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

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Miller v. Clough (08/17/2007) sp-6148

Miller v. Clough (08/17/2007) sp-6148, 165 P3d 594

     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,


) Supreme Court Nos. S- 11908/12108
Appellant, ) (Consolidated)
v. ) Superior Court No. 1JU-01-325 CI
MARIAN J. CLOUGH, formerly )
known as MARIAN J. MILLER, )
Appellee. )
) O P I N I O N
MARIAN L. CLOUGH, formerly )
known as MARIAN J. MILLER, ) No. 6148 - August 17, 2007
Appellant, )
v. )
GLENN H. MILLER, formerly )
known as GLENN J. MILLER, )
Appellee. )
Appeal    from     the
          Superior Court of the State of Alaska,  First
          Judicial   District,  Juneau,   Patricia   A.
          Collins, Judge.

          Appearances:  Loren Domke, Loren Domke, P.C.,
          Juneau, for Glenn Miller, Appellant/Appellee.
          Deborah  A.  Holbrook,   Juneau,  for  Marian
          Clough, Appellee/Appellant.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh,  and Bryner Justices.   [Carpeneti,
          Justice, not participating.]

          BRYNER, Justice.
          This  appeal requires us to interpret Alaska Civil Rule
90.3(a)(4), which allows courts to impute potential income  to  a
voluntarily underemployed parent in calculating the parents child-
support  obligation.   The  main issue  presented  is  whether  a
divorced parents remarriage to a person of wealth allows the  new
spouses assets to be counted as potential income under this  rule
if  the  parent  remains underemployed.  Because Rule  90.3(a)(4)
directs courts to consider only work history, qualifications, and
job opportunities in determining how much potential income should
be  imputed,  we  conclude that the rule does  not  allow  a  new
spouses wealth to be counted as potential income of the remarried
parent.   We  therefore affirm the superior courts order  denying
Glenn Millers attempts to pursue this theory through motions  for
discovery  and  modification of his child-support obligation.  We
also  affirm  the  superior courts order denying  Marian  Cloughs
motion  for  attorneys  fees.   But  we  remand  the  case   with
directions  to correct three inaccuracies in the method  used  to
calculate the parties support.
          Glenn  Miller and Marian Clough divorced  in  2001  and
shared  equal  custody of their children.  In  January  2002  the
superior  court ordered Glenn to pay $356.38 per month  in  child
support.   In  calculating the amount of this  award,  the  court
determined that Marian was voluntarily underemployed; it  imputed
potential  annual  earnings to her of $52,700.   In  August  2002
Marian married John Clough.  Glenn did not remarry but has  lived
with another woman since August 2003.
          In  late  2004  the parties eighteen-year-old  daughter
Gwenn began living with Glenn full-time.  Soon after, Glenn filed
a  pro se motion to modify the original custody order by awarding
full  custody  of Gwenn to him; he also moved for a corresponding
change in his child-support obligation.
          In  early 2005 Glenn  now represented by counsel  filed
a second motion to modify child support, arguing that his support
obligation  should be modified not just because Gwenn was  living
with  him  but also because Marian should have additional  income
assigned to her by reason of her re-marriage to a wealthy  second
husband.  According to Glenn, Marians marriage to Clough gave her
access  to  her new spouses wealth and income, so the new  income
should  be  imputed as potential income available to Marian,  who
remained  underemployed.   In his reply  to  Marians  opposition,
Glenn  further  asked  the  court for discovery  of  the  Cloughs
household income, seeking production of their last three  federal
income tax and trust returns as well as permission to depose  the
Cloughs concerning their income and assets.
          After  hearing  oral argument by the parties,  Superior
Court  Judge Patricia A. Collins issued an oral decision  on  the
record  on March 17, 2005.  The judge began by noting that  Glenn
had effectively withdrawn his motion seeking custody of Gwenn  by
acknowledging in reply to Marians opposition to that motion  that
the  court no longer had jurisdiction over Gwenns custody,  since
Gwenn had already turned eighteen and was no longer a minor.
          Judge  Collins next addressed Glenns motion  to  impute
potential income to Marian based on her new spouses wealth.   The
judge first determined that Marians remarriage did not qualify as
a   changed   circumstance  warranting   modification.    Because
potential  income had already been imputed to Marian  under  Rule
90.3(a)(4)  before  she  remarried,  the  judge  ruled  that  her
remarriage  did  not  by itself justify a  reexamination  of  her
potential income.
          The  judge nonetheless observed that the support  award
might  still  be modified under Rule 90.3(c)s provision  allowing
courts to deviate from the amount of support required under  Rule
90.3(a) if unusual circumstances would make an award under  [Rule
90.3(a)]  unjust.   But Judge Collins interpreted  Rule  90.3(c)s
unusual   circumstances  exception  narrowly,  noting  that   the
commentary   on  this  exception  emphasizes  that   a   variance
ordinarily  will  be  justified  only  by  clear  and  convincing
evidence  that  manifest injustice would result  if  the  support
award  were not varied.1  The judge further pointed to commentary
specifically stating that, although either party may  attempt  to
show that unusual circumstances justifying a variance exist in  a
particular  case,  the income of a new spouse will  not  normally
warrant  a  variation.2  While acknowledging that the  commentary
also  mentions that a parent who does not work because of  a  new
spouses  income  may  be assigned potential  income,3  the  judge
interpreted  this  as a reference to Rule 90.3(a)(4)s  provisions
governing  unemployment and underemployment, not as a  suggestion
that  a  new spouses income should routinely be deemed an unusual
circumstance warranting a variance under Rule 90.3(c).
          In  the  present  case,  potential  annual  income  was
already  imputed to Marian under Rule 90.3(a)(4) in the  original
child-support  order,  which  had  been  entered  before  Marians
remarriage.   Judge  Collins thus inquired  whether  Marians  new
husbands wealth should be deemed to increase her imputed  earning
potential  under  Rule  90.3(a)(4).  Because  this  rule  directs
courts  to  consider  only work history, qualifications  and  job
opportunities  when  determining how  much  potential  income  to
impute to an underemployed parent,4 the judge reasoned that a new
spouses wealth could not alter the calculation of imputed  income
under  Rule  90.3(a)(4); rather, it could only be  considered  to
decide  whether  potential income should be imputed   a  decision
that had already been made in Marians case.
          In Judge Collinss view, then, John Cloughs wealth would
justify  reexamining  the original child-support  order  only  if
Glenn  could specifically show that Marians access to the  wealth
increased  her  actual income or required  a  variance  from  the
amount of support originally ordered to avoid manifest injustice.
Relying  on  this  interpretation, Judge Collins rejected  Glenns
core  argument  that  John Cloughs income  should  be  deemed  to
enhance Marians potential earnings, finding this argument  to  be
inconsistent  with Rule 90.3 and its commentary.  In  the  courts
view, Glenn had not remotely established a prima facie case  that
unusual  circumstances would make application of  the  90.3(a)(4)
formula,  as  reflected  in the 2001 child-support  calculations,
manifestly unjust.
          Judge  Collins  went on to consider whether  Glenn  was
entitled  to an order allowing him to pursue discovery  of   John
          Cloughs income in order to develop a more persuasive unusual
circumstances  argument.   Given  the  intrusive  nature  of  the
discovery  request  and the fact that it implicated  the  privacy
rights of a person who had no child-support obligation, the judge
suggested  that, as a general matter, some threshold  showing  of
actual  need  should be required before discovery  of  this  kind
would  be  allowed.  At a minimum, the judge noted, she would  be
willing  to consider allowing such discovery only if both parties
agreed  to  provide income information concerning their  domestic
          Judge  Collins then addressed the specifics  of  Glenns
request  for  discovery of Cloughs financial information.   Given
her  ruling  that the information had no direct  bearing  on  the
method  for  calculating  Marians  potential  income  under  Rule
90.3(a)(4),  the  court focused on whether  discovery  should  be
allowed   to   assist  Glenn  in  determining   whether   unusual
circumstances  warranted modification under  Rule  90.3(c).   The
judge noted that the court did not have a specific request before
[it]  addressing this theory and was therefore unable to rule  on
the issue.  Judge Collins nonetheless encouraged counsel for both
parties to work out some mutually agreeable discovery method  for
exploring  a  possible  claim  of  unusual  circumstances   under
Rule  90.3(c), noting that Glenn could file an appropriate motion
if  the  parties were unable to settle any discovery disputes  on
their own.
          Judge   Collins   then  briefly  addressed   the   only
modification request that remained unresolved: Glenns  motion  to
modify  support  in  light of Gwenns changed living  arrangement.
The  judge  began by advising the parties that, as  matters  then
stood, she did not expect to award attorneys fees to either  side
for  work done to that point.  The judge then invited each  party
to  submit  proposed recalculations of support reflecting  Gwenns
new living arrangements.
          Several  days  after entering her oral decision,  Judge
Collins  issued  a  written  order  supplementing  her  on-record
ruling.   The order confirmed that the court had deemed Glenn  to
have withdrawn his motion for custody of Gwenn because she was no
longer  a  minor.  It also determined that Marians remarriage  to
John Clough did not by itself establish exceptional circumstances
warranting departure from the Rule 90.3(a)(4) support calculation
employed  by  [the] court in calculating support in 2001.   Last,
the  order  ruled that the parties support obligations  would  be
recalculated in light of Gwenns move to her fathers home.
          Glenn  moved for clarification and asked the  court  to
set  aside  the  orders effective date pending discovery  of  the
Cloughs  household income.  Glenns motion asserted that,  despite
its  refusal to impute household income to Marian, the court  had
allowed  discovery  of the Cloughs income tax records  and  other
documents.  Marian opposed Glenns motion, arguing that there  was
no discovery issue properly before the court and none was decided
and that the court has ruled that the fact that Marian Clough has
married  the  man  she  was cohabiting  with  in  2001  does  not
establish exceptional circumstances warranting departure from the
support calculation employed by the court in 2001.
          Glenn  then  filed a motion for discovery,  asking  the
court  to authorize disclosure of various financial records  that
he  had  requested from the Cloughs, including  copies  of  their
federal  income  tax and trust income tax returns  for  2004  and
copies of any separation agreement, prenuptial agreement, or post-
nuptial  agreement  between  them. Glenn  asserted  that  he  had
requested  this  discovery under Civil Rule  90.3(c)(1)[  ]  [the
unusual  circumstances exception to Rule 90.3(a)] in  order  that
household  income of the Cloughs should be considered in  setting
current  child  support.  Glenns motion also disclosed  that  Mr.
Millers significant other, Joan Thompson, provided a copy of  her
current  year-to-date pay statement and her 2004  federal  income
tax  return to the Cloughs.  The motion claimed that in its  oral
decision, the court had opined that it would allow discovery  but
insisted that it should be reciprocal.
          In  response to Glenns motion for clarification,  Judge
Collins issued an order making it clear that, in the judges view,
no  discovery motion was pending before the court and  the  court
had  not  refused  to  impute income to  Marian.   Judge  Collins
summarized the status of the case as follows:
          The court did impute income to Ms. Clough  in
          2001.   The  court  did  reject  Mr.  Millers
          argument  that  a new spouses  income  should
          always be added to the obligor parents income
          (or  imputed  income, as here)  to  determine
          child  support and that remarriage,  standing
          alone,    is   a   significant   change    in
          circumstance.  The court indicated  that  Mr.
          Miller  is  free  to  conduct  discovery   to
          determine  if Ms. Clough derives  any  income
          now  that  is  greater than  that  which  was
          imputed to her in the 2001 order.
          By  separate order, Judge Collins denied Glenns  motion
for  an  order  authorizing discovery of  the  Cloughs  financial
records,  ruling that Glenns motion for discovery  is,  at  best,
premature;  the order nonetheless noted that Glenn remained  free
to make an informal request for this information under Civil Rule
90.3(e)(2)   a provision authorizing parties involved  in  child-
support  proceedings to informally request and  obtain  financial
information from each other.5
          Meanwhile,  both Glenn and Marian had submitted  child-
support  affidavits  and worksheets setting  out  their  proposed
recalculations  of  child  support  based  on  Gwenns  change  of
residency.   The  parties proposals differed  as  to  the  proper
amount  of  deductions  to  be used in  determining  the  parties
adjusted  annual incomes.  The superior court ultimately accepted
Marians  proposed  calculations,  which  resulted  in  an   order
requiring Glenn to pay Marian $37 per month for March, April, and
May  2005  (the  period from the date of the order  until  Gwenns
graduation  from school terminated the parties duty of  support);
after  that, Glenn was to pay Marian $504 per month for  the  two
children remaining with her.
          Marian then moved for attorneys fees, arguing that  she
was  the prevailing party because Glenn had filed at least  seven
separate  motions seeking to reduce his child-support obligation,
all of which had been denied or struck.  Marian also claimed that
          she deserved an enhancement of her fee award under Civil
Rule  82(b)(3),  alleging that Glenn had failed to  minimize  his
fees,  had  pursued  unreasonable  claims,  and  had  engaged  in
vexatious and bad faith conduct.
          The  superior court denied Marians motion, noting  that
both  parties  had prevailed on certain aspects  of  the  support
dispute   Marian  on important support-related issues,  including
whether remarriage automatically requires recalculation of  child
support,  and  Glenn  on his request to lower  his  child-support
obligation  in  light of Gwenns decision to live  full-time  with
          Both parties appeal.
     A.   Glenns Appeal
          1.   Refusal  to impute income to Marian based  on  her
               new spouses wealth
          Glenn argues that the superior court erred in declining
to  consider the wealth of Marians new spouse in calculating  her
child-support obligation.  He relies chiefly on Rule  90.3(a)(4),
which  allows courts to impute potential income to an  unemployed
or underemployed parent:
          The  court may calculate child support  based
          on a determination of the potential income of
          a  parent who voluntarily and unreasonably is
          unemployed or underemployed.  A determination
          of  potential income may not be  made  for  a
          parent   who   is  physically   or   mentally
          incapacitated, or who is caring for  a  child
          under  two  years of age to whom the  parents
          owe  a joint legal responsibility.  Potential
          income  will  be based upon the parents  work
          history,     qualifications,     and      job
          opportunities.   The court  also  may  impute
          potential income for non-income or low income
          producing assets.[6]
          As  previously mentioned, the superior court  keyed  on
the  language in this provision that directs courts to base their
calculation  of potential income upon the parents  work  history,
qualifications, and job opportunities.7  Glenn insists  that  the
court interpreted this language too narrowly, contending that the
court should have considered the totality of the circumstances in
deciding how much potential income should be imputed to Marian.8
          Glenn points out that in 2002, before Marian remarried,
the   superior   court  determined  that  she   was   voluntarily
underemployed  and  had the ability to earn  a  potential  annual
income of $52,700.  Glenn further notes that by 2005, when  Glenn
moved  to modify child support, Marian was married to John Clough
and  continued  to  be  underemployed.  In Glenns  view,  Marians
situation  had  changed because her new spouse  is  a  person  of
significant income and wealth, which, according to Glenn, enables
Marian   to   enjoy   an   affluent   lifestyle.    Given   these
circumstances, Glenn reasons, Cloughs wealth must be regarded  as
a factor enhancing Marians potential income under Rule 90.3.
          Glenn bolsters this argument by citing our decision  in
Beaudoin v. Beaudoin,9 as well as the commentary to Rule  90.3.10
          In Beaudoin, we noted that both Rule 90.3(a)(4) and our case law
specifically  require  courts to consider  the  totality  of  the
circumstances  to decide whether income should be imputed.11   In
making  this point, Beaudoin referred to the commentary  to  Rule
90.3(a)(4),  which observes that [t]he court shall  consider  the
totality  of  the  circumstances in deciding  whether  to  impute
          Glenn   further  points  to  the  commentary  to   Rule
90.3(c)(1)  the unusual circumstances exception  noting that  the
commentary  expressly  recognizes that [a] parent  who  does  not
work  because of the income of a new spouse (or other  person  in
the household) may be assigned a potential income.13  In addition,
Glenn  cites  case law from other states.14  Glenn  claims  that,
because Marian Cloughs imputed annual income of $52,700 is belied
by   her  affluent  lifestyle,  the  superior  court  abused  its
discretion  in failing to examine how Marian actually  lives  and
her actual expenditures since she remarried.
          In  response,  Marian  rejects Glenns  claim  that  the
superior  court  refused to consider her potential  income  under
Rule  90.3(a)(4), insisting that the court properly applied  this
rule  in  the  original child-support order  by  imputing  annual
income  to  her  of  $52,700.  Marian describes  Glenns  proposed
totality  of  the  circumstances approach to Rule  90.3(a)(4)  as
fundamentally  inconsistent with Alaska  law.   Pointing  to  the
plain  language  of  Rule 90.3(a)(4) and case  law  applying  the
provision, Marian argues that Alaska courts have uniformly upheld
the  principle that the earning potential of the parent  must  be
the basis for any child support award.
          We  agree with Marians understanding of Rule 90.3.  The
plain  language  of  Rule 90.3(a)(4) unambiguously  directs  that
[p]otential  income will be based upon the parents work  history,
qualifications, and job opportunities.15  This language does  not
recognize   any  other  permissible  criteria  to  be   used   in
calculating  the amount of potential income to be imputed  to  an
unemployed  or  underemployed parent under Rule 90.3(a)(4).   Nor
does  the commentary to Rule 90.3 advance Glenns totality of  the
circumstances theory.  The commentary to Rule 90.3(a)(4) confirms
the  rules express language declaring that work history and other
related  criteria  will  be the basis for  calculating  potential
income.16   The same commentary also observes that courts  should
consider the totality of the circumstances in deciding whether to
impute  income.17  But this observation addresses only the manner
in  which  they  should make the threshold  decision  whether  to
impute  potential  income  to an underemployed  parent,  not  the
manner  in  which they should determine the amount  of  potential
income  to  impute once the initial decision to impute  has  been
made.   In  effect, then, as Judge Collins correctly  recognized,
this commentary directs courts to the language of Rule 90.3(a)(4)
for purposes of deciding how much potential income to impute.
          Beaudoin v. Beaudoin aligns with this view.  There,  we
were  required  to  decide  whether potential  income  should  be
imputed to a parent who had previously been her childrens primary
caregiver  and  had never held a paying job.18   We  applied  the
totality  of the circumstances approach to decide this  threshold
issue.19    We  did  not  suggest  that  the  totality   of   the
          circumstances approach could be applied in determining the amount
of an underemployed parents potential income once the decision to
impute had been made.
          Here, the superior court properly determined that Glenn
had  failed  to  establish  grounds for imputing  more  potential
income to Marian than the court had already found appropriate  in
2001.   On  this  point, Glenn essentially claimed  that  Marians
remarriage to a wealthy person amounted to a prima facie  showing
that  Marians  potential  income  had  increased.   But  in   our
judgment, the superior court properly concluded that the language
of  Rule 90.3(a)(4) bars direct reliance on a new spouses  wealth
as evidence of increased earning potential.
          The  court  also correctly recognized that Glenn  could
have  but had not  moved to modify his support on the ground that
Cloughs  wealth  resulted in unusual circumstances  justifying  a
variance  under  Rule 90.3(c)(1).  While Glenns discovery  motion
belatedly mentioned this theory, it inaccurately claimed that the
theory  had  been raised in his earlier motion for  modification.
Actually, Glenn had previously disclaimed reliance on the unusual
circumstances  exception.  Indeed, during  the  March  17,  2005,
proceeding in which Judge Collins issued her on-record denial  of
Glenns  motion for modification, Glenn expressly stated that  his
motion was based exclusively on the potential income language  of
Rule 90.3(a)(4).
          Because  the superior court correctly interpreted  Rule
90.3(a)(4) to bar direct consideration of a new spouses wealth as
a basis for determining the amount of  potential income to impute
to  a  remarried parent and also correctly recognized that Glenns
earlier  motion  sought modification solely  on  this  basis,  we
conclude  that the court did not err in denying Glenns motion  to
modify support in light of Marians remarriage to Clough.
          2.   Denial of Glenns motion for discovery
          Glenn  separately argues that the superior court  erred
in  denying his discovery motion.  He claims that he was entitled
to  discovery  both  under Civil Rule 26(b)(1),  which  generally
allows  discovery of any relevant information,20 and  under  Rule
90.3(e),  which specifically requires parties to a  child-support
proceeding  to  produce  statements  of  income  with   verifying
documentation.21   Glenn asserts that he  was  entitled  to  this
discovery  in  order to pursue an argument under Rule  90.3(c)(1)
that  unusual  circumstances justified  varying  Marians  imputed
income as originally determined under Rule 90.3(a)(4).22
          As  we have seen, however, Glenn did not move to modify
his  support  on  this  basis, and,  indeed,  before  moving  for
discovery  on  this  theory, he had disavowed  reliance  on  Rule
90.3(c)(1)s   unusual  circumstances  exception.    Given   these
circumstances, the superior court did not abuse its discretion in
declining  to  allow  Glenn  to raise  this  new  theory  in  the
proceedings  involving  Glenns pending  motion  for  modification
after  the  court had already ruled on and correctly denied  that
motion  under the theory that Glenn had originally pled.  As  the
superior  court  observed in refusing to order discovery,  Glenns
motion  for  discovery  on  this  unpled  theory  was  at   best,
premature.23  We thus uphold the superior courts discovery ruling.
          3.   Disputed items of adjusted annual income
          Although  the  superior court denied Glenns  motion  to
modify  child support on the basis of Marians new spouses wealth,
it  granted  his  separate motion to modify  support  because  of
Gwenns  decision to live in Glenns home.  The court directed  the
parties  to submit proposed child-support calculations reflecting
this change.  In May 2005, after both parties filed DR-305 child-
support  worksheets and affidavits, the court issued  a  modified
support  order adopting Marians figures.  Glenn challenges  three
items in the superior courts calculations of the parties adjusted
annual  income,  all  of  which the court  derived  from  Marians
               a.   Glenns income tax liability
          Glenn   first   contends  that   the   superior   court
underestimated  his  annual  federal tax  liability  by  adopting
Marians   figures.   Marians  child-support  worksheet  projected
Glenns 2005 federal income tax liability from the estimated taxes
withheld from his January 2005 earnings.   This method yielded an
annual  tax  liability  of  $3,311.  By contrast,  Glenns  child-
support worksheet used the taxes Glenn had actually paid  on  the
similar wages in 2004; this resulted in a projected tax liability
of $4,780.
          Glenn  asserts  that his withheld taxes  underestimated
his  actual  tax  liability because he was under-withholding  and
that the taxes he actually paid in 2004 provide the most accurate
basis for estimating his 2005 taxes.  Because the record provides
no  indication that his tax liability would substantially decline
in  2005,  Glenn  reasons that the court  should  have  used  his
proposed calculations.
          In  support  of his argument, Glenn cites Bergstrom  v.
Lindback.25   In  Bergstrom the superior court  used  withholding
figures  instead  of  actual income tax  liability  to  calculate
Bergstroms adjusted annual income for purposes of determining his
child-support obligation.26  We reversed, ruling that  the  court
should have relied on Bergstroms history of actual tax payments:
               The  amount  of  taxes  withheld  by  an
          employer  may or may not reflect a  taxpayers
          actual  tax  liability. Although  Civil  Rule
          90.3(a)(1)(A) refers to mandatory  deductions
          for  federal  income  tax,  we  believe  that
          Bergstroms   actual   tax   liability   under
          existing     Internal     Revenue     Service
          regulations, rather than the amount withheld,
          is  the  proper  basis  for  determining  the
          amount   to  be  deducted  from  his  income.
          Therefore, the trial court erred in  reducing
          [Bergstroms]  adjusted annual income  by  the
          amount  withheld rather than his  actual  tax
          Marian does not dispute the accuracy of Glenns 2004 tax
liability  as  a predictor of his future liability; instead,  she
contends that it was not clearly erroneous for the superior court
to  find that Glenns paycheck tax withholdings were an acceptable
measure  of his 2005 tax liability.  Marian points to a  footnote
in  Bergstrom in which we described evidence presented  at  trial
indicating  that  Bergstroms  employer  had  made  an  error   in
          calculating the amount of taxes withheld from his wages.28  Marian
suggests  that  our ruling in Bergstrom hinged on this  evidence,
and  did not establish a general rule disfavoring use of withheld
taxes as an acceptable measure of future tax liability.
          We  disagree with Marians narrow reading of  Bergstrom.
Our  decision in Bergstrom recognized  that [t]he amount of taxes
withheld by an employer may or may not reflect a taxpayers actual
tax liability.29  Given the general unreliability of withholding,
we  declared  that  actual tax liability under existing  Internal
Revenue Service regulations, rather than the amount withheld,  is
the  proper basis for determining the amount to be deducted  from
[Bergstroms] income.30
          Here, Glenn provided the superior court with his actual
tax  liability  on  comparable wages for 2004,  along  with  rate
schedules  for  his  income level and  taxpayer  status.   Marian
provided  no information indicating that Glenns actual  2004  tax
liability would not accurately approximate his current and future
tax  liabilities.   Given these circumstances, we  conclude  that
Bergstrom  required Glenns actual tax liability for  2004  to  be
used because it was the most accurate available indicator of  his
actual liability in the future.
               b.   Glenns retirement deduction
          Glenn  argues next that the superior court undercounted
his  retirement  deduction by disallowing his claimed  deductions
for  contributions to a voluntary retirement plan.  In his child-
support  worksheet, Glenn listed mandatory and  voluntary  annual
contributions totaling $3,927.  Marians worksheets credited Glenn
only  for  a $519 mandatory retirement deduction.  Glenn  insists
that   Rule   90.3(a)(1)(B)  entitled  him   to   a   combination
mandatory/voluntary retirement deduction of  7.5%  of  his  gross
          Marian  acknowledges that she credited Glenn  only  for
his mandatory contribution.  But she insists that this credit was
correct  under the version of Rule 90.3 in effect when she  filed
her  proposed child-support calculations in April 2005.   Marians
argument  is  accurate in a technical sense but lacks substantive
          It is true that on April 7, 2005, when Marian filed her
proposed  child-support  worksheets, Rule 90.3(a)(1)(A)  provided
that   voluntary  tax-deferred  contributions  to   a   qualified
retirement  or pension plan or account up to 7.5% of the  parents
gross income could be deducted if the parent is not a participant
in  a mandatory retirement plan.31  This phrasing implied that  a
parent  could not claim credits for both voluntary and  mandatory
contributions.  But in February 2005, this court  had  issued  an
order  amending the rule to resolve this ambiguity  in  favor  of
allowing  combined credits.  Our order provided that the  amended
version  would  take effect on April 15, 2005  eight  days  after
Marian  filed her worksheets.32  Because the amended rule was  in
effect  when  the superior court issued its May  1,  2005,  order
modifying  the  parties  support, the  amended  rule  allowing  a
combined deduction applied to this case.
               c.   Marians income tax liability
          Glenn   last   contends   that   the   superior   court
overestimated Marians income-tax liabilities.  In her worksheets,
          Marian assigned herself a tax liability of $6,260 on her imputed
income  of  $52,700.   This  $6,260  hypothetical  liability  was
identical  to the figure agreed upon by the parties and  approved
by  the  court  in 2002 when it issued the original child-support
order.   Glenns 2005 child-support worksheets proposed to  assign
Marian  a  lower tax liability, $4,556, a figure Glenn calculated
using  2005  IRS  tax  tables.  Glenn argues  that  this  updated
calculation  is  more  accurate and thus should  have  been  used
instead of the original hypothetical figure, which, in his  view,
had no factual basis.
          In response, Marian points out that all of the original
figures used in connection with her imputed potential income were
necessarily   hypothetical;  because  Glenn  agreed   with   this
hypothetical tax liability in 2001 and urged the court  to  adopt
it,  she  contends, it is too late for him to change  the  figure
now.   But  Marians  argument places  form  over  substance.   In
effect,  it  proposes  to establish a rule that  would  lock  all
future   tax   consequences  of  imputed  potential   income   to
consequences existing at the time of original imputation.  Such a
rule  would conflict with basic principles of fairness  requiring
tax-support   calculations  to  be  as  accurate  as   reasonably
          Marian  does  not  dispute  that  calculating  her  tax
liabilities using the tax provisions applicable in 2002  produces
an  outdated result. Yet she identifies no sound reason  why  the
outdated  information should be acceptable in the modified  order
if  it  would  not  have  been in the original  order.   We  thus
conclude  that  Marians ongoing tax liability must be  calculated
using currently applicable tax tables.
     B.   Marians Appeal
          At  the  conclusion of its oral decision denying Glenns
motion  to  impute  income to Marian based  on  her  new  spouses
wealth,  the  superior court briefly commented that,  as  matters
then  stood,  it would not expect to award fees to  either  side.
After the court entered its modified child-support order adopting
Marians  proposed  calculations, Marian moved  for  an  award  of
attorneys  fees under Rule 82.  Marian now appeals  the  superior
courts  denial  of her motion, arguing that the court  improperly
prejudged  the issue in its on-record comments and that,  in  any
event,  she  deserved to be awarded fees because she was  clearly
the prevailing party.33
          At  the  outset, Marian suggests that, in its on-record
remarks,  the  court prematurely ruled out an award of  attorneys
fees  because  it wanted to push the parties towards  settlement.
But  in  our  view, Marians argument casts an unreasonably  harsh
light  on  the superior courts comments.  At the March 17,  2005,
proceeding, Judge Collins stated:
          [A]t  this point, I can advise that I do  not
          anticipate that Im going to award either side
          costs  and attorneys fees for anything  thats
          been  done  to  date. . . . I guess  Im  just
          really  concerned that were  looking  at  the
          potential  for the dispute to cost more  than
          the  child support.  And while thats a factor
          for the parties to consider as opposed to me,
          I think its only fair to give that that level
          of  notice. . . . So, I mean, I encourage you
          all   I realize that it hasnt been successful
          to  date, but to see if some agreement can be
          reached on that point.
          On  their  face,  these  remarks  simply  informed  the
parties of the courts impression that the proceedings so far  had
been  disproportionately contentious and that both parties  might
be  well advised to explore the possibility of settling amicably.
Because  these remarks described impressions formed by the  court
in  the  course of the present litigation, they cannot reasonably
be  seen  as  expressing bias; instead, they  candidly  expressed
legitimate  concerns held by the court at the time.  Nor  do  the
remarks  communicate any trace of a threat or hint  of  coercion;
they merely give the parties candid and fair notice of the courts
view  of  the  case  at the time and urge them  to  consider  the
alternative of resolving the remaining issues in the  case  by  a
mutually  acceptable agreement.  Viewing the remarks in  context,
we fail to see any error.
          Marian  also  challenges the superior  courts  ultimate
denial  of her motion for fees on the ground that the ruling  was
manifestly unreasonable because she had prevailed on all  of  the
substantive  issues, whereas Glenn prevailed only  in  winning  a
temporary  reduction  of  his child-support  obligation.   Marian
likens  her  case to DeWitt v. Liberty Leasing Co.,34  where  one
party recovered a judgment of $17,736.11 against an opponent  who
won  an offset claim of $93.64;35 on appeal, we reversed a  trial
court  order  that  refused to declare  a  prevailing  party  for
purposes of awarding fees, holding that the plaintiff had clearly
          But  the  circumstances here are  distinguishable  from
those in DeWitt.  DeWitt merely involved a single claim for money
that  was  offset by a minimal counterclaim.  In contrast,  Glenn
litigated  two legally and factually distinct motions  to  modify
child   support:  one  sought  a  change  reflecting  his  oldest
daughters  decision to live with him; the other sought to  impute
potential  income to Marian based on her new spouses wealth.   On
the  first issue, despite Marians active opposition, the superior
court  granted Glenns motion and recalculated support.37  On  the
second issue, Marian prevailed, blocking Glenns efforts to obtain
discovery and modify support based on John Cloughs income.  Given
that each party prevailed on non-overlapping  claims, it was  not
manifestly unreasonable for the superior court to determine  that
neither  party was the prevailing party for purposes of  awarding
fees under Rule 82.38
          We  AFFIRM  the  superior courts  orders  declining  to
impute potential income to Marian on the basis of her new spouses
wealth  and refusing to approve discovery to Glenn on this point.
We  VACATE  and  REMAND  for recalculation consistent  with  this
opinion  the  three  items in the modified  support  order  using
inaccurate  figures submitted by Marian.  We AFFIRM the  superior
courts denial of Marians motion for Rule 82 fees.
     1    Alaska R. Civ. P. 90.3 cmt. VI(A).

     2    Id. cmt. VI(B)(5).

     3    Id.

     4    Alaska R. Civ. P. 90.3(a)(4).

     5    Civil Rule 90.3(e)(2) provides in part:

          While  there  is  an ongoing monthly  support
          obligation, either party must provide to  the
          other  party,  within 30 days  of  a  written
          request,  documents such as tax  returns  and
          pay  stubs showing the partys income for  the
          prior calendar year.
     6    Alaska R. Civ. P. 90.3(a)(4).

     7    Id.

     8     The  superior courts interpretation of the civil rules
presents  a  question of law that we review de novo.   Fuller  v.
City of Homer, 113 P.3d 659, 662 (Alaska 2005).

     9    Beaudoin v. Beaudoin, 24 P.3d 523 (Alaska 2001).

     10     The  commentary  to  Civil Rule  90.3  has  not  been
officially  adopted,  but  it  can  provide  useful  guidance  in
applying the rule.  See Caldwell v. State, 105 P.3d 570, 573  n.6
(Alaska 2005).

     11     Beaudoin, 24 P.3d at 528 (quoting Alaska R.  Civ.  P.
90.3 cmt. III(C)).

     12    Alaska R. Civ. P. 90.3 cmt. III(C).

     13    Alaska R. Civ. P. 90.3 cmt. VI(B)(5).

     14    For example, the Washington Court of Appeals, applying
a  Washington statute, has recognized that although a new spouses
income  cannot  itself  be  included in  calculating  a  divorced
parents  gross income for child support purposes,  half  the  new
spouses taxable capital gains, interest and dividend income  must
be  imputed  to  the parent under the presumption  that  property
acquired during a marriage is community property absent clear and
convincing  evidence  to the contrary.  See  In  re  Marriage  of
Scanlon, 34 P.3d 877, 883 (Wash. App. 2001) (applying Wash.  Rev.
Code  26.19.071(3)).

     15    Alaska R. Civ. P. 90.3(a)(4) (emphasis added).

     16    Alaska R. Civ. P. 90.3 cmt. III(C).

     17    Id. (emphasis added).

     18    Beaudoin, 24 P.3d at 524.

     19    Id. at 528.

     20    Alaska R. Civ. P. 26(b)(1).

     21    Alaska R. Civ. P. 90.3(e).

     22    We review the superior courts discovery rulings for an
abuse of discretion, and will not reverse unless, after reviewing
the  entire  record,  we  are convinced  that  the  court  erred.
Willoya  v.  State,  Dept of Corr., 53 P.3d  1115,  1119  (Alaska

     23     We  reject  Glenns effort to characterize  the  trial
courts  comments  concerning reciprocal  discovery  of  household
income  as  an  implied promise to grant Glenn discovery  of  the
Cloughs financial records if Glenn voluntarily disclosed his  own
household financial information.  In our view, a fair reading  of
the  record  makes  it  clear  that Judge  Collins  intended  her
comments as a description of a threshold condition that the judge
would likely have imposed before approving discovery if Glenn had
properly  raised the unusual circumstances theory in  his  motion
for   modification  and  had  then  moved  for  discovery   after
exhausting informal discovery procedures prescribed by the rules.

     24    We will reverse the superior courts child-support order
only  if  the court abused its discretion or applied an incorrect
legal  standard.   Whether the court used the correct  method  of
calculating  child support is a matter of law that we  review  de
novo.  Caldwell, 105 P.3d at 573 (citing Turinsky  v.  Long,  910
P.2d  590, 593 n.10 (Alaska 1996)).  But we review a trial courts
factual  findings  used  to determine  child  support  under  the
clearly erroneous standard.  Id. (citing Routh v. Andreassen,  19
P.3d 593, 595 (Alaska 2001)).

     25    Bergstrom v. Lindback, 779 P.2d 1235 (Alaska 1989).

     26    Bergstrom, 779 P.2d at 1236.

     27    Id. at 1236-37 (footnote omitted).

     28    Id. at 1237 n.5.

     29    Id. at 1236 (emphasis added).

     30    Id.

     31     See  Alaska  Supreme Court Order No. 1526  (Apr.  15,

     32    The amended version of the rule eliminated the original
language   that  seemingly  allowed  a  deduction  for  voluntary
retirement contributions only if the claimant did not participate
in  a  mandatory plan.  According to the Child Support Guidelines
Committee commentary, under Rule 90.3s new language,

               Mandatory retirement contributions are a
          deduction. Voluntary contributions, up to the
          limit   stated  in  the  rule,  are  also   a
          deduction  if the earnings on the  retirement
          account or plan are tax-free or tax-deferred.
          If  a  parent  is  not  a  participant  in  a
          mandatory   plan,  the  limit  on   voluntary
          contributions  is 7.5 % of  gross  wages  and
          self-employment  income. If  a  parent  is  a
          participant in a mandatory plan, the limit on
          voluntary  contributions is 7.5  %  of  gross
          wages  and  self-employment income minus  the
          amount of the mandatory contribution.
Attachment to Alaska Supreme Court Order No. 1526 (Apr. 15, 2005)
Commentary to Civil Rule 90.3(III)(D).

     33      We   review  the  superior  courts  prevailing-party
determination  in  an  attorneys-fees  dispute   for   abuse   of
discretion.  Interior Cabaret, Hotel, Rest. & Retailers  Assn  v.
Fairbanks  N.  Star Borough, 135 P.3d 1000, 1002  (Alaska  2006).
Prevailing-party determinations are ordinarily overturned only if
they are manifestly unreasonable.  Jerue v. Millett, 66 P.3d 736,
740 (Alaska 2003).

     34     DeWitt v. Liberty Leasing Co. of Alaska, 499 P.2d 599
(Alaska 1972).

     35    Id. at 600.

     36    Id. at 602.

     37    Glenns success on the computational issues addressed in
this  appeal reinforces his prevailing-party status on this first
motion for modification.

     38     Because  we  affirm  the superior  courts  denial  of
attorneys fees to Marian, we do not need to decide whether Marian
would  have  been  entitled to enhanced fees  if  the  court  had
awarded fees.

This site is possible because of the following site sponsors. Please support them with your business.
Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights