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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.").
