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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Potter v. Potter (9/27/2002) sp-5636

Potter v. Potter (9/27/2002) sp-5636

     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.


DAVID H. POTTER,              )
                              )    Supreme Court No. S-9951
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3HO-89-18 DR
SHELLY J. POTTER, n/k/a       )    O P I N I O N
SHELLY BREWSTER,              )
                              )    [No. 5636 - September 27,
             Appellee.             )
_______________________________ )

          Appeal from the Superior Court of the State
          of Alaska, Third Judicial District, Homer, M.
          Francis Neville, Judge pro tem.

          Appearances:  Donna C. Willard, Law Offices
          of Donna C. Willard, Anchorage, for
          Appellant.  Joan M. Clover, Gruenberg, Clover
          & Holland, Anchorage, for Appellee.

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

          MATTHEWS, Justice.
          FABE, Chief Justice, with whom CARPENETI, Justice,
joins, dissenting.

          Under review in this case is an order that increased

the child support that David H. Potter must pay and modified his

visitation privileges.  We conclude that the order is sustainable

as to child support but not as to visitation because no notice

was given that the latter issue was to be tried.

          David Potter and Shelly Brewster divorced in 1990.  The

decree incorporated a custody and support agreement which

nominally gave Brewster primary physical custody of the parties

daughter, Sunny, but included a detailed visitation order that

essentially allowed the parties to have shared physical custody.

Potter was to pay child support of $532 per month.  Over the nine

years that followed, the parties largely ignored the details of

the visitation order but amicably shared custody and visitation.

During much of this period, Sunny regularly stayed in Potters

home and may have spent as much time with him as with Brewster.

But eventually Sunny began to spend less time with Potter and

more with Brewster.  By 1999, when she was fourteen years old,

Sunny evidently lived full-time with Brewster and visited Potter

only occasionally.

          In May 1999 Brewster filed a pro se motion to increase

child support payments, alleging that Sunny lived primarily with

her.  Potter, pro se, opposed the motion, essentially claiming

that he had paid almost all of Sunnys expenses to date and had

shared equally in her custody.  The superior court scheduled an

evidentiary hearing on the motion to increase child support for

January 27, 2000.

          By then both parties had hired attorneys.  A week

before the hearing Brewsters counsel filed two pleadings.  The

first was a motion to modify visitation and child support.  The

second was a motion to hold the first in abeyance.  Brewster

explained in a pleading filed January 27, 2000, that these

motions were filed only as part of

          a contingency plan.  In the event Mr. Potter
          prevails and the court will not increase
          child support without modification of
          visitation . . . Ms. Brewster will have in
          place, with an early filing date, an
          alternative method.  Ms. Brewster does not
          really want to instigate a custody
          modification proceeding with the requisite
          best interests inquiry which would
          necessarily involve input from her 14-year-
          old daughter.  Above all she wants to protect
          Sunny from involvement in litigation. Ms.
          Brewster believes that she is working on
          behalf of Sunny by seeking child support from
          her father which is both fair and necessary
          and if support can be modified without
          modifying the custody order, as is our
          position here, she will withdraw this
          secondary motion.
          On January 27 the court decided to take testimony from

Brewster but otherwise continue the scheduled hearing.  The court

described the issues and proceedings of that date in an order of

February 18, 2000, as follows:

               By the January 27 hearing, it was clear
          that there were a number of factual disputes
          regarding the incomes of the parties and the
          amount of time Sunny had been spending with
          each parent.  It was also clear that counsel
          had not had sufficient time to investigate
          and prepare for an evidentiary hearing on all
          of these issues and that the issues
          concerning income were likely to be resolved
          by the parties if they had additional time to
          exchange documents.  There were also a number
          of related issues in dispute.  The most
          significant legal issues were (1) whether the
          court should decide child support on the
          basis of a sole custody calculation or a
          shared custody calculation and (2) whether
          the number of overnights allowed under the
          parties settlement agreement or the actual
          number of overnights Sunny spent with Potter
          should control his child support obligation.
          The court agreed to hear testimony from
          Brewster since she and her counsel had
          traveled to Homer for the hearing, but to
          continue the hearing to allow the parties
          additional time to prepare.  The court also
          agreed to address the legal issues described
          above before the next hearing.  The court
          permitted counsel to supplement their
          briefing on the legal issues.
          On February 23 the evidentiary hearing continued.  At

the outset, so that the issues to be tried would be confined,

Brewsters counsel sought a ruling that child support could be

changed without modifying the visitation order.  The superior

court so ruled.  The parties then proceeded to try the child

support issue, understanding that the court had ruled that the

parties actual visitation practices would determine how child

support would be calculated.  After the February 23 evidentiary

hearing the parties submitted final arguments in writing, both

focusing entirely on issues of child support.

          Several months after the parties submitted their final

arguments, the superior court issued its written decision.  The

court changed child support from $532 to $997 per month.  The

court calculated child support under Civil Rule 90.3(a), relating

to primary physical custody, rather than Civil Rule 90.3(b),

relating to shared physical custody.  The court also modified

visitation, ruling that Potter would have reasonable visitation

that was to be determined by the parties with a focus on

rebuilding the relationship between Sunny and Potter, and without

concern for child support ramifications.

          From this decision Potter appeals, making the following


     1.   That modifying visitation violated due process because

he had no notice that visitation was at issue.

     2.   That modifying visitation was erroneous because there

was no substantial change in circumstances.

     3.   That child support must be based on decreed visitation

rather than the visitation practices of the parties.

     4.   That certain factual findings concerning visitation are

clearly erroneous.

          Brewster responds to these arguments as follows:

     1.   That due process was not violated because her

contingent motion to modify the child custody agreement put

visitation at issue and the court did not rule on her companion

motion to hold the motion in abeyance.

     2.   That the parties practices regarding visitation

justified the change in visitation.

     3.   That the child support modification can be upheld based

on the parties actual visitation practices, even if it was error

to modify visitation.

          We agree with Potter that he was not given notice that

modification of visitation would be at issue in the evidentiary

proceedings and therefore the courts order regarding visitation

does not satisfy due process.  This conclusion moots his second

argument.  But we agree with Brewster that child support was

properly modified prospectively based on the parties visitation

practices.  Finally, we do not believe that the courts challenged

findings of fact regarding visitation are clearly erroneous.

          Our conclusion that the court erred in modifying the

visitation decree without giving the parties notice that this was

an issue for trial follows from the pretrial proceedings.

Brewster argued that child support could be changed based on the

parties past practices with respect to visitation without

changing the visitation decree.  She wanted to avoid a trial

regarding visitation modification because she believed that such

a trial would involve the testimony of Sunny and she did not want

Sunny to be involved.  Potter, on the other hand, contended that

child support must be based on decreed visitation and argued that

if Brewster wanted increased support she would have to prosecute

her motion to modify visitation.  The superior court, wishing to

avoid the potential problem of Sunny getting involved in this

whole dispute, as a player, agreed with Brewster and confined the

issues as Brewster requested.

          Due process under the Alaska Constitution requires, at

a minimum, that parties be notified of the subject of proceedings

concerning them so that they will have a reasonable opportunity

to be heard.1  Here this requirement was not met.  Potter was

given no notice that modification of decreed visitation was at

issue  indeed, based on the courts rulings, both parties

reasonably expected that decreed visitation would not be at

issue.  Potters due process rights were therefore violated.

          We turn next to the question whether prospective child

support can be modified based on the parties actual, as distinct

from decreed, visitation practices without also modifying the

underlying visitation decree.

          As noted, Potter argues that child support awards must

          be based on the visitation decreed in a governing order rather

than the actual visitation practices of the parties.  He cites

the following language from Turinsky v. Long:

          Child support awards should be based on a
          custody and visitation order.  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. . . .  We hold that the trial court
          erred to the extent it based its calculation
          of support arrearages on the visitation
          exercised, rather than the visitation
Potter also quotes another case, Bennett v. Bennett,3 that

explains the rationale underlying Turinsky as follows:

          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.  We
          intended as well to encourage parents to
          either comply with court orders or to move to
          modify them in a timely manner.[4]
          Brewster responds that Potter is overgeneralizing from

the quoted language in the Turinsky and Bennett cases.  She

points out that those cases both involved claims for past child

support rather than, as here, an order setting child support

prospectively.  Brewster contends that applicable precedent is

found in Boone v. Boone5 and in the commentary to Civil Rule

90.3, section V, paragraph C.6  In Boone, Brewster argues, this

court held that a change in a childs residence from one parent to

the other, contrary to a custody order, could serve as the basis

for modifying child support.7  She points out that the support

was changed prospectively after a motion to modify child support

was made.8  This was accomplished even though the custody order

was not modified during the same period.9

          Custody and visitation, on the one hand, and child

support, on the other, are interrelated under Civil Rule 90.3.

Ordinarily, when parties informally agree to make a change in

decreed custody or visitation that is not merely temporary or

experimental, the change should be reflected both in a changed

          custody or visitation order and in a changed child support order.

As we stated in Morino v. Swayman:

          [A]t some point, informal or de facto
          modifications of custodial or visitation
          arrangements should be formalized.  Child
          support amounts and the number of visitation
          days allotted to the non-custodial parent are
          interdependent under Civil Rule 90.3(a) and
          (b).  A premise of the rule is that it is in
          the best interests of the children that child
          support amounts bear a prescribed
          relationship to the time the children spend
          with each parent.  But this can only be
          accomplished where the decree reflects actual
          practice.  Thus, justice is best served if
          the child support amount reflects the actual
          responsibilities and burdens of the
          We believe that it is generally desirable to base

prospective child support awards on prospectively applicable

custody or visitation awards.  But we agree with the commentary,

and with Brewsters interpretation of Boone, that child support

can be modified in recognition of a de facto change in visitation

or custody without the de facto visitation or custodial change

being formalized.11  There may be reasons of expediency justifying

litigating child support before taking up issues of visitation or

custody.12  Further, setting child support is in large part a

predictive function.  How much income will a parent make in the

next year or two?  The court must sometimes make what is little

more than an educated guess based on the available evidence.13

And what has happened in the past is usually a strong component

of the available evidence.14  Similarly, another component of

child support, the amount of visitation a parent will exercise in

the future, is also a prediction that can be based on past

practices.  By contrast, decreed visitation is ideal based  what

is best for the child, and the parents?  The best visitation

practices may be worth retaining in a decree in the hope that

they will occur, even if they are not consistent with what is

likely to occur.  Recognition of the difference between what

should occur and what will probably occur seems to underlie the

          commentarys statement that support may be modified even if

custody is not.

          The commentary also stresses that its rule must not be

used in a way that allows a custodial parent to profit by denying

visitation.15  We agree and because of this risk and the various

direct and indirect ways that visitation can be denied and

discouraged we caution that only rarely should child support be

set in an amount that reflects visitation practices different

from decreed levels.

          We conclude that the court did not err when it modified

child support based on the parties actual visitation practices

and the child support modification can stand even though the

modification of visitation must be reversed.

          Potters final point is that the superior court erred in

finding that the amount of time that Sunny has spent with Potter

has decreased over the past few years and that Sunny has lived

primarily with Brewster and has spent less than thirty percent of

her time with Potter during that period.  Findings of fact such

as these must be upheld unless they are clearly erroneous.16  The

findings in question are not clearly erroneous because they are

supported by Brewsters testimony.  Although her testimony on

these points is contested by Potter, it is not inherently


          Potter also argues that the court erred by apparently

relying on visitation practices subsequent to Brewsters motion to

modify child support.  Potter is correct that post-litigation

events should either be discounted entirely or viewed with

suspicion as evidence of the parties practices.17  But here there

is little to indicate that the court relied on post-litigation

events and virtually nothing shows that they played an important

role in the courts findings.  We therefore find no error on this


          We conclude for the reasons stated that the courts

decision must be vacated insofar as it modified the 1990 decree

          as to visitation, but that it should be affirmed as to child


          AFFIRMED in part and VACATED in part.

FABE, Chief Justice, with whom CARPENETI, Justice, joins,


          I disagree with the courts conclusion that David Potter

had inadequate notice of Shelly Brewsters desire to modify the

visitation schedule to reflect the parties current visitation

practice.  I also disagree that the superior courts decision

modifying visitation surprised Potter or deprived him of his

right to due process.  Potter was well aware of Brewsters motion

to modify the visitation schedule and, in fact, he characterized

her attempt to modify child support to reflect current practice

as a de facto request to modify the child custody agreement.

Moreover, in light of the majoritys affirmance of the trial

courts child support modification, its decision to remand this

case for the sole purpose of requiring a new hearing on whether

the visitation schedule should be modified is a waste of the

trial courts valuable resources.  Sunny is now within four months

of her eighteenth birthday.  She is long past the point of ceding

any real authority in matters of visitation to any of the adults

involved.  To remand this case for further litigation at this

point will accomplish more harm than good.

          There are a number of places in the trial court record

that reflect Potters awareness that the visitation schedule was

at issue.  On January 20, 2000, Brewster filed a motion to modify

visitation to reflect the parties de facto modification of the

visitation schedule as well as a motion to modify child support

to reflect the actual visitation schedule.  Judge Neville

explicitly stated at the initial hearing on January 27, 2000 that

Brewsters motion for modification squarely raised the issue of

whether Brewster had primary physical custody of Sunny, thus

requiring calculation of child support under the primary physical

custody schedule of Rule 90.3(a).  [T]he real issue is going to

end up being the sole or shared custody formula, which is, in

large part, a legal issue as well as a factual issue.  The trial

court also noted in its preliminary decision that [a] fair

reading of Brewsters statements in the documents she initially

filed was sufficient to give Potter adequate notice that Brewster

claimed to have primary physical custody of Sunny and wanted

child support to be calculated on that basis.  If Potter

disagreed, Judge Neville gave him the opportunity to prove

otherwise at the second hearing: Potters current child support

obligation should therefore be determined on [primary physical

custody] unless he can establish that there has been a de facto

permanent modification based on Sunny spending at least 110

overnights per year with him.  Finally, as Potter recognized in a

February 4, 2000 memorandum on the law to be applied in the case:

               Before the Court are two interrelated
          issues; a motion to amend the level at which
          the child support payments originally were
          set as well as a de facto request to modify
          the child custody agreement.  While Shelly
          undoubtedly will quarrel with the latter
          statement, it in fact is correct  because she
          is contending that David voluntarily has
          waived his rights of visitation and further
          is assuming that he will continue to do so in
          the future.  Only under those circumstances
          would amendment of the child support
          obligation be warranted.  However, as will
          now be demonstrated neither proposition is
          well-taken, albeit for differing reasons.
(Emphasis added.)

          In this memorandum, Potter further argued that Brewster

had failed to make a prima facie showing of a substantial change

in circumstances justifying a change in visitation and that

rather than relying on a de facto change in visitation, Brewster

should be required to pursue that objective forthrightly and


          We dealt with a similar situation in Siekawitch v.

Siekawitch.1  There, the parents agreed to share legal custody of

the children, give the father physical custody, and determine a

reasonable visitation schedule.2  After the parents could not

agree on visitation, the mother filed a motion for a specific

custody schedule, and the court ordered each party to submit a

          visitation plan.  The mother proposed that the children alternate

between the parents weekly during the school year and every two

weeks during the summer.3  The father proposed that the children

spend three weekends per month and one night per week with their

mother during the school year, and spend alternating weekends and

one week per month with their mother during the summer.4

Following a hearing, the court ordered that each parent would

have the children fifty percent of the time.5

          The father appealed, arguing that the superior court

violated his due process rights by failing to notify him of its

intention to modify custody.6  He contended that he believed the

sole purpose of the hearing was to establish a visitation

schedule, and that he was therefore denied the opportunity to

call witnesses and present evidence on the issue of physical

custody.7  We rejected the fathers argument, because the father

had sufficient notice that the mother sought equal time with the

children:  In her proposed visitation schedule and reply to the

fathers opposition to the motion, she requested equal time with

the children.8  Moreover, the father expressly acknowledged that

the mother sought equal custody in his opposition.  We concluded:

          Although there may have been confusion about

          whether to characterize the time that [the

          mother] sought with the children as

          visitation or physical custody, the record

          discloses that [the father] had notice at the

          time of the hearing that she sought equal

          time.  In light of these facts, we conclude

          that [the fathers] right to due process was

          not violated.[9]

          In January 2000 Brewster filed a motion to both modify

visitation to reflect the parties de facto modification of the

visitation schedule and modify the child support to reflect that

schedule modification.  Brewsters purpose was to ensure that a

motion to modify visitation was in place in case the trial court

          felt that formalization of the de facto visitation schedule was

necessary to modify child support.  Judge Nevilles statements at

both hearings, her preliminary decision, and Potters comments

demonstrate that he had sufficient notice that resolution of the

child support issue rested upon the courts determination whether

Brewster had exercised primary physical custody of Sunny in the

past and whether continuation of such a custody arrangement and

visitation schedule and modification of child support should

occur in the future.  I therefore respectfully dissent from the

courts opinion.

     1     See,  e.g.,  D.M.  v. State, Div. of  Family  &  Youth
Servs., 995 P.2d 205, 212-14 (Alaska 2000).

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

     3    6 P.3d 724 (Alaska 2000).

     4    Id. at 727.

     5    960 P.2d 579 (Alaska 1998).

     6    Section V, paragraph C of the commentary states:

               Failure to Exercise Shared Custody.   An
          inequity  may arise under the shared  custody
          calculation  of support if the  obligor  does
          not  actually exercise the custody  necessary
          to  make shared custody applicable (i.e.,  at
          least  30%  of  the time).   If  the  obligor
          parent  does not actually exercise sufficient
          physical  custody to qualify for  the  shared
          custody calculation in the rule (at least 110
          overnights per year - See Commentary, Section
          V.A ), then (a)(2) of this rule will apply to
          the  child  support calculation.  Failure  to
          exercise  custody in this regard  is  grounds
          for  modification  of support,  even  if  the
          custody order is not modified.  However, this
          provision may not be interpreted to allow the
          custodial   parent  to  profit   by   denying
     7    960 P.2d at 582.

     8    Id.

     9    Id.

     10    970 P.2d 426, 429 (Alaska 1999).

     11    See Alaska R. Civ. P. 90.3 cmt. V.C.

     12    Id.

     13     See  Yerrington v. Yerrington, 933 P.2d  555,  557-58
(Alaska 1997).

     14    See Alaska R. Civ. P. 90.3 cmt. III.E.

     15    See Alaska R. Civ. P. 90.3 cmt. V.C.

     16    Alaska R. Civ. P. 52(a).

     17     See, e.g., Karpuleon v. Karpuleon, 881 P.2d 318, 321-
322 (Alaska 1994).

1    956 P.2d 447 (Alaska 1998).

     2    Id. at 448.

3    Id. at 449.

     4    Id.

     5    Id.

     6     Id.  Unlike the father in Siekawitch, Potter was never
awarded primary physical custody.

     7    Id.

     8    Id. at 450.

     9    Id. (footnote omitted).