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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kestner v. Clark (05/09/2008) sp-6259

Kestner v. Clark (05/09/2008) sp-6259, 182 P3d 1117

     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- 11953
Appellant, )
) Superior Court No. 1JU-94-00541 CI
v. )
) O P I N I O N
) No. 6259 May 9, 2008
Appellee. )

          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances:     Chrystal   Sommers    Brand,
          Chrystal   Sommers  Brand,   Family   Lawyer,
          Juneau, for Appellant.  Christopher H. Clark,
          pro se, Juneau, Appellee.

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

          FABE, Chief Justice.

          A  mother sought modification of child support for  her
son,  claiming that as a stay-at-home mother of two children from
a  subsequent  marriage,  she  could  not  afford  child  support
payments  above the $50 monthly minimum.  The father successfully
obtained   a   ruling  that  the  mother  was   voluntarily   and
unreasonably unemployed and that her potential income was $25,000
per  year.   The  mother appeals the superior courts  rulings  on
imputation of income, discovery, and attorneys fees. Because  the
superior court appropriately imputed income to the mother and did
not  abuse its discretion in its discovery rulings or computation
of attorneys fees, we affirm its rulings in all respects.
          Diane  Kestner  and Christopher Clark were  married  on
November  29,  1986 and divorced in 1995.  They  had  one  child,
Nathan,  who was born on August 5, 1990.  In their child  custody
and  support agreement, Diane and Christopher agreed  that  Diane
would have sole legal and primary physical custody of Nathan, and
Christopher would have regular visitation rights.  At the time of
the  agreement,  Diane  planned  to  attend  graduate  school  in
Illinois  in  the fall of 1995.  The parties agreed  that  Nathan
would  accompany  Diane  if she left the  state.   The  agreement
included  the  provision that [u]pon [Dianes] completion  of  the
graduate program, [she] agrees to use her best efforts to  obtain
re-employment in a reasonable job . . . in Juneau, Alaska.
          After graduating with a masters degree in sociology  in
1997, Diane tried to find employment in Juneau with the State  of
Alaska   but  failed,  and  she  remained  in  Macomb,  Illinois.
Christopher  complained that Dianes efforts  to  find  a  job  in
Juneau were inadequate and moved that she be required to relocate
to  Juneau  from Illinois. The superior court denied this  motion
but   found  that  Christopher  could  pursue  a  best   interest
determination for Nathans custody.  Christopher did not do so  at
that time.  Diane married Terry Kestner in 2000 and they had  two
children who were two and three years old, respectively, in 2004.
Diane left the work force in 2001 to care for all three children.
          In  2004  Christopher moved to modify  custody  on  the
grounds that Nathan was about to turn fourteen and wanted to move
to  Juneau  for  high school.  Diane conceded that  her  move  to
Illinois  constituted a substantial change in  circumstances  but
requested  that  the  court  appoint a  custody  investigator  to
determine  the  best interests of the child.  The superior  court
granted  Dianes motion, and in July 2004 the custody investigator
recommended that Christopher have school-year custody of  Nathan.
The  parents  reached  a settlement before  the  courts  hearing,
agreeing that Nathan would live with his father during the school
          Following the change in custody, the parties sought  to
modify  the child support payments.  At the time of the  divorce,
the  initial child support order required Christopher to pay $331
monthly.1  Diane submitted her Civil Rule 90.3 affidavit on  July
26,  2004.   The affidavit reflected that Terry and  Diane  owned
three rental properties, which operated at a net loss of $483  in
          Along  with  his Alaska Civil Rule 90.3  affidavit  and
2003 income information, Christopher filed a cross-motion seeking
Diane  and  Terrys  2003  joint income tax  return.   Christopher
maintained  that  he needed discovery of her  entire  tax  return
because  the  tax  schedule Diane had produced  did  not  reflect
whether  she had any income other than her rental income.   Diane
refused to release her full income tax information, arguing  that
under  Rule  90.3(e), she had provided all information  necessary
          for the court to estimate her income.2  Diane further claimed
that [n]owhere in the rule itself  not even in the commentary  is
the   entire  tax  return  required   it  all  depends   on   the
circumstances of each case.
          Superior  Court  Judge  Patricia  A.  Collins   granted
Christophers motion to require Diane to file her entire 2003  tax
return,  which showed an adjusted gross income for Diane and  her
husband  of  $63,857.   On October 6, 2004,  the  superior  court
ordered  that Diane pay $50 monthly in child support.  The  court
declined  to  impute income to Diane, finding that  although  her
educational  background would suggest employability at  a  higher
level than past earnings indicate, it [was] not unreasonable  for
her   to  be  a  stay-at-home  mother.   Christopher  moved   for
reconsideration because he had not had the opportunity  to  argue
for  imputed  income before the court issued  its  child  support
order.   The  court treated the motion for reconsideration  as  a
motion to impute income.
          Diane  filed  her  opposition to the motion  to  impute
income, arguing (1) that she was not voluntarily and unreasonably
unemployed or underemployed given the cost of child care3 and her
relatively low income4 when she had been employed full-time;  (2)
that  Christopher had not met the burden to obtain  a  variance;5
and (3) that Christopher and his fianc‚e, Nicole Hartmann, had an
estimated combined household income of $90,000$100,000 with which
to  support  one child (Nathan),6 whereas Diane and Terry  had  a
combined  household income of $64,000 with which to  support  two
          Christopher  responded, urging the  superior  court  to
impute  income  to  Diane and to hold an evidentiary  hearing  to
establish  the  appropriate  income.   He  maintained  that   the
superior court must examine the totality of the circumstances  in
determining  whether  to  impute  income,7  and  that  under  the
circumstances, Dianes unemployment was unreasonable.  Christopher
argued,  among other things, that Terrys income was  substantial,
allowing  Diane to stay at home, that [p]aying support  based  on
imputed  income  [would] not cause substantial hardship  for  the
children  of her new family, and that Dianes choice  to  stay  at
home  rather  than  work  force[d] [Christopher]  and  Nathan  to
finance the raising of the children of the new marriage.
          The  parties  then  proceeded to discovery,  exchanging
interrogatories   and   requests  for  production.    Christopher
objected  to  Dianes  discovery requests,  maintaining  that  his
economic  circumstances as custodial parent  were  not  relevant,
that the requests were burdensome, that the information requested
was  protected by the constitutional right to privacy,  and  that
Diane  inappropriately  sought  information  about  the  economic
circumstances of Christophers fianc‚e, Nicole Hartmann.
          Diane  then  filed  a subpoena duces tecum  for  Nicole
Hartmann,  requesting  that  Nicole bring  extensive  income  and
expense  information8  to her deposition.  Christopher  moved  to
quash  the subpoena, arguing that (1) Nicole was not a party  and
did  not  have  an obligation to support Nathan; (2) Christophers
legal  argument was not that he (and Nicole) could not afford  to
support  Nathan, but rather that Diane has a duty to  do  so  and
          that by not working and paying only poverty child support, she
was  not  fulfilling that duty; and (3) the requested information
was  protected by Nicoles constitutional right to  privacy.   The
superior court granted the motion to quash.
          The superior court held an evidentiary hearing on March
4, 2005.  Milton Barker, an economist, testified that the average
wage  of  social and community service managers in Macomb County,
Illinois  was  $47,602  and that the  range  of  wage  rates  for
positions for which [Diane] would qualify ranged from  a  low  of
$20,593  to  a  high of $63,491.  The court also heard  testimony
from  the Kestners accountant, who claimed that Dianes net  take-
home   pay   after   paying   child  care   expenses   would   be
$14,129$18,531.   Finally, the court reviewed  evidence  produced
during  discovery, which showed that Dianes maximum gross  income
over  a  four-year period was $20,381, and that the Kestners  net
worth as of March 2004 was $471,886.
          The  superior  court entered its order regarding  child
support,  imputing income to Diane and finding that  Diane  would
reasonably expect to earn approximately $25,000 per year  if  she
chose  to  return to work.  The court reasoned that while  Dianes
desire  to stay at home with her young children is understandable
and  laudable, it is a voluntary decision based in large part  on
the  fact  that  [Terrys] income and the family  investments  are
sufficient  to  meet  the familys needs.  In response  to  Dianes
claim  that  she  should only be required to pay the  minimum  in
child  support, the court determined that this argument conflicts
with  the  basic  premise of Civil Rule 90.3  that  both  parents
should pay a fair percentage of their income or imputed income as
child  support.  Diane filed a motion for reconsideration,  which
was  denied.  The court issued its order requiring Diane  to  pay
$298.77 monthly in child support.
          Christopher moved for a full $17,051 in attorneys fees,
claiming  that Dianes actions were in bad faith, in  addition  to
$2,822  in  attorneys fees related to discovery  motions.   Diane
opposed,   maintaining  that  the  amount  of  fees  sought   was
unreasonable, that her actions were substantially justified,9 and
that  an award to Christopher would be unjust under Alaska  Civil
Rule 37(a)(4)(A)(B).
          The  court  ultimately  granted  Christopher  $782   in
attorneys fees related to discovery practice and ordered Diane to
pay Christopher thirty percent of actual fees ($4,880.70) because
Christopher was the prevailing party.  Diane appeals  the  courts
decision to impute her income, the courts discovery rulings,  and
the awards of attorneys fees.
     A.   Standard of Review
          We  reverse child support orders when we determine that
the  superior  court abused its discretion or applied  the  wrong
legal  standard.10   Whether the superior court  used  the  right
method  of  calculating child support is a matter of  law  to  be
reviewed de novo.11  We review discovery rulings12 and awards  of
attorneys fees13 for abuse of discretion, and determine that there
has  been an abuse of discretion when we are left with a definite
and firm conviction based on the record as a whole that a mistake
          has been made.14
     B.   The  Superior Court Did Not Err in Imputing  Income  to
          Diane Under Alaska Civil Rule 90.3(a)(4).
          Diane  appeals the superior courts order that  she  pay
child  support based on an imputed income of $25,000.  While  she
concedes  that her decision to leave the work force to  care  for
her  three  children was voluntary, she challenges  the  superior
courts  finding  that it was unreasonable.   She  emphasizes  the
permissive  language in Rule 90.3(a)(4)  the court may  calculate
child support based on a determination of the potential income of
a  parent  who  voluntarily  and unreasonably  is  unemployed  or
underemployed   and  contends  that  because  of   her   economic
circumstances,  her  decision to stay at home  to  care  for  her
children  is  both practical and reasonable.  As Diane  correctly
contends, Beaudoin v. Beaudoin explains that Rule 90.3(a)(4) does
not rigorously command pursuit of maximum earnings.15  She points
to   the  language  of  Rule  90.3(a)(4)  itself,  which  forbids
imputation of income to a parent who is caring for a child  under
two  years  of  age  to  whom  the  parents  owe  a  joint  legal
responsibility.   And while she concedes that  the  children  for
whom  she  provides care are not from the original marriage,  she
argues  that  the  superior court certainly  should  be  able  to
consider   the   young  age  of  siblings  in   determining   the
reasonableness  of the decision.  Diane points  to  the  benefits
that  Nathan received from her staying at home when he lived with
her  and emphasizes Christophers acknowledgment that he does  not
need  her  financial contribution in order to provide  for  their
          Christopher responds that while Dianes decision to stay
at  home may be subjectively reasonable for her new family, it is
objectively unreasonable as a matter of law given her legal  duty
to  support Nathan.  Christopher acknowledges that he can  afford
to  provide  for  Nathan  but maintains that  regardless  of  his
financial situation, Dianes income should be imputed so that  she
can properly fulfill her obligation as the non-custodial parent.
          Although in most cases, the superior court considers an
obligors  actual  income in initially determining  or  later  re-
calculating  a  child  support award, in some  cases  it  may  be
appropriate to use an obligors potential income:
          The  court may calculate child support  based
          on a determination of the potential income of
          a  parent who voluntarily and unreasonably is
          unemployed or underemployed. . . .  Potential
          income  will  be based upon the parents  work
          history,     qualifications,     and      job
          opportunities.   The court  also  may  impute
          potential income for non-income or low income
          producing assets.[16]
When deciding whether to impute income, the superior court should
consider the totality of the circumstances.17  Determining whether
or  not a parent is voluntarily and unreasonably underemployed is
essentially a question of fact.  The trial court should  consider
the  nature  of the changes and the reasons for the changes,  and
then  .  .  .  determine whether under all  the  circumstances  a
modification is warranted. 18
          Parents   have  a  paramount  duty  to  support   their
children.19   New  obligations incurred after the  birth  of  the
parents  first  child  do  not  diminish  that  duty.20   As  the
Mississippi  Supreme Court put it, a rule relieving a  parent  of
his obligation to support a prior child because of the birth of a
subsequent  child would quite literally allow[] the non-custodial
parent  to  sire  himself out of his child support  obligation.21
Because of the significance of a parents duty to meet his or  her
child support obligations, we prioritize fulfillment of that duty
over  even  legitimate decisions to be voluntarily unemployed  or
underemployed.22   As  we have repeatedly  recognized,  a  parent
should  not be relieved of the obligation to support his  or  her
children except under the most extreme circumstances.23
          Rule  90.3  and  its  commentary  provide  for  limited
exceptions  to  this general principle, none of  which  apply  to
Diane  in  this  case.   The  superior  court  can  find  unusual
circumstances  meriting departure from the Rule  90.3  guidelines
when  requiring  the  obligor parent to meet  her  child  support
obligations  under the rule would cause substantial  hardship  to
the  subsequent children.24  The rule also allows superior courts
to consider the interests of the subsequent family . . . where an
obligor  proves  he or she has taken a second  job  or  otherwise
increased his or her income specifically to better provide for  a
subsequent family.25  Diane failed to prove that her child support
obligation  would  cause substantial hardship to  her  subsequent
children,  and  she has elected to leave the work  force.   As  a
result, these exceptions do not apply.
          Diane  analogizes her situation to the one  anticipated
in  Rule  90.3(a)(4), which forbids imputation  of  income  to  a
parent  who  is caring for very young children of the marriage,26
and  argues  that  the superior court erred in  failing  to  give
adequate  weight to the young age of her children  in  evaluating
the  reasonableness of her decision to leave the work force.  But
the  rule goes no further than to except obligor parents who care
for  children under two years of age who are of the marriage  and
to  whom the parents owe a joint legal responsibility from strict
adherence  to  the  rules guidelines.  By  negative  implication,
income can be imputed to parents who stay home with children of a
subsequent marriage.  Because we conclude that the superior court
did  not  err  in  finding Dianes voluntary  unemployment  to  be
unreasonable, we uphold the imputation of income to Diane.
     C.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Requiring  Discovery  from  Dianes  Spouse  While   Not
          Permitting Discovery from Christopher or His Fianc‚e.
          Diane  maintains  that  the  superior  court  erred  by
permitting  discovery  of her husbands finances  but  prohibiting
discovery  of  information about Christophers fianc‚es  finances.
In  explaining  her  ruling  on these  discovery  motions,  Judge
Collins  stated that while information about Diane and Terry,  as
the heads of the obligor household, was either relevant or likely
          to lead to discovery of relevant evidence, information about
Nicoles finances did not have the same potential for relevance.
          Diane  argues  that  affirming these  discovery  orders
would  have negative policy consequences.  She contends that  any
discovery  of  economic information should have  been  reciprocal
because  the  economic information of both  parents  was  equally
relevant  to the child support determination.  But this  argument
reflects a misunderstanding of the procedural stance of her case:
when  one parent has primary physical custody, the question under
Rule 90.3 is what amount of child support must be paid by the non-
custodial parent  the obligor  to support his or her child  while
that  child is not in his or her custody.27  In other words,  the
process   is  naturally  one-sided,  focusing  on  the   economic
circumstances  of  the  obligor parent.   When  the  obligor  has
remarried,  the income of the obligor parents new spouse  may  be
discoverable if the obligor is seeking a variance from  the  Rule
90.3 schedule based on financial hardship or where, as here,  the
obligor is a stay-at-home parent who does not work because of the
income  of the new spouse.28  However, the income of the obligors
spouse  will  not  normally be relied upon when  calculating  the
obligors child support payment.29
          Given  the procedural stance of this case, the superior
court  correctly determined that the Kestners income  information
was  discoverable and Christophers fianc‚es financial information
was not.
     D.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Awarding  Attorneys Fees Pursuant to Alaska Civil  Rule
          Diane  contends  that  the superior  court  abused  its
discretion by awarding attorneys fees to Christopher.  She argues
that  the  superior  courts decision was flawed  in  three  ways.
First,  Diane  claims that the superior court did not  accurately
calculate  the award under Civil Rule 82(b)(1).30  Second,  Diane
contends that the superior court erred by not stating its reasons
for departing from the fee schedule of Rule 82(b)(1).  Third, she
maintains  that  the  superior court erroneously  relied  on  the
schedule  in  Rule  82(b)(2) when it awarded  thirty  percent  of
Christophers  actual  fees.  Her argument for  the  use  of  Rule
82(b)(1) over (b)(2) is that the superior court issued a monetary
judgment in this case.
          But  child  support  orders do not constitute  monetary
judgments.31  As Christopher explains:
          [T]he  award of prospective child support  is
          not  an appropriate kind of case to which  to
          apply   the   schedule  [of  Rule  82(b)(1)].
          Unlike money judgment awards, there is no way
          to  know,  when prospective support  is  set,
          whether  the  support  amount  will  continue
          throughout  the  childs  minority.    It   is
          subject  to  modification for  a  variety  of
          reasons, including substantial changes in the
          financial circumstances of either parent, and
          modification of custody . . . .
Because  Christopher did not recover a monetary  judgment,  Judge
Collins  appropriately relied on Rule 82(b)(2) to  calculate  the
attorneys fees award.
     E.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Awarding  Attorneys Fees Pursuant to Alaska Civil  Rule
          Diane  argues that the award of attorneys fees  related
to  discovery  was  not  reasonable  under  Rule  37(a)(4).   She
questions  the  $2,822  that  Christophers  attorney   spent   on
discovery,  claims that her actions were substantially justified,
and   disputes  Judge  Collinss  ruling  that  her   failure   to
meaningfully respond to discovery was unjustified.  Finally,  she
contends  that  Judge  Collins should have denied  the  award  of
attorneys  fees because it was unjust under the circumstances  to
require her to pay Christophers attorneys fees.
          Christopher  argues  that  Judge  Collinss   award   of
attorneys fees was appropriate. Christopher quotes Judge Collinss
reasoning in support of her decision to award attorneys fees  for
costs  incurred during discovery:  Dianes failure to meaningfully
respond  to  discovery  concerning  her  economic  situation  and
related motion for protective order regarding that discovery  was
unjustified.  [Dianes] economic situation and earning capacity is
such  that it is not unfair to impose fees related to the  motion
to  compel  discovery.  Rule 37(a)(4) provides clear guidance  to
the superior court:
          If the motion is granted or if the disclosure
          is  provided after the motion was filed,  the
          court  shall, after affording an  opportunity
          to  be  heard, require the party . . .  whose
          conduct necessitated the motion . . . to  pay
          the  reasonable expenses incurred  in  making
          the motion, including attorneys fees . . . .
(Emphasis added.)  Judge Collins explained that Diane lost  every
contested  motion associated with the modification request;  that
Christopher  incurred fees to quash Dianes subpoena duces  tecum,
to  file  the  motion to compel discovery, and to  oppose  Dianes
motion  for  protective order; and that the motion to compel  was
granted  while  the  motion for protective  order  was  denied.32
Because she provided a detailed explanation for her decision  and
followed  the  clear  guidance of Rule 37(a)(4),  Judge  Collinss
award of attorneys fees to Christopher was appropriate and not an
abuse of discretion.
          We AFFIRM the superior courts decision in all respects.
     1     This  amount  was subsequently reduced  by  the  Child
Support  Enforcement Division to less than  $300  monthly  for  a
medical insurance offset.

     2     Alaska Civil Rule 90.3(e) states that each parent in a
court  proceeding at which child support is involved must file  a
statement  under  oath which states the parents  adjusted  annual
income  and  the  components  of  this  income  as  provided   in
subparagraph (a)(1).

     3     Diane estimated that annual child care costs in Macomb
ranged from $9,360 to $10,242, depending on the provider.

     4    Dianes 2001 gross income was $21,501 from two jobs.

     5     See  Alaska R. Civ. P. 90.3(c)(1); Schuyler v. Briner,
13  P.3d  738, 744 (Alaska 2000) (quotation omitted)  (Rule  90.3
only   allows   a  support  variance  when  the  obligor   parent
demonstrates  good  cause  upon proof  by  clear  and  convincing
evidence  that  manifest injustice would result  if  the  support
award  were not varied. ); see also Coats v. Finn, 779 P.2d  775,
777 (Alaska 1989).

     6     Diane  argued  that  the  Rule  90.3  commentary  also
references  not  just  the new spouse but other  persons  in  the
household.   Thus,  [Christophers]  fianc‚[e],  Nicole  Hartmann,
could fall under the rule under [Christophers] interpretation.

     7     Christopher cited Beaudoin v. Beaudoin, 24  P.3d  523,
528 (Alaska 2001), to support this proposition.

     8     Diane  sought, inter alia, Nicoles pay statements  for
September  2004 to January 2005; Nicoles complete 2002  and  2003
income tax returns; Nicoles bank statements from January 2002  to
the  date of response; and all statements for investment accounts
and accounts with any financial institutions from January 2002 to
the date of response.

     9    See Alaska R. Civ. P. 37(a)(4)(A)(B).

     10    Beaudoin, 24 P.3d at 526.

     11     Caldwell  v.  State, Dept of Revenue,  Child  Support
Enforcement Div., 105 P.3d 570, 573 (Alaska 2005).

     12    Miller v. Clough, 165 P.3d 594, 601 n.22 (Alaska 2007).

     13    Hixson v. Sarkesian, 66 P.3d 753, 761 (Alaska 2003).

     14     Kowalski  v.  Kowalski, 806 P.2d 1368,  1370  (Alaska

     15    24 P.3d at 530.

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

     17     Although not controlling, the commentary to Rule 90.3
directs  courts to consider the totality of the circumstances  in
deciding  whether to impute income.  Alaska R. Civ. P. 90.3  cmt.

     18     Olmstead v. Ziegler, 42 P.3d 1102, 1105 (Alaska 2002)
(citation omitted).

     19     Nunley  v.  State,  Dept of  Revenue,  Child  Support
Enforcement Div., 99 P.3d 7, 11 (Alaska 2004) (citing Matthews v.
Matthews, 739 P.2d 1298, 1299 (Alaska 1987)) (Parents  have  both
a  common  law and a statutory duty to support their  children.);
see  also  AS  25.20.030 (Each parent is bound  to  maintain  the
parents  children  when  poor  and unable  to  work  to  maintain

     20     Laura  W.  Morgan,  Positive Parenting  and  Negative
Contributions:  Why  Payment  of  Child  Support  Should  Not  be
Regarded as Dissipation of Marital Assets, 30 N.M. L. Rev.  1,  3
(2000) (When a parent cannot afford to support prior children and
later  children . . . , and someone has to bear the cost of  that
choice,  the cost should be borne by the later children  for  the
simple  reason that the parent had the choice of whether to  have
additional children.).

     21    Bailey v. Bailey, 724 So. 2d 335, 339 (Miss. 1998).

     22    See Olmstead, 42 P.3d at 1105 (where a father left his
law  practice  to  attend  school to obtain  certification  as  a
teacher, we affirmed the trial court, which noted that while [the
father]  was free to change jobs, [the mother] and their daughter
did  not  have to finance that choice); see also Nass v.  Seaton,
904  P.2d  412,  418 (Alaska 1995) ([A] noncustodial  parent  who
voluntarily  reduces his or her income should  not  automatically
receive  a  corresponding reduction in his or her  child  support

     23    See, e.g., Houger v. Houger, 449 P.2d 766, 770 (Alaska
1969); see also Dunn v. Dunn, 952 P.2d 268, 270-71 (Alaska 1998);
Kowalski, 806 P.2d at 1371.

     24    Alaska R. Civ. P. 90.3 cmt. VI.B.2; see also Taylor v.
McGlothlin, 919 P.2d 1349, 1355 (Alaska 1996) (affirming superior
courts  finding  that a fathers three subsequent  children  would
suffer   substantial  prejudice  if  the  fathers  child  support
obligation were set at the level mandated by Civil Rule 90.3).

     25    Alaska R. Civ. P. 90.3 cmt. VI.B.2.

     26    The rule states, in relevant part, [a] determination of
potential income may not be made for a parent . . . who is caring
for  a  child  under two years of age to whom the parents  owe  a
joint legal responsibility.

     27    See Rule 90.3(a) cmt. IV.A:

          The  calculation  of child  support  for  the
          primary  custodial case under 90.3(a)  simply
          involves  multiplying the  obligors  adjusted
          income times the relevant percentage given in
          subparagraph (a)(2). . . . [T]he rule assumes
          that  the custodial parent also will  support
          the   children   with  at  least   the   same
          percentage of his or her income.
(Emphasis added.)

     28     See Rule 90.3 cmt. VI.B.5 (A parent who does not work
because  of  the income of a new spouse . . . may be  assigned  a
potential income.).

     29    Id. (The income of a new spouse of either the custodial
or  obligor  parent  normally will not  justify  a  variation  in

     30     Diane filed a Rule 82(b)(1) fee schedule calculation.
She disputed the monthly child support amount that was subject to
the fee schedule, arguing that since she had agreed to pay $69.50
per  month,  the amount Christopher prevailed on was $229.27  per
month during full months and $57.44 per month during the seventy-
five  percent reduced visitation summer months, for  a  total  of
$9,658.56.   Diane recommended a total attorneys  fees  award  of

     31     See State, Dept of Revenue, Child Support Enforcement
Div.  ex  rel.  Inman v. Dean, 902 P.2d 1321, 1323 (Alaska  1995)
(Each  unpaid child support obligation is considered  a  judgment
because,  like court-rendered judgments, child support arrearages
are not subject to retroactive modification.).

     32     Furthermore, Judge Collins did not grant Christophers
total  requested discovery attorneys fees ($2,822),  but  instead
awarded  Christopher the $782 he spent for work directly  related
to  the  motion  to  compel/opposition to motion  for  protective

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