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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rosen v. Rosen (09/21/2007) sp-6168

Rosen v. Rosen (09/21/2007) sp-6168, 167 P3d 692

     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

BETTINA E. ROSEN, n/k/a )
BETTINA CAMDEN-ISHIMARU, ) Supreme Court No. S- 11890
)
Appellant, ) Superior Court No.
) 3AN-98-10945 CI
v. )
) O P I N I O N
CARL E. ROSEN, )
) No. 6168 September 21, 2007
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:   Bettina  Camden-Ishimaru,  pro
          se,  Portland, Oregon.  Paul D. Stockler, Law
          Office  of  Paul D. Stockler, Anchorage,  for
          Appellee.

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

          FABE, Chief Justice.

I.   INTRODUCTION
          Bettina Camden-Ishimaru moved for an increase in  child
support  in  2004, five years after her divorce from  Carl  Rosen
became  final.   The superior court denied the motion  to  modify
support.   Bettina then moved to establish a judgment  for  child
support  arrearages  and unpaid orthodontic expenses.   In  March
2005  the  superior court denied the motion and instead signed  a
partial  modification agreement, which the parties had  submitted
to  the  court in 2001 and which the court had neglected to  sign
when  initially  submitted.  The court made this order  effective
January 2001.  The court also denied Bettinas motion to have Carl
pay for orthodontic expenses, reasoning that because Carl had not
consented to the treatment as required by the agreement,  he  was
not  solely  responsible  for  the uncovered  expenses.   Bettina
appeals: (1) the superior courts decision to approve the  earlier
agreement and declare it effective January 2001; (2) its decision
to  deny  her  motion for modification; and (3)  its  order  that
unpaid  orthodontic expenses be shared by the parties.  We remand
the  issue of the unpaid orthodontic expenses for a determination
whether  Carl acted reasonably and in good faith when he  refused
to  consent  to  the treatment.  We affirm the  decision  of  the
superior court in all other respects.
II.  FACTS AND PROCEEDINGS
          Carl Rosen and Bettina Camden-Ishimaru (formerly Rosen)
married  in 1991.  They have two children: Taylor, born in  1992,
and  Madison, born in 1996.  Bettina and Carl separated in  1998.
On  July 2, 1999, Superior Court Judge Peter A. Michalski entered
a  decree of divorce incorporating the terms of the parties child
custody,  child support, spousal support, and property settlement
agreement.   The agreement, signed by both parties in  May  1999,
provided  for  joint  legal and shared physical  custody  of  the
couples  two  children.  Carl, a physician, agreed to  pay  child
support  to  Bettina  in  the amount of $2,000  per  month.   The
agreement also provided that Carl would provide health and dental
insurance  for  the  children and would be  responsible  for  all
insurance   deductibles  and  all  of  the   childrens   medical,
orthodontic  and dental expenses . . . provided,  that  all  such
health  care  treatment must be reasonable and  .  .  .  that  no
elective medical or other health care shall be undertaken without
[Carls] prior knowledge and consent.
          In  December  2000  Carl and Bettina signed  a  partial
modification  of  visitation, custody, and  child  support.   The
partial modification agreement stated that Bettina had decided to
move with the children to Portland, Oregon and requested that the
court  issue  an  order  modifying the  parties  agreement.   The
parties  agreed  that  Carl would have the children  for  a  long
weekend  each month and for the summer.  They agreed that Bettina
would pay for the childrens travel for the summer visit and  that
Carl  would  pay for all other visits.  The partial  modification
agreement also reduced Carls child support payments, stating that
his child support for June, July, and August would be reduced  by
fifty  percent  to  $1,000.   The $2,000  child  support  in  the
remaining months was to remain fixed and was not [to] be adjusted
for  inflation, or otherwise, for the remainder of  the  support.
The  agreement  also stated that each party had been  advised  by
counsel  and  freely and voluntarily entered into the  agreement.
Although  the  parties  filed the agreement  with  the  court  in
January 2001, the court took no action in response to the  filing
of  the partial modification agreement and did not sign it at the
time of filing.
          In  March  2004 Bettina filed a motion to modify  child
support.   She  requested an increase in child support  based  on
Carls increased income, a change in medical insurance costs,  and
increases  in  the  costs  of  child  rearing,  including   costs
associated  with  day  care, orthodontics,  mental  health  care,
unpaid visitation costs, and inflation.
          Carl opposed the motion, claiming that Bettina had  not
shown  a  material change in circumstances as required by  Alaska
Civil Rule 90.3 and refuting Bettinas claimed costs for day care,
orthodontics,  mental health care, and unpaid  visitation.   Carl
agreed to a prospective adjustment for inflation.  He referred to
and   submitted  a  copy  of  the  couples  partial  modification
agreement with his motion.
          On  June  14,  2004, the court issued an order  denying
Bettinas motion to change child support.  In August 2004  Bettina
moved  to  establish a judgment against Carl  for  child  support
arrears.   Bettina  submitted a worksheet from the  Alaska  Child
Support Enforcement Division showing that Carl owed $10,785.45 in
arrears  and  $3,143.16 in interest.  This arrearage  calculation
apparently  assumed that the 1999 agreement was still  in  effect
and that Carl was obligated to pay the monthly payments of $2,000
throughout  the entire year plus a cost-of-living increase  added
by  the  division.   Bettina also requested a judgment  requiring
payment  for  unpaid health care bills for orthodontic  treatment
for  Taylor and moved to compel disclosure of Carls tax  returns.
Carl  requested  and  was granted a hearing.   The  court  denied
Bettinas motion to compel disclosure of tax returns.
          In  January 2005 the court held a hearing on the motion
to establish child support arrears.  After the hearing, the court
found that it had failed to sign the parties partial modification
agreement  due to a clerical oversight.  The court  approved  and
signed the agreement, declaring it effective as of January  2001,
when  it was originally filed with the court.  The court reasoned
that  it  was  not making a retroactive modification  because  it
would  have  signed the [partial] modification agreement  at  the
time  it was filed if not for the clerical oversight.  The  court
ordered that child support arrears be recalculated to reflect the
lower  payments  provided for in the agreement.  The  court  also
found that Taylors orthodontic expenses should be paid equally by
each  party given Carls lack of prior consent to the expenses  as
provided in the agreement.1  This appeal followed.
III. STANDARD OF REVIEW
          Trial  courts  have broad discretion  in  making  child
support  determinations2  and deciding whether  to  modify  child
support orders.3  We review child support awards and decisions to
modify  child support for an abuse of discretion.4  An  abuse  of
discretion  occurs only if based on the record as  a  whole  this
court  is left with a definite and firm conviction that a mistake
has  been  made.5  The interpretation and effect of  the  parties
agreement  are questions of law to which we apply our independent
judgment.6
IV.  DISCUSSION
     A.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Approving  the  Partial Modification  Agreement  To  Be
          Effective January 2001.
          
          Private  agreements regarding child support are subject
          to the requirements of Civil Rule 90.3; parties may not agree to
a  level  of child support lower than the rule requires or  lower
than  that  provided  for  in  a  court  order  without  judicial
approval.7   Bettina implies that the level  of  support  in  the
partial modification agreement is lower than would be required by
the  rule.  She maintains that the agreement imposes a visitation
credit,  which  she argues is not appropriate in  shared  custody
situations.    Carl   counters  that  the  partial   modification
agreement  meets  the requirements of Rule  90.3  and  is  valid.
Because the partial modification agreement requires Carl  to  pay
child support exceeding the level of support that would have been
required  under Rule 90.3 and because modifications may  be  made
effective  as of the time of initial filing, we agree  with  Carl
that  the  superior court properly found the partial modification
agreement valid as of January 2001.
          1.   The partial modification agreement met the minimum
               requirements of Rule 90.3.
               
          The partial modification agreement reduced the level of
child support from that required by the 1999 child support order.
In July 1999 the court determined that Rule 90.3 required Carl to
pay  $1,604  monthly,  or $19,248 annually.   But  because  Carls
income  exceeded $72,000 and because the parties  had  agreed  to
payments of $2,000 monthly, the court awarded more child  support
than  the  rule required  $2,000 monthly for a total  of  $24,000
annually.
          Signed  in  December  2000,  the  partial  modification
agreement  reduced Carls obligation to $1,000 in June, July,  and
August  but  required $2,000 per month for the remaining  months.
As  a result, Carls annual support after the partial modification
agreement was $21,000 annually.
          The   level   of  support  required  by   the   partial
modification  agreement  $21,000 annually  exceeded  the  $19,248
that  Rule  90.3  required at the time  the  divorce  decree  was
entered.   But  as  Bettina correctly notes, we issued  an  order
effective  October 15, 1999 to increase the Rule 90.3 income  cap
from  $72,000  to $84,000.8  She argues that as a result  of  the
1999  increase  in  the  income  cap,  the  partial  modification
agreement provided for less support than required by Rule 90.3.
            The change in the income cap affects the validity  of
the   agreement   because  parties  agreements  must   meet   the
requirements  of  Rule 90.3 at the time they are  signed.9   When
Bettina and Carl signed the agreement in 2000, Rule 90.3(a)(2)(B)
would  have  required  $22,680 annually if  Bettina  had  primary
physical  custody and if there were no visitation credit.10   The
initial divorce decree declared that Bettina and Carl would share
physical  custody,  and  child support is calculated  differently
when  there  is  shared physical custody.  But Rule 90.3(b)(1)(C)
provides  that if the shared custody award calculation  yields  a
figure  that is higher than the amount of support which would  be
calculated  under  paragraph (a) assuming  primary  custody,  the
annual  support  is  the amount calculated under  paragraph  (a).
Thus,  the rule limits a parents obligation in a shared  physical
custody arrangement to the amount calculated under paragraph (a).
          As a result, at the time Carl and Bettina signed the partial
modification agreement, Rule 90.3 would have required Carl to pay
a  maximum  of  $22,680  annually  or $1,890  monthly   in  child
support payments, assuming no visitation credit applied.
          But  Rule  90.3(a)(3) also allows a reduction in  child
support payments by up to seventy-five percent for any period  in
which  the  obligor  parent has extended visitation  of  over  27
consecutive  days.  Because the superior court  found  that  Carl
exercised summer visitation for at least two months each  summer,
he  was eligible for at least two months visitation credit  under
Rule  90.3(a)(3).11   Thus, at the time of the  agreement,  Carls
minimum obligation under paragraph (a) would have been $19,845.12
The  partial modification agreement required Carl to pay  $21,000
and  therefore exceeded the minimum level of support required  by
the  rule  as of December 1999 when Carl and Bettina  signed  the
agreement.   Because agreements regarding child  support  may  be
enforced  if they comply with Rule 90.3, the partial modification
agreement is enforceable.
          2.   The superior court did not abuse its discretion in
               making the agreement effective January 2001.
               
          Rule  90.3(h)(2) prohibits retroactive modification  of
child support, providing:
          Child  support arrearage may not be  modified
          retroactively,  except  as  allowed   by   AS
          25.27.166(d).    A  modification   which   is
          effective on or after the date that a  motion
          for  modification  . . .  is  served  on  the
          opposing   party   is   not   considered    a
          retroactive modification.
          
          Bettina  argues  that the court retroactively  modified
support  in  its  March  2005 order that declared  the  agreement
effective  as of January 2001.  She also relies on the rule  that
agreements  waiving or reducing child support  payments  are  not
valid  until  a court has reviewed and approved the agreements.13
Carl  responds  that  the parties filed the partial  modification
agreement  in  January 2001.  He contends that this joint  filing
was  equivalent to a motion for modification and argues that  the
rule allows modifications relating back to the time the motion is
filed.   The  superior court reasoned that it was  not  making  a
retroactive  modification  because  it  would  have  signed   the
modification agreement at the time it was filed if  not  for  the
clerical oversight.14
          We  agree  with Carl that under Rule 90.3(h)(2),  there
was  no  retroactive  modification in this case  when  the  court
signed  the  agreement  in March 2005 and declared  it  effective
January  2001.   While Bettina is correct that a modification  of
child  support  will  not  be  given  retroactive  effect,   Rule
90.3(h)(2) defines when a retroactive modification occurs in  the
context  of  an agreement modifying court-ordered child  support.
And  Rule  90.3(h)(2) specifically provides that  a  modification
that  is  effective  after the date a motion  is  served  on  the
opposing  party  is  not  a retroactive  modification.   We  have
          previously recognized this, holding that absent good cause, a
modified  child support order should be effective from  the  date
the   parent  receives  notice  that  a  modification  is   being
considered.15  We have explained that
          service  of  the  motion  .  .  .  gives  the
          opposing party both fair warning that support
          may  change  and an opportunity to  reassess,
          even  before  the  court rules,  the  correct
          amount of support.  This gives an opportunity
          to    adjust    consumption    patterns    in
          anticipation   of  modification,   and   thus
          minimize  prejudice when  relief  is  granted
          effective as of the service date.[16]
          
          In   this   case,  both  parties  signed  the   partial
modification  agreement.17   The  court  declared   the   partial
modification agreement and its revised child support  obligations
effective  January 2001, when the agreement was  initially  filed
with the court.  Certainly a stipulation to modify child support,
signed  by both parties, provides even greater notice that  child
support  will  be  modified than receipt of a motion  to  modify.
Because  both  parties  had notice of this modification  and  had
agreed  to  its  terms,  the court did not  issue  a  retroactive
modification when it declared the partial modification  agreement
effective January 2001.18
     B.   The Superior Court Did Not Abuse Its Discretion when It
          Denied Bettinas Motion for Modification.
          
          We    must   also   evaluate   Bettinas   claims   that
circumstances   in   2004,  when  she  filed   her   motion   for
modification,  warranted  modification  of  the  level  of  child
support.   We  hold  that the superior court did  not  abuse  its
discretion in denying her motion for modification.
          Rule  90.3(h)(1)  governs  the  modification  of  child
support awards, providing:
          A  final  child support award may be modified
          upon  a  showing  of  a  material  change  of
          circumstances as provided by  state  law.   A
          material  change  of  circumstances  will  be
          presumed if support as calculated under  this
          rule  is more than 15 percent greater or less
          than the outstanding support order.
          
          Bettina  argues that the superior court erred  when  it
did  not require Carl to submit documentation of his income,  did
not  make  factual determinations regarding income, and  did  not
assess  whether  the  fifteen percent materiality  rule  of  Rule
90.3(h)(1) applied.  She also suggests the superior court  should
have  considered  the intent of the original  divorce  decree  in
determining whether a modification was warranted, given that  the
original  decree  provided for payments in excess  of  Rule  90.3
requirements  and  given that she alleged Carls income  increased
over  one  hundred percent since the divorce.  The  court  denied
Bettinas motion to modify child support in June 2004.19
          Carl  responds  that Bettina waived the  issue  of  the
          fifteen percent materiality rule by failing to raise it at the
trial  level.  He also contends she waived the issue whether  the
superior  court  erred  in  failing  to  require  disclosure   of
financial  information because her motion to modify  support  was
not  at  issue  when the court entered the order from  which  she
appealed.   Carl  contends  that  the  June  2004  order  denying
Bettinas  motion  to  modify child support resolved  all  pending
child  support issues.  Thus, he claims the time for appeal began
running then.
          Bettina has not waived her arguments regarding material
change  justifying a modification.  Contrary to Carls contention,
the issue was before the superior court.  Bettinas initial motion
argued  that  support should be modified because of increases  in
Carls  income  and the cost of child rearing.   Carl  cites  this
courts  decision  in Mattfield v. Mattfield for  the  proposition
that  an  order  that functionally resolve[s] all  pending  child
support  issues amounts to a final judgment.20  Although Carl  is
correct  that the superior court issued an order denying Bettinas
motion in June 2004, this order did not resolve all pending child
support  issues.  Because the court did not declare  the  partial
modification  agreement valid until March  2005,  the  June  2004
order did not resolve all pending child support issues.  When the
court  denied  Bettinas motion to modify child  support  in  June
2004, the base level of support was in dispute.  As a result, the
issue  of child support and its modification was not functionally
resolved until the courts March 2005 order.  Because we hold that
Bettina has not waived the issue, we now consider her argument.
          As  a  threshold  matter,  we  note  that  neither  the
existence  of  an  agreement nor the provision  in  the  original
agreement  that  [t]his Agreement shall not be  modified  by  the
parties  except  by  written instrument signed  before  a  notary
prevents   a   judicial   determination  that   modification   is
appropriate  under  Rule  90.3.   In  Robinson  v.  Robinson,  we
rejected  the notion that the existence of a prior child  support
agreement   alone  was  sufficient  to  reject   a   motion   for
modification.21   We  emphasized that [a]n  agreement  for  child
support cannot prevent modification, because the parties may  not
waive the application of Rule 90.3.22
          The  question  thus  arises:  Did  the  superior  court
properly determine that no modification was required when Bettina
filed  her  motion in 2004?  We conclude that it  did.   Although
Bettina  argues that the $100,000 income cap applies, we  adopted
this  cap effective April 15, 2005.23  Because Bettina filed  her
motion  to  modify child support in 2004, the $84,000 income  cap
applied  to  her  request.  As we discussed  above,  Carls  child
support  payments at the time comported with the requirements  of
Rule  90.3.24   As a result, Bettinas motion to modify  finds  no
support  in the income cap of Rule 90.3.  Bettinas argument  that
the original decree intended to grant a level of support that was
slightly  higher than the Civil Rule 90.3 level does not  support
modification; the level of support after the partial modification
agreement  remained slightly higher than the Rule 90.3  level  at
the time the motion for modification was filed.
          We  also reject Bettinas argument that the court abused
          its discretion by declining to modify child support despite her
claim  that  she  obtained  health insurance  for  the  children.
Bettinas  original  motion to modify child support  claimed  that
Carl  insured  the  children for catastrophic coverage  only  and
requested that support payments be adjusted accordingly.  Bettina
does   not  argue  that  she  would  reach  the  fifteen  percent
materiality  threshold  of  Rule  90.3(h)(1)  based   on   health
insurance  payments.   As  a  result, she  has  not  demonstrated
reversible  error.  Moreover, we note that the divorce  agreement
requires  Carl to provide health and dental insurance.  And  Carl
submitted  documentation of the health and dental insurance  that
he  provided for the children.  Even if Bettina were correct that
Carl  provided inadequate insurance coverage, the agreement makes
him  responsible  for  all deductibles and  all  other  uncovered
medical  expenses.   In  other words,  under  the  terms  of  the
agreement, if Carl purchased inadequate coverage, he would be the
party  responsible for paying for the uncovered expenses.   Under
these  circumstances, Bettina has not shown a material change  in
circumstances  resulting  from  health  insurance  expenses.   We
therefore  conclude that the superior court  did  not  abuse  its
discretion  when  it  denied  Bettinas  motion  to  modify  child
support.25
     C.   The   Superior   Court  Erred  when  It   Ordered   the
          Orthodontic Expenses To Be Paid Equally by  Each  Party
          Without a Finding that Carl Acted Reasonably.
          
          In  January  2005 Bettina submitted a Motion Requesting
Unpaid  Health  Care  Bills  of the  Minor,  Taylor  Rosen  as  a
Judgment,  seeking  reimbursement for  orthodontic  expenses  and
noting that two orthodontists had recommended immediate treatment
for  Taylor to which Carl refused to agree.  Noting that Carl did
not  consent to Taylors treatment, the superior court  found  the
expense  to be an uncovered medical expense.  The court  reasoned
that   although  the  parties  original  agreement   makes   Carl
responsible for orthodontic expenses, the agreement also requires
that  all  health  care  treatment  be  reasonable  and  that  no
treatment  be  undertaken  without  Carls  prior  knowledge   and
consent.   The  court  applied  Rule 90.3(d)(2)s  provision  that
uncovered medical expenses shall be allocated equally between the
parties and ordered Carl to pay half the expense directly to  the
orthodontist.
          Bettina  argues  that the court abused  its  discretion
when it ordered that Taylors orthodontic expenses be paid equally
by  each  party.  She appears to argue that the court should  not
have  relied  on  Rule  90.3(d)(2)  because  the  divorce  decree
requires  that  Carl reimburse one hundred percent  of  uncovered
expenses.  She also argues that Rule 90.3 requires that the party
who did not obtain the care must reimburse the other party within
thirty days and that she has not received payment for ten months.
Carl  responds that the superior court found that  Carl  did  not
consent  to the treatment and properly relied on Rule 90.3(d)(2).
Carl  maintains that his ability to pay is not relevant and notes
that  Bettina does not contest the factual finding that Carl  did
not consent to treatment.
          The  1999  divorce  agreement  provides  that  Carl  is
responsible  for  all insurance deductibles and all  medical  and
dental  expenses, expressly including orthodontic expenses.   But
as  the  superior  court correctly noted, the agreement  requires
that all such health care treatment must be reasonable and . .  .
that no elective medical or other health care shall be undertaken
without [Carls] prior knowledge and consent.26
          Bettina  does not contest the courts finding that  Carl
did not consent to the treatment.  But her briefing suggests that
Carl  withheld  consent unreasonably or in  bad  faith.   Bettina
insists that Carls argument before the superior court that he did
not  agree  with the orthodontists opinion perverts the intention
of  the  contract.  According to her, the original intention  was
that  he  would respect all other specialties . . .  [and]  [n]ot
simply override specialists[] opinions  because he doesnt want to
pay for services.
          Like   other   legally  enforceable  agreements,   this
agreement  includes an implied covenant of good  faith  and  fair
dealing.27  Although the superior court found that Carl  did  not
consent  to  Taylors orthodontic expenses, it did  not  make  any
findings as to whether Carls actions comported with the intent of
the contract or whether he acted in good faith.  Accordingly,  we
remand  the issue of orthodontic expenses for a determination  on
whether  Carl  reasonably withheld consent  for  the  orthodontic
treatment.   If  the  trial court finds  that  Carl  unreasonably
withheld consent for the orthodontic treatment expressly included
in  the  parties  agreement, it should order  Carl  to  reimburse
Bettina for one hundred percent of these expenses.
     D.   The  Superior Court Did Not Abuse Its Discretion in Not
          Ordering Cost-of-Living Adjustments.
          
          Bettina argues that the court should have awarded cost-
of-living  adjustments.  Her motion for modification  claimed  an
increase  in  costs  for  child rearing due  to  inflation.   The
original  agreement  provided  that  support  payments  would  be
adjusted  for  inflation.   The  partial  modification  agreement
provided that the $2,000 child support shall remain fixed and not
be adjusted for inflation, or otherwise, for the remainder of the
support.
          Although  Carl argues that neither Rule  90.3  nor  the
parties  agreement requires cost-of-living adjustments, he  notes
that  he  agreed to cost-of-living adjustments in the proceedings
before  the superior court.  Because Carl has agreed to  cost-of-
living adjustments, this issue is moot.
V.   CONCLUSION
          For  the reasons outlined above, we AFFIRM the decision
of   the   superior  court  declaring  the  partial  modification
agreement effective January 2001 and rejecting Bettinas motion to
modify  child  support.  We VACATE its order that Carl  pay  only
half of Taylors orthodontic expenses and REMAND for consideration
whether  Carl acted reasonably and in good faith when he  refused
to consent to the orthodontic expenses.
_______________________________
     1    The agreement provides that Carl is responsible for all
of  the childrens medical, orthodontic and dental expenses . .  .
provided,  that all such health care treatment must be reasonable
and . . . that no elective medical or other health care shall  be
undertaken without [Carls] prior knowledge and consent.

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

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

     4    Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002).
          
     5     Flannery v. Flannery, 950 P.2d 126, 129 (Alaska  1997)
(internal quotations and citations omitted).

     6    Id.

     7    Cox v. Cox, 776 P.2d 1045, 1048 (Alaska 1989); see also
Nix  v. Nix, 855 P.2d 1332, 1334 (Alaska 1993) ([A] child support
waiver  is  not valid and enforceable until a court has  reviewed
and approved the waivers substantive adequacy under Rule 90.3.).

     8     See  Supreme  Court Order No. 1362  (Oct.  15,  1999).
Bettina  also suggests that the $100,000 cap currently  in  place
should  be used.  See Alaska R. Civ. P. 90.3(c)(2).  But  because
the question is whether the agreement complied with Rule 90.3  at
the time it was signed, the current income cap is not relevant to
the determination whether the agreement is valid.

     9     See,  e.g.,  Flannery, 950 P.2d at 128  (referring  to
income cap at the time the parties entered into the agreement).

     10     Rule  90.3(a)(2)(B) provides that  the  non-custodial
parents  income  must  be multiplied by  .27  for  two  children.
Applying  the  income cap of $84,000 which applied  at  the  time
under  Rule  90.3(c)(2), Carls payments would  be  $22,680  under
paragraph (a) if Bettina had primary physical custody.

     11     Bettina  argues  that  a  visitation  credit  is  not
appropriate because the agreement provided for shared custody and
because  the partial modification agreement did not increase  the
childrens  overnights with Carl.  But because Rule  90.3(b)(1)(C)
provides  that shared custody support cannot exceed the level  of
support for primary custody, the visitation credit allowed  under
Rule  90.3(a)(3)  applies and is relevant to the  calculation  of
Carls  support  obligation  under Rule  90.3(a).   Moreover,  the
question  whether  visitation changed from the  original  divorce
decree to the partial modification agreement is irrelevant to the
question  whether  the  partial modification  agreement  met  the
requirements of Rule 90.3 when signed.

     12     This amount includes ten months at $1,890 per  month,
plus  two  months with visitation credit of seventy-five  percent
(payments  reduced to $472.50 for two months),  for  a  total  of
$19,845.

     13     See Murphy v. Newlynn, 34 P.3d 331, 333 (Alaska 2001)
([A]greements to waive child support are not valid until a  court
has  reviewed and approved the waivers substantive adequacy under
Rule  90.3,  and even a court-approved waiver will be given  only
prospective effect.).

     14    Bettina characterizes the courts action as an improper
Alaska  Civil  Rule  60(b)  motion to correct  a  mistake.   Carl
characterizes  it  as  a proper Rule 60(a) motion  to  correct  a
clerical  error.   Instead, we conclude  that  the  court  simply
issued an order nunc pro tunc (now for then).

     15     State, Dept of Revenue, Child Support Servs. Div.  v.
Wise, 122 P.3d 212, 214 (Alaska 2005).

     16     Id.  (quoting  Boone v. Boone, 960 P.2d  579,  585-86
          (Alaska 1998)).
          
     17    Bettina contends that the document was never served on
the  parties  before or after it came into the [s]uperior  court.
But  because  the document was signed and filed jointly  by  both
parties,  each party had notice of the document, and  service  on
the other party was not required.

     18    Bettina also argues that because Carl failed to act to
enforce  the  agreement  within  three  years,  the  statute   of
limitations renders the agreement ineffective.  But Bettina first
raised  this  issue in her April 2005 Motion for Reconsideration.
Because  an  issue  raised for the first time  in  a  motion  for
reconsideration is not timely raised and not properly before this
court  on appeal, we do not consider her argument.  Stadnicky  v.
Southpark  Terrace  Homeowners Assn, 939 P.2d  403,  405  (Alaska
1997).

     19    The courts March 2005 findings of fact and conclusions
of  law addressed only the issue of orthodontic treatment and the
validity of the partial modification agreement.

     20    133 P.3d 667, 674 n.7 (Alaska 2006).

     21    953 P.2d 880, 884 (Alaska 1998).

     22     Id.  (citing Aga v. Aga, 941 P.2d 1260, 1262  (Alaska
1997));  see  also  Flannery, 950 P.2d at  129-32  (holding  that
agreement to pay more than required by Rule 90.3 did not  prevent
father from seeking modification under Rule 90.3(h)(1)).

     23     See  Supreme  Court Order No. 1526  (Apr.  15,  2005)
(increasing cap from $84,000 to $100,000).

     24    We note that the $100,000 income cap would apply to any
motion for modification submitted after April 15, 2005.

     25     Bettina  argues that she did not file the  motion  to
change  custody,  support,  or  visitation  submitted  to   Judge
Michalskis chambers and that the motion was falsified and had  no
certificate  of  service.  The exact nature of this  argument  is
elusive.   Bettina signed both the motion and the certificate  of
service  herself.   She did not object to the motion  before  the
superior  court  indeed, it is not clear why she would object  to
her  own  motion or what prejudice she alleges resulted.  Indeed,
if  Bettina  were correct that the court erred in  accepting  the
filing  of this motion, her entire appeal would be in doubt.   We
find  no  error  in  the superior courts acceptance  of  Bettinas
motion.

     26     The partial modification agreement does not alter the
terms for health expenses.

     27    In commercial contracts that require one partys consent
for  specified events, we have found an implied requirement  that
consent be exercised in good faith.  Tesoro Alaska Petroleum  Co.
v.  State,  757  P.2d 1045, 1051-52 (Alaska 1988)  (holding  that
subjective  good  faith standard applies to  commercial  contract
without  a  satisfaction clause and requires  that  a  party  not
exercise  a  contractual right with an improper  motive  such  as
spite  or desire to harm the other party).  Settlement agreements
should  be  interpreted  as contracts  provided  that  they  meet
minimal  contractual requirements.  Gaston v.  Gaston,  954  P.2d
572, 574 (Alaska 1998).

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