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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ward v. Urling (09/14/2007) sp-6161

Ward v. Urling (09/14/2007) sp-6161, 167 P3d 48

     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

MARK V. WARD, )
) Supreme Court No. S- 12379
Appellant, )
) Superior Court No.
v. ) 3AN-96-7482 CI
)
MEILYN P. URLING, f/k/a )
MEILYN P. WARD, ) O P I N I O N
)
Appellee. ) No. 6161 - September 14, 2007
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Dan A. Hensley, Judge.

          Appearances:    Mark   V.   Ward,   pro   se,
          Anchorage.  Carl D. Cook, Houston &  Houston,
          P.C., Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh,  and Carpeneti, Justices.  (Bryner,
          Justice, not participating.)

          CARPENETI, Justice.

I.   INTRODUCTION
          Mark Ward appeals the superior courts order refusing to
modify  Wards  child support obligation.   He contends  that  the
court  erred  by  (1)  prematurely issuing  a  final  order,  (2)
incorrectly determining the parties income for support  purposes,
and  (3)  refusing  to  impute income to  Wards  ex-wife,  Meilyn
Urling.  Ward also appeals the award of attorneys fees to  Urling
and  alleges  judicial  bias.  Because  evidence  in  the  record
allowed  the  court  to reasonably calculate Urlings  income,  we
conclude that the court did not prematurely enter a final  order.
Because evidence supports the courts findings that Urling was not
unreasonably underemployed, the court did not err in refusing  to
impute income.  We also conclude that the court did not abuse its
discretion  in awarding attorneys fees and that Wards allegations
of  judicial bias are without merit.  Accordingly, we affirm  the
decision of the superior court in all respects.
I.   FACTS AND PROCEEDINGS
     A.   Facts
          Mark  Ward  and  Meilyn Urling (formerly Meilyn  Ward)1
divorced  in  November  1996.   The divorce  decree  awarded  the
parties  joint legal custody and shared physical custody  of  the
couples  two children and ordered Ward to pay Urling $231.48  per
month in child support.
     B.   Proceedings
          In  May 2005 the Child Support Services Division (CSSD)
moved  to  modify the 1996 support order, noting a  material  and
substantial  change  in circumstances and requesting  that  Wards
monthly  payments  be increased from $231.48  to  $559.00.   Ward
opposed  CSSDs  motion and asked the court to  impute  income  to
Urling  on  the  grounds that she was voluntarily underemployed.2
CSSD  responded  that  Urling  was  not  underemployed,  but   it
encouraged  the court to consider holding an evidentiary  hearing
on the issue.
          On  August  16, 2005, Master Andrew Brown  conducted  a
hearing  on CSSDs motion to modify, focusing primarily on whether
Urling  was  voluntarily underemployed.3   On  August  24,  2005,
Master  Brown issued his report and recommendations.  The  report
determined that Urling was unreasonably underemployed and imputed
income to her for purposes of calculating child support.  Despite
this  determination, the report ultimately recommended that Wards
monthly  support  obligation be increased to $682.86  per  month4
because his income had increased since the original support order
was calculated.
            On  September 5, 2005, Ward filed objections  to  the
report.   He  primarily argued that Master  Brown  had  erred  in
adopting  a  low mean experienced rate of $15.06  per  hour  when
calculating  Urlings potential income.  Urling also  objected  to
the  masters  determination that her potential income  should  be
based on a forty-hour work week.  On September 13, 2005, Superior
Court  Judge  Sen  K. Tan entered an order adopting  the  masters
report.
          Only  three months later, in December 2005, Ward  moved
to  modify  the  support order.  He asserted that the  court  had
erred  in  adopting  the  $15.06  hourly  wage  and  in  imputing
insufficient  income to Urling.  He argued that the court  should
calculate  Urlings 2004 salary potential at $20 per  hour.   Ward
also  disputed  the  courts application  of  tax  methodology  in
determining  the parties respective incomes.  Urling opposed  the
motion,  contending  that Ward had failed to  show  a  change  of
circumstances under Civil Rule 90.3(h)(1).



          The  court  conducted  hearings  on  Wards  motion   on
February 24 and March 31, 2006.5  At the conclusion of the  March
          hearing Master Brown took the matter under advisement and
verbally  instructed Urling to produce a copy  of  her  2005  tax
return if it was completed before he issued his final report.
            In   April   2006  Ward  submitted  a   request   for
clarificationof  the  courts verbal  instruction.   In  response,
Master Brown subsequently issued a written order requiring Urling
to  file her tax return with the court if it was completed before
issuance of the masters report.
          Master  Brown  issued his report on May  23,  2006,  by
which  date  Urling  had  not filed a tax  return.6   The  report
determined that Urling had shown good cause to work less than the
standard  forty-hour workweek and that she was  not  unreasonably
underemployed,  and it calculated her support obligation  on  the
basis of her $26,400 yearly salary.  The report recommended  that
Wards request for modification be denied on the grounds that  the
courts  new  calculations would result in Ward paying  9.8%  more
than the  September 13, 2005 support order then in effect.
          Ward  objected to the masters report.  He  argued  that
Master   Brown   had  erred  by:  (1)  applying   different   tax
calculations  to the parties respective incomes; (2)  failing  to
find  that  Urling was unreasonably underemployed; and (3)  using
her  salary as the income benchmark when determining her  support
obligation.  On June 9, 2006, Judge Tan entered an order adopting
the masters report.


          On  June 23 Urling moved for attorneys fees.  No timely
opposition was filed.
          On  July  10 Wards attorney moved to withdraw and  Ward
personally  moved for an extension of time in  which  to  file  a
Notice  of  Appeal to the June 9th Masters Report on the  grounds
that  he  had  left  town  on a remote  vacation  one  day  after
receiving   the   order.7   Ward  also   filed   a   motion   for
reconsideration and opposed Urlings request for attorneys fees.
          On  July  11, 2006, Judge Tan denied Wards  motion  for
reconsideration,  noting [i]n addition  to  being  untimely,  the
motion  was  filed by the plaintiff himself, and the  court  file
shows  that Mr. Ward is represented by an attorney.  On July  20,
the  court  signed  an order of withdrawal of Wards  counsel  and
awarded Urling thirty percent of her attorneys fees.
          Ward  then  filed  a second motion for reconsideration,
arguing that he had asked his counsel to withdraw while Ward  was
on  vacation, that signature requirements precluded his  counsels
filing  of  the motion to withdraw until Wards return,  and  that
Ward  had diligently filed his motions on the first business  day
following his return from vacation.  Urling opposed the motion on
the  grounds  that it was untimely and that it failed to  address
any  grounds  for  reconsideration as required under  Civil  Rule
77(k).8

          On  August  18,  2006,  Judge Tan denied  Wards  second
motion  for  reconsideration,  noting  [i]n  addition  to   being
untimely,  this court agrees with the findings of  Master  Brown.
Ward  now  appeals the courts order of June 9, 2006  denying  his
          motion to modify child support.
III. STANDARD OF REVIEW
          Trial courts are granted broad discretion in fashioning
child  support  determinations.9   We review a  determination  of
whether to modify a child support order for abuse of discretion.10
            Whether  a  party  is  voluntarily  underemployed  is
essentially  a question of fact.11  We set aside a  trial  courts
factual findings only if they are clearly erroneous,12  including
a  trial  courts  findings  regarding a  partys  income.13   This
standard also applies to a trial courts determination of  whether
to impute income.14
          We  review  an  award of attorneys fees  for  abuse  of
discretion.15
IV.  DISCUSSION
             Ward  raises three primary issues on appeal.  First,
he  argues that the court  erred in refusing to grant his request
for  modification of his child support obligations on the grounds
that  the masters report was prematurely entered prior to receipt
of  Urlings 2005 tax return, which resulted in the court applying
improper  tax  calculations when determining the parties  support
obligations.  He further asserts that the court erred in refusing
to find Urling voluntarily underemployed and in failing to impute
income.  Second, he contends that the court abused its discretion
in awarding Urling attorneys fees.  Finally, he alleges that both
Master Brown and Judge Tan were biased against him.
     A.    The Court Properly Denied Wards Motion to Modify Child
Support.
          Civil Rule 90(h)(1) provides that a child support award
may  be  modified  upon  a  showing  of  a  material  change   of
circumstances.  A  material  change  of  circumstances  will   be
presumed  where  support calculated under  the  rule  is  fifteen
percent  greater  or less than the outstanding  support  order.16
Both legal and factual changes may amount to a material change in
circumstances.17  As the moving party, Ward was obligated to show
by  a  preponderance  of  the evidence  that  a  material  change
existed.18
          1.   The court did not err in issuing an order prior to
               receipt of Urlings 2005 income tax return.
               
          Ward  contends that the court [failed] to  enforce  its
written  order  demanding Ms. Urlings federal income  tax  return
prior to drafting and approving the masters report, and that as a
result  the court improperly determined Urlings tax filing status
and net income.
          At  the conclusion of the March 2006 hearing, and  upon
inquiry from Wards counsel as to whether Urling would be required
to  submit her 2005 tax return,  Master Brown stated that returns
are  always  useful and that if Ms. Urlings tax  return  is  done
prior  to your receiving a Masters Report, I do want a copy okay?
Master Brown subsequently clarified:
          If  a  masters report is issued  without  Ms.
          Wards  2005  tax  return being  part  of  the
          evidence, and the court later finds out  that
          the return had been done prior to the masters
          report being mailed out, then the court  will
          sua  sponte consider vacating any  ruling  on
          the  masters report, ordering a new  hearing,
          and possibly holding the Defendant liable for
          any and all future attorneys fees . . . .
          
          The   conditional  language  in  the   masters   verbal
instructions  and written order made clear that issuance  of  the
masters  report was not contingent on the production of  her  tax
return.    If Urlings tax return had been completed and  she  had
failed  to  produce  it prior to receiving  the  masters  report,
Urling would have violated the courts order.  That is simply  not
the case here.19
          Moreover, nothing in the evidence suggests that  Urling
was  vexatious  in  not providing her income information  to  the
court.   At  the  March  hearing  she  testified  that  she   was
undergoing  an  audit  and  that  her  tax  return  was  not  yet
available.    She  subsequently  provided  a  letter   from   her
accountant stating that her tax return was not completed and that
Urling and her husband had been granted a filing extension  until
October 2006.20  There is no evidence that Urlings 2005 tax return
was completed prior to issuance of the masters report and nothing
in  the  record  indicates that Urling defied a  court  order  to
produce  her  tax return or that the court failed to enforce  its
own order.
          Ward  also  argues  that because the court  issued  the
support order before Urlings tax return was produced, the  master
improperly  calculated  her net income.   More  specifically,  he
alleges  that because Master Brown unfairly rewarded  Urling  for
not  submitting her tax return by calculating her income assuming
that  she filed a separate, rather than joint, tax return.   Ward
appears  to  believe that calculating Urlings income based  on  a
separate tax return while calculating his own income based  on  a
joint return distorted the differences in their gross incomes  to
Urlings benefit.
          Rule 90.3(a)(1) provides that a courts determination of
a  partys  adjusted annual income means the parents total  income
from all sources minus . . . mandatory deductions such as .  .  .
federal, state, and local income tax . . . .  Because Wards  2005
tax  return revealed that he filed married filing jointly, Master
Brown  subtracted Wards wifes income and her proportionate  share
of  the  household income tax liability before calculating  Wards
net  income for support purposes.21  But when calculating Urlings
income, Master Brown noted there was no evidence in the record of
whether  she and her husband filed a joint or separate  return.22
He  concluded that Urlings 2005 tax return was presumably a joint
one for her and her husband but found that [because] there is  no
evidence as to how Ms. Urling does her income tax, . . . the only
reasonable  way for the court to compute her income tax  on  [her
annual  income]  is by regarding her as doing  a  married  filing
separately return . . . .
          Because   there  was  no  evidence  regarding   Urlings
husbands income in the record, and because Urlings tax return was
not in evidence, the court could not accurately determine Urlings
          personal income using a married filing jointly tax methodology.
Master  Brown  therefore exercised his discretion and  determined
Urlings  income assuming she had filed an individual tax  return.
To  the  extent that the court might have elected to  place  both
parties  on  identical footing, the only other alternative  would
have been to calculate Wards income as if he had filed a separate
tax return, which Ward did not do.23  Even assuming the court had
done  so,  Ward  has  failed  to show that  the  monthly  support
calculations  would  have  amounted  to  a  material  change   of
circumstances of at least fifteen percent as required under  Rule
90.3.  Thus, to the extent that the court may have erred on  this
issue, we conclude that the error is harmless.
          Furthermore,  there  was  sufficient  evidence  in  the
record  for the court to determine Urlings net income even absent
her tax return.  A trial courts calculation of income should be a
reasonable  assessment of the obligors earning  capacity.24    In
order  for the court to adequately and reasonably assess a partys
income,  there must be sufficient evidence from which  the  court
can make informed calculations.25  Urling provided the court with
her  W-2s  from  2001  through 2005, pay stubs  from  recent  pay
periods,  and  copies  of  her  unemployment  checks,   and   she
personally  testified  to  her annual salary.   Relying  on  this
evidence, the court was able to reasonably assess Urlings  income
for  the  purposes  of  computing her support  obligation.26   We
therefore  reject Wards claim that the court erred in issuing  an
order prior to receipt of Urlings tax return.27
                    2.   The court did not err in concluding that
               Urling  was not voluntarily underemployed  and  in
               refusing to impute income.
          Civil  Rule 90.3 gives the court authority to calculate
child  support based on a parents potential income if the  parent
is found to be unreasonably underemployed.28  The relevant inquiry
under  Rule  90.3  is  whether a parents  current  situation  and
earnings  reflect a voluntary and unreasonable decision  to  earn
less  than the parent is capable of earning.29 A trial  court  is
granted  discretion to choose the best indicator of . . .  future
earning  capacity30  and to impute income  based  upon  the  most
complete  evidence before it. 31  In deciding whether  to  impute
income,  a  court  is  bound  to consider  the  totality  of  the
circumstances,  including a partys work history,  qualifications,
and job opportunities.32
          In  September 2005, following CSSDs motion  to  modify,
the court found that Urling was unreasonably underemployed.  That
order, which adopted Master Browns August 2005 report, noted that
Urling  had testified that she planned on working three days  per
week  for  eight  hours per day and that her 2004  earnings  were
$22,559.50.  The court found that there was [no] proof  that  Ms.
Urling  has  to reduce her work hours for necessary care  of  the
children . . . [or] cannot find full-time employment as a  dental
assistant  and  imputed income to her based on a  forty-hour  per
week  schedule.   The  court refused to calculate  her  potential
income at her actual wage of $22 per hour because that is due  to
her  particular  longstanding employment relationship  with  [her
employer]  Dr.  Yuknis  and  his paying  her  more  per  hour  in
          compensation for her working less than full time.  The court
calculated her imputed income using the Department of Labors mean
experienced  rate of $15.06 per hour to arrive at a gross  yearly
wage potential of $31,083.84.  However, even with Urlings imputed
income, the court determined that increases in Wards income  from
the  date when support had previously been set led to an increase
in Wards monthly support obligation to $682.86.
          In  contrast  to the September 2005 order,  the  courts
June  2006  order denying Wards motion to modify  concluded  that
Urling  was  not unreasonably underemployed.  Master Brown  found
that  the  courts  2005  computations  had  erroneously  computed
Urlings  income based upon a forty-hour workweek  but  that  more
extensive  testimony  indicated that  it  is  more  realistic  to
consider  her  workweek as no more than a 32-hour one.   He  used
Urlings  new  annual salary of $26,400 to calculate  her  support
obligation.  Because the courts final support calculations  would
have  resulted in Ward paying  more  not less  than that mandated
under the September 2005 support order, but because this increase
was  only  9.8%  and  thus failed to meet  the  15%  modification
threshold required under Rule 90.3, the court denied Wards motion
to modify.
          Ward   contends  that  the  courts  June   2006   order
overlooked evidence indicating that Urling was underemployed  and
erred  by refusing to impute income.  He argues that the evidence
established  that  Urling worked approximately twenty  hours  per
week throughout 2005, hours that are historically consistent with
her  prior  years of employment.  Ward claims that  the  evidence
established  that Urling continues to work less  than  thirty-two
hours  per week, and that therefore her support obligation should
be  calculated based on her potential income rather than  on  her
annual salary.

          Wards arguments are not wholly without merit.  Contrary
to  Master  Browns finding that there is no evidence  as  to  Ms.
Urlings  actual hours worked in 2005, Urling testified  that  her
2005  hours  averaged twenty hours per week.  She also  testified
that  under her new salary arrangement she worked four  days  per
week and was expected to be on call when her employer was out  of
town.   When  asked if she would be expected to work  more  hours
under her salary arrangement, she responded possibly.  Thus, Ward
is  correct  to the extent he argues that the evidence  indicates
that  Urling may continue to work less than thirty-two hours  per
week.   Ward asserts that the court overlooked this evidence  and
erred  by not finding that Urling was unreasonably underemployed.
But  while this argument is not without merit, we reject  it  for
the reasons set forth below.
          Evidence  presented at the February and March  hearings
established  that a thirty-two-hour workweek was standard  dental
practice.   However,  not  only did Master  Brown  conclude  that
Urling  had  shown good cause to work less than the standard  40-
hour workweek, he also found that Urlings workweek could properly
be  considered   no  more than a 32-hour one.  (emphasis  added).
Testimony  from Dr. Yuknis established that his dental assistants
worked  a  maximum thirty-two hour workweek but that most  worked
less  than thirty-two hours a week.  Testimony from Sherry Evans,
an office manager for a local dental office, indicated that while
two dental assistants in that  office worked thirty-two hours per
week, two others worked only eight hours.
          Moreover,  Ward  failed to present compelling  evidence
that  Urling  could supplement her employment  with  Dr.  Yuknis.
Ward  provided some information to the court on an Anchorage fill
in  list  for dental assistants interested in substitute work  at
other   offices,   suggesting  that   Urling   was   capable   of
supplementing her wages with Dr. Yuknis.  But testimony presented
at  the  hearings revealed the practical unlikelihood of  Urlings
ability  to  use  this  service.  Dr. Yuknis  testified  that  he
preferred  that  his  assistants did not use  it.   Dr.  Williams
testified  that he did not recall the last time he had  used  the
list,  and Dr. Ingrim testified that he had not used the list  in
the  last  two years.  Ward also failed to present evidence  that
Urling had the opportunity to work more hours for Dr. Yuknis  and
elected  not to do so.  Thus, to the extent that Urling may  work
less  than  thirty-two hours per week, the evidence supports  the
courts findings that it was not unreasonable to do so.
          An   analysis  of  Urlings  salary  also  supports  the
conclusion  that Wards position is flawed.  Assuming that  Urling
was paid an hourly wage of seventeen dollars based upon a thirty-
two  hour  workweek  with  two weeks  vacation,  she  would  earn
approximately  $28,000, only slightly above  her  actual  salary.
This  hourly rate is on par with the mean experienced  pay  scale
for  dental  assistants  reflected in the  Department  of  Labors
November 2004 statistics and is supported by testimony describing
other dental assistants wages.33
          Furthermore, Master Brown found that Urling had a  good
relationship  with  her employer, worked  for  him  for  thirteen
years, and that it was unlikely that she could find a job to fill
the   other  eight  potential  hours  of  the  workweek   without
jeopardizing  her  job  .  . . . Dr. Yuknis  testified  that  his
assistants  worked a maximum of thirty-two hours  per  week,  but
that  most  work  less than that and that he preferred  that  his
staff  did  not  work for other offices.  Master Brown  concluded
that  in addition to there being insufficient evidence as to  the
likelihood of [Urling] being hired to work in some other dentists
office,  .  . . there is also the possibility that her  doing  so
could  jeopardize  her  being employed by Dr.  Yuknis.   Adequate
evidence supported the courts conclusions.
          While  Urling  may  work less than  a  thirty-two  hour
workweek, and while her pay might arguably appear lower than  one
might expect for a dental assistant of her experience, the courts
findings on these issues are not clearly erroneous.   Nothing  in
our law compels a party to earn the maximum possible wage or face
imputation:
          We  think  it important to observe that  [the
          rule  on  imputed income] does not rigorously
          command  pursuit  of maximum  earnings.   The
          rules more modest objective is to give courts
          broad  discretion to impute income  based  on
          realistic  estimates of earning potential  in
          cases  of voluntary and unreasonable  .  .  .
          underemployment.  . . . [T]he  boundaries  of
          Alaskas  rule  are best left  to  be  defined
          through  case-by-case consideration based  on
          the totality of the circumstances.[34]
          
We  therefore conclude that the court did not err in finding that
Urling was not unreasonably underemployed, in determining Urlings
annual  salary  to  be the best indicator of her  future  earning
capacity,35 and in refusing to impute income.
     C.   The Award of Attorneys Fees Was Proper.
          Ward  next contends that the court prematurely  awarded
Urling  attorneys fees before she had submitted her  tax  return,
that the amount of fees claimed was excessive, and that the court
improperly  awarded fees under the Rule 82 contested  with  trial
schedule.   The court awarded Urling thirty percent of her  total
claimed  fees  of  $3,487.50, for a total fee  award  of  $1,046.
Urling responds that Wards challenges to the fee award are waived
because  Ward  failed  to  file a timely  opposition,  failed  to
request  an  extension of time in which to file a  response,  and
failed  to file a notice of appeal disputing the amount  of  fees
awarded.   We  need  not address Urlings procedural  defenses  to
Wards  claims on this issue because we conclude, on  the  merits,
that the award of attorneys fees was proper.36
          Rule  82(b)(2)  provides that where a prevailing  party
recovers no money judgment, the court shall award that party in a
case  which goes to trial thirty percent of the partys reasonable
actual  fees.  We will reverse an award of attorneys fees if  the
court  abused  its discretion by compensating excessive  attorney
hours37 or the award is otherwise manifestly unreasonable.38
          We have previously upheld attorneys fee awards in child
support  modification  proceedings.39   And  we  have  implicitly
recognized  that  awards of attorneys fees on  a  contested  with
trial  schedule may be appropriate following evidentiary hearings
on support and custody issues.40
          Urlings   attorney  provided  representation   at   two
separate  evidentiary hearings, requiring counsel to solicit  and
rebut  testimony  from  seven witnesses  regarding  the  standard
hourly  workweek  and  pay scale for dental assistants.   Counsel
also  filed  a pre-hearing brief and engaged in extensive  motion
practice, nearly all of which was in response to Wards repetitive
attempts  to  have  the court impute greater  income  to  Urling.
Counsel claimed he expended fifteen and one-half hours of work at
a  rate  of $225 per hour in connection with this matter.   Under
the  facts  presented here and the amount of work  performed,  we
conclude  that  the  amount of fees awarded  was  not  manifestly
unreasonable  and  that there was no abuse of discretion  in  the
courts award.

     D.   Wards Allegations of Judicial Bias Are Without Merit.
          Wards  final  argument is that both  Master  Brown  and
Judge Tan expressed an unexplained and unwarranted leniency  that
creates the appearance of bias towards a particular party.   Ward
fails  to  allege any actions that would support his claim  other
          than disputing the merits of the courts determinations on the
issues  raised  on appeal.  Indeed, each of Wards allegations  of
bias  is simply another iteration of his own discontent with  the
courts  substantive rulings.  Contrary to Wards suggestions,  the
simple  fact  that  a  judge denies a particular  motion  is  not
grounds for claiming judicial bias.41
          Wards  comments regarding Judge Tans alleged partiality
on the basis of his ethnic and racial background are particularly
troubling and unfounded.  Ward notes that Appellees first name is
Meilyn, an Asian name . . . . [Judge] Tan appears to be of  Asian
descent.   Due  to  the unexplainably biased  rulings,  and  that
judges too are human, it would seem prudent to ask for a judicial
reassignment of this case.  A review of the record in  this  case
fails   to   reveal  any  unfairness  in  the  conduct   of   the
[proceedings]   and  Wards  allegations  fail  to   support   any
particular   instances  of  bias.42    Because  Wards   arguments
regarding  the alleged bias appear for the first time on  appeal,
and   are   little   more   than  evidence   of   Wards   general
dissatisfaction with the courts rulings,43 his arguments on  this
point are without merit.

V.   CONCLUSION
          Because the superior court did not err in denying Wards
motion to modify child support before the receipt of Urlings  tax
return,  and  did  not  err  in  finding  that  Urling  was   not
voluntarily or unreasonably underemployed, we AFFIRM the superior
courts support order.  Because we find no abuse of discretion  in
the courts decision to award attorneys fees and in the amount  of
fees  awarded,  we  AFFIRM the courts award.   Finally,  for  the
reasons  set forth above, we reject Wards allegations of judicial
bias.



_______________________________
     1      Both   parties  to  this  appeal  have   subsequently
remarried.

     2    The response also requested an adjustment for provision
of  health care coverage and medical premiums, which are  not  at
issue in this appeal.

     3    Ward was represented by counsel, while Urling was not.

     4    This was reduced to $586.02 in light of Wards providing
for the childrens health insurance.

     5     Both  parties  were represented by  counsel  at  these
hearings.

     6    Urling had received an extension to file her tax return
that made her tax return due by October 2006.

     7    The court granted Wards motion for extension of time in
which to file a notice of appeal.

     8    On August 7 Ward filed a motion for contempt requesting
that  the court find Urling in contempt for refusing to obey  the
courts  order  to  provide her 2005 income  tax  return.   Urling
opposed  and  cross  moved  for  attorneys  fees.   There  is  no
indication whether the court ultimately ruled on these issues and
they are not at issue in this appeal.

     9    Zimin v. Zimin, 837 P.2d 118, 123 n.8 (Alaska 1992).

     10    Olmstead v. Ziegler, 42 P.3d 1102, 1104 (Alaska 2002).

     11     See Robinson v. Robinson, 961 P.2d 1000, 1004 (Alaska
1998).

     12    Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).

     13    Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003).

     14    Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998).

     15    Hixson v. Sarkesian, 66 P.3d 753, 757 (Alaska 2003).

     16     See  Rule  90.3(h)(1).  The framework for determining
support  for cases involving shared physical custody  under  Rule
90.3(b)(1)  requires the court to (1) calculate what each  parent
would  owe  if  the other parent had primary custody  under  rule
90.3(a); (2) multiply that amount by the amount of time the other
parent  has  physical custody; (3) classify the parent  with  the
larger figure as the obligor; (4) take the difference between the
parents  payments  under the Rule 90.3(a)  calculation;  and  (5)
multiply  the  difference by 1.5.  The final number is  generally
the obligor parents support obligation.

     17     Rusenstrom v. Rusenstrom, 981 P.2d 558,  563  (Alaska
1999).

     18    See Acevedo v. Burley, 944 P.2d 473, 475 (Alaska 1997).
Though we address each of Wards arguments in turn below, we  note
that it is highly questionable whether Ward was even entitled  to
an  evidentiary  hearing upon filing his motion to  modify  child
support  in  December 2005.  A trial court may deny a  motion  to
modify without an evidentiary hearing where the pleading fails to
set  forth  a prima facie showing of changed circumstances.   Id.
Even  then,  a  court may deny a hearing where the  moving  party
makes  only bare assertions or generalized allegations that  fail
to  create  a  genuine  issue  of  material  fact.   Epperson  v.
Epperson,  835 P.2d 451, 453 & n.4 (Alaska 1992).  In this  case,
Wards  motion  to  modify was filed only three months  after  the
courts  previous modification determination, and the  allegations
contained  therein  expressed  little  more  than  Wards  ongoing
dissatisfaction  with  the  courts   previous  factual   findings
pertaining to Urlings income.

     19    Trial courts are generally afforded broad discretion in
determining  the  scope and extent of discovery.   See  Byers  v.
Ovitt,  133  P.3d 676, 681 (Alaska 2006).  While the court  could
have  stayed entry of the final order pending receipt of  Urlings
tax return, it elected not to do so.  The courts reason for doing
so is not evident from the record.

     20     In October 2006 Urling moved to supplement the record
on  appeal  with  her  2005 income tax return.   We  denied  that
motion.

     21     The  report  made  this  calculation  [i]n  light  of
Bergstrom v. Lindback, 779 P.2d 1237 (Alaska 1989), requiring the
income  tax computation to be based on the income being used  for
support purposes. . . .

     22     Ward suggests that Urlings 2004 tax return serves  as
proof  that she and her husband filed a joint tax return in  2004
and  thus the court should have calculated her income accordingly
for 2005.  But a review of the record indicates that Urlings 2004
return  was  not  submitted to the court prior to  the  close  of
evidence  and thus was not available for the courts review.   Not
until Wards April 17, 2006 request for clarification does Urlings
2004 tax return appear in the record as an exhibit.

     23    As Master Browns report noted, there was no evidence of
Urlings  husbands  income for the purposes  of  calculating  what
Urlings  net income may have been under a married filing  jointly
tax status.

     24     See Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska
1991).

     25     Routh  v. Andreassen, 19 P.3d 593, 595 (Alaska  2001)
([T]rial  courts must take all evidence necessary  to  accurately
reflect the parties economic reality.) (quotations omitted).

     26    See Coghill v. Coghill, 836 P.2d 921, 925 (Alaska 1992)
(affirming courts reliance on prior calendar year income as  best
evidence of partys current income).

     27    See Byers, 133 P.3d at 683 (noting court may determine
partys  income by various means); Coghill, 836 P.2d at  924  n.1,
926-27(indicating court has discretion to select one  tax  method
over another).

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

     29    Beaudoin v. Beaudoin, 24 P.3d 523, 528 (Alaska 2001).

     30     Virgin  v. Virgin, 990 P.2d 1040, 1049 (Alaska  1999)
(concluding  court  not  obliged to credit speculative  testimony
regarding possible decline in partys income).

     31    Byers, 133 P.3d at 682.

     32    Alaska R. Civ. P.  90.3 Commentary III.C.; see OConnell
v. Christenson, 75 P.3d 1037, 1039 (Alaska 2003).

     33     Sherry  Evans  testified that  Dr.  Lateens  previous
expanded duty dental assistants were paid between $16 and $19  an
hour.   Tonya  Kish, Dr. Yukniss office manager,  testified  that
Urling was the highest paid dental assistant in the office.

     34     Beaudoin v. Beaudoin, 24 P.3d 523, 530 (Alaska  2001)
(emphasis in original).

     35    See Pugil v. Cogar, 811 P.2d 1062, 1067 (Alaska 1991).

     36     Wards  contention that the court prematurely  awarded
attorneys  fees before receipt of Urlings tax return  is  without
merit for the reasons we expressed in Part IV. A.1., supra.

     37    O.K. Lumber v. Providence Wash. Ins. Co., 759 P.2d 523,
528 (Alaska 1998).

     38    Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005).

     39     Patch  v.  Patch,  760 P.2d 526,  531  (Alaska  1988)
(applying Rule 82 to modification of child support proceeding).

     40     See  Vokacek v. Vokacek, 933 P.2d 544, 549-50 (Alaska
1997)  (upholding fee award which included contested  with  trial
amount  following evidentiary hearing on child support arrearages
and request to modify support).

     41     See  State v. City of Anchorage, 513 P.2d 1104,  1112
(Alaska  1973)  (Mere  evidence that a judge  exercised  judicial
discretion  in  a  particular way is not  sufficient  to  require
disqualification.), overruled on other grounds by State v.  Alex,
646 P.2d 203 (Alaska 1982).

     42    See Long v. Long, 816 P.2d 145, 156 (Alaska 1991).

     43    See Lacher v. Lacher, 993 P.2d 413, 422 (Alaska 1999).

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