature has stated that it is
generally desirable to assure a minor child frequent and
continuing contact with both parents after the parents have
separated or dissolved their marriage and that it is in the
public interest to encourage parents to share the rights and
responsibilities of child rearing.28
In December 1999 Kim and Steven entered into a
settlement agreement regarding child custody and visitation. It
provided that the parties would share physical custody of the
children: Ryan and Adrian would reside with Steven for
approximately sixty percent of the year and with Kim for
approximately forty percent of the year; Lolitta would reside
with Steven and Kim each for approximately fifty percent of the
year.
The superior courts written custody and visitation
findings discussed the childrens best interests. The court
stated that it believed that it was paramount and in the best
interest of the children to have one household to call home, and
to limit the time of their separation; it nonetheless expressed
its interest in attempting to accommodate the parties intentions
in their custody agreement. The court also mentioned the best
interests in specifying the visitation.
The superior courts oral findings, which counsel did
not fully incorporate into the proposed written findings and
conclusions, were more specific. The oral findings expressed
reservations about the parties proposed agreement for shared
custody and specifically indicated that the court was willing to
accept the agreement only insofar as it served the childrens best
interests. The courts opening remarks about custody described
the need for a hard look at the settlement agreement. Before
turning to the settlement agreement, the superior court expressly
emphasized its concurrence in two of the recommendations made by
child custody investigator Jeanne Nay:
[B]efore I take a hard look at the
settlement agreement, I guess I want to
express some agreement and some disagreement
with Ms. Nays report. Her testimony, I
think, perhaps was more helpful than her
report. But a couple of common threads
emerge from both her testimony and from the
recommendations in the report. First, and
perhaps foremost, she stated the opinion that
she thinks its very important for all three
of these kids to have a primary residence, a
place that they can regard as home and
unambiguously so. Thats a concern I very
much share, and I think that it is in the
interest of all three kids to be able to
regard one household as home to establish the
level of continuity necessary to their belief
that they have a home.
She also expressed significant concern
about the kids staying together, and when she
said that she was clearly referring I asked
her, she said she meant all three kids. She
thinks its extremely important and serves
equally the interests for the boys and
Lolitta that they spend as much time
together, [and] that they be separated as
little as possible. I also share that
concern, and Im going to craft an order that
addresses those two concerns as serving the
kids interests perhaps above and beyond all
other concerns that certainly are important.
These comments confirm that the superior court believed
that the childrens best interests required it to fashion an award
that would keep all three children together as much as possible
in a single household one that they would unambiguously regard
as their home and that this goal would prevail above and beyond
the parties interest in their custody agreement.
The superior court then turned to the custody
agreement: What I want to do is go through the stipulation, the
settlement agreement, and focus on what I see to be the two
overriding concerns as affecting the kids best interest.
Concerning the agreements two most controversial features the
60/40 split as to Bryans and Adrians custody and the 50/50 split
as to Lolitta the judge expressed reluctance to accept the
agreement as written, again stressing his adoption of the custody
reports views:
I have some significant hesitation as to the
breakdown of 60/40 as to custody, and that
hesitation is pretty much identical with the
hesitation that Ms. Nay expressed.
Nonetheless, I think that her principal
concerns can be addressed in the context of
the stipulation, and Im not going to reject
it. As I say, though, Im accepting that
60/40 split with a certain degree of
hesitation.
The second one, my hesitation is even
greater, but, again, Im willing to accept it,
perhaps with some emphasis on the word
approximately. I will do my best to create a
50/50 split with regard to custody, physical
custody, of Lolitta, but its not going to be
perfect. Again, I have some real hesitation
as to whether that provision is reconcilable
with my overriding concern to make sure that
the kids have a single home.
These oral comments amount to specific findings that it was in
the childrens best interests to deviate from the parties proposed
custody arrangement.
It also appears that these findings are supported by
the evidence cited by the superior court. The child custody
investigator wrote a detailed and thorough custody report. She
concluded that the three children desperately needed one parent
to serve as their primary parent at a single, stable household to
call their home. The investigator also emphasized that all three
children were closely bonded, particularly stressing the close
bond between Lolitta and the older son, and the older sons
emotional reliance on Lolitta. The child custody investigator
concluded that a shared custody arrangement could not meet the
childrens needs and that the award of primary custody to one or
the other would be necessary.
The investigation also produced evidence that
negatively reflected on Kims ability to parent Lolitta and
perhaps the other children. This evidence caused the
investigator to question Kims ability to meet the childrens needs
if she were their primary parent. The child custody investigator
had reservations about Steven as well, but her exhaustive
analysis of the statutory best interests factors led her to
conclude that Steven would clearly be the superior primary parent
for all three children. The child custody investigator
thoroughly discussed the reasons for this opinion.
The child custody investigator testified at length at
the evidentiary hearing. She there confirmed and elaborated on
the conclusions reached in her report. She explained her reasons
for believing that Kims impulsive and unstable behaviors had
often placed her children in physical and emotional danger; she
described various ways in which Steven would be the superior
parent; she confirmed her belief that all three children should
share the same primary household and visitation schedule; and
when specifically asked by the superior court if she thought that
the court should override the parties custody agreement, Nay
answered Yes, firmly maintaining her position that childrens best
interests would be served only by awarding primary custody to
Steven.
The child custody investigators custody report and
testimony reveal that her conclusions were based on compelling,
case-specific evidence, and not abstract notions about good
parenting or the needs of typical children.
In short, the superior court had before it evidence
amply supporting its findings that the childrens best interests
warranted some deviation from the parties proposed custody
arrangement. The superior courts findings justified deviation
from the agreement, and because there was compelling evidence
supporting those findings, the superior court did not clearly err
in making those findings. We therefore affirm the custody and
visitation award.29
2. It was not an abuse of discretion to award Steven
legal custody of Lolitta even though Steven is not
Lolittas biological father.
Kim contends that because Steven is not Lolittas
biological father Steven adopted Lolitta shortly after he
married Kim it was an abuse of discretion to award Steven legal
custody of Lolitta absent a showing that Kim is unfit, has
abandoned Lolitta, or that Lolittas welfare requires that Steven
receive legal custody of Lolitta. Kim cites Turner v. Pannick,
where we held that [u]nless the superior court determines that a
parent is unfit, has abandoned the child, or that the welfare of
the child requires that a non-parent receive custody, the parent
must be awarded custody.30
Because AS 25.23.130(a)(2) provides that an adoption
creates a relationship between the adoptive parent and child as
if the adopted person were a legitimate blood descendant of the
[adoptive parent], Turner is inapposite. It was therefore not an
abuse of discretion to award Steven legal custody of Lolitta.
We do not mean to imply, however, that the fact of an
adoption may not be relevant to custody determinations. For
example, AS 25.20.090(6)(A) provides that the court, [i]n
determining whether to award shared custody of a child . . .
shall consider . . . the actual time spent with each parent. A
biological parent potentially may have a longer relationship with
the child than an adoptive parent. But the fact of adoption, in
and of itself, does not disfavor the adoptive parent for purposes
of determining the legal custody of an adopted child.
3. It was error not to make findings explaining the
decision not to appoint a guardian ad litem.
Kim moved before trial to have a guardian ad litem
appointed to represent the interests of the children. The
superior court denied Kims motion without making any findings on
the record explaining its decision.
Alaska Civil Rule 90.7(c) provides that [i]f the court
denies a motion for appointment of a guardian ad litem, the court
must make findings to explain the denial. Similarly, AS
25.24.310 states: Upon notification, the court shall determine
whether the minor or other child should have legal representation
or other services and shall make a finding on the record before
trial.31 We therefore conclude that it was error not to make
findings on the record explaining the courts decision not to
appoint a guardian ad litem. If the superior court concludes on
remand that its reasons for denying Kims motion have changed, the
court may, but is not required to, revisit the issue.
D. Property Division
1. Kims Alaska Air National Guard pension
The superior court found that Steven was entitled to a
marital share of [Kims] military pension and that Stevens marital
interest in [the] pension [was] equal to 53 total months of
service employment. Kim argues that the court erred (1) by
basing the marital share of Kims pension on the total period of
coverture, and not just the duration of the marriage; and (2) by
determining the marital share of Kims pension based on the number
of months of employment during coverture rather than the points
earned during coverture. We address each argument in turn.
We disagree with Kims assertion that because the
parties married in October 1995 and separated in January 1999,
the superior court should have based the marital share of her
military pension on a maximum of thirty-nine months of
employment, the duration of the marriage proper. In Murray v.
Murray, we held that the trial court is free to consider the
parties entire relationship, including any period(s) of
premarital cohabitation, in dividing the parties property.32
Thus, the basis for calculating the marital share is not
necessarily limited to the period of the parties marriage. It
appears from the record that the parties began cohabiting in
October 1994, fifty-one months before their eventual separation.
If the superior court finds on remand that the parties indeed
began cohabiting in October 1994, it should adjust the coverture
period accordingly.
We agree with Kims contention that the superior court
should have determined the marital share of Kims pension based on
the number of points earned during the period of coverture rather
than the number of months of employment during coverture. The
marital share of a pension is typically determined by the
coverture fraction, whose numerator is the number of months of
employment during coverture, and whose denominator is the total
number of months of employment at the time of vesting.33 But
where the value of retirement benefits is not directly related to
the length of employment such as when retirement benefits will
be determined by the number of points earned as a result of the
nature and frequency of the service rendered the coverture
fraction should be modified so that the numerator becomes the
number of points earned during the period of coverture, and the
denominator becomes the total number of points earned.34 Because
Kims retirement is determined in part by the number of points she
will have earned35 Kim earns one retirement point for each day of
active duty it was error to determine the marital share of Kims
retirement simply based on the number of months of employment
during coverture rather than the number of points earned during
coverture.36 We therefore remand for additional findings.
2. The Oregon Street duplex
The parties 1997 post-nuptial agreement classified a
duplex on Oregon Street as Kims separate property. Thereafter,
Kim and Steven jointly acquired debt which was secured by that
property, and Kim concedes that Stevens name was added to the
title. The superior court therefore classified the property as
marital. Kim contends that it was an abuse of discretion to
classify the property as marital, because, she argues, there was
no intent to transmute the Oregon duplex from separate to marital
property.
Parties to a divorce may stipulate to the
characterization of property.37 And absent a cognizable contract
defense, such as fraud, stipulations should be enforced.38 But
Kims counsel conceded at trial that the Oregon Street duplex
should be classified as marital property. And when asked by the
court: Do you think anything that has been done or proposed does
violence to [the] postnuptial agreement, Kims counsel responded
No. We therefore conclude that it was not an abuse of discretion
to classify the Oregon Street duplex as marital property.
3. The superior courts valuation of the van was not
clearly erroneous.
Kim next argues that it was error to value the Toyota
Sienna van the court awarded her at $25,000, because the van is
encumbered by a $20,000 debt. Kim cites Mack v. Mack, where we
stated that [g]enerally, the debt owed on any particular item of
property will factor into the trial courts determination of the
value of it.39 But because the court allocated the van debt to
Steven, we conclude that it was not clearly erroneous to value
the van at $25,000.
4. It was not error to fail to value Sail N Fun at
the time of separation.
Kim next argues that the superior court erroneously
failed to value the parties jointly owned business, Sail N Fun,
at the time of separation. Kim admits that she did not seek such
a valuation at trial. This argument was not preserved.40
IV. CONCLUSION
Because it was error to disallow Kim a deduction for
the depreciation of several rental properties, to include as
gross income child support Kim receives for a child from a
previous relationship, and to subtract the amount of that child
support from her proposed deduction under Civil Rule
90.3(a)(1)(C), we VACATE the child support award and REMAND for
recalculation of Kims child support obligation. Because the
child custody order was based on best interests findings that
justified deviation from the parties custody agreement, we AFFIRM
the custody order. And because the value of the marital share of
Kims military retirement should have been based on the number of
points earned during the period of coverture, we REMAND for
additional findings regarding the military pension benefit.
_______________________________
1 See Gallant v. Gallant, 945 P.2d 795, 798 (Alaska
1997).
2 Schuyler v. Briner, 13 P.3d 738, 741 (Alaska 2000)
(quoting State, Dept of Revenue, CSED v. Pealatere, 996 P.2d 84,
86 (Alaska 2000)).
3 See Spott v. Spott, 17 P.3d 52, 55 (Alaska 2001).
4 See Evans v. Evans, 869 P.2d 478, 479 (Alaska 1994).
5 See Farrell v. Farrell, 819 P.2d 896, 898 (Alaska
1991).
6 See Evans, 869 P.2d at 480.
7 Id. at 479 (citing Money v. Money, 852 P.2d 1158, 1161
(Alaska 1993)).
8 Berry v. Berry, 978 P.2d 93, 95 (Alaska 1999)
(citations omitted).
9 See id.
10 See id.
11 See id.
12 See id. (citing Compton v. Compton, 902 P.2d 805, 808
n.2 (Alaska 1995)).
13 Kim also argues that the court miscalculated interim
child support, and precluded her from presenting relevant
evidence at an April 7, 1999 hearing regarding interim child
support. But Kim concedes that these alleged errors are not
reversible in many of [their] effects. We therefore do not reach
the merits of Kims arguments regarding interim child support.
14 Kim submitted several child support guidelines
affidavits to the superior court. The superior court considered
the affidavit submitted on January 21, 2000.
15 962 P.2d 887 (Alaska 1998).
16 Alaska R. Civ. P. 90.3 cmt. III.B (emphasis added).
17 See, e.g., Hilderbrand, 962 P.2d at 889-90; Nass v.
Seaton, 904 P.2d 412, 416-17 (Alaska 1995) (holding it was error
to disallow straight line depreciation for portion of child
support obligors residence obligor used in his business); Eagley
v. Eagley, 849 P.2d 777, 781 (Alaska 1993) (allowing deduction
for straight line depreciation of child support obligors business
real estate as ordinary and necessary business expense).
18 See Hilderbrand, 962 P.2d at 890.
19 Steven argues that the superior court erred by failing
to impute as income to Kim the rental value of her apartment, and
that this error offsets and renders harmless any error in failing
to give Kim a deduction for depreciation of her rental
properties. See supra Part III.B.1. But the imputed income
question is a separate issue, which only by complete coincidence
could offset the error of disallowing the depreciation deduction.
We therefore cannot affirm the child support order on this
alternative ground. And because Steven did not cross-appeal the
imputed income question, we decline to reach its merits.
20 Alaska R. Civ. P. 90.3 cmt. III.A.
21 See State, Child Support Enforcement Div. v. Bromley,
987 P.2d 183, 194 (Alaska 1999) (quoting Bunn v. House, 934 P.2d
753, 755 n.7 (Alaska 1997)).
22 Alaska R. Civ. P. 90.3 cmt. III.D.
23 See Alaska R. Civ. P. 90.3 cmt. III.B (Ordinary and
necessary expenses do not include amounts allowable by the IRS
for the accelerated component of depreciation expenses,
investment tax credits, or any other business expenses determined
by the court to be inappropriate.).
24 See Zimin v. Zimin, 837 P.2d 118, 123 (Alaska 1992)
([T]he goal of the Rule 90.3 guidelines is to obtain a realistic
estimate of an obligors adjusted annual income . . . .).
25 In Part III.C.1 we discuss the deviation between the
agreed-upon custody and the awarded custody. We assume there
that the award actually achieved what the superior court
intended, but allow the court to revisit custody if the award did
not achieve the numerical division the court intended.
26 Crane v. Crane, 986 P.2d 881, 887 (Alaska 1999)
(citations omitted).
27 See McClain v. McClain, 716 P.2d 381, 385 (Alaska 1986)
(holding that custody agreement has no binding force on the court
[and that] [t]he contractual intent of the parties is irrelevant.
The court must independently determine what arrangement will best
serve the childs interests.); see also Crane, 986 P.2d at 885
(When a stipulation is admitted by both parties or their
attorneys in open court and there is no dispute as to the
material terms of the settlement, the stipulation is enforceable
between the parties absent fraud, duress, or concealment of other
facts showing the agreement was not made voluntarily and with
full understanding. However, when the subject matter of the
agreement is child custody, the agreement must also meet the best
interests of the children.) (citations omitted).
28 Ch. 88, 1(a), SLA 1982.
29 Kim claims that the superior court miscalculated the
effect of its award. As noted above in Part III.B.5, the number
of days of actual physical custody and visitation awarded to Kim
for all three children may have been slightly lower than the
superior court intended. This deviation is irrelevant in context
of Kims argument that the court erred by failing to follow the
parties custody agreement. The superior courts reasons for
choosing not to follow the parties agreement are unaffected by
any slight numerical deviations in the physical custody actually
awarded. Because the superior court will have to accurately
determine on remand the custody and visitation previously
awarded, it may conclude that the award did not in fact achieve
what the superior court intended. We leave it to the superior
court to adjust visitation if that is necessary to achieve its
previously expressed intentions.
Kim also argues that it was error to award her custody
on weekends when she drills with the National Guard. Because we
remand for further proceedings, we do not need to consider this
argument. But the court on remand should construct to the
maximum extent possible a visitation schedule that conforms to
the parties availability; it should avoid scheduled weekend drill
and annual training dates or adopt a default schedule for
substitute visitation (for example, first weekend after a drill
weekend conflict).
30 540 P.2d 1051, 1055 (Alaska 1975).
31 See also Howlett v. Howlett, 890 P.2d 1125, 1127-28
(Alaska 1995) (It is error for a trial judge to fail to make
findings on the record explaining its decision concerning
appointment of a guardian ad litem.) (citation omitted).
32 788 P.2d 41, 42 (Alaska 1990).
33 See Wainwright v. Wainwright, 888 P.2d 762, 763 (Alaska
1995).
34 See In re Marriage of Poppe, 158 Cal. Rptr. 500, 504
(Cal. App. 1979).
35 Kim was not employed full-time during most of her
marriage to Steven. But Kim accrued points based on full-time
service before she married Steven, and she claims that she may
eventually . . . retire as a full timer. Because Kim
accumulated points at a slower rate during her marriage to Steven
than she did before she married him, the number of months of
employment during coverture is not directly related to the number
of points Kim earned during marriage, and hence to the value of
Kims retirement benefit.
36 Thus, Stevens share of Kims retirement benefit when she
eventually retires and stops earning points will be (x)(y)(points
earned during coverture/total points earned), where x is the
percentage of Stevens marital share, and y is the total value of
the benefit earned.
37 Brown v. Brown, 947 P.2d 307, 309 (Alaska 1997) (citing
Laing v. Laing, 741 P.2d 649, 652 (Alaska 1987)).
38 See id.
39 816 P.2d 197, 199 (Alaska 1991) (citation omitted).
40 See Zeman v. Lufthansa German Airlines, 699 P.2d 1274,
1280 (Alaska 1985).
