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Teseniar v. Spicer (8/1/2003) sp-5720
Teseniar v. Spicer (8/1/2003) sp-5720
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
THOMAS TESENIAR, )
) Supreme Court No. S-
10632/10685/10686
Appellant, )
) Superior Court No.
v. ) 3AN-98-03116 CI
)
LYNDA SPICER, f/k/a ) O P I N I O N
LYNDA TESENIAR, )
) [No. 5720 - August 1, 2003]
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Brian C. Shortell, Karen L. Hunt,
Milton M. Souter, and Sharon L. Gleason,
Judges.
Appearances: Thomas A. Teseniar, pro se,
Jefferson City, Missouri, Appellant. No
appearance by Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Thomas Teseniar challenges the superior courts
modification of his child support obligation, claiming that the
superior court lacked jurisdiction under the Uniform Interstate
Family Support Act, erred by increasing his obligation without
applying Alaska Civil Rule 90.3, and erred by making the increase
retroactive to April 15, 1999. Teseniar also appeals the
superior courts decision concerning the amount of unreimbursed
medical costs for which he is liable, the courts order that he
must deposit funds into his childrens educational accounts, and
the courts award of attorneys fees to Lynda Spicer. We hold that
the superior court erred in retroactively increasing Teseniars
obligation to April 15, 1999 and in failing to perform Rule 90.3
calculations in setting the amount of support. We affirm the
remainder of the challenged rulings.
II. FACTS AND PROCEEDINGS
Thomas Teseniar and Lynda Spicer married in Anchorage
in 1995. They had two children: Samantha, born in January 1996,
and Robert, born in October 1997. Teseniar and Spicer separated
in August 1997. Teseniar moved to Missouri in March 1998; Spicer
and the children stayed in Alaska. In November 1998 Superior
Court Judge Brian C. Shortell granted the parties a decree of
divorce and issued findings of fact and conclusions of law
incorporating the parties settlement of all disputed issues. The
parties agreed that Spicer would have sole legal and primary
physical custody of the children and agreed on an initial child
support arrangement. In February 1999 the court issued its child
custody and support order, based on the parties agreement,
decreeing that Teseniar was to pay $257 per month in child
support. In July 1999 Judge Shortell issued a new child custody
and support order incorporating more clearly the provisions of
the parties settlement agreement. One of the terms of the
settlement agreement was that Teseniar was to send his tax
returns to the Child Support Enforcement Division (CSED) each
year by the earlier of his IRS filing or April 15.
On March 8, 2000, Spicer moved to modify child support
and moved for a finding of contempt for Teseniars failure to
provide her with his tax returns. Although Teseniar eventually
filed an opposition to this motion, his opposition was not
timely, and one day before it was received, Judge Shortell
granted Spicers motion to modify Teseniars monthly support
obligation retroactive to April 15, 1999. The exact amount of
the modified support obligation was to be determined in the
future. In August 2000 Superior Court Judge Karen L. Hunt issued
an order increasing Teseniars monthly child support obligation to
$778.91, basing the amount on the Palmer superior courts
calculation of Teseniars child support obligation for two
children from a previous marriage. Judge Hunt made the new
monthly support amount retroactive based on Judge Shortells
order.
At a hearing in October 2000, Superior Court Judge
Milton M. Souter ordered the state to provide copies of Teseniars
tax returns to Spicer. Judge Souter also heard arguments about
child support and unpaid medical expenses. At a November 2000
hearing, the parties presented evidence and further arguments on
these issues. In April 2001 Superior Court Judge Sharon L.
Gleason issued an order finding $658.61 in unreimbursed medical
expenses for the parties children for 1999 and 2000 and ordering
Teseniar to pay Spicer half this amount. Judge Gleason also
awarded Spicer attorneys fees.
In September 2001 Judge Gleason denied Teseniars motion
for Spicer to reimburse the childrens educational accounts for
the Permanent Fund Dividends (PFDs) that she was supposed to, but
allegedly had not, deposited; instead, Judge Gleason ordered
Teseniar to deposit funds into the accounts.
In December 2001 Teseniar moved to vacate Judge Hunts
support modification order and to strike Spicers motion for
modification, alleging that they were inconsistent with the
Uniform Interstate Family Support Act (UIFSA). Judge Gleason
denied this motion and then granted Spicer attorneys fees.
Teseniar has filed three appeals which we have
consolidated, challenging: (1) the child support modification
order, with attorneys fees; (2) the unpaid medical costs order,
with attorneys fees; and (3) the order concerning reimbursement
of the childrens educational accounts.
III. DISCUSSION
A. The Superior Court Had Jurisdiction Under the Uniform
Interstate Family Support Act.
Teseniar argues that Judge Gleason erred by denying his
motion to vacate Judge Hunts August 2000 child support
modification order and to strike Spicers March 2000 motion for
modification because the superior court lacked personal and
subject matter jurisdiction in accordance with the UIFSA, adopted
in Alaska as AS 25.25. Teseniar contends that the superior court
did not have personal jurisdiction over him and did not have
subject matter jurisdiction to modify the child support order
after he moved to Missouri in 1998. We exercise our independent
judgment when reviewing a superior courts interpretation and
application of a statute, adopting the rule of law that is most
persuasive in light of precedent, reason, and policy.1
The UIFSA defeats Teseniars argument. Alaska Statute
25.25.201 provides a variety of alternative bases for personal
jurisdiction over a non-resident in a proceeding to modify a
support order; there is jurisdiction if the non-resident
individual (1) submits to the jurisdiction of this state by
consent, by entering a general appearance, or by filing a
responsive document having the effect of waiving any contest to
personal jurisdiction; (2) resided with the child in this state;
(3) resided in this state and provided prenatal expenses or
support for the child; or (4) engaged in sexual intercourse in
this state and the child may have been conceived by that act of
intercourse[.] Teseniar participated in support proceedings here
for several years, including the period of more than a year
between the modification order and his motion to vacate it.2 He
lived in Alaska with Samantha, agreed to pay for Spicers expenses
relating to her pregnancy with Robert and Roberts birth, and
presumably conceived the children here. The superior court thus
had personal jurisdiction over Teseniar.
Alaska Statute 25.25.205 makes clear that the superior
court also had jurisdiction over the support order. That statute
provides that a tribunal of this state will have continuing,
exclusive jurisdiction over a support order it issues as long as
this state remains the residence of the obligor, the individual
obligee, or the child for whose benefit the support order is
issued or until each individual party has filed written consent
with the tribunal of this state for a tribunal of another state
to modify the order and assume continuing, exclusive
jurisdiction.3 Spicer and the children still reside in Alaska,
and the parties filed no written consent for another state to
modify the order. The statute does state that an Alaskan
tribunal cannot modify a support order if the order has been
modified by a tribunal of another state under a law substantially
similar to this chapter.4 But while the order was registered in
Missouri, the Missouri court did not modify the support order.5
Alaska thus maintained jurisdiction.
Teseniar relies on section 611 of the UIFSA6 for his
argument that the Alaska courts lacked subject matter
jurisdiction because Spicer was required to file her modification
motion in the state of residence of the obligor, namely Missouri.
Teseniars focus on AS 25.25.611 and the comparable Missouri
provision is irrelevant, however, because when a court exercises
personal jurisdiction over a non-resident, AS 25.25.301-.701 do
not apply except for two small exceptions that are unrelated to
this case.7 Furthermore, this reliance is misplaced. Alaska
Statute 25.25.611 and Missouri Statute 454.973 basically say:
When a support order issued in another state has been registered
in this state, a tribunal of this state may modify the order only
if (1) none of the parties or the children live in the issuing
state, the petitioner is a non-resident seeking modification, and
a tribunal of this state has personal jurisdiction over the
respondent; or if (2) a tribunal of this state has personal
jurisdiction over the child or one of the parties and all of the
parties have filed written consent in the issuing tribunal that a
tribunal of this state may modify the order and assume
continuing, exclusive jurisdiction over it. The issuing state in
this case is Alaska. Because Spicer and the children live in
Alaska and there has been no written consent, Missouri could not
modify the order under its statute.8 Because Alaska therefore
retains continuing, exclusive jurisdiction,9 Judge Gleason did
not err in denying Teseniars motion to vacate Judge Hunts
modification order and to strike Spicers motion for modification
due to lack of jurisdiction under the UIFSA.
B. The Superior Court Abused Its Discretion When Modifying
the Child Support Order.
Teseniar contends that the superior court erred both by
increasing his child support obligation in retaliation for his
refusal to supply Spicer with his tax returns and by making the
order retroactive to April 15, 1999. In her March 8, 2000 motion
to modify, Spicer sought to increase Teseniars support obligation
effective April 15, 1999 because she maintained that he was
supposed to provide tax documents by then for purposes of
recalculating support. In her memorandum in support of that
motion, she asked in the alternative to make the support award
effective as of the filing of the motion on March 8, 2000. The
proposed order she submitted contained the April 15 date, and
despite striking a proposed finding of contempt for failure to
file tax returns, Judge Shortell signed this order with the
retroactive April 15 date still intact. When Judge Hunt later
presided over the case, she increased Teseniars obligation from
$257 a month to $778.91 to conform to the rate calculated by the
Palmer superior court in February 1999 for Teseniars children
from a prior marriage, and she made this increase effective April
15, 1999 in conformity with Judge Shortells order.
We review modifications of child support under an abuse
of discretion standard.10 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. 11 We conclude that both the amount of the increase and the
date of retroactivity constituted abuses of discretion.
1. Increase in child support obligation
Judge Hunt arrived at Teseniars child support
obligation by adopting the Palmer courts child support obligation
figure for Teseniars children from a prior marriage, not merely
the other courts estimation of Teseniars income. By adopting the
Palmer courts monthly obligation figure, Judge Hunt did not go
through the Rule 90.3 calculations using Spicers income and
allowing deductions such as the child support Teseniar paid for
his prior children as provided in Rule 90.3(a)(1)(B).12 It is
unlikely that Teseniars obligation to his two children with
Spicer would be identical to his child support obligation to the
children from his earlier marriage, given that the prior
obligation would be factored into the calculation of his current
obligation.13 Courts must follow the legal standards set forth in
Rule 90.3 in determining awards of child support.14 We therefore
conclude that it was an abuse of discretion for Judge Hunt to
increase Teseniars obligation to correspond to the Palmer courts
child support obligation figure.15
2. Retroactive modification
[A]bsent special circumstances . . . , courts may not
retroactively modify support orders. 16 Retroactive modification
is statutorily permitted only when paternity is disestablished
and the modification can be implemented without violating federal
law, or on the motion of the obligor when there is a clerical
mistake or the support order is based on a default amount.17
Neither of those exceptions is applicable here. Rule 90.3(h)(2)
provides, however, that although retroactive modification is
generally prohibited, [a] modification which is effective on or
after the date that a motion for modification . . . is served on
the opposing party is not considered a retroactive modification.18
By this standard, and as Spicer was apparently aware given the
alternative relief she requested, Judge Shortell could not have
made Teseniars child support obligation effective any earlier
than March 8, 2000, when Spicer filed her motion to modify.
Judge Shortell therefore erred in failing to correct that portion
of the proposed order making the obligation effective April 15,
1999.
We note that Judge Shortell struck the proposed finding
of contempt from his order, making it unlikely that the
retroactivity was meant to be a discovery sanction. However, to
the extent that it was meant to be a sanction under Civil Rule 37
for Teseniars failure to provide Spicer with his tax returns, we
observe that the parties agreement required Teseniar to provide
his tax return annually only to CSED, not to Spicer.
C. The Superior Court Did Not Err in Calculating the
Amount of Unpaid Medical Costs Teseniar Owed Spicer for
1999 and 2000.
Teseniar asserts that Judge Gleason erred in assessing
the documentary evidence he submitted concerning unreimbursed
medical costs and departed from the parties agreement as a
result. We review under the clearly erroneous standard a
superior courts factual findings.19
Spicer moved for Teseniar to pay for his half of the
childrens medical expenses that had not been covered by
insurance. Judge Souter directed Teseniar to file with the court
a print-out from his health insurance company showing all claims
for the children submitted in 1999 and 2000. The documentation
that the company provided showed that Spicer had submitted
fourteen claims in 1999 and none in 2000. Judge Gleason
concluded that the documentation was incomplete because it
indicated that it only included reimbursement regarding medical
emergency facilities but did not include claims for other
expenses such as medications. Judge Gleason therefore relied
upon the documentation Spicer had submitted, which consisted of
bills, statements, and receipts, and calculated the total costs
to be $658.61, for which Teseniar would be liable for half.
Teseniar counters that his documentation is complete
and accurate and that no documentation exists for medications or
other services because Spicer failed to submit any other claims.
Accordingly, he relies on paragraph 19 of the parties agreement,
which provides as follows: [Spicer] will be required to apply all
known health care coverage options and submit all known claims to
the care provider. Coverage benefits sacrificed due to [Spicers]
future failure to submit claims to known carriers when and as
required will be [Spicers] exclusive expense. He therefore
calculates that there were only $336.76 of uncovered costs
submitted by Spicer, of which he is liable for half. The
difference between Judge Gleasons calculation of Teseniars
liability and Teseniars calculation is $160.92.
It is the function of the trial court, not of this
court, to judge witnesses credibility and to weigh conflicting
evidence.20 Because this is a factual question, and because the
superior courts resolution was not clearly erroneous, we affirm
Judge Gleasons decision to view Teseniars documentation as
incomplete and to instead use Spicers.
D. The Superior Court Did Not Abuse Its Discretion in
Ordering Teseniar To Reimburse the Childrens
Educational Accounts.
Teseniar charges that Judge Gleason abused her
discretion in departing from the divorce decree by ordering him
to deposit $1,924.85 into each of the childrens educational
accounts when it was Spicer who had failed to deposit the
childrens permanent fund dividends. Accepting Spicers claim that
she needed the PFD funds to support the children because Teseniar
was thousands of dollars in arrears on child support, Judge
Gleason determined that having Teseniar deposit the money as an
offset against his child support arrearages would serve the dual
goals of getting the children the PFDs to which they were
entitled and getting Spicer the child support to which she was
entitled. Teseniar maintains that Judge Gleasons justification
for letting Spicer keep the childrens PFDs is outside the scope
of the specific valid reasons for withdrawals from the childrens
educational accounts detailed in paragraph 7 of the parties
settlement agreement.
The agreement dictates that the childrens PFD funds are
to be deposited in educational accounts with Spicer as custodian.
No funds can be withdrawn before the children reach majority
except for: (1) payment of dividends or capital gains tax; (2)
any reason with Teseniars consent; or (3) uncovered major medical
or other similar emergency uses, in which case Spicer must
provide Teseniar with proof of the expenses. Judge Gleason
recognized this limitation when rejecting Spicers later attempt
to use the PFD funds for the everyday care and support of the
children, noting that such a use falls outside the bounds of the
agreement but that good cause could also be established upon
proof of current outstanding arrears on child support and other
necessary expenses of the children.
Certainly superior courts have authority to modify a
child support order. Alaska Statute 25.24.170 confers broad
authority to do so.21 That statute provides for modification of
child support, child custody, and alimony.22 An order may be
modified notwithstanding the fact that it was based on a
separation agreement or stipulation signed by the parties.23 It
was within Judge Gleasons discretion to depart from the parties
settlement agreement, as incorporated in the courts original
custody findings, to ensure that both Spicer and the children
received the benefits intended for them by those findings.24 We
therefore affirm Judge Gleasons order concerning the childrens
educational accounts.
E. The Superior Court Did Not Abuse Its Discretion by
Ordering Awards of Attorneys Fees to Spicer.
Teseniar contends that Judge Gleasons attorneys fees
awards are unfair because he has the right under the U.S.
Constitution to due process and thus should not be penalized for
seeking review of lower court orders. We review for abuse of
discretion a superior courts order to pay another partys
attorneys fees.25 The trial courts discretion in awarding
attorneys 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. 26
There is no indication that Judge Gleason awarded
attorneys fees as a penalty for appealing to this court; rather,
it appears the award was meant to compensate Spicer for some of
her expenses incurred in responding to only some of the numerous
motions filed by both sides in this case. Teseniars right to due
process was in no way infringed by the attorneys fees awards, and
those awards were not arbitrary or capricious. Accordingly,
Judge Gleason did not abuse her discretion by awarding Spicer
attorneys fees.
IV. CONCLUSION
Because the superior court did not undertake its own
Rule 90.3 calculations when modifying Teseniars child support
obligation, and because it impermissibly made the obligation
retroactive to a date preceding the date of the motion to modify,
we REVERSE the superior courts order increasing Teseniars
obligation effective April 15, 1999 and REMAND for calculation of
Teseniars obligation under Rule 90.3 to be effective no earlier
than March 8, 2000. We AFFIRM the remainder of the challenged
rulings.
_______________________________
1 Fleegel v. Estate of Boyles, 61 P.3d 1267, 1270-71
(Alaska 2002) (internal quotations omitted).
2 Teseniars submission to Alaskan jurisdiction can also
be found in his opposition to Spicers motion to modify support,
in which he noted that he was fighting Spicers attempt to
register the decree in Missouri. Teseniar described Spicers
attempt as inappropriate and wrong, said there was no logical
reason to move enforcement to Missouri, and maintained that
Spicer should be ordered to work with Teseniar through Alaska
CSED to solve any disputes on support.
3 AS 25.25.205(a)(1), (2); see also State, Child Support
Enforcement Div. v. Bromley, 987 P.2d 183, 188-89 (Alaska 1999).
4 AS 25.25.205(b).
5 See Mo. Rev. Stat. 454.946-.953, .971-.973 (1997)
(explaining registration of order for enforcement and
restrictions on modification, which have not been satisfied
here).
6 AS 25.25.611 in Alaska, Mo. Rev. Stat. 454.973 (1997)
in Missouri.
7 AS 25.25.202 (allowing tribunal to apply AS 25.25.316
to receive evidence from another state and AS 25.25.318 to obtain
discovery through a tribunal of another state).
8 State, Dept of Revenue, Child Support Enforcement Div.
ex rel. Wallace v. Delaney, 962 P.2d 187, 191-92 (Alaska 1998)
(concluding that Alaska retained exclusive jurisdiction over
support order and that CSED could collect interest from obligor
because obligors child still resides in Alaska, the issuing
state; thus, Washington could not have modified the support
order); cf. State, Child Support Enforcement Div. v. Bromley, 987
P.2d 183, 188-89 (Alaska 1999) (holding that Alaska court could
modify Maine support order because parents and child no longer
resided in Maine, obligee was not resident of Alaska and sought
modification here, and obligor was subject to personal
jurisdiction of Alaska tribunal).
9 The cases and commentary Teseniar cites in support of
his argument concern only situations in which the issuing State
no longer has an interest in exercising its continuing, exclusive
jurisdiction to modify its order, such as when both parties and
the children have moved out of the issuing state. See, e.g., In
re Marriage of Abplanalp, 7 P.3d 1269, 1270 (Kan. App. 2000);
Groseth v. Groseth, 600 N.W.2d 159, 166 (Neb. 1999). As
explained above and as elaborated in the sections of the
commentary to UIFSA 611 that precede the sections quoted by
Teseniar in his brief, Alaska still has an interest in exercising
its continuing, exclusive jurisdiction to modify its order
because Spicer and the children reside in Alaska. See Unif.
Interstate Family Support Act 611 (amended 2001), 9 I.B. U.L.A.
96, cmt. at 97-98 (Supp. 2003).
10 Flannery v. Flannery, 950 P.2d 126, 129 (Alaska 1997).
11 Beaudoin v. Beaudoin, 24 P.3d 523, 526 (Alaska 2001)
(quoting Kowalski v. Kowalski, 806 P.2d 1368, 1370 (Alaska
1991)).
12 Rule 90.3(a)(1)(B) provides for a deduction from a
parents total income for child support and alimony payments
arising from prior relationships which are required by other
court or administrative proceedings and actually paid.
13 While not ruling on the correctness of CSEDs
calculation, we note in passing that CSED calculated that
Teseniars child support obligation based on his 1999 tax return
should be modified to be $639 per month.
14 Marine v. Marine, 957 P.2d 314, 316 (Alaska 1998).
15 See Monette v. Hoff, 958 P.2d 434, 437 (Alaska 1998)
(remanding because unclear if superior court adopted CSEDs
calculation or conducted required de novo determination of child
support obligation); Keating v. Traynor, 833 P.2d 695, 696-97
(Alaska 1992) (holding that court erred by adopting parties
original privately stipulated support amount instead of modifying
support award based on current income in accordance with Rule
90.3).
16 State, Child Support Enforcement Div. v. Bromley, 987
P.2d 183, 188 (Alaska 1999) (quoting Hendren v. State, Dept of
Revenue, Child Support Enforcement Div., 957 P.2d 1350, 1352
(Alaska 1998); Alaska R. Civ. P. 90.3(h)(2).
17 Hendren, 957 P.2d at 1352 (citing AS 25.27.166(d) and
AS 25.27.195).
18 Alaska R. Civ. P. 90.3(h)(2); see also Wright v.
Wright, 22 P.3d 875, 878-79 (Alaska 2001).
19 Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001).
20 Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska
1999).
21 Flannery v. Flannery, 950 P.2d 126, 130 (Alaska 1997).
22 See Allen v. Allen, 645 P.2d 774, 776 n.4 (Alaska 1982)
(referring to AS 25.24.170s predecessor, AS 09.55.220). Alaska
Statute 25.24.170(a) states:
Subject to AS 25.20.110, any time after
judgment the court, upon the motion of either
party, may set aside, alter, or modify so
much of the judgment as may provide for
alimony, for the appointment of trustees for
the care and custody of the minor children or
for their nurture and education, . . . or for
the maintenance of either party to the
action.
23 Curley v. Curley, 588 P.2d 289, 291-92 (Alaska 1979).
24 See Hayes v. Hayes, 922 P.2d 896, 900-01 (Alaska 1996)
(holding that superior court did not err in rejecting fathers
motion that mother repay money borrowed from childrens PFDs in
part because of courts explanation that mother paid more of child
care costs due to fathers underpayment of child support).
25 Nicholson v. Wolfe, 974 P.2d 417, 427 (Alaska 1999);
Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999).
26 Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992)
(quoting Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)).
