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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Koller v. Reft (6/13/2003) sp-5699
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 ALASKAJOHN M. KOLLER,
) ) Supreme Court No. S-
10088 Appellant, )
) Superior Court No. v. )
3KO-99-00284 CI )KRISTEEN
E. REFT, ) O P I N I O N
) Appellee. ) [No. 5699 -
June 13, 2003]_______________________________ )Appeal
from the Superior Court of the State of Alaska, Third
Judicial District, Kodiak, Elaine M. Andrews and Eric
T. Sanders, Judges.Appearances: Steve Cole, Cole and
Razo, LLC, Kodiak, for Appellant. Matthew D. Jamin and
Karen L. Lambert, Jamin, Ebell, Schmitt & Mason,
Kodiak, for Appellee. Before: Fabe, Chief Justice,
Matthews, Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.I. INTRODUCTION John
Koller appeals several of the superior court's rulings
and findings concerning the financial ramifications of
his custody dispute with Kristeen Reft over their son,
Noah. First, he argues that the superior court had no
evidentiary support for, nor findings explaining, its
interim and prospective child support awards. He
alleges that the court erroneously imputed his
potential income in violation of Alaska Civil Rule
90.3(a)(4) and then exacerbated the error by increasing
his child support obligation under Rule 90.3(c).
Second, John contends that the court erred in ordering
him to pay Kristeen's attorney's fees, the custody
investigator's costs, and the fees for Kristeen's
psychological evaluation. We remand the award of
prospective child support for additional findings and
affirm the remainder of the challenged rulings.
II. FACTS AND PROCEEDINGS John Koller and
Kristeen Reft had a brief intimate relationship in
October 1998. Kristeen lived in the village of Karluk
on Kodiak Island, and John lived in Kodiak, where he
was finishing a two-year term as a physician. Shortly
after John left for a new position in New Mexico,
Kristeen learned she was pregnant. Interactions between
Kristeen and John became and remained decidedly
strained. In May 1999 John took a leave of absence
from his position in New Mexico so that he could be
present for his son's birth. Kristeen gave birth to
Noah in July 1999. Kristeen resisted any involvement
by John with Noah.
Unable to establish an amicable arrangement
with Kristeen for seeing his son, John filed a
complaint in September 1999 seeking primary custody of
Noah. Pursuant to Civil Rule 90.3, John filed a child
support guidelines affidavit with his initial pleadings
and attached a wage statement from his most recent
employer, the U.S. Department of Health and Human
Services. These documents showed John's monthly net
income to be $4,938.79 and his hypothetical child
support obligation to be $987.75 per month.
Kristeen answered the complaint, responding
that she should have custody and that John should pay
child support. Her child support guidelines affidavit
estimated her monthly net income to be $826.19.
Superior Court Judge Elaine M. Andrews
presided briefly over the case, holding a status
hearing in November 1999 and issuing written orders
setting an interim custody schedule, appointing a
custody investigator, ordering John to pay the
investigator's retainer and initial expenses, and
deferring the question of whether any of the
investigator's fees should be paid by Kristeen.
The interim custody order awarded Kristeen
primary custody and gave John visitation rights as
follows: one out of every four weeks, Kristeen was to
come to Kodiak and provide John with three hours of
visitation each morning and three each afternoon; the
remaining three weeks Kristeen had to offer John the
same visitation schedule if he was in Karluk. John,
who emphasizes repeatedly throughout his briefing that
he wanted to spend time with his child during Noah's
critical bonding stage, "chose his son over his
career," living in Karluk three weeks out of four and
focusing on Noah during the one Kodiak week, even
though there were no employment opportunities in Karluk
and few in Kodiak. John found no work in Kodiak,
despite his employment opportunities there prior to
moving to New Mexico. He spent most of the end of 1999
and 2000 unemployed and living off his savings, but
spending time and bonding with Noah. For a few months
in 2000, John worked in Craig, where his employer let
him work for one or two weeks and then take one or two
weeks off to return to Kodiak, but John terminated that
employment because it kept him away from Noah for too
long.
In late 1999 the case was assigned to
Superior Court Judge Eric T. Sanders. In December 1999
Judge Sanders ordered John to pay Kristeen $750 a month
in interim child support, to pay $5,000 towards her
attorney's fees, and to pay $5,000 towards the custody
investigator's costs. In May 2000 Judge Sanders
ordered John to pay $3,900, the cost for Kristeen's
psychological evaluation. At a settlement conference
in July 2000, John and Kristeen reached agreement on
the issues concerning custody of Noah. On October 3,
2000, Judge Sanders issued findings of fact and
conclusions of law granting John and Kristeen joint
legal and physical custody of Noah and setting out a
year-round custodial schedule. On October 4 Judge
Sanders ordered John to pay another $10,000 towards
Kristeen's attorney's fees, $3,000 in back child
support, and $1,000 a month for future child support.
In February 2001 Judge Sanders ordered John to be
solely responsible for the remaining $5,611.58 owed to
the custody investigator.
John filed three motions for reconsideration.
The first, filed October 16, sought to modify the
October 3 custody order. The second, filed October 17,
sought to modify the October 4 fee and support order.
The third, filed December 19, again sought to modify
the October 4 fee and support order. Judge Sanders
ruled that the first two motions were not well taken
because John had not complied with Civil Rule 77(k).
Judge Sanders nevertheless modified his financial order
to clarify his reasoning for setting John's child
support obligation at $1,000 a month. Judge Sanders
struck the third motion, refusing to consider the
motion or its accompanying documents, because the
motion was untimely.
John appeals, arguing that the superior court
erred in issuing interim and prospective child support
orders without any evidence to support its estimates
and based on his potential income in violation of Civil
Rule 90.3(a)(4), and that it exacerbated the error by
increasing the child support amount under Rule 90.3(c).1
John also argues that the superior court erred in
ordering him to pay Kristeen's attorney's fees, the
custody investigator's costs, and the fees for
Kristeen's psychological evaluation.
III. DISCUSSION A. Issues Concerning Child Support
We reverse child support awards only if the superior court abused
its discretion or applied an incorrect legal standard.2 We will
find an abuse of discretion when our review of the record leaves
us with "a definite and firm conviction based on the record as a
whole that a mistake has been made."3 Whether the superior court
applied the right legal standard in making its child support
determination is a question of law that we review de novo.4 The
superior court's factual findings regarding a party's income for
calculating child support are subject to the clearly erroneous
standard of review.5
1. John failed to preserve for appeal his
challenge to the interim child support award.
John argues that the superior court erred by failing to
use the prescribed guidelines under Civil Rule 90.3(a) to
determine John's interim child support obligation, instead
pulling a figure out of "thin air." John never challenged the
correctness of the interim child support award before the
superior court. As such, he failed to preserve this claim for
appeal.6
Even if John had preserved this claim, the interim
award was well within the court's discretion. The only evidence
of John's income before the court when it issued the interim
child support order in December 1999 was his child support
guidelines affidavit, which indicated that his monthly net income
was $4,938.75 and that his corresponding child support obligation
would be $987.75. Kristeen is thus correct in asserting that the
information before the court could have justified an award of
$987.75, let alone an award of $750. Granted, John's income
figures were based on the assumption that John would be returning
to his position in New Mexico, which never occurred. John
provided no new income figures for the court, however, and did
not submit a new child support guidelines affidavit.7
Accordingly, even if John had preserved this argument for appeal,
setting the interim award at $750 was well within the court's
"broad equitable powers to fashion a child support award."8
2. The prospective child support award must be
remanded for additional findings.
The day after granting John and Kristeen shared
physical custody of Noah, the superior court issued its October
4, 2000 order setting prospective child support. Since John and
Kristeen had joint physical custody, the court traditionally
would have applied the Rule 90.3(b) formula. Instead, the court
based its award on Rule 90.3(c)(1)(A), finding that "manifest
injustice would result if the standard calculation was utilized
in this instance." The court found that the increased award was
justified by Kristeen's move from Karluk to Kodiak so that Noah
could spend time with John and by the concomitant sacrifices in
her lifestyle and increases in her expenses. The court fulfilled
its Rule 90.3(c)(1)(A) obligation to "specify . . . the amount of
support which would have been required but for the variation"
four months later in its order on motions for reconsideration,
when it modified its October 4 order to include the following:
Based on the parties' prior income earning
capacity, I find that Dr. Koller should make
net income in excess of $84,000 per year, and
Kristeen's is about $12,000 per year.
Assuming they split custody, which they will
soon, Rule 90.3(b) would normally require
John to pay Kristeen $10,800 per year, or
$900 per month.
John challenges the court's estimation of his child support
obligation.
a. The court's estimation of
John's income at more than $84,000 did not
have adequate evidentiary support.
John first argues that the court had no basis for
finding his net income to be in excess of $84,000. It was
certainly understandable that the court intuited that John could
make more than $84,000 as a physician in a town the size of
Kodiak. Some circumstantial evidence supported this intuition,
such as the fact that John had previously received the employee
of the year award and was made chief of staff at the hospital.
However, given that John notified the court of his difficulties
finding work, the court needed to base John's income figure on
stronger evidence.
"In determining earning capacity under Alaska Civil
Rule 90.3, a trial court has the discretion to choose `the best
indicator of . . . future earning capacity' based on the evidence
before it."9 The only income documents of John's that the court
had before it on October 4, 2000 were his child support
guidelines affidavit and the attached wage statement from New
Mexico, which showed his net income to be $59,265.48.10 His gross
income, derived from those forms, was $78,396. "A trial court is
required to make specific findings to support a determination of
adjusted income under Civil Rule 90.3,"11 but the court issued no
findings explaining how it arrived at the $84,000 figure.
Because there was no evidentiary support for the court's finding
that John's income was in excess of $84,000, we vacate the
prospective child support award and remand for additional
findings. On remand, the court can take additional evidence and
testimony at its discretion concerning the availability of jobs
in the area, how much other similarly situated doctors earn,
John's historical earnings, and what John actually earned.12
b. The exception for parents
caring for a child under the age of two would
be inapplicable in this context.
John next contends that the court erred by imputing his
income under Rule 90.3(a)(4). Because we are vacating the
prospective child support award, we need not determine whether
the court in fact imputed John's income or merely determined
John's future earning capacity.13 However, to provide guidance to
the court should it decide on remand that John was unreasonably
underemployed, we now address John's principal argument, namely
that the court was prohibited from imputing his income because he
was caring for a child under the age of two.
Rule 90.3(a)(4) states: "A determination of potential
income may not be made for a parent . . . who is caring for a
child under two years of age to whom the parents owe a joint
legal responsibility." John's argument is relevant only for the
period from October 2000, when the court ordered prospective
child support, to July 2001, when Noah turned two. John owed a
legal responsibility to Noah, since "a parent's duty of support
`commences at the date of the birth of the child.' "14 Because
there was shared physical custody, both Kristeen and John could
also be said to be "caring" for Noah. However, although Rule
90.3(a)(4) applies to cases of shared custody,15 the "caring for a
child" exception is not meant to apply to situations like the
present one.
If each of the parents sharing physical custody of a
child under the age of two could stop working and claim that his
or her income could not be imputed under Rule 90.3(a)(4), then no
support would be provided for that child. This result would be
contrary to the very purpose of the Rule 90.3 guidelines, namely
"to ensure that child support orders are adequate to meet the
needs of children, subject to the ability of parents to pay."16
Cases and guidelines from other states support the view that
"caring for a child" exceptions are only intended to prevent the
penalization of one parent who stays home virtually full-time to
act as the primary caregiver.17 The court below may thus impute
John's potential income should it deem such action necessary on
remand, although it can of course consider John's care of Noah
and his difficulty in finding employment when determining whether
John was "voluntarily and unreasonably . . . unemployed or
underemployed."18
c. The court's use of the
"manifest injustice" exception was not an
abuse of discretion.
John contends that the court "exacerbated its
error" by increasing to $1,000 under Rule 90.3(c) the $900 award
it had estimated under Rule 90.3(b).19 Rule 90.3(c)(1) permits
variance from the usual Rule 90.3 calculations "for good cause
upon proof by clear and convincing evidence that manifest
injustice would result" without the variance. The "good cause"
inquiry "must focus first and foremost on the needs of the
children."20 John maintains that the court's findings of
"manifest injustice" and "good cause" were insufficient and that
the court's focus on Kristeen's move from Karluk to Kodiak
resembled alimony more than child support because it focused on
Kristeen's needs instead of Noah's. John alleges that Kristeen
had to move to Kodiak anyway for her older son's schooling and
that the court's findings fail to consider the sacrifices that
John made to spend time with Noah. The court's findings,
however, are not clearly erroneous.
Rule 90.3(c)(1)(A) states that "good cause" could
include a finding of "unusual circumstances"; the Rule's
commentary notes that examples of unusual circumstances could
include "extraordinary expenses."21 In an affidavit, Kristeen
estimated her expenses for moving to and living in Kodiak. John
countered the assertions in Kristeen's affidavit in an e-mail to
his lawyer, but although the subject line of this e-mail was
"affidavit," it cannot be considered one.22 Regardless, it was
within the court's discretion to find Kristeen's affidavit to
constitute "clear and convincing evidence" that her expenses for
moving to Kodiak would be "extraordinary," particularly factoring
in Kristeen's income as required by Rule 90.3(c)(1)(A).23
Furthermore, the court acknowledged the distinction between child
support and alimony, noting that "Dr. Koller has a duty to
financially support Noah, not Ms. Reft." The court's recognition
that Kristeen's move was "so that Noah can be with his father
about half the time" further manifests the court's awareness of
the child's needs.24
Accordingly, because the court recognized the
distinction between child support and alimony and acted within
its discretion in finding Kristeen's moving expenses to
constitute "unusual circumstances," we conclude that the court
did not err in varying the award under Rule 90.3(c)(1)(A).25 If
the court determines on remand that such a variation is still
required to avoid manifest injustice, it may again use Rule
90.3(c)(1)(A) to vary the award to an amount it believes is "just
and proper for [John] to contribute toward the nurture and
education of [his] child[]."26
B. Issues Concerning Fees and Costs
John challenges several of the superior court's orders
concerning fees and costs. We review for abuse of discretion a
superior court's order to pay another party's attorney's fees,
expert fees, and other costs.27 "The trial court's discretion in
awarding attorney's fees is broad and its decision will not be
disturbed on appeal unless it is `arbitrary, capricious,
manifestly unreasonable, or stems from an improper motive.' "28
The determination of which statute or rule applies to an award of
attorney's fees is a question of law that we review de novo,
"adopting the rule of law that is most persuasive in light of
policy, reason, and precedent."29
1. The court did not err in applying AS
25.24.140(a)(1).
Attorney's fees are usually awarded under Civil Rule
82, which grants attorney's fees to the prevailing party in an
action. "However, divorce cases represent a well_established
exception to this general rule. Attorney's fees in divorce cases
are based on the relative economic situations and earning powers
of the parties, rather than prevailing party status."30 "[T]he
divorce exception to Civil Rule 82 `is based on a broad reading
of AS 25.24.140(a)(1) [pertaining to an interim award of
attorney's fees in divorce cases] . . . , and on the reality that
there is usually no prevailing party in a divorce case.' "31 Costs
in divorce cases are treated like attorney's fees in that they
too are "exempt from the requirement that they be awarded in
favor of the prevailing party . . . ."32 Although the superior
court never explicitly referred to AS 25.24.140(a)(1) in awarding
costs and fees, the parties agree that the court clearly utilized
the divorce exception.
John contends that the applicability of the divorce
exception in non-divorce cases turns on how close the couple was
to a marital unit. Because he and Kristeen had a one-month
relationship, never lived together, and never jointly owned
property, John argues that the court erroneously applied the
divorce exception to this case. Kristeen counters that since she
and John are litigating custody in the first instance, the
divorce exception should apply regardless of whether or not the
parties resembled a marital unit. We agree with Kristeen.
We have held that the divorce exception should only be
used in cases that "closely resemble a divorce action or . . .
involve the kinds of issues - such as the initial determination
of custody and child support - that generally arise in the
immediate aftermath of a long-term relationship break_up . . . .
"33 This is because "it is of paramount importance that the
parties be able to litigate on a fairly equal plane" in disputes
on these issues.34 We have also determined that the divorce
exception seems applicable when there is a "short period of time
between the breakup of the parties' relationship and the filing
of the action [on] . . . property division, child custody, and
child support issues . . . ."35 Although John and Kristeen in no
way resembled a marital unit (apart from having a child
together), the issues involved in this case and the promptness
with which it was filed look just like a divorce case. John
filed a custody complaint only a few months after Noah was born,
and the initial custody and support issues in dispute are the
types of issues "that generally arise in the immediate aftermath
of a long_term relationship break_up," even though John and
Kristeen did not in fact have a long-term relationship.
Accordingly, the court did not err in applying the divorce
exception to Civil Rule 82.36
2. The court did not err in allocating to
John the attorney's fees, the cost of Kristeen's
psychological evaluation, and the custody
investigator's fees.
Under the divorce exception, fees and costs are
allocated "based on the relative economic situations and earning
powers of the parties . . . ."37 John maintains that the superior
court's fee and cost allocations were error because the court
used John's imputed income instead of his actual income when
assessing the parties' relative economic situations. Again, we
need not decide whether the superior court imputed John's income.
The court had John's child support guidelines affidavit showing
his gross annual income to be $78,396 and his net income to be
$59,265.48. It also had Kristeen's income statements showing an
annual gross income below $12,000, a net income below $10,000,
and another son to care for. Regardless of whether the court
used the $84,000 figure or the numbers from John's affidavit, the
evidence clearly established that John's income was several times
greater than Kristeen's. There was also evidence that John had a
sizable bank account and the skills to earn a significantly
higher income than Kristeen. The disparate economic situations
and earning capacities of the parties justified the court's
allocations of attorney's fees and the cost of Kristeen's
psychological evaluation.38
John contends that the superior court erred by
allocating the custody investigator's costs to him in violation
of Rule 90.6(i), which states that "[f]ees and costs for a
private custody investigator will be divided equally between the
parties unless the court finds good cause to change this
allocation." Custody investigators can be considered expert
witnesses,39 and we have concluded that "costs for reimbursement
of expert witnesses in divorce cases" are to be treated the same
as attorney's fees in being exempt from the prevailing party
requirement of Rule 82.40 Allocation of such costs can thus also
be "based on the relative economic situations and earning powers
of the parties . . . ."41 The disparate economic situations and
earning capacities of John and Kristeen therefore constitute
sufficient "good cause" to justify the court's allocation of the
custody investigator's fees to John.
3. No itemization of Kristeen's legal fees
was required.
John argues that the superior court had an obligation
to require Kristeen to itemize her legal fees because there was
no evidence of her actual fees and because John objected
repeatedly to paying them. Kristeen is correct that John did not
adequately raise this point below. John complained frequently
about having to pay Kristeen's attorney's fees and about how high
they were. He requested an itemization in an e-mail to his
attorney,42 and later stated (in his reply to Kristeen's
opposition to his motions for reconsideration) that many of her
counsel's fees were unreasonable and that "I requested an
itemization of his billings which I have not yet received."43
However, John never made a motion in court seeking itemization.
The absence of a specific cognizable request for itemization,44
the superior court's broad discretion in awarding attorney's
fees,45 and the fact that it only awarded Kristeen sixty percent
of her fees, combine to defeat John's argument. No itemization
was required.
4. The superior court did not err in
failing to make findings about whether the parties
exhibited "bad faith."
John asserts that the superior court's findings were
insufficient because the court did not broach the subject of
whether either party acted in "bad faith" before assessing
litigation costs. A showing of bad faith, however, is only
necessary in two circumstances. The first is in cases arising
under AS 25.20.115,46 which states that in "an action to modify,
vacate, or enforce . . . an order providing for custody of a
child or visitation with a child," the superior court can award
fees and costs, though it must consider "the relative financial
resources of the parties and whether the parties have acted in
good faith." This case is not one to modify, vacate, or enforce
a custody order, however, and the applicable fees statute is not
AS 25.20.115, but rather AS 25.24.140, which contains no similar
"faith" requirement. In the principal case upon which John
relies, in fact, we distinguished the requirements of the two
statutes, stating that "under AS 25.20.115 the parties' relative
financial resources do not necessarily take primacy over the
presence or absence of good faith," unlike under AS
25.24.140(a)(1).47 The second circumstance can occur under AS
25.24.140(a)(1) when a court increases a party's attorney's fee
obligation as punishment for "act[ing] in bad faith or engag[ing]
in vexatious conduct."48 This case, however, does not involve an
increased fee award. Because neither of these circumstances
applies in this case, the superior court did not err in failing
to make any findings concerning John's "bad faith."
IV. CONCLUSION
Because John never challenged before the superior court
the correctness of the interim child support award, we hold that
he failed to preserve this claim for appeal.
Because there was inadequate evidentiary support for
the superior court's finding that John's adjusted annual income
was in excess of $84,000, we VACATE the prospective child support
order and REMAND for additional findings. The court has the
discretion to take additional evidence or testimony concerning
the availability of jobs in the area, how much other similarly
situated doctors earn, John's historical earnings, and what John
actually earned. The court may impute John's income for the
period from October 2000 to July 2001 if it determines that John
was unreasonably underemployed. The court may also utilize the
"manifest injustice" variance of 90.3(c)(1) as it thinks just and
proper.
Because John and Kristeen were litigating an initial
custody and support dispute initiated only months after Noah's
birth, because the income figures before the court justified the
fee and cost awards, because there was no cognizable request for
itemization, and because this case did not involve AS 25.20.115
or an increased fee award, we AFFIRM all the challenged fee and
cost orders.
_______________________________
1In pre-briefing orders, we ruled that John could not appeal the
custody decision itself.
2Beaudoin v. Beaudoin, 24 P.3d 523, 526 (Alaska 2001).
3Id. (citations and internal quotations omitted).
4Id.
5Routh v. Andreassen, 19 P.3d 593, 595 (Alaska 2001).
6See Mapco Express, Inc. v. Faulk, 24 P.3d 531, 540 n.29 (Alaska
2001) ("As a general rule, this court will not consider arguments
attacking a judgment for the first time on appeal.").
7John implies that the superior court should have based the
interim support order on his "current and actual income"
(presumably, zero) or held a hearing to "flush out or develop the
facts" about his actual income at the time. He never requested
such a hearing, however, and the court had the discretion to use
the evidence that John submitted to it. Furthermore, John later
acknowledged that based on the pleadings, the court determined
that $750 was the appropriate figure, and he argued that this
decision should be followed.
8Coghill v. Coghill, 836 P.2d 921, 924 (Alaska 1992) (internal
quotations omitted); see also Zimin v. Zimin, 837 P.2d 118, 123
n.8 (Alaska 1992) ("Child support determinations are within the
broad discretion of the trial court . . . .").
9Virgin v. Virgin, 990 P.2d 1040, 1049 (Alaska 1999) (quoting
Coghill, 836 P.2d at 926).
10John admits that the court did not have before it on October 4
his 1999 tax return and modified (unsworn) child support
guidelines affidavit, showing his income to be between $44,000
and $46,000, since he first submitted them on October 17 attached
to one of his motions for reconsideration. He argues, however,
that the court had the opportunity on reconsideration to issue a
revised child support order. Even if the court's rejection of
John's reconsideration motions for not being in compliance with
Rule 77(k) was improper, which John does not allege and which is
not the case, the court was under no obligation to consider the
documents attached to those motions. See Dunn v. Dunn, 952 P.2d
268, 271 n.2 (Alaska 1998) ("Because it is not appropriate to
present new evidence on a motion for reconsideration, we will not
consider the evidence . . . submitted with [the] reconsideration
motion."). Accordingly, we need not consider those income
documents either.
11Gallant v. Gallant, 882 P.2d 1252, 1255 (Alaska 1994).
12See Spott v. Spott, 17 P.3d 52, 56 (Alaska 2001) ("In making
retrospective rather than prospective child support awards actual
income rather than earlier predictions as to income should be
used."); Murray v. Murray, 856 P.2d 463, 466 (Alaska 1993)
(noting that decision to receive new evidence on remand lies
within trial court's discretion).
13John maintains that determining future earning capacity and
imputing potential income are the same thing. The difference is
that the former determination is merely based on the obligor's
adjusted annual income, or at least the most recent reliable
information regarding that income, Coghill, 836 P.2d at 925-26,
while the latter is based on "work history, qualifications, and
job opportunities." Alaska R. Civ. P. 90.3(a)(4).
14Rubright v. Arnold, 973 P.2d 580, 586 (Alaska 1999) (quoting
State, Dep't of Revenue, Child Support Enforcement Div. v. Rios,
938 P.2d 1013, 1015 (Alaska 1997)).
15See Olmstead v. Ziegler, 42 P.3d 1102, 1103-06 (Alaska 2002)
(holding that trial court did not err in finding father with
shared custody to be voluntarily and unreasonably underemployed);
Lacher v. Lacher, 993 P.2d 413, 417 & 423-24 (Alaska 1999)
(holding that trial court's imputation of income for voluntarily
underemployed mother with shared custody was not clearly
erroneous).
16Alaska R. Civ. P. 90.3, cmt. I.B.
17See, e.g., Me. Rev. Stat. Ann. tit. 19-A, 2001(5)(D) (2002)
(stating that "a party that is personally providing primary care
for a child under the age of 3 years is deemed not available for
employment"); Canning v. Juskalian, 597 N.E.2d 1074, 1077 (Mass.
App. 1992) (describing Massachusetts Guideline II_H which
prohibits imputation of potential income for "a custodial parent
with children who are under the age of six living in the home");
N.M. Stat. Ann. 40_4_11.1(C)(1) (1978) (noting that potential
income "need not be imputed to the primary custodial parent
actively caring for a child of the parties who is under the age
of six or disabled"). Pennsylvania employs the "nurturing parent
doctrine," which holds that, in appropriate cases, "earning
capacity cannot always be imputed to a parent who chooses to stay
home with a minor child." Frankenfield v. Feeser, 672 A.2d 1347,
1349 (Pa. Super. 1996) (quoting Hesidenz v. Carbin, 512 A.2d 707,
710 (Pa. Super. 1986)). Other states that have the same type of
guideline language as Alaska do not appear to have explicitly
addressed this question either. See, e.g., Colo. Rev. Stat. Ann.
14_10_115(7)(b)(1); Ky. Rev. Stat. Ann. 403.212(2)(d); La.
Rev. Stat. Ann. 315.11 (formerly 315.9); Md. Code Ann., Fam.
Law 12_204(b)(2)(ii).
18Alaska R. Civ. P. 90.3(a)(4).
19If the court had calculated John's child support obligation
under Rule 90.3(b) using his original Rule 90.3 affidavit figure
of $4,938.79 a month and Kristeen's figure of $826.19 a month, it
would have yielded an obligation of $910.89 a month for the
period from October 1, 2000 to February 1, 2001, when Kristeen
had Noah sixty-seven percent of the time and John had him thirty-
three percent of the time, and an obligation of $686.07 per month
after February 1, 2001, when the split was 54%-46% ($616.89 if
one assumes a 50-50 split).
20Doyle v. Doyle, 815 P.2d 366, 373 (Alaska 1991).
21Alaska R. Civ. P. 90.3, cmt. VI.B.
22The e-mail is unsworn and uncertified. In the accompanying
motion, John's attorney at the time noted that when John returned
to Kodiak from Craig and the attorney returned to Alaska, they
would provide a signed version of the affidavit. This signed
version is nowhere in the record. Kristeen urged the court to
ignore the e-mail, and it was within the court's discretion to do
so, since the e-mail fails to meet the requirements of AS
09.63.020.
23Rule 90.3(c)(1)(A) states that when determining whether unusual
circumstances create good cause for variance, "[t]he court shall
consider the custodial parent's income in this determination . .
. ." See also Robinson v. Robinson, 961 P.2d 1000, 1004 (Alaska
1998) (finding meritorious the argument that it "would have been
within the superior court's discretion to increase Robinson's
child support obligations" because "the high cost of living in
Unalaska" could constitute "extraordinary expenses").
24John argues that using the Rule 90.3(c)(1)(A) variance here is
contrary to sound public policy, since "society ought to
encourage parents to spend as much time with their newborn
as possible, and to do so without the fear of the court
either branding them as `underemployed' or ruling that it
would be `manifestly unjust' not to greatly increase their
monthly support obligation." He also distinguishes himself
from other "voluntarily underemployed" cases by noting that
he is neither lazy nor stingy nor in need of being goaded
into work; rather, his "true incentive is to spend time with
a newborn child." The public policy John advocates is
laudable, but the "manifest injustice" exception exists to
allow for variance when unusual circumstances require a
different award that is "just and proper for the parties to
contribute toward the nurture and education of their
children." Alaska R. Civ. P. 90.3(c)(1)(A). See also Coats
v. Finn, 779 P.2d 775, 777 (Alaska 1989) ("[A]n unfair
result is an award which substantially exceeds or falls
short of the amount needed to provide for the child's
reasonable needs."). Meeting the needs of children is at
least an equally laudable public policy.
25John claims the court used both Rule 90.3(c)(1) and (c)(2).
There is no indication, however, that the court used (c)(2),
other than its finding that John earned over $84,000. The court
explicitly based its support award on (c)(1)(A)'s "manifest
injustice" exception.
26Alaska R. Civ. P. 90.3(c)(1)(A).
27Sanders v. Barth, 12 P.3d 766, 767-68 (Alaska 2000) (internal q
uotations omitted).Id. at 768 (internal c
28tations and quotations omitted).B.J. v. J.D., 950 P.2d 113, 118
(Alaska 1997) (quoting L.L.M. v. P.M., 754
29Sanders v. Barth, 12 P.3d 766, 767-68 (Alaska 2000) (internal
quotations omitted).
30Id. at 768 (internal citations and quotations omitted).
31B.J. v. J.D., 950 P.2d 113, 118 (Alaska 1997) (quoting L.L.M. v.
P.M., 754 P.2d 262, 264 (Alaska 1988)). AS 25.24.140(a)(1)
states: "During the pendency of [a divorce] action, a spouse may
. . . be awarded expenses, including . . . attorney fees and
costs that reasonably approximate the actual fees and costs
required to prosecute or defend the action . . . ."
32Hilliker v. Hilliker, 828 P.2d 1205, 1206 (Alaska 1992).
33Sanders, 12 P.3d at 768; see also Bergstrom v. Lindback, 779
P.2d 1235, 1238 (Alaska 1989).
34Sanders, 12 P.3d at 769 (internal quotations omitted).
35Bishop v. Clark, 54 P.3d 804, 813-14 (Alaska 2002). Cf.
Sanders, 12 P.3d at 769 (declining to apply exception because
parties were litigating child support more than ten years after
end of relationship and because suit was strictly about money, in
contrast to usual quasi-divorce cases between unmarried couples
which "occur almost immediately after the break_up of the
long_term relationship" and "traditionally involve issues that
inevitably arise immediately after such a break_up - such as
custody, visitation, child support, and property division");
Rubright v. Arnold, 973 P.2d 580, 582 & 586 (Alaska 1999)
(declining to apply exception to paternity action brought five
years after child was born from extramarital relationship because
did not resemble divorce case); B.J. v. J.D., 950 P.2d 113, 119
(Alaska 1997) (declining to apply exception in custody dispute
between biological and non-biological parent filed more than
three years after voluntary end of relationship).
36John argues that establishing a rule that he has to bear the
total cost of litigation himself (here, more than $40,000) would
give Kristeen no incentive to act reasonably and every reason to
overlitigate and wear him down financially until he agreed to
whatever she wanted, contrary to AS 25.24.140(a)(1)'s caveat that
courts should ensure that awarding attorney's fees "does not
contribute to an unnecessary escalation in the litigation[.]"
This argument has little merit. First, it appears that John paid
only sixty percent of Kristeen's attorney's fees. Second,
establishing the contrary rule would allow John to overlitigate
and wear down Kristeen. It is the court's duty to try to strike
a balance. AS 25.24.140(a)(1).
37Sanders v. Barth, 12 P.3d 766, 768 (Alaska 2000) (internal
citations and quotations omitted); Hilliker v. Hilliker, 828 P.2d
1205, 1206 (Alaska 1992).
38See Kelly v. Kelly, 926 P.2d 1168, 1170 (Alaska 1996) ("The
trial court's award of attorney's fees to Lisa accurately
recognizes the substantial disparity between the earning capacity
and economic situations of the parties.").
39See R.M. v. S.G., 13 P.3d 747, 752 n.15 (Alaska 2000).
40Hilliker, 828 P.2d at 1206.
41Sanders, 12 P.3d at 768 (internal citations and quotations
omitted).
42We have already determined it to be within the superior court's
discretion to ignore this e-mail, as it was not an affidavit
despite its subject line.
43We have also already determined that it was within the superior
court's discretion to disregard these late-filed reconsideration
motions.
44See, e.g., Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d
1123, 1138 (Alaska 1989) ("[W]e will not overturn a fee award for
[lack of itemization] when . . . no itemized statement was
requested by the complaining party in its motion for
reconsideration of the fee award."); cf. Hatten v. Hatten, 917
P.2d 667, 674 (Alaska 1996) (describing counsel's itemization
request).
45Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992).
46See, e.g., S.L. v. J.H., 883 P.2d 984 (Alaska 1994).
47Id. at 985-86.
48Kowalski v. Kowalski, 806 P.2d 1368, 1373 (Alaska 1991).