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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hixson v. Sarkesian (3/28/2003) sp-5677

Hixson v. Sarkesian (3/28/2003) sp-5677

     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


ELIZABETH M. S. HIXSON,       )
                              )       Supreme   Court   Nos.   S-
10316/10335
             Appellant/            )
             Cross-Appellee,       )    Superior Court No.
                              )    1JU-90-00514 CI
     v.                       )
                              )    O P I N I O N
MICHAEL S. SARKESIAN,         )
                              )    [No. 5677 - March 28, 2003]
             Appellee/             )
             Cross-Appellant.      )
________________________________)



          Appeal  from the Superior Court of the  State
          of  Alaska,  First Judicial District, Juneau,
          Larry C. Zervos, Judge.

          Appearances:  Elizabeth M. S. Hixson, pro se,
          Juneau,  Appellant/Cross-Appellee.  Keith  B.
          Levy,  Law  Office of Keith B. Levy,  Juneau,
          for Appellee/Cross-Appellant.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh,  and Bryner, Justices.  [Carpeneti,
          Justice, not participating.]

          FABE, Chief Justice.


I.   INTRODUCTION

          The superior court granted Michael S. Sarkesians motion

to  modify child support.  Elizabeth M. S. Hixson argues that the

superior court erred in calculating Michaels income and that  the

superior   court  should  have  enforced  an  earlier  settlement

agreement  for child support above that required by Alaska  Civil

Rule  90.3.   Michael S. Sarkesian filed a cross-appeal  claiming

that  his alimony obligations to his former wife terminated  when

she  remarried, that he was not obligated to pay certain  of  the

childrens unreimbursed medical expenses, and that he should  have

been  awarded attorneys fees by the superior court.  Although  we

affirm  the superior courts decision to modify the child  support

award,  we  reverse the superior courts imposition of Rule  90.3s

income  cap  and  remand to the superior  court  to  award  child

support based on Sarkesians actual reduced income.  We affirm the

superior courts decision in all other respects.

II.  FACTS AND PROCEEDINGS

          Elizabeth   M.  S.  Hixson  and  Michael  S.  Sarkesian

divorced  on  May  23, 1991; they had two children  during  their

marriage.1   Sarkesian lived in Switzerland at the  time  of  the

divorce and continues to live there.  In June 1992 Superior Court

Judge  Larry  C.  Zervos, who presided over  the  divorce  trial,

ordered  Sarkesian to pay $2,550.80 per month in  child  support.

The  superior  court  also ordered Sarkesian to  purchase  health

insurance  for  the  children, to pay their unreimbursed  medical

expenses,  and  to pay for their transportation costs  associated

with  visitations.   Deducting  these  expenses  from  Sarkesians

ordered  child support reduced his monthly child support  payment

to $2,138.80.  Sarkesian was allowed to claim the children on his

future   tax  returns.   Sarkesian  was  also  ordered   to   pay

rehabilitative alimony of $1,000 per month for thirty  months  to

allow [Hixson] the time and opportunity to finish her degree  and

prepare to start work.

          Both sides appealed the child support, spousal support,

and  property distribution awards.  In a memorandum  opinion  and

judgment,  we remanded for an adjustment of Sarkesians income,  a

reduction   in  the  property  distribution  to  Sarkesian,   and

justification of the imposition of the income cap and the  amount

of  the alimony award.2  Other minor matters not relevant to  the

present appeal were also addressed.

          Upon remand, the parties reached a settlement agreement

          rather than pursue another trial.  The agreement incorporated

most  aspects of the prior superior court decision and calculated

the  existing  balances  that  Sarkesian  owed  to  Hixson.   The

settlement document stated that it was [t]he expressed intent  of

both  parties  .  .  .  to  end  this  litigation,  to  stop  the

possibility of further appeals and to prevent the expenditure  of

additional attorneys fees.

          On  August 3, 2000, Sarkesian filed a motion to  modify

child  support based upon a decline in his income.  The principal

ground  claimed for the decline in income was the assertion  that

he   had  changed  employers  and  no  longer  received  bonuses.

Sarkesian contended that his income had declined by more than the

fifteen  percent  threshold  listed in  Civil  Rule  90.3(h)(1).3

Sarkesian further claimed that the law had been amended to  allow

for a seventy-five percent reduction in child support, as opposed

to  the  fifty  percent allowable reduction at the  time  of  the

initial  divorce settlement, for visitation longer  than  twenty-

seven  consecutive days4 and that the childrens  travel  expenses

should be modified because of the reduction in his income.5

          The  superior  court,  Judge  Zervos  again  presiding,

entered  judgment on June 18, 2001.  Judge Zervos found there  to

be  a material change in circumstances for Sarkesian because  the

substantial  decline in the value of the Swiss franc as  compared

to  the American dollar is sufficient to make a prima facie  case

of  a  15  percent decline in income.  Judge Zervos  consequently

adjusted  the exchange rate by averaging the rate in use  on  the

date  of  the trial and the rate Sarkesian used in his  2000  tax

return.  This resulted in a decrease of more than fifteen percent

in   Sarkesians  income.   Because  this  decrease  exceeded  the

requirements  of  Civil Rule 90.3(h)(1), Judge  Zervos  concluded

that   Sarkesian   had   established  the  material   change   in

circumstances  necessary  for  an  adjustment  in  child  support

payments.   Judge Zervos subsequently imposed the $84,000  income

cap  contained  in  Civil Rule 90.3(c)(2) to the  calculation  of

          Sarkesians child support obligations.

          Judge  Zervos also addressed a variety of other issues.

Judge Zervos allowed Sarkesian to deduct 1,500 Swiss francs (CHF)

of  a  2,000 CHF housing allowance from income because  Sarkesian

used  one-third of the house, which had a monthly rent  of  4,500

CHF,  as  office space.  Judge Zervos found that a  disputed  car

lease  was  no longer relevant to calculating Sarkesians  income.

Judge  Zervos further ordered that Hixson list her children under

her  employers health insurance, though Sarkesian was to pay one-

half of the cost of covering the children if this would result in

additional costs to Hixson.  Sarkesian was ordered to  pay  four-

fifths  of  the  unreimbursed medical expenses of  the  children.

Transportation costs were adjusted due to the children now  being

able  to travel alone.  Judge Zervos also ordered that Sarkesians

child  support  obligations be reduced  by  seventy-five  percent

during periods of extended visitation.

          On   appeal,  Hixson  challenges  the  calculation   of

Sarkesians income, the constitutionality of the income  cap,  the

re-litigation  of child support following a settlement  agreement

designed to end litigation regarding the divorce, and the alleged

requirement that she bear the burden of proving the children  had

special  needs  necessitating the waiver of the income  cap.   On

cross-appeal,  Sarkesian argues that his  alimony  obligation  to

Hixson ceased upon her remarriage, that he should not be required

to  pay for the childrens orthodontia and contact lenses, that he

should not have been required to pay four-fifths of the childrens

unreimbursed  medical expenses, and that the trial  court  should

have  awarded  him  attorneys fees and costs  as  the  prevailing

party.

III. STANDARD OF REVIEW

          Modifications  of child support are reviewed  under  an

abuse  of  discretion standard.6  An abuse of  discretion  exists

where  based on the record as a whole this court is left  with  a

definite  and  firm conviction that a mistake has  been  made.  7

          Questions  of law are reviewed de novo.8  Questions  of

constitutional   law   are   also   reviewed   de   novo.9    The

interpretation of an agreement between two parties is a  question

of  law to which we apply our independent judgment.10  Awards  of

attorneys  fees  in  modification  of  child  support  cases  are

reviewed  for  an abuse of discretion.11  Attorneys fees  awarded

pursuant to Civil Rule 82(b)(1) are presumptively correct.12

IV.  DISCUSSION

     A.     The   Superior  Court  Did  Not  Err  in  Calculating

Sarkesians Income.

          Hixson  alleges  that  the  superior  court  erred   in

calculating Sarkesians income because it improperly accounted for

the housing and auto allowances provided by his employer.  Hixson

contends  that  only one room of the house was  used  for  office

space  and that even then it was only used for ten days a  month.

Hixson  argues  that  Sarkesians employer could  have  rented  an

office  elsewhere and that thus Sarkesian was receiving a benefit

that  was  not  a business expense.  Hixson further  claims  that

Sarkesian  received his excessive allowances because  he  is  the

only  board  member with sole signatory powers and can  therefore

manipulate  the business affairs of the company to  his  benefit.

Hixson also contends that Sarkesian manipulated an auto lease for

a  BMW,  portraying it as a company car when it was actually  for

his own personal use.

          Hixson  in  essence is attempting to reargue on  appeal

her  case  below.   However,  Judge  Zervos  did  not  abuse  his

discretion  in  excluding the car from Sarkesians income  and  in

allowing  Sarkesian to deduct a portion of his housing  allowance

from his income.  Commentary III.B to Civil Rule 90.3 states that

[e]xpense reimbursements and in-kind payments such as  use  of  a

company  car, free housing or reimbursed meals should be included

as  income  if  the  amount  is significant  and  reduces  living

expenses.   Sarkesian  presented  testimony  at  trial  that  the

disputed  reimbursements did not reduce his living expenses.   He

          testified that the automobile lease had been terminated and that

the  vehicle  was  not  subsequently  replaced.   Sarkesian  also

testified that one of the levels of his house is used exclusively

as  a  business office.  The level has its own separate  entrance

and is equipped with standard business equipment.  This testimony

supports  Judge  Zervoss conclusion that the auto  lease  was  no

longer  relevant  to calculating Sarkesians income  and  that  he

could deduct one-third of the monthly rent of his house from  his

housing allowance.  While it may be possible to interpret matters

as Hixson suggests, it is not clear that Judge Zervos has made  a

mistake  in his factual determinations.  His ruling is  therefore

affirmed.

     B.   The  Superior Court Erred by Reinstating the Income Cap
          Despite the Settlement Agreement to the Contrary.
          
          In  the  settlement  agreement  reached  following  the

remand  of their divorce case after the first appeal, the parties

agreed  that Sarkesian would make monthly child support  payments

in  excess of what would have been required had Rule 90.3s income

cap  been  imposed.   The  settlement agreement  incorporated  by

reference the superior courts June 1, 1992 findings of  fact  and

conclusions  of law, which explicitly waived the cap  because  of

the  lifestyle advantages the children would have enjoyed had the

family  stayed  together.   In their  settlement  agreement,  the

parties  further  expressed [their] intent .  .  .  to  end  this

litigation,  to  stop the possibility of further appeals  and  to

prevent  the  expenditure of additional attorneys  fees.   Hixson

argues that because Sarkesian entered into a settlement of  child

support,  agreeing to an award above that required by Civil  Rule

90.3, he has given up his right to seek modification of the child

support award.

          In  Flannery v. Flannery, we held that an agreement  to

waive  the income cap for calculation of child support may  later

be modified due to a material change in circumstances.13  But the

change  in circumstances must not be anticipated at the time  the

agreement  is  signed, and the drop in income must appear  to  be

          permanent, not temporary.14  Judge Zervos, after finding more than

a  fifteen  percent reduction in Sarkesians income, applied  Rule

90.3s $84,000 income cap as the basis of Sarkesians child support

obligation.  Judge Zervos found there to be a material change  in

circumstances due to the decline in Sarkesians income.

          Judge  Zervos  distinguished  the  present  case   from

Flannery,  where  we warned against allowing obligors  to  use  a

motion for modification of child support as a back door by  which

to  circumvent  an earlier agreement to waive the  income  cap.15

First, Judge Zervos concluded that in contrast to Flannery, where

waiver  of the income cap had been a part of the initial  divorce

settlement,16  Sarkesian here acquiesced to the amount  of  child

support  only  after extensive litigation, after  the  court  had

ordered  the cap to be waived, and when the only issue  remaining

was  whether  the childrens needs justified the waiver.   Second,

Judge  Zervos  reasoned that the adjustment to Sarkesians  income

brought him close to the income cap and that the amount in issue,

if the cap is breached, is de minimus.

          We  reject  the superior courts first line of reasoning

and reiterate our holding in Flannery that modifications of child

support  cannot be used as a means to circumvent an agreement  to

waive the income cap.17  Because they are, in essence, contracts,

settlement  agreements  freely entered into  do  not  lose  their

binding  nature  because extraneous circumstances  exist  at  the

time.18   It therefore does not matter that Sarkesian signed  the

settlement agreement only after extensive litigation.   Sarkesian

still signed the agreement with full knowledge of its contents.19

Sarkesian  presumably believed that the agreement, including  the

waiver  of the income cap, was in his best interests and that  he

was  being  compensated by not having to face further  litigation

and its inherent risks.

          Moreover,  although the superior court recognized  that

Sarkesians adjusted annual income of $85,015.41 is quite close to

the  income  cap of $84,000, this does not justify  reduction  of

          child support to an award based on the income cap.  Our concern

in Flannery was that the 15% rule not be used as a means by which

a  parent  who,  because  of a settlement agreement,  pays  child

support  well above that required by the income cap,  could  turn

around  and  reduce  the  child support payments  to  the  amount

derived  from the income cap even though the parents  ability  to

pay  child support above that required by the income cap  remains

intact.20  In other words, in the context of an agreement to waive

the  income  cap and pay child support in excess  of  Rule  90.3s

requirement, the mere fact of a fifteen percent change in  income

does   not  necessarily  constitute  a  change  of  circumstances

entitling  the  obligor to a reduction in support  based  on  the

income cap.21  As we stated in Flannery,

          [w]e  think  that in context of an  agreement
          like  the Flannerys, the 15% rule can be used
          to    demonstrate   materiality,   but    the
          comparison  cannot  be  between  the  amounts
          Michael  agreed  to  pay and  what  the  rule
          minimally requires.[22]
          
Because  Sarkesians reduction in income, while exceeding  fifteen

percent,  does not reduce his income to the level of  the  income

cap,  applying  that  cap to Sarkesian is inconsistent  with  our

decision  in  Flannery.  As we suggested in  Flannery,  where  an

obligors  income is significantly reduced but still  exceeds  the

cap,  multiplying  the obligors uncapped changed  income  by  the

pertinent percentage yields the support the parties presumptively

would have specified had that been the obligors income when  they

entered  into  their agreement.23  Thus, the child support  award

should  have  been based on Sarkesians actual reduced  income  of

$85,015.41,  not   the income cap of $84,000.  And  although  the

resulting  difference  in  child support  is,  according  to  the

superior  court, only $22.84 a month, we cannot agree  that  this

amount  is de minimus or in itself justifies application of  Rule

90.3s income cap.24

     C.   Sarkesians  Alimony  Obligation Did  Not  Automatically
          Terminate When Hixson Remarried.
          
          The  trial  court ordered Sarkesian to pay  $1,000  per

month  of  rehabilitative alimony for a period of thirty  months.

This  order  was  adopted  in  the  settlement  agreement,  which

required  Sarkesian  to pay the same $1,000  per  month  for  the

remaining thirteen of the original thirty months.25  When  Hixson

remarried  in  June 1995, Sarkesian ceased paying  the  remaining

nine  alimony payments, alleging that Hixsons marriage eliminated

his  obligation to pay.  Sarkesian filed a motion to clarify  the

status  of  his alimony obligations on December 18, 2000.   Judge

Zervos reiterated that the alimony has always been rehabilitative

alimony and accordingly reaffirmed Sarkesians obligation to  make

the remaining nine monthly payments despite Hixsons remarriage.26

          To support his claim that he did not need to pay Hixson

alimony  when she remarried, Sarkesian points to the  holding  in

Voyles  v.  Voyles  that by the act of remarriage,  the  formerly

dependent   spouse  elects  to  abandon  the  alimony   provision

established at the termination of the spouses preceding marriage.27

Reorientation  alimony, which we have stated  is  appropriate  to

allow  the  requesting spouse an opportunity  to  adjust  to  the

changed  financial circumstances accompanying a divorce,  can  at

the  discretion  of the trial court terminate upon  remarriage.28

However, in Musgrove v. Musgrove, this court held that remarriage

does   not   automatically  terminate  rehabilitative  alimony.29

Rather,  rehabilitative alimony, which is  awarded  for  a  short

duration and a specific purpose limited to job training or  other

means  directly related to entry or advancement within  the  work

force,  30  can  be modified only when there is  a  material  and

substantial  change in circumstances related  to  its  purpose.31

Sarkesian   presented  no  argument  that  Hixson   ceased   upon

remarriage to engage in those rehabilitative activities for which

alimony  was originally granted.  Instead, Sarkesian argues  that

the  settlement agreement effectively provides for  reorientation

alimony instead of rehabilitative alimony because it removes  the

requirement that Hixson obtain any job training or education.

          This  characterization  is not entirely  correct.   The

settlement agreement upon which Sarkesians argument is based only

states  that payments to Hixson will be made without any  further

argument  about,  or monitoring of, [Hixsons]  schooling  by  the

defendant  or his counsel.  It does not state that she  need  not

obtain education or job training.  The superior court at the time

labeled   this   spousal   support  as  rehabilitative   alimony.

Furthermore,  in  response to Sarkesians motion  to  clarify  his

alimony  obligations,  the  superior court  determined  that  the

alimony had always been and remained rehabilitative alimony.   In

reaching this conclusion, the superior court rejected the precise

argument  that  Sarkesian  is making  now.   As  we  have  stated

previously:  The  superior court has wide  discretion  in  making

alimony   determinations.   We  will  not  interfere  with   such

determinations unless the superior court abused its discretion.32

There  is  no abuse of discretion here.  Consequently, we  affirm

Judge  Zervoss decision to consider the alimony as rehabilitative

and to require that Sarkesian pay it despite Hixsons remarriage.

     D.    Sarkesian  Is  Required  To Pay  Unreimbursed  Medical

Costs.

          1.   Braces and contact lenses

          In the initial divorce decree, Sarkesian was ordered to

pay  the entire deductible and all other costs not covered by the

[childrens health care] policy.  This was affirmed by  the  later

settlement  agreement, which provided that  [a]ll  provisions  of

[the  June 1, 1992 order] relating to child support issues  shall

remain  in full force and effect.  Judge Zervos, in the June  18,

2001  superior  court opinion from which this appeal  originates,

examined the medical bills that Hixson provided relating  to  the

childrens orthodonic treatment and ordered Sarkesian to reimburse

her for the total amount of the bills.

          Sarkesian  claims  that because  he  was  paying  child

support  in  excess of the income cap, he should  not  have  been

required  to  pay for unreimbursed medical expenses  since  those

          costs should have been included in calculating the economic needs

of  the  children for which the higher payments were justified.33

However,  shifting these expenses to Sarkesian was  part  of  the

settlement  agreed to by Sarkesian.  He can and does  argue  that

the cost shifting for future unreimbursed medical expenses should

be changed, but it appears clear that absent such a modification,

costs  such as contact lenses and braces are something  Sarkesian

agreed  not  to litigate when he signed the settlement agreement.

Sarkesian is therefore liable to Hixson for these expenses.

          2.   Future unreimbursed medical expenses

          In  his June 18, 2001 order, Judge Zervos ordered  that

Sarkesian  pay  four-fifths  of all future  unreimbursed  medical

expenses,  with the other fifth to be paid by Hixson.   Sarkesian

contends  that  this  disparity  is  unjustified  given   Hixsons

employment and her recent marriage.  Sarkesian argues that at the

very  least Civil Rule 90.3(d)(2) requires that the first  $5,000

of unreimbursed medical expenses be split evenly.34

          The  superior court found that Sarkesians yearly income

is  $85,015.41.   By  Sarkesians own  admission,  Hixson  can  be

expected  to  earn only about $22,000 per year.   Sarkesian  thus

earns almost four times as much as Hixson and could reasonably be

expected  to  contribute four-fifths of the unreimbursed  medical

costs,  as the court found.  Sarkesians interpretation  of  Civil

Rule  90.3(d)(2)  is also incorrect.  The first  sentence  states

that  health care costs should be shared equally unless the court

finds  good  cause to allocate them otherwise.   In  the  present

case,  the superior court did find reason to allocate these costs

disproportionately,  namely the parties relative  incomes.   This

was  not an abuse of discretion.  The last sentence of Civil Rule

90.3(d)(2)  does  not require, as Sarkesian  asserts,  that  only

those unreimbursed medical expenses exceeding $5,000 be allocated

according to the financial circumstances of the parents.  Rather,

it  requires  that  the  superior court allocate  those  expenses

exceeding  $5,000 according to ability to pay regardless  of  how

          the court allocated the first $5,000 of expenses.  In other

words,  this sentence does not negate the ability of the superior

court  to  deviate  from  an equal distribution  of  unreimbursed

medical costs if it finds good cause to do so.

     E.   The  Superior  Court Did Not Err In  Denying  Sarkesian
          Attorneys Fees.
          
          Sarkesian  argues that the superior court  should  have

awarded  him  attorneys fees because he prevailed on the  central

issue  of the modification of his child support obligation.   The

standard  of  review for awards of attorneys  fees  is  abuse  of

discretion35 and Judge Zervos did not abuse his discretion.  Judge

Zervos  initially  declined  to award  Sarkesian  attorneys  fees

because  both  sides  had  prevailed on  significant  issues  and

because Sarkesians income was greater than Hixsons.  Judge Zervos

observed  that  while  Sarkesian  prevailed  on  reducing   child

support,  re-imposing  the income cap,  and  reducing  his  child

support obligations during extended visitations, Hixson prevailed

on  transportation  costs, unreimbursed  medical  costs,  and  in

adjusting Sarkesians income upward from what he himself asserted.

In  a subsequent order reconsidering attorneys fees, Judge Zervos

recognized that the respective incomes of the parties should  not

matter, but added that Sarkesian was being denied attorneys  fees

due  to  past  dishonesty and sharp litigation practices36  which

increased  the  effort  that Hixson needed  to  exert  to  defend

herself.   Judge  Zervos therefore presented justifiable  reasons

for   declining  to  award  attorneys  fees.   Because   of   the

difficulties  created  by  Sarkesian during  the  litigation  and

because both parties prevailed on significant issues, it was  not

an abuse of discretion to deny attorneys fees.

V.   CONCLUSION

          The  superior  courts  decision to  impose  Rule  90.3s

income  cap  is  REVERSED and the case REMANDED to  the  superior

court  to award child support based on Sarkesians reduced  income

of  $85,015.41, an amount that still exceeds the cap.  All  other

decisions  of  Judge  Zervos  as they  relate  to  these  divorce

proceedings are AFFIRMED.

_______________________________
     1     The children are Michael Jr., born September 1985  and
Brittany, born May 1987.  Both children are still minors.

     2     We  ordered  the  superior  court  to  undertake  this
analysis  according to the standards for rehabilitative  alimony.
If these standards were not met, the superior court was permitted
to consider the alimony as reorientation alimony.

     3     The  rule  provides in relevant part:  A  final  child
support award may be modified upon a showing of a material change
of  circumstances as provided by state law.  A material change of
circumstances  will  be presumed if support as  calculated  under
this  rule  is  more than 15 percent greater  or  less  than  the
outstanding support order.

     4    See Alaska R. Civ. P. 90.3(a)(3).

     5    See Alaska R. Civ. P. 90.3(g).

     6    Flannery v. Flannery, 950 P.2d 126, 129 (Alaska 1998).

     7     Richmond  v.  Richmond,  779 P.2d 1211,  1216  (Alaska
1989) (citation omitted).

     8    State, Dept of Revenue, Child Support Enforcement Div.,
ex rel. Hawthorne v. Rios, 938 P.2d 1013, 1015 (Alaska 1997).

     9    Brown v. State, Dept of Admin., Div. of Motor Vehicles,
20 P.3d 586, 587 (Alaska 2001).

     10    Flannery, 950 P.2d at 129.

     11    Byars v. Byars, 945 P.2d 792, 795 (Alaska 1997).

     12    Id.

     13    950 P.2d at 131.

     14    Id. at 132 (citing Curley v. Curley, 588 P.2d 289, 291-
92 (Alaska 1979)).

     15    950 P.2d at 134.

     16    Id. at 128.

     17    See 950 P.2d at 134.

     18      See  Restatement  (Second)  of  Contracts,  ch.   8,
Introductory  Note (1981) (In general, parties  may  contract  as
they  wish,  and  courts  will enforce their  agreements  without
passing  on  their substance. . . . The principle of  freedom  of
contract is itself rooted in the notion that it is in the  public
interest to recognize that individuals have broad powers to order
their own affairs by making legally enforceable promises.).

     19     The  superior  court stated that it would  treat  the
settlement order the same as if [it were] reached upon  agreement
of the parties as opposed to rulings rendered by the court.

     20      950  P.2d  at  132  (If  the  presumption  [of   the
applicability of the 15% rule] were available in such a case,  an
obligor  who  agreed to pay child support more than  15%  greater
than  the support required by Rule 90.3 could seek a modification
immediately after signing the agreement.).

     21    Id. (As we stated in Bunn,  [t]he 15% rule is a rule of
materiality,  not a definition of what constitutes  a  change  of
circumstances.   There must be a change of circumstances,  either
factual  or  legal. ) (quoting Bunn v. House, 934 P.2d  753,  758
(Alaska 1997)).

     22    Id.

     23    Id.

     24    Because we hold that Sarkesians child support should be
based on his actual reduced income which exceeds the income  cap,
we  need  not  address Hixsons argument that the  income  cap  is
unconstitutional.

     25     Of this amount, four months were in arrearage and the
other nine months remained to pass.

     26     The  superior court on August 7, 1992 had entered  an
order   stating  that  the  alimony  award  could  be  considered
reorientation alimony as opposed to rehabilitative alimony.

     27    644 P.2d 847, 849 (Alaska 1982).

     28    Edelman v. Edelman, 3 P.3d 348, 358 (Alaska 2000).

     29    821 P.2d 1366, 1370 (Alaska 1991).

     30     Id.  at 1369 (quoting Richmond v. Richmond, 779  P.2d
1211, 1215 (Alaska 1989)).

     31    Musgrove, 821 P.2d at 1370.

     32    Edelman, 3 P.3d at 358 (citations omitted).

     33    This court has previously held that contact lenses and
orthodontia  are  reasonable  medical  expenses.   Cedergreen  v.
Cedergreen, 811 P.2d 784, 788-89 (Alaska 1991).

     34    Alaska Civil Rule 90.3(d)(2) provides:

          The  court shall allocate equally between the
          parties  the  cost of reasonable health  care
          expenses not covered by insurance unless  the
          court  orders  otherwise for good  cause.   A
          party shall reimburse the other party for his
          or her share of the uncovered expenses within
          30 days of receipt of the bill for the health
          care,    payment   verification,   and,    if
          applicable,  a  health  insurance   statement
          indicating  what  portion  of  the  cost   is
          uncovered.   Reasonable,  uncovered  expenses
          exceeding $5,000 in a calendar year  will  be
          allocated  based  on  the  parties   relative
          financial  circumstances  when  the  expenses
          occur.
          
     35    Byars v. Byars, 945 P.2d 792, 795 (Alaska 1997).

     36     The  superior  court  provided  several  examples  of
Sarkesians questionable litigation tactics:

               In   the  prior  case,  Mr.  Sarkes[ia]n
          opened   an   account  without  Ms.   Hixsons
          knowledge    even   before   the    parties[]
          separated.   He diverted marital  money  into
          this   account.   He  was  paid   substantial
          bonuses  but  did not disclose those  bonuses
          until  well into the discovery stages of  the
          litigation.   Even during the  trial  it  was
          disclosed that he hoarded large sums of  cash
          in  his home.  Mr. Sarkesian argues that  the
          prior dishonesty cannot be used as a basis to
          deny  attorneys fees because the result  wold
          be  to effectively eliminate Civil Rule 82 in
          all cases.  But this is not correct.
          
               Because    of   Mr.   Sarkesians    past
          dishonesty  and  sharp litigation  practices,
          Ms.  Hixson has been forced to question every
          assertion made by Mr. Sarkesian in this child
          support  litigation.  Not  just  because  she
          wanted  to defeat Mr. Sarkesians motion,  but
          to  insure that he was not doing what he  has
          done  in  the past  unfairly hide  assets  or
          income  and mislead her.  She was  forced  to
          spend more time and energy and more resources
          for  investigation because she  cannot  trust
          Mr. Sarkesian.  It is obvious that Ms. Hixson
          did  not  treat this motion like  most  child
          support modification cases are handled.   But
          based on experience, she could not afford  to
          take   Mr.  Sarkesian  at  his  word.    Even
          recently, as the court has noted before,  Mr.
          Sarkesians  transaction with the BMW  is,  at
          the very least, peculiar and suspicious.