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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bailey v. Bailey (1/31/2003) sp-5658

Bailey v. Bailey (1/31/2003) sp-5658

     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

RAYMOND P. BAILEY,       )
                              )    Supreme Court No. S-10248
               Appellant,          )
                              )    Superior Court No.
     v.                       )    4FA-96-1076 CI
                              )
CHARMAINE L. BAILEY,          )    O P I N I O N
                              )
               Appellee.      )    [No. 5658 - January 31, 2003]
                              )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Ralph R. Beistline, Judge.

          Appearances:   Edward R. Niewohner,  Lawrence
          F.   Reger,  Niewohner  &  Associates,  P.C.,
          Fairbanks,   for  Appellant.   Charmaine   L.
          Bailey, pro se, Fairbanks.

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

          MATTHEWS, Justice.

I.   INTRODUCTION

           Raymond  Bailey  appeals the  superior  court's  order

excusing his former wife, Charmaine Bailey, from payment of child

support arrearages.  He argues that the superior court abused its

discretion  by retroactively modifying Charmaine's child  support

and  that the court's calculation of Charmaine's total arrearages

and   Raymond's  prospective  support  obligation   was   clearly

erroneous.   We  conclude  that while there  was  no  retroactive

modification,  the  court  erred in  calculating  arrearages  and

Raymond's prospective support.

II.  FACTS AND PROCEEDINGS

           Raymond  Bailey and Charmaine Bailey married  in  June

1980  and  have two children - Cara, born October 30,  1980,  and

Nicholas,  born  June 22, 1983.  The parties  divorced  in  March

1997.   Custody  and  child support terms  were  governed  by  an

incorporated  agreement under which Raymond had primary  physical

custody  of  Cara  and  the parties shared  physical  custody  of

Nicholas.  Nicholas was to live with Charmaine during the  school

year and with Raymond during the summer.  Regarding child support

the parties agreed:  "As Husband has primary physical custody  of

Cara  and  the parties have shared physical custody of  Nicholas,

the  child  support obligation will be determined by a hybrid  of

Alaska  Civil Rule 90.3(a) and Alaska Civil Rule 90.3(b)  as  set

out in [T]urinsky v. Long . . . ."

           In  September 1997 Nicholas began to live with Raymond

in  Anchorage  during the school year.  On Raymond's  motion  the

court on July 10, 1998, entered a new child support order.  Under

this  order  Charmaine was to pay Raymond "monthly child  support

beginning  September 1, 1998, in the amount  of  $1,042  a  month

until  the  children  have reached their  18th  birthday  or  are

emancipated  or  graduated from high  school."   The  court  also

awarded  Raymond  back child support in the  sum  of  $16,790.24.

Charmaine  paid  this  amount while seeking reconsideration.   On

reconsideration  the  court modified the back  support  award  to

$13,563.84,  leaving  Charmaine with a  $3,226.40  child  support

credit.   This credit covered Charmaine's September  and  October

1998   support  payments.   On  October  30,  1998,  Cara  turned

eighteen.

           What  happened  next is in dispute.  Charmaine  claims

that  she had Nicholas ask his father how much she should pay  in

support  for just Nicholas, and that Raymond responded -  through

Nicholas  -  that  she should pay $311.64 per  month.   Charmaine

further  claims that her child support credit carried her through

January  1999,  that she began sending child support  checks  for

Nicholas in February 1999, and that she remained current with her

payments, with only a few exceptions.  Raymond, however, contends

that  Charmaine made only three partial child support payments  -

$311 each for the months of March, May, and June 1999.

           Meanwhile, Nicholas continued to reside primarily with

his  father  until  November  6, 2000,  when  he  moved  back  to

Fairbanks to stay with his mother.  Charmaine moved to modify the

existing  child  custody and support award  on  March  12,  2001.

Raymond  opposed Charmaine's motion, claiming that any change  in

child  support for the time before March 12, 2001,  would  be  an

invalid retroactive modification, and that Charmaine owed  him  a

substantial  sum  in  child  support  arrearages.   In  addition,

Raymond  pointed out that Nicholas had moved out  of  Charmaine's

home to stay with family friends in April 2001.

           A  hearing on Charmaine's motion was held on  May  23,

2001,  and  the superior court issued a written ruling  the  next

day.  As to custody the superior court ruled that

          Nicholas shall determine which parent he will
          live  with.   At  present  he  is  living  in
          Fairbanks with family friends and expects  to
          remain there throughout the summer.  He  will
          spend time with his mother when possible, but
          is not comfortable residing in the residence.
          He  will  visit his father in Anchorage  when
          convenient for the parties.
          
As  to  child  support, the court ruled that  "Mr.  Bailey  shall

provide Nick reasonable assistance this summer and thereafter  as

he  elects  to do so.  He shall not be responsible to Ms.  Bailey

for   child   support."   The  court  explained  that   Raymond's

prospective  child  support obligation would  have  been  roughly

$1,680  per  month, but that "it would be inequitable to  require

[him] to pay Ms. Bailey child support while Nick is in Fairbanks,

considering the fact that Nick resides with family friends and is

fairly self-sufficient."

           As  to  Raymond's claim that Charmaine still owed  him

significant  back child support, the court found  that  Charmaine

had  underpaid child support by about $429 per month  during  the

roughly  thirteen months between October 1999 and November  2000,

but  that  she  had  made  three payments  of  $311.   The  court

concluded  that "[t]his amounted to an underpayment  of  $4,644,"

but  that "under the circumstances, . . . it would be inequitable

to  require  Ms. Bailey to pay past child support to  Mr.  Bailey

given  the  fact that Nick lived in her home for  at  least  four

months without receipt of child support."  Furthermore, the court

held  that "Ms. Bailey was not required to pay child support once

Nick relocated to Fairbanks."

          Raymond appeals the superior court's order.

III. DISCUSSION

A.             Retroactive Modification of Child Support

           Raymond's  first point on appeal is that the  superior

court,   by   extinguishing   Charmaine's   accrued   arrearages,

impermissibly  engaged in a form of retroactive  modification  of

child  support.  He notes that retroactive modification of  child

support arrearages is prohibited under Civil Rule 90.3(h)(2).

           Raymond's argument is correct only if a child  support

order  determined  the  support for Nicholas  after  Cara  turned

eighteen.1   The  child support order of July 10, 1998,  provided

for  a payment of $1,042 a month "until the children have reached

their  18th  birthday or are emancipated or graduated  from  high

school."   The  court indicated in an amended order dated  August

25,  1998, that "it is the Court's impression" that child support

for  Cara should not continue past her birthday since she was not

attending  high school.  But the order clearly contemplated  that

support  would continue to be payable for Nicholas  by  providing

that  monthly  child support would continue "until the  children"

became  eighteen.   Raymond  concedes  that  the  monthly  amount

specified in the order of July 10, 1998, $1,042, was reduced when

Cara turned eighteen.  After that event was there a child support

order  that  was  sufficiently specific to activate  the  ban  on

retroactive modification?

          We believe that the answer is "no."  The amount payable

for  the  support of Nicholas was neither expressed in the  order

nor  was  it  subject  to  calculation through  ministerial  acts

controlled by the terms of the order.

          At the hearing on Charmaine's motion, Raymond's counsel

argued that calculation of the monthly support for Nicholas could

be  readily  done  since  the figure  for  the  support  of  both

children, $1,042, "was 27 percent, so you have to figure  it  out

what   20  percent  would  be."   Twenty-seven  percent  is   the

percentage  of adjusted income a noncustodial parent  should  pay

for  the support of two children under Civil Rule 90.3(a); twenty

percent  is the figure for the support of one child.  Calculating

at  the  hearing, counsel arrived at a figure of $740 due monthly

for the support of Nicholas.

           This  was  accepted  by the trial  court,  but  it  is

mathematically  erroneous.   The  proper  figure,  assuming  Rule

90.3(a) was used in the July 10, 1998 order and was meant  to  be

used when Cara turned eighteen, would be $771.85.2  The error  in

calculation  is a minor matter.  What is important  is  that  the

calculations used by the court in July of 1998 to arrive  at  the

support  figure for both children of $1,042 are not set out,  and

the court did not then indicate that it was using Rule 90.3(a) to

arrive at that amount.

           Because  the custody as to both children seems  to  be

"hybrid" - shared as to Nicholas but primary as to Cara -  it  is

not possible to simply assume that Rule 90.3(a), which relates to

primary custody, was used to calculate support, rather than  some

other  formula.  Moreover, nothing is said in the July 1998 order

as  to  how future support for Nicholas is to be calculated  once

the  requirement to support Cara terminates.  Again,  it  is  not

possible  to  assume  that the primary custody  formula  of  Rule

90.3(a)  should  be used, because the July 1998  order  seems  to

indicate that custody of Nicholas will be shared.3

           The  fact that the court at the May 2001 hearing seems

to have accepted counsel's contention that Rule 90.3(a) should be

used  to  calculate  arrearages under the earlier  order  is  not

controlling  on  the  question  whether  the  earlier  order  was

sufficiently  definite  as to the amount payable  for  Nicholas's

support as to bring into play the bar on retroactive modification

of  support.  The court's acceptance of counsel's position  is  a

discretionary  choice  as  to how support  should  be  calculated

rather than a necessary product of the July 1998 order.

B.             Calculation of the Arrearage

           As  noted,  the  trial  court  calculated  Charmaine's

arrearage  at $4,644.  Raymond correctly contends that the  trial

court made a number of mistakes in arriving at this figure.

           One mistake is that the trial court accounted for only

part  of  the  period of the arrearage.  The court  purported  to

account for "the roughly thirteen months between October of 1999,

and  November  2000."  This is a mistake of some  eleven  months,

because  Cara turned eighteen on October 30, 1998.   Support  for

Nicholas must be calculated from November of 1998 to November  of

2000.4

           The  court  concluded that Charmaine "underpaid  child

support  in the rough amount of $429 a month, but did make  three

payments  of  $311."   The  court's  conclusion  that  $429   was

underpaid  is  evidently  the product of  subtracting  $311  from

counsel's  hastily  calculated figure of  $740  for  support  for

Nicholas  once  Cara turned eighteen.  But the court  found  that

Charmaine  had only made three payments of $311.  For  the  other

twenty-one months between November of 1998 and November of  2000,

there  should have been no $311 deduction.  But Charmaine  should

be  credited  with  the  remainder of  her  initial  overpayment,

$1,142.40.5

           Finally  the court was mistaken in accepting counsel's

representation that child support for the period in question  was

$740  per  month.   As we have noted, if one  assumes  that  Rule

90.3(a)  was used in arriving at the initial support  amount  for

both  children  and was meant to be used in calculating   support

for  Nicholas after Cara turned eighteen then support should have

been $771.85.  But these assumptions are not necessarily correct.

The  court should have made findings setting out both its factual

premises and its method of calculating support for Nicholas.6

C.             Raymond's Prospective Child Support Obligation

           Raymond's final point is that the court concluded that

the amount of child support Raymond would owe Charmaine after her

modification motion, $1,680 per month, was not based on  evidence

of Raymond's earnings.

           Civil  Rule  90.3(e) on child support  affidavits  and

documentation requires:

                Each  parent  in a court proceeding  at
          which  child support is involved must file  a
          statement   under  oath  which   states   the
          parent's  adjusted  annual  income  and   the
          components  of  this income  as  provided  in
          subparagraph (a)(1).  This statement must  be
          filed with a party's initial pleading . . . ,
          motion  to  modify,  and any  response  to  a
          motion  to  modify.   The statement  must  be
          accompanied  by documentation  verifying  the
          income.  The statement must state whether the
          parent has access to health insurance for the
          children and, if so, the additional  cost  to
          the   parent   of   the   children's   health
          insurance.
          
Here,  it  appears  that the superior court  lacked  any  current

income   affidavit  or  documentation  on  which  to   base   its

calculation of Raymond's prospective obligation.

           Charmaine points out that the court did have access to

Raymond's  documentation as of 1997 and  implies  that  this  was

adequate  basis for a determination of child support as of  2001.

She subsequently states, however, that it would be reasonable  to

expect that Raymond's income "[had] significantly increased since

1997."  Charmaine's  own  statement admits  the  likelihood  that

Raymond's income had changed since 1997.  Indeed, there is no way

to  tell  how the superior court arrived at Raymond's prospective

child  support obligation, because as Charmaine admits,  "In  the

Custody  and Child Support order of May 24, 2001, the  Court  did

not   state   the  source  of  its  calculations  for   Raymond's

prospective child support obligation."

          To the extent that the superior court continues to rely

upon an assessment of Raymond's prospective support obligation as

an  offset, or for other purposes, the obligation should be based

upon current income information.

IV.  CONCLUSION

           For  the above reasons, we vacate the superior court's

order  of  May 24, 2001, insofar as it calculated the amount  due

from Charmaine for the support of Nicholas and offset that amount

against  support  due from Raymond.  On remand the  court  should

recalculate the amount due, make appropriate findings, and  enter

judgment accordingly.

          VACATED and REMANDED for further proceedings consistent

with this opinion.

_______________________________
1See  Bennett  v.  Bennett, 6 P.3d 724, 728  n.19  (Alaska  2000)
("Because no child support order existed, the trial court did not
have  to  concern itself with the prohibition against retroactive
modification of child support.").
2Adjusted income = 1042/.27=3859.26 x .20=771.85.
3The  ambiguity  arises because the order, in reducing  the  1998
arrearages because of summer visitation with Charmaine, refers to
the  arrangement concerning Nicholas in the present  rather  than
the  future  tense - "the parties' son resides  with  Ms.  Bailey
during  the summer months" - and does not provide for a reduction
for future summers.
4Raymond contends that child support must be calculated to  April
2001, the earliest date at which any change in support could have
become  effective,  based on Charmaine's  March  2001  motion  to
modify.   If there had been an effective child support order  for
Nicholas,  the date of the motion would be controlling under  the
bar on retroactivity.  But since there was not an effective order
and  the bar does not apply, arrearages should be calculated only
until  Nicholas began to stay with Charmaine in November of 2000.
See  Bennett,  6  P.3d at 727-28.  But Raymond  as  the  de  jure
custodial  parent would not owe child support to Charmaine  until
after the date of the motion.  Id. at 726-27.
5As  of  the end of August 1998, Charmaine had a $3,226.40  child
support  credit.  Her monthly obligation of $1,042 for  September
and  October  must be subtracted from that, leaving a  credit  of
$1,142.40.
6See  Wright  v.  Gregorio,  855  P.2d  772,  773  (Alaska  1993)
("Adequate  findings  of  fact  on [child  support]  matters  are
essential,  so that a reviewing court may clearly understand  the
grounds on which the lower court reached its decision.").