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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

McDonald v. Trihub (12/28/2007) sp-6217, 173 P3d 416

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 12317
Appellant, )
) Superior Court No.
v. ) 3AN-05- 04085CI
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

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

          CARPENETI, Justice.

          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.
          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.
          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
     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
          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
          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
            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
          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
          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
          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
          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
           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
          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
     G.   The  Award  of  Attorneys Fees  Was  Not  an  Abuse  of
          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
          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.
          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

     18     Yerrington v. Yerrington, 933 P.2d 555,  558  (Alaska

     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

     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

     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

     27     Kowalski  v.  Kowalski, 806 P.2d 1368,  1372  (Alaska

     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

     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

     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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