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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tillmon v. Tillmon (07/25/2008) sp-6289

Tillmon v. Tillmon (07/25/2008) sp-6289, 189 P3d 1022

     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


CLIFTON T. TILLMON, )
) Supreme Court No. S- 12685
Appellant, )
) Superior Court No. 3AN-06-5696 CI
v. )
) O P I N I O N
SUSAN L. TILLMON, )
) No. 6289 - July 25, 2008
Appellee. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial   District,  Anchorage,   Peter   A.
          Michalski, Judge.

          Appearances:   Clifton T.  Tillmon,  pro  se,
          Anchorage.   John C. Pharr,  Law  Offices  of
          John C. Pharr, Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Carpeneti, and Winfree, Justices.

          WINFREE, Justice.

I.   INTRODUCTION
          Clifton  Tillmon  appeals  from  October  2006  divorce
orders  granting Susan Tillmon primary physical  custody  of  the
Tillmons  four  children, ordering Clifton to pay  Susan  monthly
child  support, and awarding Susan sixty percent of  the  marital
estate  (including  fifty  percent  of  the  marital  portion  of
Cliftons military retirement).  We conclude that the trial  court
did not abuse its discretion in awarding primary physical custody
of  the children to Susan or in dividing the marital estate.  But
Clifton  was entitled to two specific deductions from income  for
the  calculation  of  his monthly child support  obligation,  and
because  we  cannot  discern from the record  if  or  when  those
deductions  were  taken into account, we remand  and  direct  the
court to ensure that they were.
          Clifton  also  argues that a child support modification
made  effective May 1, 2007, should have been retroactive to when
the  Tillmons  oldest  daughter came to live  with  him  in  late
September  2006.  The applicable rule is that a modified  support
order  can be retroactive only as early as the service  date  for
the  modification  motion, but a trial  court  may  exercise  its
discretion  to  select a later effective date if  it  finds  good
cause  to  do  so.   Because we cannot discern  from  the  record
whether  the  court had good cause to make the new support  order
effective May 1, 2007, instead of the modification motion date of
November 2, 2006, we remand for further consideration.
II.  FACTS AND PROCEEDINGS
          Clifton  and Susan married in May 1993.  They separated
in  December  2005 and Clifton filed for divorce in  March  2006.
Clifton  and  Susan have four children currently ranging  in  age
from five to sixteen.
          A  June  2006  interim  custody  order  and  visitation
schedule  from  the trial court gave Susan the greater  share  of
physical custody of the children prior to the parties August 2006
trial.   In  mid-June  2006  the State of  Alaska  Child  Support
Services  Division  (CSSD)  set Cliftons  support  obligation  at
$1,713   per   month   effective  February  1,   2006.    Clifton
administratively appealed the CSSD determination  but  agreed  to
delay the appeal pending completion of the divorce proceedings.
          At  trial the parties were able to resolve most custody
and  visitation issues.  One of the sticking points was  whether,
after  weekend  visitation with the children  during  the  school
year,  Clifton  would  return the children  to  Susan  on  Sunday
nights,  as  Susan  wanted,  or take them  to  school  on  Monday
mornings, as he wanted.  Another was Susans request that  Clifton
be  required to pay half of Susans work-related daycare costs for
the three youngest children in addition to child support.
          On  August  8,  2006,  the trial  court  rendered  oral
rulings which later were followed by written findings of fact and
conclusions of law.  The court followed the parties agreement  to
divide the marital portion of Cliftons military retirement fifty-
fifty,  but the marital estate as a whole was divided sixty-forty
in  Susans favor in light of the parties disparate incomes.   The
court determined that it was in the childrens best interests  for
the  parties to share legal custody and for Susan to have primary
physical  custody, but granted Clifton visitation  two  of  every
three  weekends  during  the school year and  some  variation  of
alternate weeks during the summer.  With respect to the  sticking
points,  the  court ruled in Susans favor:  (1) Cliftons  weekend
visits  with  the  children during the school year  were  to  end
Sunday nights rather than Monday mornings; and (2) Clifton was to
pay for half of Susans daycare costs in addition to child support
because daycare costs are a cost of having children and . . . the
parents  have  an obligation to share them, and it  ought  to  be
fifty-fifty.   The  court directed Susan to  prepare  appropriate
orders.
          The  Qualified Domestic Relations Order (QDRO) proposed
by  Susan provided that she would be entitled to a percentage  of
[Cliftons] disposable military retired pay defined as 151  months
[the  marital term] divided by the number of months of [Cliftons]
military  service  times  50%.   However,  Clifton  already   had
proposed  an alternative order intended to limit Susans share  of
the  retirement to fifty percent of its value as of the  date  of
separation,  instead  of allowing Susan  to  benefit  from  post-
divorce  pay  raises  and  promotions  that  would  increase  the
cumulative value of the retirement.
          Clifton  also objected to Susans proposed findings  and
conclusions and child support order, he simultaneously moved  for
reconsideration  of  some of the trial courts  rulings.   Clifton
argued  that  the  court  should have granted  a  shared  custody
arrangement instead of granting Susan primary custody, and should
have  used  the  corresponding shared custody formula  of  Alaska
Civil  Rule  90.3(b)  to calculate his child  support  obligation
instead  of the Rule 90.3(a) formula for non-custodial  parents.1
To support this argument, Clifton contended that the court failed
to  make  necessary  findings when it  awarded  primary  physical
custody  of  the  children to Susan instead  of  awarding  shared
custody.2  He also argued that it was improper for the  court  to
order him to pay one-half of Susans daycare costs in addition  to
child  support, asserting that these costs fall within the  ambit
of   normal   needs   and  are  covered  by   support   payments.
Alternatively, he argued that he at least should be  entitled  to
the  allowable  child  care deduction from  his  income  for  the
calculation of his support obligation.3  He similarly argued that
the  court  erred in not giving him the allowable  deduction  for
retirement contributions when calculating his support obligation.4
          On  September  25,  2006,  Susan  moved  for  an  order
directing  Clifton to explain why he was not paying  all  of  his
child support or any of his share of daycare expenses.  The  next
day,  Susan  had a physical altercation with the Tillmons  oldest
daughter,  who  was  removed from Susans home  and  delivered  to
Clifton.   On  September  29,  2006, Clifton  moved  for  primary
custody of all four children.
          On  October 3, 2006, the trial court issued its written
orders  from  the August divorce trial.  The court  ordered  that
Cliftons  reconsideration  motion be largely  denied,  but  noted
apparent agreement that Cliftons daycare payments should be taken
into account when calculating his child support obligation.   The
court  signed the findings and conclusions lodged by Susan,  with
minor  corrections  to clarify the sixty-forty  division  of  the
marital  estate  and  the  fifty-fifty division  of  the  marital
portion  of Cliftons military retirement.  The court also  signed
the  form  child  support order lodged by Susan,  which  did  not
incorporate  the  child care deduction, and set Cliftons  support
obligation  at  $2,038  per month for four children,  $1,868  per
month for three children, $1,528 per month for two children,  and
$1,132  per month for one child.  The support order was effective
June  1,  2006,  and the court noted that pre-June child  support
would  be  set  by  CSSD  in Cliftons administrative  proceeding.
Finally, the court signed the QDRO submitted by Susan.
          At the conclusion of a hearing in late October 2006 the
court  orally granted interim custody of the oldest  daughter  to
Clifton.  In early November 2006 Clifton filed a motion to modify
          his child support obligation, making three points about changed
circumstances:5  (1) because one child now resided with him,  the
Tillmons  were  in  a  new  and  different  custody  arrangement;
(2)  Clifton was entitled to the child care deduction from income
in  the  calculation of his support obligation;  and  (3)  Susans
income  had  materially changed since the August trial.   Clifton
also  lodged  a proposed interim order to document  the  existing
custody  arrangement for the oldest daughter  pending  the  final
resolution  of  his  [September 29,  2006]  custody  modification
motion,  but the trial court later denied Cliftons September  29,
2006  motion to modify custody without comment about the existing
interim custody arrangement.
          Later  in  November 2006 the trial court  heard  Susans
motion  regarding  Cliftons failure  to  obey  the  courts  child
support order.  Clifton conceded that he had not been paying  all
of his financial obligations under the courts earlier orders.  As
the  court and the parties discussed Cliftons arrearage,  it  was
not  in  dispute whether Clifton was entitled to the  child  care
deduction  from  income in the calculation of his  child  support
obligation.  Clifton agreed to make payments to Susan, and  Susan
withdrew her motion.
          On  December 1, 2006, the administrative law judge  for
Cliftons CSSD appeal issued a final order setting Cliftons  child
support  for  February through May 2006, noting  that  the  trial
courts  October 3, 2006 support order mooted this  appeal  as  to
child support after [June 1, 2006].
          On  December  6, 2006, the trial court signed  Cliftons
interim  custody order for the oldest daughter, even  though  the
court  already had denied the September motion to modify custody.
In  early  January 2007 the court directed Clifton  to  submit  a
proposed  child support order that [took] into account deductions
from  gross  income of the share of child care expenses  paid  by
Clifton.  The court stated that the support order should  be  for
4, 3, 2 and 1 children [sic], and presently administered pursuant
to  3  children as [the oldest daughter] is still with [Clifton].
The court also noted that if it granted long-term primary custody
of  the oldest daughter to Clifton, his support obligation  would
be recalculated on the basis of hybrid or divided custody.6
          At a hearing in late March 2007 Susan acknowledged that
a  divided custody arrangement had existed since October 1, 2006.
Clifton   continued  to  assert  his  entitlement  to  retirement
contribution  and  child  care  deductions  from  income  in  the
calculation  of  his child support obligation.  The  trial  court
agreed that these deductions were warranted; it affirmed that the
child care payments were work-related, thus deductible under Rule
90.3,   and   included   a  deduction  for  Cliftons   retirement
contribution  in  its  summary of the  calculations.   The  court
tentatively calculated Cliftons new support obligation  and  gave
the parties time to file objections.
          On   April   19,  2007,  the  trial  court   issued   a
modification  order, awarding long-term primary  custody  of  the
oldest  daughter to Clifton and reducing Cliftons  child  support
obligation  to $1,213.07 per month.  The effective  date  of  the
modified support order was May 1, 2007.
          Clifton  appeals.   Specifically, he  argues  that  the
court  erred in originally awarding Susan primary custody of  the
children; in denying allowable deductions when calculating  child
support; in failing to timely modify his child support obligation
after  he  assumed custody of the eldest child; in  dividing  the
estate  sixty-forty in Susans favor; and in failing to  calculate
Susans  share  of  his  military retired  pay  according  to  his
proposed formula.  We address these arguments in turn.
III. DISCUSSION
     A.   Standard of Review
          Trial courts have broad discretion in determining child
custody  issues.7   We  review custody orders  for  an  abuse  of
discretion, which occurs only if based on the record as  a  whole
this  court  is left with a definite and firm conviction  that  a
mistake  has been made.8  This deferential standard also  applies
to  our  review  of child support awards9 and to a  trial  courts
equitable division of marital property in a divorce proceeding.10
Whether  a  trial court applied the correct method of calculating
child  support  is  a  matter  of  law  to  which  we  apply  our
independent judgment.11
     B.   Custody Order
          Clifton  asserts  that the trial  court  erred  by  not
originally awarding him shared physical custody of the  children.
At  trial, the parties were in agreement about all custody issues
except  when  weekend visits would end during  the  school  year:
Monday  morning,  as proposed by Clifton, or  Sunday  evening  as
preferred by Susan.  The distinction between Sunday evenings  and
Monday  mornings  seems trivial, but the financial  ramifications
may  be  significant.   Under  Rule 90.3(f)(1),  shared  physical
custody  results when a child resides with each parent  at  least
thirty  percent  of  the  year, and  Cliftons  proposed  schedule
apparently would have enabled him to barely clear that  threshold
and  avail himself of a potential reduction in his child  support
obligation.12   But the court instead terminated  his  visits  on
Sunday  nights,  incidentally  denying  him  shared  custody  for
purposes of Rule 90.3(f)(1).
          Clifton   argues  that  the  trial  court   failed   to
adequately justify awarding primary physical custody to Susan  as
required  by  AS  25.20.100, which states:  If a  parent  .  .  .
requests  shared  custody of a child and  the  court  denies  the
request,  the  reasons  for the denial shall  be  stated  on  the
record.   Susan responds that Cliftons argument would carry  more
weight  if  more  [were]  involved  than  the  single  night   of
visitation.  She asserts that the reason for the courts action is
sufficiently  clear;  in  addition to it  being  impractical  for
Clifton  to  deliver the children to school on  Monday  mornings,
Clifton  could  not  interact with sleeping  children  on  Sunday
nights,  and he has not pointed out any [statutory factors]  that
support visitation with the children on Sunday nights.
          We  defer to the trial courts determination that it was
desirable  to  have  the children returned  to  Susan  on  Sunday
evenings.   The  record does not support a  conclusion  that  the
court  abused its discretion:  the parties agreed it was  in  the
childrens  best interests to reside primarily with  Susan  during
          the school year, and returning the children to her on Sunday
evenings is consistent with that plan.
          It  is  true  that  Clifton requested  shared  physical
custody in his trial brief.  But the narrow dispute remaining  at
trial was whether Clifton should return the children to Susan  on
Sunday  nights  or  to  school on Monday  mornings,  not  whether
Clifton  should have shared physical custody.  It  is  not  clear
that the trial court was required to take into consideration  any
broader  legal implications of its determination of that dispute.
As  it  was, Clifton waited until his reconsideration  motion  to
characterize  his proposed schedule as a shared physical  custody
schedule.13
     C.   Child Support
          Clifton  disputes  three aspects of  the  trial  courts
child  support orders.  First, he argues that the courts original
support  order  was  an improper modification  of  CSSDs  earlier
order.   Second,  he argues that the court erred by  consistently
denying  him  two  allowable  deductions  from  income   in   the
calculation  of  his  original support obligation,  namely  work-
related child care expenses and retirement contributions.  Third,
he argues that the court failed to modify the support order in  a
timely  manner after primary custody of the oldest  daughter  was
transferred to him.  We discuss these three points below.
          1.   The  trial courts original support order  did  not
               retroactively  modify  an  existing  final   child
               support award.
               
          In  mid-June 2006, after Clifton filed for divorce  but
before  the August 2006 trial, CSSD initially set Cliftons  child
support  at  $1,713 per month effective February  1,  2006.   The
trial  court made its long-term custody and child support  awards
at  the  August  2006 trial; these were later reiterated  in  its
October  3,  2006  written  orders.   The  courts  order  setting
Cliftons  support  obligation at $2,038 per month  was  effective
June 1, 2006.
          Clifton points to Civil Rule 90.3(h)(1)-(2)14 and argues
that  the  trial  court  wrongfully  retroactively  modified   an
existing  administrative order with Alaska CSSD . . .  without  a
material change of circumstances and that a promotion he received
in   June   2006  did  not  constitute  a  material   change   of
circumstances because the pay [increase] did not exceed 15%.15
          Cliftons  argument lacks merit.  Nothing in the  record
suggests  that  CSSDs June 2006 support order was a  final  child
support  award.  Clifton appealed the initial CSSD  determination
but then agreed to delay that appeal to allow the trial court  to
make  its own support determination.  In his trial brief, Clifton
stated  that  the  court will need to establish a  child  support
order   for   the  interim  period  and  post[-]divorce   period.
Moreover, because CSSDs final support award for February  through
May  2006  was issued after the trial courts award for June  2006
forward,  the courts award could not have been a modification  of
the CSSD award.16
          2.   Cliftons original child support obligation  should
               be calculated with allowable deductions.
               
          Clifton argues that when calculating his original child
support  obligation, the trial court did not grant him  allowable
deductions  for  work-related daycare expenses17 and  involuntary
retirement  contributions.18  Susan does  not  dispute  that  the
deductions  are  allowable, but asserts that Clifton  waived  the
argument  because  (1) he did not argue his  entitlement  to  the
deductions  at  trial and therefore cannot  argue  the  point  on
appeal;19 and (2) he failed to insist that the trial court rule on
his September 2006 motion for reconsideration.20  Susans arguments
lack merit and will not preclude our review of this issue.
          It  is  undisputed  that  when  originally  considering
Cliftons support obligation, the court did not take into  account
his  ordered  daycare  payments or  his  payroll  deductions  for
retirement  contributions.   It  also  is  undisputed  that  when
responding to Cliftons reconsideration motion on October 3, 2006,
the  court  indicated  agreement that at least  Cliftons  daycare
payments  should be taken into account.  Yet the record does  not
reveal  any contemporaneous change in Cliftons support obligation
calculation.
          At the November  2006 hearing about Cliftons failure to
pay  child  support  and his share of the daycare  expenses,  the
court  again  indicated  that Clifton should  be  entitled  to  a
deduction  for  his daycare payments.  Yet the  record  does  not
reveal  what action was to be taken, or if any action was  taken,
to   correct   Cliftons  support  obligation.   Because   Clifton
apparently had not made any daycare payments at all, but  at  the
hearing  agreed  to  do so, it is possible  that  the  court  and
parties  took a correction into account when calculating Cliftons
arrearage;  but  the  record does not reflect  a  change  in  the
continuing support obligation.
          At  the  March 2007 hearing on the change of  long-term
primary  custody  of the oldest daughter and the modification  of
Cliftons  child  support,  the trial court  indicated  that  both
deductions  from income should be allowed in the  calculation  of
Cliftons support obligation.  The two deductions presumably  were
taken  into  account in the calculation of Cliftons  new  support
obligation  effective May 1, 2007, and Clifton makes no  argument
to  the contrary.  But it is not clear from the record whether or
how  the  trial  court  or  the parties  remedied  the  incorrect
calculation  of  Cliftons prior support obligation,  and  Clifton
continues to assert that it never was remedied.  We are unable to
determine  from the record whether he is entitled to any  relief,
and we therefore remand and direct the trial court to ensure that
Cliftons   original   child  support  obligation   was   properly
calculated.
          3.   In the absence of good cause, the modified support
               order  should  be effective on the  date  Cliftons
               motion for modification was served.
               
          Clifton argues that the court did not timely modify the
child support order to reflect a material change of circumstances
after  Clifton received emergency custody of the Tillmons  oldest
daughter in late September 2006.21  At the March 30, 2007 hearing,
the  parties  recognized that a divided custody  arrangement  had
          existed since October 1, 2006.  The April 19, 2007 modified
support order had no retroactive effect, but rather provided that
the first payment of the new support amount of $1,213.07 would be
due no later than May 1, 2007.
          Rule 90.3(h)(2) provides that child support obligations
generally  may  not  be  modified  retroactively,  but   that   a
modification  made  effective on  the  date  that  a  motion  for
modification  is served is not considered retroactive.22   As  we
explained in Boone v. Boone:
          The  rules text does not express a preference
          or  presumption  that  a modification  become
          effective  on  the motion service  date,  and
          does  not  prevent  the superior  court  from
          exercising  its  discretion and  selecting  a
          later effective date.  But we are nonetheless
          persuaded that the motion service date should
          be the preferred effective date, and that the
          superior court should exercise its discretion
          in  selecting a different effective date only
          if it finds good cause for doing so.[23]
          
          Accordingly,  in the absence of good  cause  to  use  a
different  effective  date, the April 19, 2007  modified  support
order  should  have  been effective on the service  date  of  the
November modification motion.  The court instead chose to make it
effective May 1, 2007, but the record does not reveal the  courts
reasoning.24  We remand and direct the court to make the modified
order  effective on the service date of the November modification
motion  unless  the  court, in its discretion,  chooses  a  later
effective date and states its reasons for doing so.
     D.   Property Division
          1.   The  trial  court did not abuse its discretion  in
               dividing the marital estate sixty-forty in  Susans
               favor.
               
          Although  an equal division of property is presumed  to
be  the  most equitable, the trial court has broad discretion  to
deviate from absolute equality.25  Alaska Statute 25.24.160(a)(4)
lists  several  property division factors for the court  to  take
into  consideration,  among  them the  earning  capacity  of  the
parties,   including  their  educational  backgrounds,  training,
employment skills, work experiences, length of absence  from  the
job  market,  and custodial responsibilities for children  during
the  marriage,26  and the circumstances and necessities  of  each
party.27
          Clifton  argues that the trial court penalized  him  in
the  property division for earning more yet both parties have the
capability to work.  Clifton implies that the trial court  should
have  considered Susans potential income, not her actual  income.
Although   he  did  not  raise  this  argument  below  and   thus
impermissibly  raises it here,28 we note that it  probably  would
have  been inappropriate to impute income to Susan.  A court  can
in  its discretion impute income where a party is voluntarily and
unreasonably  underemployed.29  Susan doubtless could  have  made
          more money if she held several jobs, as Clifton suggests, but
given  that the four minor children in her primary custody  would
necessitate  significant work-related child  care  expenses,  her
decision not to hold several jobs does not seem unreasonable.
          The  biggest  and most valuable asset  of  the  marital
estate was Cliftons military retirement benefit, which the  court
estimated to be worth at least $100,000.  The parties already had
agreed to split the marital portion of the retirement fifty-fifty
and  the court reasoned that when an equal division of that asset
was   taken   into  account,  the  division  of  the   relatively
insignificant remainder of the marital estate largely  in  Susans
favor was appropriate given the parties disparate incomes.
          In  light of the entire record, we are not left with  a
definite and firm impression that the trial court made a  mistake
in  dividing  the marital estate.  The court did  not  abuse  its
discretion, and we will not set the property division aside.
          2.   The  trial  court did not abuse its discretion  in
               entering Susans proposed QDRO.
               
          As discussed above, the parties agreed to a fifty-fifty
split of the marital portion of Cliftons military retirement  and
this  was set forth in Susans proposed QDRO.  Clifton raises  two
closely  related  arguments with respect to  the  courts  use  of
Susans proposed QDRO to implement the division of his retirement.
          First,  he  argues  that  the  court  ignored  evidence
presented which would have aided in a fair division of [Cliftons]
unvested  military retirement, thus allowing Susan to  double-dip
into  the  retirement.  He then argues that by not  limiting  the
marital portion of the retirement to his current pay grade, Susan
will wrongfully benefit from his future promotions and pay raises
(which will presumably increase the final value of the retirement
and  thus her share of it).  These arguments appear to be one and
the  same:  Clifton wants to prevent Susans share of the  marital
portion  of his military retirement pay from increasing in  value
due to his future pay raises and promotions.30
          According  to  the  Uniformed Services  Former  Spouses
Protection   Act,31   Dividing  Military  Retired   Pay   (USFSPA
guidelines),  there is no magic language necessary to  express  a
percentage  award of retired pay; all that is necessary  is  that
the  decree state that [t]he former spouse is awarded ___ percent
. . . of the members military retired pay.  This was accomplished
by  the  QDRO submitted by Susan and signed by the court  stating
Susan  shall be entitled to a percentage of [Cliftons] disposable
military  retired pay defined as 151 months [the  length  of  the
Tillmons  marriage] divided by the number of months of [Cliftons]
military service times 50%.32
          The USFSPA guidelines also note that while this formula
award  is  sufficient,  many States take the  approach  that  the
former  spouse  should not benefit from any of the members  post-
divorce  promotions or pay increases based on length  of  service
after  the  divorce.   These guidelines  imply  that  the  agency
administering the benefit is willing to comply with court  orders
designed  to  accommodate  this, if clearly  expressed  by  court
decree.   These guidelines also suggest that one way of achieving
          an unambiguous result is to grant a hypothetical award . . .
based  on a retired pay amount different from the members  actual
retired pay that is figured as if the member had retired  on  the
date  of separation or divorce.33  The result is that the spouses
share of the retirement pay is derived exclusively from the value
accrued during the marriage.
          To  achieve  what he perceived as a fairer division  of
his  military retirement, Clifton submitted a proposed Qualifying
Military  Order  (QMO)  that  briefed  the  trial  court  on  the
hypothetical award method of determining Susans interest  in  the
asset.  Clifton also submitted several examples of QMOs issued by
Alaska  trial  courts.  But the court chose to use  Susans  QDRO,
applying the more traditional method of division.
          The   court   has   wide  latitude  in  fashioning   an
appropriate property division,34 and as with the sixty-forty split
of  the entire marital estate, we are not left with the firm  and
definite conviction that the court made a mistake by dividing the
military  retirement asset according to Susans  QDRO  instead  of
Cliftons  QMO.  The traditional fraction method may provide  more
certainty  in  application  and  enforcement  and  it  would   be
speculative to assume any material difference to Clifton  in  the
ultimate  property  division.35  The  court  did  not  abuse  its
discretion by using the QDRO.
IV.  CONCLUSION
          We  AFFIRM  the  trial  courts  orders  awarding  Susan
initial  primary custody of the four children and granting  Susan
sixty  percent  of  the marital estate, and we AFFIRM  the  trial
courts use of the QDRO proposed by Susan.
          We REMAND for further proceedings with direction to the
trial  court  (1)  to  ensure  that its  original  child  support
calculations  accounted  for Cliftons  allowable  deductions  for
retirement contributions and daycare expenses; and (2) to  either
make  the modified child support order effective on the date  the
modification  motion  was  served or to  state  its  reasons  for
choosing a later effective date.
_______________________________
     1    Alaska Civil Rule 90.3 provides different child support
award  formulas  for different custody arrangements.   Where  one
parent   has  primary  physical  custody  (as  defined  by   Rule
90.3(f)(2)),  the other parent is required to pay  child  support
according  to the formula set forth in Rule 90.3(a), which  here,
because  four children are involved, amounts to 36%  of  Cliftons
adjusted annual income.  See Alaska R. Civ. P. 90.3(a)(2)(C)-(D).
Had  there been a shared physical custody arrangement (as defined
in  Civil  Rule 90.3(f)(1)), Cliftons support obligation probably
would  have  been  reduced by use of a  different  formula.   See
Alaska  R.  Civ. P. 90.3(b)(1)(B).  Clifton noted that he  missed
the  shared-custody threshold by just two nights; he  would  have
the  children  29.45%  of the time (107.5 nights),  not  the  30%
(109.5  nights) required for application of the potentially  more
favorable  formula.   Compare Alaska R. Civ. P.  90.3(f)(1)  with
Alaska R. Civ. P. 90.3(f)(2).

     2     See AS 25.20.100 (when a request for shared custody is
denied,  the  reasons  for the denial  shall  be  stated  on  the
record).

     3     See Alaska R. Civ. P. 90.3(a)(1)(E); Duffus v. Duffus,
72  P.3d 313, 319-20 (Alaska 2003) (actual reasonable child  care
expense  necessary  to  enable the  parents  to  work  should  be
deducted  when  calculating  parents incomes  for  child  support
purposes).

     4    See Alaska R. Civ. P. 90.3(a)(1)(B).

     5     Cf.  Alaska R. Civ. P. 90.3(h)(1) (final child support
award  may  be  modified  upon  showing  of  material  change  of
circumstances).

     6     See  Alaska  R.  Civ. P. 90.3(f)(3)  (divided  custody
exists if one parent has primary physical custody of one or  more
children  of  the relationship and the other parent  has  primary
custody  of  one or more other children of the relationship,  and
the  parents  do  not  share physical custody  of  any  of  their
children); Alaska R. Civ. P. 90.3(f)(4) (hybrid custody exists if
at  least one parent has primary physical custody of one or  more
children of the relationship and the parents have shared physical
custody of at least one child of the relationship).

     7     See  Carstens v. Carstens, 867 P.2d 805,  807  (Alaska
1994).

     8     Flannery v. Flannery, 950 P.2d 126, 129 (Alaska  1997)
(internal quotations and citation omitted).

     9     See  State, Dept of Revenue, Child Support Enforcement
Div. v. Rios, 938 P.2d 1013, 1015 (Alaska 1997).

     10    Mellard v. Mellard, 168 P.3d 483, 484-85 (Alaska 2007).

     11     See  Turinsky v. Long, 910 P.2d 590, 594 n.10 (Alaska
1996).

     12    See supra note 1.

     13     Clifton opines that the court only denied my  request
for  shared custody due [to] its . . . bias against me.   Clifton
does not point to anything specific to support this opinion,  and
nothing  in  the record raises a question of bias  by  the  trial
court.  We remind pro se appellants that judicial bias should not
be  inferred  merely  from adverse rulings, and  we  reject  this
putative  point  of error because (1) Clifton did  not  raise  it
below, see Anchorage Nissan, Inc. v. State, 941 P.2d 1229,  1239-
40  (Alaska  1997); (2) it is not properly briefed and presented,
see  Kelso v. Rybachek, 912 P.2d 536, 541 n.4 (Alaska 1996);  and
(3) it has no legitimate basis on the record before us.

     14    Rule 90.3(h) provides:

          (1)  Material  Change  of  Circumstances.   A
          final  child  support award may  be  modified
          upon  a  showing  of  a  material  change  of
          circumstances as provided by  state  law.   A
          material  change  of  circumstances  will  be
          presumed if support as calculated under  this
          rule  is more than 15 percent greater or less
          than the outstanding support order . . . .
          
          (2)   No  Retroactive  Modification.    Child
          support   arrearage  may  not   be   modified
          retroactively,   except   as    allowed    by
          AS  25.27.166(d).   A modification  which  is
          effective on or after the date that a  motion
          for modification, or a notice of petition for
          modification  by  the Child Support  Services
          Division, is served on the opposing party  is
          not considered a retroactive modification.
          
     15     Clifton infers that the trial court based its support
order  on  a  paycheck issued after his June 8,  2006  promotion,
which presumably reflected income greater than that reflected  in
the  financial  statement used for CSSDs  earlier  determination.
This may explain the difference in the support orders as well  as
Cliftons assertion of error.

     16     Even  if  CSSDs  June  2006 support  order  could  be
considered  a  final child support award that could  be  modified
only  upon a material change of circumstances, there would be  no
error.  A material change of circumstances is presumed if support
calculated  under  Rule  90.3 would vary  by  more  than  fifteen
percent  because  of  changed  conditions.   Alaska  R.  Civ.  P.
90.3(h)(1).    CSSD   originally  calculated   Cliftons   support
obligation   at  $1,713  per  month  based  on  his  then-current
financial  statement,  and  the trial court  calculated  Cliftons
support obligation at $2,038 per month based on his later payroll
information.   (Both calculations were made without  the  claimed
deductions for child care expenses and retirement contributions.)
The  difference  exceeds  the fifteen  percent  change  threshold
($1,713 x 1.15 = $1,970).

     17     At  trial and in his reconsideration motion,  Clifton
argued  it was improper for the trial court to order him  to  pay
daycare  expenses  in  addition to his  child  support  payments.
Clifton does not pursue this point on appeal and we do not  reach
it here.

     18     Contributions to retirement plans are  deductible  so
long  as mandatory and voluntary deductions collectively  do  not
exceed   7.5%   of  gross  income.   See  Alaska   R.   Civ.   P.
90.3(a)(1)(B).

     19     The  actual  dispute at trial was whether  the  court
should order Clifton to pay a portion of Susans daycare expenses.
After  the trial court issued its oral decision in Susans  favor,
Clifton  filed  an  objection  to Susans  proposed  findings  and
conclusions  and  a  contemporaneous motion for  reconsideration,
raising  the  alternative argument that he  at  least  should  be
entitled  to  the  deduction.  The trial court agreed  about  the
deduction  and  Clifton now argues on appeal that  it  never  was
implemented.  This point is properly before us.

          It  may  be  that the retirement contribution deduction
was not expressly raised by Clifton during trial, but the payroll
deduction  for his retirement contribution was reflected  in  the
document  relied  on  by  the trial court to  calculate  Cliftons
support  obligation and Clifton immediately contested the  courts
failure  to take it into account when he filed his objections  to
the  proposed findings and conclusions.  Clifton thus raised  his
objection  prior to the courts final October 2006 order  and  his
point was preserved for appeal.

     20     No  legal  authority  is  provided  to  support  this
proposition; Susans reliance on Taylor v. Johnston, 985 P.2d 460,
466  (Alaska 1999), is misplaced.  There, a party insisted  on  a
court  action that it later wished to contest.  That is  not  the
case   here.   Moreover,  the  trial  court  did  rule   on   the
reconsideration motion and, although noting that it  was  largely
denied, did agree that a deduction for daycare expenses should be
allowed.   Susan further argues that Clifton essentially  invited
the  error  he  now complains of.  This argument is  inadequately
presented and will not be considered.  See Kelso, 912 P.2d at 541
n.4.

     21     Cliftons  brief is somewhat difficult to decipher  on
this  point.  He asserts that he had primary physical custody  of
the daughter beginning September 26, 2006, and he points out that
the  trial  court signed the written order for temporary  primary
custody  on  December 6, 2006 (but does not mention  the  October
oral  order for interim primary custody).  Clifton suggests  that
the  court  erred  by  not  (presumably sua  sponte)  ordering  a
modification  of  his  child  support  at  least  as   early   as
December  6,  2006, but the suggestion is inadequately  presented
and will not be considered.  See Kelso, 912 P.2d at 541 n.4.  The
point  of  error  regarding the retroactive  application  of  the
April  17,  2007  modification order  is  sufficient  to  address
Cliftons arguments.

          In  Cliftons original statement of points on appeal, he
also alleged that the trial court erred in allowing Susan certain
deductions from income in the calculation of her adjusted  income
for  the  determination  of the divided  custody  support  award.
Clifton  did not discuss this alleged error in his brief and  his
argument therefore is waived.  See Kelso, 912 P.2d at 541 n.4.

     22     For this reason, the Commentary to Rule 90.3 cautions
an  obligor parent [to] promptly apply for a modification .  .  .
when  a material change in circumstances occurs.  Alaska R.  Civ.
P. 90.3 Commentary X.B.  See supra note 16.

     23    Boone v. Boone, 960 P.2d 579, 585 (Alaska 1998).

     24    Clifton opines that his requests for retroactive relief
were  ignored because the trial court had an obvious  undisclosed
bias  against  him  evidenced  by  the  lower  courts  abuse   of
discretion.   We again reject Cliftons unsupported suggestion  of
bias.  See supra note 13.

     25     Veselsky v. Veselsky, 113 P.3d 629, 637 (Alaska 2005)
(quoting Ulsher v. Ulsher, 867 P.2d 819, 822 (Alaska 1994)).

     26    AS 25.24.160(a)(4)(C).

     27    AS 25.24.160(a)(4)(G).

     28     See McMullen v. Bell, 128 P.3d 186, 190 (Alaska 2006)
(Ordinarily this court will not consider an issue raised for  the
first  time on appeal.  The only exception is where the issue  is
1)  not  dependent on any new or controverted facts;  2)  closely
related  to  the appellants trial court arguments; and  3)  could
have  been  gleaned from the pleadings.  (quoting  State  v.  Nw.
Constr., Inc., 741 P.2d 235, 239 (Alaska 1987))).

     29     See  Olmstead v. Ziegler, 42 P.3d 1102, 1105  (Alaska
2002)  (applying the voluntary and unreasonable standard  in  the
context of determining child support obligation).

     30    Susan argues that having earlier stipulated to a fifty-
fifty  split  of the marital portion of his military  retirement,
Clifton  may  not now contest it.  But Clifton is  not  disputing
that  Susan  is  entitled  to  the  fifty-percent  share;  he  is
asserting that there is more than one method of calculating  that
share relative to the whole and that the method used by the trial
court is unfair.

     31    See 10 U.S.C.  1401 (2006).

     32     This  is often referred to as the coverture  fraction
method  and  has been used by Alaska courts for the  division  of
marital  portions of defined benefit plans for  some  time.   See
Faulkner v. Goldfuss, 46 P.3d 993, 1003 (Alaska 2002).

     33    The USFSPA guidelines further note:

          A proposed regulation was issued in 1995 that
          allowed  the  use of formula and hypothetical
          awards  to divide military retired  pay  when
          the   parties  were  divorced  prior  to  the
          members  becoming eligible to receive retired
          pay.   [60 Fed. Reg. 17507 (1995) (as yet  to
          be   codified).]   Although   this   proposed
          regulation has never been finalized, it still
          provides  the basis for our review  of  these
          types of awards.
          
     34    See Veselsky, 113 P.3d at 637.

     35    While Clifton is correct that Susans proposed method of
division allows her share of his retirement to increase in  value
as a result of later promotions and pay raises, the marital share
of  the  retirement will continue to decrease as a percentage  of
the  entire retirement as he extends the duration of his  service
in  the military.  Clifton did not attempt to show that using the
QDRO  instead of the QMO would materially affect the  sixty-forty
division of the marital estate.

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