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Duffus v. Duffus (6/20/2003) sp-5707
Duffus v. Duffus (6/20/2003) sp-5707
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
JULIANN DUFFUS, )
) Supreme Court No. S-10206
Appellant, )
) Superior Court No.
v. ) 3AN-89-681 CI
)
KENNETH DUFFUS, ) O P I N I O N
)
Appellee. ) [No. 5707 - June 20,
2003]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Dan A. Hensley and Mark Rindner,
Judges.
Appearances: Peggy A. Roston, Law Office of
Peggy A. Roston, Anchorage, for Appellant,
William S. Cummings, Ashburn & Mason,
Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Juliann Duffus divorced Kenneth Duffus in 1990,
receiving primary custody of the parties two children. Nine
years later, no support order having yet been entered, Juliann
moved to establish Kenneths child support obligation. She now
appeals, contesting several aspects of the method used to
calculate Kenneths 1990 support obligation, as well as the
superior courts refusal to increase Kenneths support in later
years to reflect his increased annual earnings. We hold that
Julianns failure to object to the trial court masters recommended
support calculation for 1990 precludes review of support for
that year except on one point reflecting plain error. We reverse
the support determination for subsequent years, holding that,
because no child support order had been entered when Juliann
filed her 1999 motion, the rule against retroactively modifying
support did not prevent the court from adjusting Kenneths 1990
support obligation to reflect his increased earnings over the
following years.
II. FACTS AND PROCEEDINGS
Juliann and Kenneth Duffus were married in 1978. Two
children were born from their marriage Elizabeth, born in
January 1983, and Michelle, born in June 1987. In January 1989
the couple permanently separated.
Prior to their divorce trial, the parties reached an
agreement regarding child custody, visitation, and division of
the marital estate. Juliann received legal custody and primary
physical custody of the children. With respect to child support,
the agreement provided that the child support obligation [should]
be established pursuant to Civil Rule 90.3 and that a Civil Rule
90.3 affidavit [should] be completed and filed with the Court.
The Court will then enter a separate order regarding the child
support obligation. On August 7, 1990, the trial court granted
the parents request for divorce, incorporating their settlement
agreement into its Findings of Fact and Conclusions of Law.
Over the following months, the parents exchanged
correspondence concerning the Civil Rule 90.3 affidavit, but
apparently never filed the affidavit. Consequently, the court
never entered a child support order.
In May 1999, approximately nine years after the
divorce, Juliann filed a motion to establish child support under
the settlement agreement. The motion sought an award of back
child support from the date of separation to the present. In
February 2000 the superior court ordered that [Julianns] Motion
to Establish Child Support shall be dealt with on a year-by-year
basis in separate hearings for each year, or as the court
otherwise directs.
In June 2000 Standing Master Andrew Brown heard
evidence and argument concerning the calculation of child support
for 1990, and in July issued a report calculating child support
for that year. Based on his calculation of both parties incomes
for 1990 and the amount of time each party had physical custody
of the children during that year, Master Brown recommended that
the court enter a child support order for 1990 as to [Kenneth] .
. . for $36.63 per month.
Master Brown further recommended that the court
reconsider its decision to hold[] subsequent hearings for each of
the post-1990 years as to incomes and support obligations.
Master Brown thought that it would be fair to leave his
calculation of support for 1990 in effect until Juliann filed her
motion to establish child support in 1999 because the parties
were at fault for failing to secure a timely support order after
their divorce. Further, he maintained, allowing yearly
modifications would go against Civil Rule 90.3(h)(2)s prohibition
against retroactive modifications of child support.
Juliann objected to Master Browns report. Her
objection focused solely on the masters recommendation that the
amount of support calculated for 1990 continue in effect until
May 6, 1999 the date Juliann filed her motion to establish child
support. Juliann did not object to Master Browns calculation of
support for 1990.
In October 2000 the superior court approved the masters
calculation of child support for 1990. With respect to the
masters recommendation to leave the 1990 calculation in effect
until 1999, the court initially ordered the parties to mediate
their dispute regarding calculation of child support for periods
after 1990. When the parties were unable to agree on the issue,
the court ordered each party to file a brief indicating their
position on the issue of whether the 1990 child support
calculations should apply through 1999 and, if not, at what
intervals calculations should be done. Both parties filed briefs
addressing this issue.
On April 16, 2001, the superior court ruled that for
the reasons set forth in Master Browns July 17, 2000 report . . .
modification of the now existing child support order, which
establishes support as of 1990, will not be allowed for any
period prior to the time [Juliann] filed her motion to
[e]stablish [c]hild support on May 6, 1999.
Juliann appeals.
III. DISCUSSION
Juliann challenges both the superior courts calculation
of child support for 1990 and its order providing that, to avoid
violating the rule against retroactive modification, this amount
could not be modified for the period before Julianns 1999 motion
to establish child support. We usually review awards of child
support for abuse of discretion.1 But issues concerning the
proper method of calculating child support present questions of
law, which we review de novo.2 We similarly review de novo the
superior courts interpretation of civil rules.3
A. Julianns Failure To Object to the Masters Recommended
Calculation of Kenneths 1990 Child Support Obligation Precludes
All But Plain-Error Review of the Courts Order Adopting that
Calculation.
Juliann first challenges the superior courts
calculation of Kenneths child support obligation for 1990. In
particular, she contends that the superior court erred in
calculating both parents adjusted incomes for child support
purposes.
But as Kenneth points out, although Juliann objected to
the masters recommendation that the child support obligation
should remain unchanged from 1990 until Juliann filed her motion
to establish child support in 1999, she did not object to any
part of the Masters factual findings or his calculation of child
support based on 1990 income. Kenneth urges this court to follow
the lead of a majority of other courts and adopt a rule requiring
a party to raise objections [to the masters report] to the
superior court in order to preserve them, as this rule promotes
efficient use of judicial resources and promotes the proper
development of a record as to whether the findings are clearly
erroneous. Juliann responds that if this court adopts such a
rule, we should do so only prospectively because she had no
specific notice that the failure to file objections would
constitute a waiver of the right to raise on appeal issues not
presented in the form of objections to the superior court.
Alaska Civil Rule 53(d)(2) governs the superior courts
adoption of a masters report:
In an action to be tried without a jury the
court shall accept the masters findings
unless clearly erroneous. Within 10 days
after being served with notice of the filing
of the report any party may serve written
objections thereto upon the other parties.
Application to the court for an action upon
the report and upon objections thereto shall
be by motion and upon notice as prescribed in
Rule 77. The court may adopt the report or
may modify it or may reject it in whole or in
part or may receive further evidence or may
recommit it with instructions.
The key language here is the rules provision that any party may
serve written objections within ten days after being notified of
the masters findings.
Although this court has never considered whether this
provision requires objections to be raised in superior court to
preserve them for appeal, we have long adhered to the tenet that
matters not raised at trial will not be considered on appeal, 4
and have explained that this requirement arises out of notions of
judicial finality and efficiency, as well as fairness to the
opposing party.5 Moreover, other state courts have required
trial court objections as a prerequisite to appellate challenge
of orders adopting masters findings,6 uniformly holding that only
those points specifically raised in a trial court objection can
be raised on appeal.7
Federal courts, too, support this requirement. They
have interpreted the nearly identical Federal Rule of Civil
Procedure 53(e)(2)8 to require an objection at the district court
level to preserve a partys right to appeal a special masters
factual findings.9 Similarly, almost all federal appellate
courts addressing the analogous issue of appellate challenges to
orders approving magistrates reports10 have ruled that a partys
failure to file objections in the trial court limits the partys
right to challenge the magistrates report on appeal.11
In Thomas v. Arn,12 the United States Supreme Court
explained that this rule is supported by considerations of
judicial economy:
The filing of objections to a magistrates
report enables the district judge to focus
attention on those issues factual and legal
that are at the heart of the parties dispute.
The Sixth Circuits rule, by precluding
appellate review of any issue not contained
in objections, prevents a litigant from
sandbagging the district judge by failing to
object and then appealing. Absent such a
rule, any issue before the magistrate would
be a proper subject for appellate review.
This would either force the court of appeals
to consider claims that were never reviewed
by the district court, or force the district
court to review every issue in every case, no
matter how thorough the magistrates analysis
and even if both parties were satisfied with
the magistrates report. Either result would
be an inefficient use of judicial resources.
In short, the same rationale that prevents a
party from raising an issue before a circuit
court of appeals that was not raised before
the district court applies here.[13]
In light of these authorities, and in keeping with our
own consistently expressed interest in judicial economy and
fairness to opposing litigants, we hold that Alaska Civil Rule
53(d)(2) requires any party who disagrees with a masters finding
to file a timely objection to the finding at the trial court
level as a prerequisite to challenging the finding on appeal.
We further hold that this interpretation must apply in
the present case. Juliann had ample notice of the need to object
to the masters report at the trial court level. Although our own
decisions had not squarely resolved the point, Rule 53(d)(2)s
language is fairly straightforward, and virtually every court
that has addressed similar rules has held that a partys failure
to object to a masters findings at the trial court level limits
that partys ability to challenge those findings on appeal.
Moreover, here, the master expressly informed both parties that
[a]ny objections to this Masters report must be filed under Civil
Rule 53 within ten days after its mailing.14 And Juliann actually
did object to some parts of the masters decision his
recommendation not to alter the 1990 support calculation in
subsequent years thereby expressing her opposition to those
specific recommendations, while implicitly acquiescing to the
remaining recommendations.
Considering the totality of these circumstances, then,
we hold that Julianns failure to object to Master Browns proposed
calculation of Kenneths child support obligation for 1990
precludes appellate review of this point except for plain error.
Plain error exists where an obvious mistake has been
made which creates a high likelihood that injustice has
resulted. 15 Applying this rigorous standard, we reject Julianns
primary challenges to the order establishing Kenneths 1990 child
support obligation her claims concerning the masters decision to
disregard, for purposes of calculating Kenneths 1990 adjusted
gross income, all profits, losses, and related tax consequences
arising from his involvement in three side business ventures.16
Because our cases recognize that trial courts exercise broad
discretion in deciding whether . . . funds [of this kind] should
be included in income for Civil Rule 90.3 purposes,17 the masters
decision to disregard these items is not an obvious mistake
giving rise to plain error.18
We nevertheless do find plain error in one other
respect. Juliann points out that the masters $480 deduction for
child care expenses reflects only the amount of her child and
dependent care tax credit. Under Civil Rule 90.3, Juliann
contends, the master should have deducted the actual amount of
her child care expenses, $5,010. Acknowledging this error,
Kenneth argues only that his own 1990 adjusted gross income
should similarly be adjusted to reflect his actual child care
expenses, $1,537, rather than his child and dependent care tax
credit, $461, the amount used by the master.
We agree with the parties. Civil Rule 90.3(a)(1)(D)
provides that work related child care expenses for the children
who are the subject of the child support order should be deducted
when calculating a parents income for child support purposes.
The Commentary to Rule 90.3 clarifies this to mean that
reasonable child care expenses that are necessary to enable a
parent to work, or to be enrolled in an educational program which
will improve employment opportunities, are deductible.19 We find
plain error, then, in the 1990 calculations reliance on the child
and dependent care tax credit.20 On remand the trial court will
need to determine whether the amounts of actual child care
expenses both parents claimed on their tax returns were in fact
reasonable and necessary to enable them to work.
B. Requiring Kenneths Support Obligation To Remain Unchanged
from January 1, 1990 through May 6, 1999, Was Not Necessary To
Avoid the Rule Barring Retroactive Modification.
A. Juliann objected to the masters recommendation that Kenneths
1990 child support obligation should remain unchanged until May
6, 1999, the day Juliann filed her motion to establish Kenneths
child support. The superior court nevertheless approved Master
Browns recommendation, expressly adopting the reasons set forth
in the masters report; the report, in turn, reasoned that
Kenneths 1990 support obligation should be left unmodified until
1999 because any mistake . . . by the court in not entering the
support order in 1990, or soon thereafter, was the parties fault,
and because [a]llowing hearings as to a pre-1999 modification of
support would go against Civil Rule 90.3(h)(2)s prohibition
against retroactive modifications of child support.
On appeal, Juliann renews her objection to the masters
findings, arguing that Civil Rule 90.3(h)(2)s bar on retroactive
modifications is inapplicable here because there was no
outstanding support order to modify before she filed her motion
to establish support: If a child support order has not been
entered, . . . retroactive modification of the child support
order would be impossible [because] [t]here is no order to
modify. We find this argument persuasive.
Alaska Civil Rule 90.3(h) governs the modification of
a child support award. Rule 90.3(h)(1) provides that [a] final
child support award may be modified upon a showing of a material
change of circumstances as provided by state law. (Emphasis
added.) Rule 90.3(h)(2) goes on to say that [c]hild support
arrearage may not be modified retroactively and that [a]
modification which is effective on or after the date that a
motion for modification . . . is served . . . is not considered a
retroactive modification.21 (Emphasis added.) The rule against
retroactive modification thus only prohibits modifying arrearage
already due under a final child support award in existence when a
motion to modify is filed.
Here, no final support order was entered in the
immediate aftermath of the parties divorce, and no support order
existed a decade later, when Juliann filed her motion to
establish Kenneths child support obligation on May 6, 1999.
Julianns motion thus requested entry of the final child support
award that had never been entered in her case an award that
would initially establish Kenneths child support obligation for
the nine-year period that preceded her motion, not an award that
would modify arrearage that was already due. Of course, once the
court did establish Kenneths support for 1990, any increase in
the first-year amount would have modified that obligation. But
this modification would not be retroactive under Rule 90.3(h)(2):
Julianns May 6, 1999, motion sought to establish support for the
entire ten-year period since the divorce; because the court
established Kenneths 1990 obligation after Juliann filed this
motion, any modification of that obligation to reflect his later
increased earnings necessarily would take effect after the date
of Julianns motion and so is not considered a retroactive
modification under Rule 90.3(h)(2).22 In short, nothing in Civil
Rule 90.3(h) either commanded or supported the masters
recommendation, which in effect retroactively froze Kenneths
first-year support obligation immediately upon establishing it in
response to Julianns motion.23 We conclude, then, that it was
error to fix Kenneths support obligation at its 1990 level for
the entire period preceding Julianns motion.24
This conclusion does not resolve the question of how
Kenneths child support should be calculated for the post-1990
years covered by Julianns motion 1991 to 1999. In Spott v.
Spott we observed that in making retrospective rather than
prospective child support awards actual income rather than
earlier predictions as to income should be used.25 There, a
divorced parent appealed a post-trial order requiring him to pay
interim child support for a nineteen-month period when the
divorce had been pending.26 The trial court calculated the back
support based on a masters earlier predictions of the fathers
income for that period.27 We held that, since the support
obligation was established after it accrued, the court should
have based the amount on the parents actual income, rather than
on the masters earlier predictions of likely income.28
Spott points to actual income as an appropriate basis
for establishing past support accruing over a relatively short
duration. But the present case requires the court to look back
over a considerably longer period than the nineteen months at
issue in Spott; here we deal with a span of approximately ten
years. Considering the inherent difficulties of accurately
reconstructing parental income over this lengthy period, we think
it impractical and unnecessary to require automatic recalculation
of support on a yearly basis, as the superior court initially
contemplated doing here. Instead, we think that once Kenneths
first-year support obligation has been accurately calculated
based on his actual adjusted income, the superior court may
maintain that amount of support unchanged for subsequent years in
which no change in Kenneths annual income is shown that would
qualify as a substantial change of circumstances under Civil
Rule 90.3.29 On remand, then, after the court corrects its
calculation of Kenneths 1990 obligation in keeping with the
directions in Part III.A of this opinion, Juliann should be given
the opportunity to make a prima facie showing of changed
circumstances warranting modification of Kenneths 1990 support
obligation in subsequent years.
IV. CONCLUSION
For these reasons, we VACATE the superior courts order
establishing Kenneths child support obligation for 1990-1999 and
REMAND for further proceedings.
_______________________________
1 See, e.g., Spott v. Spott, 17 P.3d 52, 55 (Alaska
2001); Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).
2 See Spott, 17 P.3d at 55.
3 See Airoulofski v. State, 922 P.2d 889, 892 (Alaska
1996).
4 Doyle v. Doyle, 815 P.2d 366, 372 (Alaska 1991)
(quoting Brooks v. Brooks, 733 P.2d 1044, 1053 (Alaska 1987));
see also Rowen v. Rowen, 963 P.2d 249, 255 (Alaska 1998) (quoting
same).
5 Pieper v. Musarra, 956 P.2d 444, 446 (Alaska 1998).
6 See In re Marriage of Doolittle, 875 P.2d 331, 334
(Mont. 1994) (The intent implicit but clear of Rule 53 . . . is
that all objections to a masters report must be timely made in a
partys written objections.); In re Marriage of Hayes, 856 P.2d
227, 229 (Mont. 1993) (We hold that the permissive word may
refers to the permission given to any party to object. The
objection must be made within the ten day limit.) (emphasis
added); Mahoney v. Mahoney, 567 N.W.2d 206, 210 (N.D. 1997)
(Generally, the failure to file timely objections to the report
and recommendations of a special master waives the right to
appeal the recommended findings.); In re Miamisburg Train
Derailment Litig., 725 N.E.2d 738, 744 (Ohio App. 1999) (Under
Civ. R. 53(E)(2), appellants had fourteen days from the filing of
the masters order to object to this or any other factual finding.
Having failed to do so, the plaintiffs waived any objection to
the factual finding that they might now wish to raise on
appeal.).
7 See Doolittle, 875 P.2d at 334 ([A]ll objections to a
masters report must be timely made in a partys written
objections.) (emphasis added); Mahoney, 567 N.W.2d at 211 ([B]y
not making his specific arguments about net income to the trial
court, [the father] waived his right to argue on appeal that the
court erred in adopting the special masters computation of his
net income.) (emphasis added).
8 Federal Rule of Civil Procedure 53(e)(2) provides:
In an action to be tried without a jury the
court shall accept the masters findings of
fact unless clearly erroneous. Within 10
days after being served with notice of the
filing of the report any party may serve
written objections thereto upon the other
parties. Application to the court for action
upon the report and upon objections thereto
shall be by motion and upon notice as
prescribed in Rule 6(d). The court after
hearing may adopt the report or may modify it
or may reject it in whole or in part or may
receive further evidence or may recommit it
with instructions.
(Emphasis added.)
9 See Stone v. City & County of San Francisco, 968 F.2d
850, 858 (9th Cir. 1992) (holding that the city had waived its
right to appeal several of the district courts factual findings
that supported its contempt order by not contesting them when
they were submitted by the Special Master as part of his progress
reports); Provident Bank v. Manor Steel Corp., 882 F.2d 258, 261
(7th Cir. 1989) ([W]e hold that when a matter has been referred
to a magistrate, acting as a special master pursuant to 28 U.S.C.
636(b)(2) and Fed. R. Civ. P. 53, a party waives his right to
appeal if he has not preserved the issues for appeal by first
presenting them to the district court as objections to the
magistrates report.).
10 Under 28 U.S.C. 636(b)(1) a United States district
court judge may refer dispositive pretrial motions and petitions
for writ of habeas corpus to a magistrate, who must conduct
appropriate proceedings and recommend dispositions. Like Federal
Rule of Civil Procedure 53, the statute also provides that any
party that disagrees with the magistrates recommendations may
serve and file written objections to the magistrates report
within ten days after receiving it. See also Smith v. Frank, 923
F.2d 139, 141 n.1 (9th Cir. 1991) (Failure to object to special
masters findings of fact and conclusions is treated identically
to failure to object to magistrates findings and conclusions.).
11 Courts in the First, Second, Fourth, Sixth, and Seventh
Circuits have adopted a rule that a partys failure to file
objections to a magistrates report waives the right to
consideration of all issues on appeal, both factual and legal.
See, e.g., Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330
(7th Cir. 1995) (Failure to file objections with the district
court to a magistrates report and recommendation waives the right
to appeal all issues addressed in the recommendation, both
factual and legal.); Wimmer v. Cook, 774 F.2d 68, 74 n.8 (4th
Cir. 1985) (recognizing that failure to file objections to a
magistrates report ordinarily precludes consideration on appeal
of the substance of the report); McCarthy v. Manson, 714 F.2d
234, 237 (2d Cir. 1983) (When a party fails to object timely to a
magistrates recommended decision, it waives any right to further
judicial review of that decision.); United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981) (prospectively adopting rule
that in order to appeal a district courts adoption of a
magistrates decision a party must first object to the magistrates
decision at the trial court level); Park Motor Mart, Inc. v. Ford
Motor Co., 616 F.2d 603, 605 (1st Cir. 1980) (interpreting 28
U.S.C. 636(b)(1)(C)s language may serve and file written
objections to mean that a party may file objections within ten
days or he may not, as he chooses, but he shall do so if he
wishes further consideration).
Courts in the Fifth, Ninth, and Eleventh Circuits have
concluded that the failure to file objections waives factual, but
not legal, issues on appeal. See, e.g., Turner v. Duncan, 158
F.3d 449, 455 (9th Cir. 1998) (holding that [f]ailure to object
to a magistrate judges recommendation waives all objections to
the magistrate judges findings of fact and is a factor to be
weighed in considering whether the party also waived the right to
challenge the magistrate judges purely legal conclusions);
Deloney v. Estelle, 679 F.2d 372, 372-73 (5th Cir. 1982)
([F]ailure to file written objections to the magistrates report .
. . bar[s] the party from attacking on appeal factual findings in
the report accepted or adopted by the district court.); United
States v. Warren, 687 F.2d 347, 348 (11th Cir. 1982) (The absence
of objections to the magistrates report and recommendations
limits the scope of appellate review of factual findings to plain
error or manifest injustice but does not limit review of legal
conclusions.).
The Eighth Circuit has not squarely addressed the issue
but seems to lean toward the Fifth, Ninth, and Eleventh Circuits
view, declining to hold that failure to make timely objections to
a magistrates recommendations categorically waives a partys right
to challenge the findings on appeal. See Lorin Corp v. Goto &
Co., Ltd., 700 F.2d 1202, 1205-06 (8th Cir. 1983) (holding that
appeal should not be dismissed on a theory of waiver through
failure to object to magistrates report).
12 474 U.S. 140 (1985).
13 Id. at 147-48 (quotations and citations omitted).
14 See United States v. Schronce, 727 F.2d 91, 94 (4th
Cir. 1984) (holding that because the magistrates report
explicitly stated that written objections to the proposed
findings of fact and conclusions of law . . . must be filed
within ten (10) days after service, appellants failure to object
to the magistrates report constituted a waiver of his right to
appellate review) (emphasis added).
15 D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001) (quoting
Sosa v. State, 4 P.3d 951, 953 (Alaska 2000)).
16 Specifically, while not disputing the masters
recommendation to disregard losses resulting from Kenneths
participation in these business ventures, Juliann contends that
it was improper to exclude from Kenneths gross income the $4,333
in profits he realized from one of the businesses, the D & G
Enterprises partnership. Juliann further argues that, in
calculating Kenneths adjusted gross income, the master should
have deducted from Kenneths gross wages only the federal income
tax that he actually paid, not the much higher amount that the
master estimated Kenneth would have paid had he not reported his
business losses on his tax return.
17 Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992)
(quoting Bergstrom v. Lindback, 779 P.2d 1235, 1237 (Alaska
1989)); see also Eagley v. Eagley, 849 P.2d 777, 779 (Alaska
1993).
18 D.J., 36 P.3d at 668.
19 Alaska R. Civ. P. 90.3 cmt. III (D).
20 See Bergstrom, 779 P.2d at 1237 n.7 (holding that the
trial court erred to the extent it did not reduce [the fathers]
income by his actual work-related child care expenses as required
by Civil Rule 90.3) (emphasis added).
21 Civil Rule 90.3(h) provides in full:
(1) Material Change of Circumstances. 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. For
purposes of this paragraph, support includes
health insurance payments made pursuant to
(d)(1) of this rule.
(2) No Retroactive Modification. Child
support arrearage may not be modified
retroactively, except as allowed by AS
25.27.166(d). A modification which is
effective on or after the date that a motion
for modification, or a notice of petition for
modification by the Child Support Enforcement
Division, is served on the opposing party is
not considered a retroactive modification.
(3) Preclusion. The court may find that a
parent and a parents assignee are precluded
from collecting arreages for support of
children that accumulated during a time
period exceeding nine months for which the
parent agreed or acquiesced to the obligor
exercising primary custody of the children.
A finding that preclusion is a defense must
be based on clear and convincing evidence.
AS 25.27.166(d), referred to in 90.3(h)(2), allows for the
retroactive extinguishment of child support arrearages where
paternity is disestablished.
22 Our case law confirms this conclusion, establishing
that Civil Rule 90.3(h) does not restrict awards of back child
support based on fluctuating annual earnings when, as here, an
initial support order has never been entered. See, e.g., Spott
v. Spott, 17 P.3d 52, 55 (Alaska 2001) (holding that the
retroactive order of child support for a child for whom no
support was ever ordered does not violate Rule 90.3(h)(2) because
[a]s to that child there is no child support order and thus no
order to retroactively modify); Vachon v. Pugliese, 931 P.2d 371,
382 (Alaska 1996) (holding that reimbursement of child support
for a period during which there was no existing child support
order does not violate Rule 90.3(h)(2) because the reimbursement
does not modify any existing arrears).
23 Indeed, were the bar against retroactive modification
so easily triggered, it could presumably be as easily avoided by
simply calculating the most recent year of Kenneths obligation
first, and working backward to 1990, the year of divorce.
24 Since the masters recommendation to freeze support at
the 1990 level was based on the mistaken view that changing
support would go against Civil Rule 90.3(h)(2)s prohibition
against retroactive modification of child support, we need not
address the issue whether the parties were to blame in failing to
secure a timely child support order.
25 17 P.3d at 56.
26 Id. at 53-54.
27 Id.
28 Id. at 56.
29 We note that this approach seems particularly sensible
here because Juliann concedes in her opening brief no substantial
change in Kenneths circumstances occurred until she moved to
Colorado in 1994.
