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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McDonald v. Trihub (12/28/2007) sp-6217
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
| CURTIS MCDONALD, | ) |
| ) Supreme Court No. S- 12317 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-05- 04085CI |
| ) | |
| YVONNE TRIHUB, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6217 - December 28, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Deborah Burlinski, Burlinski
Law Office, LLC, Anchorage, for Appellant.
Rhonda F. Butterfield, Anchorage, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
This appeal arises out of two overlapping child support
proceedings the first culminating in an administrative decision
and the second in a superior court order that established
different levels of child support for a father. The father
appeals the superior courts decision, contending that the court
was collaterally estopped from rendering findings different from
those established in the administrative decision and that the
courts order was an impermissible retroactive modification of
child support. He also argues that the court erred in concluding
that he did not have shared physical custody of his son, in
establishing his child support obligation, in refusing to reduce
his obligation on account of his disability, and in awarding
attorneys fees. Because the father affirmatively waived his
right to assert collateral estoppel and because the parties chose
to allow the court to decide each year of the fathers support
obligation, there was no valid support order in effect at the
time of the courts order and it was therefore not an
impermissible retroactive modification of support. Because the
courts decisions establishing the fathers income and refusing to
reduce his obligation on account of his disability are supported
by the record, we affirm the superior courts decision in all
respects. Finally, because the father concedes that the divorce
exception does not apply to the facts of this case, we affirm the
courts award of attorneys fees under Civil Rule 82.
II. FACTS AND PROCEEDINGS
Curtis McDonald and Yvonne Trihub were involved in a
relationship but never married. They had one child, Gideon, born
in Anchorage in 1992. Six months after Gideon was born, the
parties separated. Yvonne and Gideon lived in Oregon during the
mid 1990s. During that period and until August or September
1999, Curtis paid Yvonne some level of child support, ranging
from $275 to $475 a month. The parties did not seek or obtain a
support or custody order. In 1999 Yvonne and Gideon returned to
Alaska and resided with Curtis until May 2000.
Central to this appeal are two parallel proceedings
regarding Curtiss child support obligation. The first began in
October 2003, when Yvonne initially applied to the Child Support
Services Division (CSSD) for child support services. After CSSD
issued initial support recommendations, Curtis requested
administrative review which resulted in CSSD issuing an amended
support order in August 2004. The order established Curtiss
ongoing support obligation at $932 per month and found him to be
$10,252 in arrears for the period October 2003 through August
2004. Curtis appealed the amended order and requested an
administrative hearing, asserting that CSSD had overestimated his
income and failed to calculate his support obligation based on
shared custody. An administrative hearing was conducted in
November 2004.
In December 2004 CSSD issued a post-hearing brief,
finding that Curtis had custody of Gideon for forty percent of
the time in 2003 and thirty-six percent of the time in 2004. The
Office of Administrative Hearings (OAH) subsequently sought
additional evidence regarding Yvonnes income and directed CSSD to
revise its initial calculations.
In January 2005, before completion of the
administrative proceedings, Curtis filed a complaint for joint
custody in the superior court. The complaint stated that there
was an open CSSD action and that [a]dministrative appeals are
pending in that case. Yvonne counter-claimed and asked the court
to reduce the amount of child support arrears to judgment.
In November 2005 the parties entered a child custody
settlement agreement. They agreed to share joint legal custody,
while primary physical custody was awarded to Yvonne. The
custody settlement was approved by the court, though the support
issues remained unresolved.
On April 7, 2006, OAH Administrative Law Judge Kay
Howard issued a decision and order (the administrative decision)
in the CSSD proceedings. The administrative decision adopted
CSSDs revised calculations of Curtiss income and determined
Curtiss support obligation based on a finding of shared custody.
The administrative decision ultimately found Curtis liable for
child support in the amount of $208 per month from October 2003
through December 2003, and $221 per month, effective January
2004, and ongoing.
On April 17, 2006, ten days after the administrative
decision, Superior Court Judge Sen K. Tan conducted a hearing on
child support. At the conclusion of the hearing, the court
issued verbal findings, concluding that Yvonne had primary
physical custody of Gideon during the years in question and
imputing income to Curtis for the purpose of calculating his
support obligation. Judge Tan denied Curtiss subsequent motion
for reconsideration.
On May 8, 2006, Judge Tan issued a final order
concluding that Yvonne had primary physical custody of Gideon
during 2000-2002, 2004, and 2005, calculating Curtiss support
obligations from 2000 forward using a wage of twenty dollars per
hour, and setting Curtiss support obligation for May 2000
forward. Curtiss monthly support obligation was determined to be
approximately $560. The court subsequently awarded Yvonne $1,404
in attorneys fees.
Curtis appeals the superior court decision and claims
the court erred by (1) failing to apply collateral estoppel to
the administrative decision; (2) failing to properly apply Alaska
statutes regarding CSSDs separate authority; (3) modifying his
support obligation retroactively; (4) imputing income
retroactively; (5) finding Yvonne exercised primary physical
custody of Gideon from 2000 through 2002 and 2004; (6)
establishing his ongoing support obligation incorrectly and
failing to reduce his current obligation on account of his
disability; and (7) awarding Yvonne attorneys fees.
III. STANDARD OF REVIEW
We will reverse a child support award only if the trial
court abused its discretion or applied an incorrect legal
standard.1 The question of whether the superior court followed
the proper method of calculating child support is a question of
law that we review de novo.2
The superior courts factual findings regarding a partys
income for calculating child support3 will be overturned only if
clearly erroneous.4
While we review an award of attorneys fees for abuse of
discretion,5 the determination of which statute or rule applies
to an award of attorneys fees is a question of law that we review
de novo.6
IV. DISCUSSION
A. The Superior Court Correctly Declined To Apply
Collateral Estoppel to the Administrative Decision.
Curtiss first argument is that the superior court erred
as a matter of law in failing to apply the doctrine of collateral
estoppel to the administrative decision. Yvonne alleges that
Curtis waived this argument by failing to include it in his
points on appeal. While the issue is not listed in his points on
appeal, we have previously recognized that where a party raised
the claim before the trial court, fully briefs the issue on
appeal, and the issue can be effectively address[ed] . . .
without the need to review untranscribed portions of the
electronic record, we may still undertake review.7 Here, Curtiss
fourth point on appeal alleged that the court erred by failing to
review and properly consider the findings of the Administrative
Hearing Officer . . . wh[o] made findings on the same issues
involved in this case. This provided adequate notice of Curtiss
first argument. Moreover, the issue was addressed by the
superior court below and the argument is listed under a separate
heading and discussed in Curtiss appellate brief. Under these
circumstances, we may consider this issue.8
Collateral estoppel bars relitigation, even in an
action on a different claim, of all issues of facts or law that
were actually litigated and necessarily decided in a prior
proceeding.9 In order for collateral estoppel to apply, the
claim must be asserted against a party or one in privity with a
party to the first action.10 Where a party fails to assert the
claim of collateral estoppel against the opposing party, it may
be considered waived.11
In this case, the superior court raised the issue of
whether collateral estoppel applied. Judge Tan asked counsel for
both parties what years of custody and child support were at
issue; the parties specifically requested the court to issue a
determination for every year. In so doing, they plainly waived
their right to later assert collateral estoppel.12
At the beginning of the court hearing Judge Tan engaged
counsel in a colloquy on the legal effect of the administrative
decision, which did not address the period of time from May 2000
to 2002, but which had adopted the CSSD findings for 2003
forward. Curtiss counsel, Deborah Burlinski, initially requested
that the court follow the findings of the administrative
decision. Judge Tan then asked Yvonnes attorney, Rhonda
Butterfield, whether the court should decide support calculations
for all years, including the time period covered in the
administrative decision: [M]y question to Ms. Butterfield is,
look, do I get to redo that or isnt that something that if you
disagree with you should have taken an administrative appeal?
Ms. Butterfield clarified that the time for filing an appeal of
the administrative decision had not yet run and stated that she
did not want inconsistent decisions.
Judge Tan then summarized his concerns on the issue:
[O]n the one hand, I want to give CSSD
deference, but on the other hand I want to
make sure that, you know, Im doing something
so that we dont come up with an inconsistent
decision. What I want to be clear up front
is this . . . I am willing to go ahead and
make a decision for all the years. However,
if either party wants to take the position,
Judge, we dont like your decision, okay, then
were going to argue collateral estoppel and
take an administrative appeal and probably
get another judge, then Im going to say, Im
not going to waste my time doing 03, 04
because then basically we could essentially
have what I would call a mess and Id rather
not do that and just say, you know, theyre
two different tracks. You can either pick
the time track or for 03, 04, you can select
another track and Im willing to let it move
on through the appellate process including an
administrative appeal and so we dont have
inconsistent decisions. Thats what I want to
avoid. So I would like to clarify with
counsel what your position is. Do we want to
do 03, 04 or should I just do . . . 2000,
2001, 2002, and 2005 onwards?
Butterfield: Your Honor, we think you should do
all of it.
Court: Okay. So essentially I just want
to make clear . . . . Is your position
regardless of what I do its b[i]nding?
Butterfield: Correct.
Court: The parties will not seek how can
I say an administrative appeal.
Butterfield: Correct.
. . .
Court: Ms. Burlinski, are you in agreement
with that?
Burlinski: Yes, Your Honor.
Thus, the parties agreed to allow the court to decide each year
at issue, including those covered in the administrative decision.
The parties statements, when viewed in light of Judge Tans
plainly expressed concerns, make clear that both parties intended
to allow the superior court to independently determine each year
of child support, including the time period covered in the
administrative decision. Because Curtis affirmatively and
explicitly agreed to proceeding in the superior court, instead of
maintaining that collateral estoppel applied to the obligation
amounts established in the administrative decision, he is
precluded from asserting collateral estoppel now.
B. Curtis Waived His Statutory Argument.
Curtis next claims that the court violated Alaska
statutes by not giving proper legal effect to the administrative
decision. He argues that CSSD is a separate tribunal under AS
25.25.10213 and AS 25.25.205(a),14 and that absent an appeal of the
administrative decision, the court must give effect to the
legislatures intent recognizing their jurisdiction.15
For the reasons discussed above, we again conclude that
Curtis affirmatively and explicitly waived this argument when he
appeared and asked the superior court to proceed to decide
support obligations for all years.
There is a second basis upon which to conclude that
Curtis has waived this point: It is not sufficiently addressed to
merit appellate review. We have previously held that a claim is
waived where an appellant makes only vague allegations to the
trial court, fails to raise it in his points on appeal, and
gives cursory treatment to the issue on appeal.16 Here, Curtis
never made this argument to the trial court; moreover, his
appellate argument on this point is largely conclusory and devoid
of any relevant citations. In addition, only Curtiss fourth
point on appeal, which alleged that Judge Tan fail[ed] to review
and properly consider the findings of the Administrative Hearing
Officer on the same issues involved in this case could be
considered to have put Yvonne on notice of this argument. But
point four is sweeping and non-specific, and nowhere does it
suggest a statutory challenge to the trial courts decision.
Finally, unlike the collateral estoppel issue, which was
discussed before the superior court, nowhere below did Curtis
allege that either statutory section was dispositive of the
courts treatment of the administrative decision. We therefore
conclude that this argument is waived.
C. The Superior Courts Order Was Not an Impermissible
Retroactive Modification of Child Support.
Curtis next contends that by establishing child support
amounts that differed from those established in the
administrative decision, the superior court engaged in an
impermissible retroactive modification of support.
Alaska Civil Rule 90.3(h)(2) prohibits the retroactive
modification of child support.17 The rule precludes both
decreases and increases of a child support award that would be
effective before the date that a motion for modification is
served on the opposing party.18 However, where no child support
order is in effect for the relevant period, the use of Rule 90.3
to establish child support does not violate the prohibition on
retroactive modification.19
Under the circumstances present here, we conclude that
Rule 90.3(h)(2)s ban on retroactive modification is inapplicable
because there was no valid support order in effect at the time of
the superior court order.20 As discussed above, neither party had
exercised its right to appeal the administrative decision,21 and
both parties requested that Judge Tan issue a support order
encompassing each and every year of the parties support
obligations. The decision to proceed in the superior court on
all the years thereby prevented the administrative decision from
taking effect.22
Because the administrative decision was only ten days
old and the time for filing an administrative appeal had not yet
lapsed, and because both parties agreed that the court could go
forward and decide support obligations for all years, we conclude
that no valid support order was in effect at the time the
superior court acted. The superior courts order was therefore
the effective support order in this case and was not an
impermissible retroactive modification of child support.
D. The Court Did Not Err in Concluding that Yvonne Had
Primary Physical Custody of Gideon in 2000-2002 and in
2004.
Curtis next challenges the courts determination that
Yvonne had primary physical custody of Gideon from May 2000
through 2002 and in 2004.23 He asserts that the court erroneously
relied on the testimony of Gideons babysitter and failed to give
sufficient weight to 2003 and 2004 calendars that he contends
reflect the amount of time he spent with Gideon. We conclude
that Judge Tans determination was adequately supported by the
evidence.
Under Alaska Civil Rule 90.3(b), support obligations of
parents who share physical custody of their children are
established by calculating the amount each parent would owe
assuming that the other parent had primary physical custody and
multiplying that amount by the percentage of time the other
parent has primary physical custody. The difference, augmented
by fifty percent, is the amount of support owed. Civil Rule 90.3
provides that a parent has shared physical custody for the
purposes of calculating child support if a child resides with
that parent for at least thirty percent of the year, or 110
nights.24
Yvonne testified that beginning in May 2000, she had
primary physical custody of Gideon and that Curtis had visitation
for approximately two two-week periods in the summer and every
other weekend throughout the school years. She testified that
while the parties attempted a shared custody arrangement in the
spring of 2001, Curtis routinely failed to take Gideon when he
was supposed to, that it became to where it was mostly he was
with me, and that the arrangement dissolved by November 2001.
She also stated that while Curtis was supposed to have visitation
with Gideon every other weekend, Curtis would routinely pick
Gideon up Saturday morning rather than Friday night.
As Judge Tan noted, Curtis testified to a similar
schedule. Curtis stated that for most of 2000 Gideon and his
mother lived with him in his house, but that after she moved out,
he had Gideon for weeks at a time, or for roughly forty-five out
of sixty days of summer 2000. Curtis admitted that beginning in
the fall of 2000 he saw Gideon probably every other weekend and
would pick him up on Friday night or Saturday morning and return
Gideon to school on Monday morning. Curtis also testified that
he and Yvonne followed this same pattern for 2001 and 2002, with
Curtis having custody approximately every other weekend and forty-
five out of sixty days in the summer.
While select portions of Curtiss testimony and that
from other witnesses suggested he had custody of Gideon more
frequently, Judge Tan could have reasonably afforded more weight
to the similarity of Yvonne and Curtiss recollections. Moreover,
the testimony of the other witnesses differed substantially from
that which Curtis and Yvonne recalled: Dylan Bales, a family
friend, testified that Gideon was at Curtiss full-time in 2000-
2002. But on cross-examination it became apparent that Bales was
more likely referring to the time period 2002-2003, which more
closely tracks the time frame the parties stipulated that they
shared custody. Curtiss wife, Sandy McDonald, testified that
Gideon lived with Curtis nearly full-time and year-round from May
2000 until September 2002 and only occasionally visited with his
mother. Judge Tan aptly noted that this testimony presented a
totally different picture than that Curtis offered.
To the extent that there was a close question, the
court found the testimony of Yvonnes babysitter Miriam Velasquez
(Tia) the tie-breaker. Yvonne testified that Tia became Gideons
babysitter in 2000. Yvonne stated that beginning in 2001 and for
the next four years she worked nights at Carpentiers Lounge, that
Tia babysat for Gideon, and that Yvonne picked Gideon up from
Tias home after finishing work. When the court called Tia as a
witness, she testified that she began watching Gideon many years
ago . . . maybe four years. Five . . . and that she had been
babysitting him for a long time. She testified that Yvonne
worked nights and that Gideon would sleep at her house until
Yvonne picked him up in the middle of the night, testimony which
squarely supports Yvonnes recollection of the custody arrangement
during this period.
Curtis next claims that a 2004 calendar maintained by
Sandy McDonald, which covered only January through October 2004,
revealed that he had sufficient overnights with Gideon to qualify
for shared custody of Gideon that year. He relies heavily on
inconsistencies in Yvonnes testimony at the administrative
hearing which he claims supports the accuracy of the 2004
calendar. This reliance is misplaced, because the administrative
transcript is not included in our appellate record and because
Curtiss questioning of Yvonne on the subject at the April 2006
court hearing indicates only that she stipulated that the parties
shared custody in 2003. Moreover, while Curtis testified that
his wifes 2004 calendar was accurate, his testimony on cross-
examination revealed that he had spent only ninety-two nights
with Gideon through October 2004 (the last month the calendar was
maintained). Yvonne testified that Curtis had Gideon for
approximately nine additional nights between November and
December 2004 for a total of only 101 nights in 2004. Curtis
asserts that the calendar reflects Gideon spent more time with
him than his testimony indicated, particularly over the Fourth of
July holiday. But this claim is not clearly established upon a
review of the calendar and is directly contradicted by Yvonnes
testimony that she had custody of Gideon over that same weekend.
In light of Curtiss testimony corroborating Yvonnes
recollection of events, the courts unique position to judge the
credibility of the witnesses,25 and the courts finding that Yvonne
had a good recollection of where Gideon was most of the time
during these years, we conclude that the superior court did not
err in finding that Yvonne had primary physical custody.
E. The Court Did Not Err in Determining Curtiss Income for
the Purpose of Establishing His Retrospective Support
Obligation.
Curtis next asserts that the superior court erred in
establishing his retrospective support obligation based upon a
wage of twenty dollars per hour for a skilled mechanic. He
claims that the court used this figure as imputed income but made
no finding that he was underemployed. Contrary to Curtiss
contention, the courts decision to approximate income was not
based on a finding that Curtis was underemployed, but rather was
an effort to estimate Curtiss income accurately in light of the
confusing and non-credible nature of the evidence Curtis had
presented. We conclude that the decision to do so was
reasonable.
A trial court must apply the methodology of Rule 90.3
to establish the amount due to a custodial parent for child
support during periods not covered by a support order.26 The
courts calculation of income for the purposes of establishing the
amount of support owed should be a reasonable assessment of the
obligors earning capacity.27
Curtis contends that in establishing the retrospective
award his actual income should have been used,28 and that the
courts use of the hourly wage was error. Our recent case law
provides that actual income is an acceptable basis for
establishing past support accruing over a relatively short
duration,29 but here the superior court was confronted with
establishing Curtiss support obligations over a six-year period.
Moreover, we have recognized that a trial court may estimate
income for the purpose of calculating support where no other
accurate or credible information is available.30 In this case,
the court attempted to approximate Curtiss income amid evidence
that was at best contradictory and inchoate, and at worst
misleading.
Judge Tan agreed with the administrative decision in
concluding that Curtiss tax returns were not consistent with his
bank records.31 Judge Tan found that Curtiss cash flow likely
underestimated his income, that Curtis was not careful about
keeping business records, and that the various income numbers
presented were guesstimates at best. The court also recognized
that while Curtis was doing favors for friends by providing labor
for excavations in the form of a bartering system, he provided
no written record of these transactions. Judge Tan ultimately
concluded that the court did not have a complete picture of Mr.
McDonalds actual income.
The courts rejection of Curtiss proffered income
evidence is perhaps best justified because the evidence varied
widely and three different fact-finders have found it
confounding, unreliable, or both. At the April 2006 court
hearing, Curtiss counsel contended that Curtiss income from 2000
until present was in the $25,000 range. But Curtiss tax returns
reflected a much lower figure his 1999 adjusted gross income was
$9,612 and his 2000 income was $8,307. At no time does Curtis
explain the discrepancy between these figures. CSSD recognized
the discrepancy and rejected Curtiss 2003 tax return, which
reflected a business income of $11,186, and instead initially
calculated Curtiss 2003 obligation based on the total amount of
deposits ($72,897) made to his business checking account.
Following the administrative hearing, CSSD rejected the business-
deposit methodology and instead calculated Curtiss obligations on
the total amount of personal checks Curtis withdrew from his
business for personal expenses $25,730.17 in 2003 and $24,101.18
in 2004. The administrative decision subsequently concluded that
this latter method was atypical, but it is the best evidence of
[Curtis]s income for child support purposes. The decision also
noted that the tax return . . . does not accurately reflect
[Curtis]s income and expenses and was not consistent with his
other financial documents and testimony; it also recognized that
there were many unanswered questions in [Curtis]s financial
documents.
In considering how to determine most accurately Curtiss
support obligation, Judge Tan noted that it would be nearly
impossible to go back and recreate Curtiss income from the
information presented. The court chose to approximate Curtiss
income using a wage of twenty dollars per hour, a decision that
was also adequately supported by the evidence.32 Testimony
established that Curtis owned and operated a business buying and
selling used motor homes, that he worked as an automobile
mechanic repairing and upgrading the motor homes for resale, and
that as recently as 2004 he held a business license for auto
repair and sales. Evidence established that the mean wage for
automotive service technicians and mechanics in Anchorage was
$20.51 per hour. Curtis also maintained a commercial drivers
license and has performed some excavation work, including
putting water lines in for a housing development and laying
foundations in the summer of 2004. Evidence established that the
mean wage for machine operators, excavating was $19.32 per hour.
In light of this evidence, Judge Tans use of a wage of twenty
dollars per hour as an estimate of Curtiss income was reasonable.33
Curtis suggests Judge Tan should have invited him to
submit additional information to clear up any discrepancies. But
we have repeatedly recognized that parties who fail to present
sufficient evidence to the court cannot later object on the basis
of inadequate evidence.34 Indeed, Curtiss own testimony revealed
his disinclination to assist the court in obtaining a more
accurate picture of his finances. While being questioned about
his bank accounts Curtis responded, [s]omething thats you know,
thats bothering me right now is Ive already gone through all this
in front of a judge under oath. Ive spent two days and this has
all been done. So are we going to go do two more days of this?
Curtiss testimony also indicated that he had little
memory of or willingness to discuss his prior cash flow, income,
and bookkeeping practices. Curtis was asked about the large
discrepancies between his business bank statements and his tax
returns. When asked which were accurate, the tax returns or the
bank statements, Curtis asserted that the number on his tax
return was the correct one, but he could not explain why the
figures differed so substantially. He repeatedly responded I
dont know and added youd have to ask the accountant. He was
unable to testify whether there was anything erroneous about his
bank account statements, why his bank statements and business
account statements regularly differed from the information
provided on his tax returns, and if or how much he was paid for
an excavation job he performed in 2004. He also stated that he
kept his own books for his business, but that he didnt really
keep any records, he didnt see any reason why he needed to
maintain accurate bookkeeping, and that the accountant who did
his taxes was a friend. Curtiss current wife, Sandy McDonald,
also testified that her husband wasnt the best bookkeeper.
We also reject Curtiss contention that the court should
have first determined his income for the year 2000 and ordered
that amount to be used for each of his past years arrearages. He
relies on Duffus v. Duffus,35 a case where we found that in
looking back to calculate an obligors income for the previous ten
years, and considering the inherent difficulties of accurately
reconstructing parental income over this lengthy period, an
annual recalculation of support was impractical.36 Instead, we
held that once [the obligors] first year support obligation has
been accurately calculated based on his actual adjusted income,
the superior court may maintain that amount of support unchanged
for subsequent years.37 While Judge Tan relied on current average
wage rates in approximating Curtiss past income, the use of this
figure was plainly reasonable for the purpose of calculating the
first year of Curtiss support obligation. Curtis testified that
when he performed excavation work nearly fifteen years ago he was
paid twenty dollars an hour, a figure equal to the figure the
court used. Moreover, in light of the unreliable evidence Curtis
presented, it would have been extraordinarily difficult, if not
practically impossible, for the court to recreate the information
necessary to obtain a more precise determination of Curtiss past
income. We conclude that the courts determination on Curtiss
income was not error.
F. The Court Did Not Err in Establishing Curtiss Support
Obligation and in Refusing To Reduce His 2005-2006
Support Obligation.
Curtis claims that the court erred in refusing to
reduce his 2005-2006 support obligation because of disability.
He contends that a knee injury rendered him incapable of
performing anything but sedentary work, that there was no
evidence in the record that he worked in 2005, and that his
prospective support obligation should therefore have been varied
for good cause. For the reasons set forth below, we reject both
Curtiss belated and largely conclusory arguments regarding his
lack of income in 2005 as well as his argument that the court
should have reduced his ongoing support obligation on account of
disability.
As already discussed, in determining the appropriate
level of child support due under Civil Rule 90.3, the court
generally bases its calculations on the annual adjusted income of
the obligor parent.38 In determining a partys earning capacity
for purposes of the rule, the trial court has the discretion to
choose the best indicator of future earning capacity based on
the evidence before it.39 The ultimate goal of a support
determination is to arrive at an income figure reflective of
economic reality.40 Rule 90.3(c) provides that the court may vary
a support award for good cause; however we will not relieve a
noncustodial parent from his child support obligations absent an
affirmative showing that the obligor parent cannot meet this
obligation.41
Judge Tan refused to reduce Curtiss support obligation
on account of his alleged disability based on his finding that:
apparently [Curtis] continues to go on[] and
work and do a lot of jobs, and although there
may be an operation in the offing, the
doctors notes suggest that, you know, he
really shouldnt be working, but he still
continues to do so Im going to have to
impute an income to you.
After Judge Tan issued his findings, Curtiss counsel argued that
Curtiss business had been closed for a year but admitted that
Curtis may have failed to adduce evidence to that effect.
Curtiss evidence of his alleged disability consisted
largely of his own testimony. He testified that he blew . . .
out his ACL ten years before trial and had been receiving
injections into his knee to help him get around, that he would
need a knee replacement in the future, and that he often wore a
knee brace. He testified that he could no longer work on heavy
equipment and could only do light-duty work up until a year ago.
He testified that shortly after Christmas 2004 he had a snow
machine accident and blew [his] knee apart, that from late
December 2004 on he could perform only limited work, and that his
doctor ordered that he be totally off work from October 2006
(when Curtis suggested he might undergo knee surgery) until
January 1, 2007.
However, contrary evidence indicates that Curtiss knee
problems did not preclude him from working. He admitted to being
able to maintain work over the last fourteen years despite his
knee problems and testified that he continued to go snow
machining with his son and stay pretty active. His wife
testified that Curtis was still able to go four-wheeling. And
while Curtis testified that he could not work on heavy equipment
because his knee was so susceptible to injury, he later explained
that when he worked at his shop he would climb ladders and climb
inside and get underneath [the motor homes and vehicles].
We have previously rejected a trial courts order
holding in abeyance a partys support obligation based on its
decision that the party could no longer work as a carpenter where
there was no testimony by a physician regarding the nature or
extent of the [obligors] injuries and disability.42 In this case
Curtis presented scant evidence of the nature of his injury.
Neither of the one-page forms he produced from the Anchorage
Fracture & Orthopedic Clinic contained any formal diagnosis or
specific comments on Curtiss injury. Curtis did not call a
physician to testify nor did he offer any further medical
documentation on the existence or extent of his injury.
Moreover, Curtiss contention that his support obligation should
be reduced because there was no evidence that he worked in 2005
reverses the burden of proof and is otherwise suspect. Curtis,
who had worked continuously for years, never testified that he
was unemployed in 2005 and in fact testified that he was then in
the process of buying a home. In addition, at the time of the
hearing in April 2006, Curtis testified that he was selling his
shop, which would be sold [by] this summer, suggesting that he
may have continued to work. And Curtiss counsel contended that
Curtiss average income had been about $25,000 over the years from
2000 until present. Finally, to the extent that Curtis was not
working, he made no showing of other job or training
opportunities that he had been actively pursuing such that he
might have been found to be reasonably underemployed.
In sum, the evidence established that Curtis had
worked at least up until 2004 and that he had historically been
capable of working despite his knee injury.43 Given the lack of
medical evidence on the nature and extent of Curtiss injury, the
court could have reasonably determined that he was not disabled
and selected a wage figure of twenty dollars per hour as a
reasonable approximation of Curtiss earning capacity.44 While
Civil Rule. 90.3(c)(1) permits a court to vary support
calculations, it does so only upon proof by clear and convincing
evidence that manifest injustice would result without a variance.
Curtis has failed to offer sufficient evidence, through further
evidence of his medical disability or of his personal financial
straits, that such manifest injustice would result in his case.45
We therefore conclude that the superior court decision
establishing Curtiss prospective support obligation was
reasonable.46
G. The Award of Attorneys Fees Was Not an Abuse of
Discretion.
Curtiss final argument is that the court improperly
awarded Yvonne attorneys fees. The court awarded Yvonne thirty
percent of her attorneys fees pursuant to Civil Rule 82(b)(2) and
AS 25.24.140(a)(1).
While attorneys fees are customarily awarded to the
prevailing party under Civil Rule 82, there is an established
exception to the rule in divorce cases which bases fee awards on
the relative economic situation and earning powers of the
parties.47 The divorce exception to Civil Rule 82 is based on a
broad reading of AS 25.24.140(a)(1) [pertaining to an interim
award of attorneys fees in divorce cases] . . . , and on the
reality that there is usually no prevailing party in a divorce
case.48
Curtis contends that Yvonne was not entitled to fees
under Rule 82 or the divorce exception and that the court should
have looked to AS 25.20.115,49 which provides for attorneys fee
awards in custody and visitation matters, and should have
considered the relative resources of the parties in determining
whether to make an award. We need not address Curtiss statutory
argument because he wholly failed to raise the issue of whether
AS 25.20.115 applies to fee awards in a child support action
until his appellate reply brief.50
We further conclude that, based upon Curtiss own
concession that [t]he facts in this case do not resemble a
divorce, the divorce exception does not apply. In light of the
inapplicability of the divorce exception, the courts award of
fees pursuant to Civil Rule 82(b)(2)51 was not in error.
V. CONCLUSION
Because Curtis asked the superior court to decide each
year of his child support obligation, he waived his right to
assert collateral estoppel. He also precluded the administrative
decision from taking effect and for that reason we hold that the
superior court order was not an impermissible retroactive
modification of child support. Because the superior courts
determinations regarding Curtiss income and Yvonnes primary
physical custody of Gideon were supported by the evidence, we
AFFIRM the superior courts support award. Because the evidence
also supports the courts determination that Curtis was not
entitled to a reduction in support payments on account of his
disability, we AFFIRM the decision of the superior court and the
award of attorneys fees.
_______________________________
1 Beaudoin v. Beaudoin, 24 P.3d 523, 526 (Alaska 2001).
2 Spott v. Spott, 17 P.3d 52, 55 (Alaska 2001).
3 Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003).
4 Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998).
5 Valley Hosp. Assn v. Brauneis, 141 P.3d 726, 729
(Alaska 2006).
6 Koller, 71 P.3d at 808.
7 Alderman v. Iditarod Props., Inc., 104 P.3d 136, 141
n.17 (Alaska 2004); See Alaska R. App. P. 204(e).
8 See Donnybrook Bldg. Supply Co. v. Alaska Natl Bank of
the North, 736 P.2d 1147, 1149 n.6 (Alaska 1987) (noting that
where issue raised before trial court and fully briefed by both
parties, appellants failure to include it in points on appeal did
not preclude appellate review); Zeman v. Lufthansa German
Airlines, 699 P.2d 1274, 1280 (Alaska 1985) (noting court may
consider theory not expressly presented where it is not dependent
on any new or controverted facts and where it is closely related
to . . . trial court theory and could have been gleaned from . .
. pleadings).
9 Wall v. Stinson, 983 P.2d 736, 740 (Alaska 1999)
(internal quotations omitted).
10 Id. (internal citations omitted).
11 Cf. In re Pac. Marine Ins. Co. v. Harvest States Coop.,
877 P.2d 264, 267 n.1 (Alaska 1994) (considering whether party
waived issue of collateral estoppel by raising it for the first
time on appeal). See also 47 Am. Jur. 2d Judgments 637 (2007)
(The failure to plead or raise in a timely manner matters calling
for the application of the doctrines of res judicata and
collateral estoppel generally is regarded as a waiver.).
12 See Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978)
(finding waiver, defined as intentional relinquishment of a known
right, where appellant failed to protest actions that later
formed basis of appellants lawsuit) (internal citations omitted).
13 AS 25.25.102 provides: The superior court and the
child support services agency are the tribunals of this state.
14 AS 25.25.205(a) provides: A tribunal of this state
issuing a child support order consistent with the law of this
state has continuing, exclusive jurisdiction over a child support
order . . . .
15 It is unclear why neither party in this case sought to
abate the superior court action under AS 25.27.135, which
provides: If the same causes of action concerning a duty of
child support are pending concurrently in court and before the
agency, the second action filed may be abated upon the motion of
a party or the agency.
16 See Conkey v. State, Dept of Admin., Div. of Motor
Vehicles, 113 P.3d 1235, 1237 n.6 (Alaska 2005).
17 Rule 90.3(h)(2) provides: Child support arrearage may
not be modified retroactively . . . . A modification which is
effective on or after the date that a motion for modification . .
. is served on the opposing party is not considered a retroactive
modification.
18 Yerrington v. Yerrington, 933 P.2d 555, 558 (Alaska
1997).
19 Spott v. Spott, 17 P.3d 52, 55 (Alaska 2001).
20 See Kilpper v. State, Dept of Revenue, Child Support
Enforcement Div., 983 P.2d 729, 734, n.17 (Alaska 1999) (noting
that altering child support arrearage for period where no child
support order in effect not impermissible retroactive
modification).
21 AS 25.27.220, which provides for appellate review of
CSSD decisions, allows for judicial inquiry into whether there
was a prejudicial abuse of discretion, and also provides that the
superior court may exercise its independent judgment on the
evidence, augment the agency record in whole or in part, or hold
a hearing de novo.
22 See State, Dept of Revenue., Child Support Enforcement
Div. v. Button, 7 P.3d 74, 76 (Alaska 2000) (partys appeal of
agencys informal conference decision prevented support order from
becoming final order for purposes of ban on retroactive
modification).
23 The parties shared physical custody of Gideon in 2003.
24 Alaska R. Civ. P. 90.3(f) and cmt. V(A).
25 Parker v. N. Mixing Co., 756 P.2d 881, 892 (Alaska
1988) (It is the function of the trial court, not this court, to
judge witnesses credibility and to weigh conflicting evidence.).
26 See Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska
1996).
27 Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska
1991).
28 Spott v. Spott, 17 P.3d 52, 56 (Alaska 2001) (citing
Crayton v. Crayton, 944 P.2d 487, 490 (Alaska 1997) (requiring
retrospective support be based on actual income)).
29 Duffus v. Duffus, 72 P.3d 313, 321 (Alaska 2003).
30 Benson v. Benson, 977 P.2d 88, 91 (Alaska 1999)
(affirming order imputing income based on estimates of partys
bank records and rejecting partys income information where tax
returns not credible, testimony non-responsive and contradictory,
and party failed to keep accurate income records).
31 The administrative hearing officer noted that Curtiss
tax return was inconsistent with his other financial documents
and his testimony and concluded that it [did] not accurately
reflect his income and expenses.
32 Cf. Koller v. Reft, 71 P.3d, 800, 805 (Alaska 2003)
(requiring court to make specific findings to support
determination of adjusted income under Rule 90.3).
33 See Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992)
(stating that trial court has discretion to choose method best
approximating obligors future earning capacity on basis of most
complete evidence before it).
34 See Zimin v. Zimin, 837 P.2d 118, 122 (Alaska 1992) (It
is the duty of the parties, not the court, to ensure that all
necessary evidence is presented at trial.); Koller, 71 P.3d at
804 n.7 (noting superior court has discretion to use evidence
submitted to it).
35 72 P.3d 313 (Alaska 2003).
36 Id. at 321.
37 Id.
38 Kowalski v. Kowalski, 806 P.2d 1368, 1370 (Alaska
1991).
39 Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992).
40 Adrian v. Adrian, 838 P.2d 808, 811 (Alaska 1992).
41 Kowalski, 806 P.2d at 1371.
42 Houger v. Houger, 449 P.2d 766, 769-70 (Alaska 1969).
43 See Dunn v. Dunn, 952 P.2d 268, 271 (Alaska 1998)
(upholding courts determination to impute income despite partys
testimony of shoulder pain where evidence established party
continued to build houses).
44 See Virgin v. Virgin, 990 P.2d 1040, 1049 (Alaska 1999)
(holding court not obligated to credit speculative testimony that
partys income likely to decline).
45 Coats v. Finn, 779 P.2d 775, 777 (Alaska 1989) (holding
that burden of persuasion for departure from Civil Rule 90.3(c)
is on objecting party).
46 Curtis remains free to petition the superior court for
modification if he can show that he is unable to earn the income
level determined by the superior court and, thus, cannot meet his
support obligation. Renfro v. Renfro, 848 P.2d 830, 833 (Alaska
1993).
47 Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003); but see
Sanders v. Barth, 12 P.3d 766, 768-69 (Alaska 2000) (refusing to
apply divorce exception for support issue litigated more than ten
years after end of relationship).
48 Koller, 71 P.3d at 808 (quoting B.J. v. J.D., 950 P.2d
113, 118 (Alaska 1997)). AS 25.24.140(a)(1) provides: During
the pendency of [a divorce] action, a spouse may . . . be awarded
expenses, including . . . attorney fees and costs . . . .
49 AS 25.20.115 provides:
In an action to modify, vacate, or
enforce that part of an order providing for
custody of a child or visitation with a
child, the court may, upon request of a
party, award attorneys fees and costs of the
action. In awarding attorney fees and costs
under this section, the court shall consider
the relative financial resources of the
parties and whether the parties have acted in
good faith.
50 Childs v. Tulin, 799 P.2d 1338, 1341 n.5 (Alaska 1990)
(issue raised for first time in reply brief deemed waived).
51 Rule 82(b)(2) states in relevant part: In cases in
which the prevailing party recovers no money judgment, the court
shall award the prevailing party in a case which goes to trial 30
percent of the prevailing partys reasonable actual attorneys fees
which were necessarily incurred . . . .
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