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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).