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Corbin v. Corbin (5/2/2003) sp-5687
Corbin v. Corbin (5/2/2003) sp-5687
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
EDWARD M. CORBIN, )
) Supreme Court No. S-10281
Appellant, )
) Superior Court No.
v. ) 3AN-99-8263 CI
)
WINONA L. CORBIN, ) O P I N I O N
)
Appellee. ) [No. 5687 - May 2, 2003]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Rene J. Gonzalez, Judge.
Appearances: Maryann E. Foley, Law Office of
Maryann E. Foley, Anchorage, for Appellant.
Winona L. Corbin, pro se, Vancouver,
Washington.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
The issues raised in this case all pertain to the
calculation of child support. The parties have three children:
Justin, born in March 1984; Jarrod, born in May 1988; and Jameson
("Jamie"), born in September 1993. This action was brought in
July 1999 and the parties separated in January 2000. The parties
reached a child custody agreement on November 6, 2000, and it was
incorporated by reference in the decree of divorce that was
entered on March 1, 2001. The decree, however, did not resolve
child support issues. Instead, the findings accompanying the
decree provided that "child support shall be pursuant to Civil
Rule 90.3 under the divided custody formula. The parties are to
exchange updated Child Support Guidelines Affidavits within ten
days of the date of this court order." After the parties made a
number of submittals, the court entered an order governing the
payment of child support on May 29, 2001. The court used the
parties' year 2000 incomes for child support purposes. Edward's
adjusted annual income for 2000, and his projected income for
2001, was $39,708.54. Winona's adjusted annual income was
$22,007 for 2000 and $21,787 for 2001. The court also
recognized that the parents had an obligation to pay support to
third parties during periods third parties had cared for the
children. Facts particular to specific points on appeal are
stated below.
Child Support - January - May 2000
The most factually complicated issue concerns the award
of child support for five months in the year 2000. The superior
court ordered Edward to pay Winona monthly support for January
and February of $346.35. For March through May Winona was
ordered to pay Edward monthly support of $86.82. For the reasons
that follow we conclude that Edward owes Winona $121.70 for
January and February, and Winona owes Edward $80.03 for March and
April, and $403.46 for May.
When the parties separated in January 2000 the two
older boys, Justin and Jarrod, were living with their maternal
grandparents in Washington. From January through April physical
custody of Jamie was split equally between the parties. In early
May Winona moved to Washington and Jamie stayed with Edward in
Alaska. From March through May Justin stayed with Edward.
A. January and February
For January and February the court ruled:
[T]he parties have a duty to support all
three minor children, not just Jamie.
Neither parent had custody of Justin or
Jarrod during this time period. A parent is
obligated to provide support for his or her
children. If neither party had custody of
Justin or [Jarrod], they may owe support to a
third party who provided support to the
children. Because neither party had physical
custody of Justin and Jarrod, this court will
calculate support for this period based on a
50/50 shared custody agreement for all three
children. Edward's support obligation for
all three children is $365.10 less $18.75
health credit, for a total support obligation
of $346.35. [Footnotes omitted.]
Edward argues that basing support on a 50/50 shared custody
arrangement for all three boys is in contravention of Civil Rule
90.3(i)(2) which provides:
If, in addition to a support obligation
to a third party, one or both parents retain
primary or shared physical custody of at
least one of their children, the support
obligation between the parents is calculated
pursuant to the other paragraphs of this
rule, without consideration of the third
party custodian or any children in the
custody of the third party custodian, except
that the percentage in 90.3(a)(2) must be
adjusted pro rata for the number of children
in the primary custody of a parent, or shared
custody of the parents, compared to the total
number of children. After that calculation
is completed, any support owed may be offset
with support owed to a third party custodian
under the preceding subparagraph in order to
minimize transactions.
The Commentary to Rule 90.3 Section XI.B reiterates the above
language and gives guidance as to how to calculate support as
between the parents in cases where a child is in the custody of a
third party.1
The superior court's assumptions and thus its
calculations are not consistent with Rule 90.3(i)(2).2 The rule
directs the court to calculate the support obligation "without
consideration of the third party custodian or any children in the
custody of the third party custodian."3 Here the court
calculated support based on shared custody of all three children.
Instead, the court should have used the shared custody method set
out in Rule 90.3(b) for one child as modified by Rule 90.3(i)(2).
The adjusted pro rata percentage called for in Rule 90.3(i)(2)
would be 11%, 33% for three children under (a)(2)(C) multiplied
by one representing the child in shared custody divided by three
representing the total number of children. The result is that
for these two months Edward owes Winona $121.70 per month for the
support of Jamie,4 Applying the multiplier of 1.5 x 81.13 =
$121.70 minus the health insurance deduction of $18.75 per Rule
90.3(d)(1).
The maternal grandparents are entitled to support for
the older boys for these months from both Edward and Winona.
B. March, April, and May
The trial court calculated child support for the months
of March, April and May "as if the parents had shared custody of
both Jarrod and Jameson and Edward [had] primary custody of
Justin."
Edward argues that court's calculation was erroneous
for each of the following three reasons:
1. For all three months Jarrod was in the custody of
his grandparents and thus should not have been involved in the
calculation of support owed between the parents.
2. With regard to March and April, rather than
considering Justin and Jamie separately, the former under primary
custody guidelines (Rule 90.3(a)), the latter under shared
custody guidelines (Rule 90.3(b)), the court should have
considered them as one unit and averaged the amount of time they
spent with each parent to determine which custody guideline to
use. Because Justin was with Edward 100% of the time and Jamie
was with Edward 50% of the time, this would result in Edward
having both children 75% of the time and would, so Edward argues,
require the use of Rule 90.3(a).
3. With regard to May, Jamie was in the primary
physical custody of Edward, and the court erred in using the
shared physical custody formula.
Edward's first point is correct for the reasons
described above. The grandparents are entitled to support for
Jarrod from each parent.
Edward's second point is not correct. The trial court
correctly decided that Jamie and Justin presented a hybrid
custody situation - Jamie in shared custody and Justin in sole
custody - that should be governed by the formula we used in
Turinsky v. Long.5 Under that formula, primary and shared
custody support amounts are offset using percentages that are
prorated for the total number of children.6 Winona's primary
support obligation for Justin would be $201.73 per month ($22,007
x .33 x 1/3 x 1/12) while Edward's support obligation for Jamie
as calculated above is $121.70. Offsetting these figures, Winona
owes Edward monthly support of $80.03 for March and April.
Edward's third point is clearly correct. Jamie was in
the sole physical custody of Edward for May.
For May, Edward was the primary custodian of Justin and
Jamie. Winona owes him $403.46 for this month (22,007 x .33 x
2/3 x 1/12).
Child Support in 2001 and Prospectively
Initially in 2001 child custody arrangements were to be
governed by a child custody agreement that the parties entered
into in November 2000. Under this agreement Edward had primary
physical custody of Justin and Jamie and Winona had primary
physical custody of Jarrod. But Justin did not live with Edward
during 2001; instead, he resided with third parties. The decree
of divorce entered on March 1, 2001, incorporated the child
custody agreement without mentioning that Justin was no longer
residing with Edward. Though the order determining child support
of May 2001 recognized that Justin was residing with third
parties, it nevertheless calculated child support as if he was
residing half the time with each parent. For 2001 and
prospectively Edward was ordered to pay Winona $536.25 per month
for child support. For the reasons that follow we conclude that
under Civil Rule 90.3 he should have been ordered to pay a
monthly sum of $164.28.
Edward makes three challenges to the 2001 child
support.
1. He contends that the trial court should have used
his projected 2001 income rather than his actual 2000 income.
2. He contends that the court erred in using the
divided custody formula set out in Civil Rule 90.3(b)(6) prior to
April 15, 2001, which was the effective date of that subsection.
3. He contends that the court erred in calculating
support for Justin as if custody for Justin was a 50/50 shared
arrangement.
Edward's first argument lacks merit. Determination of
adjusted annual income for child support purposes is a question
of fact reviewed under a clearly erroneous standard.7 On
numerous occasions we have upheld determinations based on past
income in preference to more speculative evidence.8 The trial
court did not err in this case in adopting this approach.9
Edward's second point is likewise without merit. Even
though the divided custody rule reflected in Civil Rule
90.3(b)(6) had an effective date of April 15, 2001,10 the formula
on which the rule is based was earlier approved in Bunn v. House.11
It was not error to use the Bunn v. House formula prior to the
effective date of its codification.
Edward's third point has two parts. First he argues
that because under the November 2000 agreement he was the primary
physical custodian of Justin, Winona should have been paying him
child support for Justin even though Justin was not actually
living with him in 2001. We reject this argument under the
authority of Bennett v. Bennett.12 Edward in this case is
positioned like the father in Bennett who had de jure but not de
facto custody of the parties' child.13 Here, as in Bennett, there
was no pre-existing child support award.14 We held in Bennett
that the father under these circumstances was not entitled to
child support from the mother, stating: "Awarding child support
to a parent who has relinquished de facto custody and no longer
provides any financial support to the child does not further the
purposes of the child support rule."15
The second aspect of Edward's third point is that the
trial court ignored Civil Rule 90.3(i)(2) when it calculated
child support as if Justin was in a shared custody status. This
is well taken. The court should have calculated child support
considering Justin to be in third-party custody under Civil Rule
90.3(i)(2). As we have already noted, this subsection directs
the court to calculate the support obligation between the parents
without considering the children in the custody of third parties,
adjusting applicable percentages "pro rata for the number of
children in the primary custody of a parent . . . compared to the
total number of children."16
Following Civil Rule 90.3(i)(2) and adopting the
divided custody formula of Bunn v. House used by the trial court
and now reflected in Civil Rule 90.3(b)(6) yields monthly support
of $164.2817 that Edward owes Winona.
Other Points on Appeal
Edward makes an argument relating to the penultimate
paragraph of the May 29, 2001 child support order, which states:
"Third parties supporting the minor children during any of the
above periods have a cause of action in debt against the obligor
parent for the care of the minor child." Edward takes issue with
the word "obligor," contending that both parties should have a
support obligation to the third-party custodians. Implicit in
this argument is that in Civil Rule 90.3 "obligor" refers to the
parent who must pay the other parent child support.18 If this was
the sense in which the court intended "obligor" to be understood
in the paragraph under review this would be error. Under Rule
90.3(i) both parents have a duty to pay support to third-party
custodians.19
Edward's final argument is that the trial court should
have granted an evidentiary hearing on the question of child
support. Under the circumstances of this case this argument
lacks merit because neither Edward nor Winona requested an
evidentiary hearing. Both parties were represented by counsel
and nothing indicates that they were misled in any respect
concerning how the court would proceed. Therefore Edward waived
his right to an evidentiary hearing on disputed material
questions of fact by his failure to request one before the court
ruled.20
Conclusion
For the above reasons the order setting child support
is REVERSED IN PART and this case is REMANDED for entry of an
order consistent with this opinion.
_______________________________
1Commentary to Civil Rule 90.3, Section XI.B provides:
There will be instances when a third
party is entitled to support for some of the
parent's children, but one or both parents
retain primary or shared custody of their
remaining children. In this case, child
support between the parents should be
calculated using Rule 90.3 based on the pro
rata support percentages for the children not
in third party custody. After that
calculation, any support owed may be offset
with amounts owed under 90.3(i)(1) to
minimize transactions.
For example, a father might have custody
of two children and the mother's sister might
have custody of, and be entitled to support
for, the parents' third child. Both parents
in this example have a $45,000 adjusted
annual income. Under Rule 90.3(i)(1), the
sister is entitled to $4,950 per year from
the father [$45,000 (annual income) x 33%
(percentage for three children) x 1/3
(custodian has one of three children)]. The
sister also is entitled to the same amount
from the mother. (The parents' incomes are
the same and the mother supports the children
living with the father.)
The pro rata percentage for each child
under 90.3 (a)(2) would be 33% (three
children) / 3 or 11% per child. Under
90.3(i)(2), the mother owes the father $9,900
per year in support ($45,000 x 22%). If the
support amounts are offset, the mother will
owe her sister $9,900 per year and the father
$4,950 per year. The court could decide,
however, that it was preferable not to offset
the support amounts because one of the
parents might not pay the third party.
2The proper method of calculating child support is reviewed de
novo. See Charlesworth v. State, Child Support Enforcement Div.,
779 P.2d 792, 793 (Alaska 1989).
3Alaska R. Civ. P. 90.3(i)(2) (emphasis added).
4The calculations are:
For Edward = 39,708.54 x .33 x 1/3 x 1/12 x .50 =
182.00
For Winona = 22,007 x .33 x 1/3 x 1/12 x .50 = 100.87
Subtracting 100.87 from 182.00 = 81.13
5910 P.2d 590, 596-97, & n.13 (Alaska 1996).
6Id.
7Gallant v. Gallant, 945 P.2d 795, 800 (Alaska 1997).
8See, e.g., Virgin v. Virgin, 990 P.2d 1040, 1049 (Alaska 1999)
(holding court need not credit speculative evidence provided by
employer as to future income); Coghill v. Coghill, 836 P.2d 921,
925-26 (Alaska 1992) (favoring twelve-month period of prior year
over first quarter figures from present year); Pugil v. Cooper,
811 P.2d 1062, 1067 (Alaska 1991) (upholding a determination of
income based on average of past income where parent worked in
industry where employment and income were erratic).
9Of course, appellant may petition for modification if his income
does in fact decrease sometime in the future. Virgin, 990 P.2d
at 1049.
10Alaska R. Civ. P. 90.3(b)(6); Commentary to Civil Rule 90.3,
Section V.D.
11934 P.2d 753, 755-58 (Alaska 1997). See also Commentary to
Civil Rule 90.3, Section V.D.
126 P.3d 724, 727-28 (Alaska 2000).
13Id. at 725-26.
14Id. at 728 n.19.
15Id. at 727-28.
16Alaska R. Civ. P. 90.3(i)(2).
17Determined by calculating Edward's pro rata support obligation
for one child ($39,708.54 x .33 x 1/3 x 1/12) = $363.99; Winona's
pro rata obligation for one child ($21,787 x .33 x 1/3 x 1/12) =
$199.71; and subtracting the smaller from the larger figure
($363.99 - $199.71 = $164.28), resulting in $164.28 that Edward
must pay Winona.
18See Alaska R. Civ. P. 90.3(a)(3) and (b)(3).
19See Commentary to Civil Rule 90.3 XI.B (second paragraph).
20See, e.g., John's Heating Serv. v. Lamb, 46 P.3d 1024, 1036
(Alaska 2002) (failure to request evidentiary hearing waives
right to one).
