Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

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