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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brotherton v. State, Dept. of Revenue, Child Support Services Division ex rel. Brotherton (03/06/2009) sp-6342

Brotherton v. State, Dept. of Revenue, Child Support Services Division ex rel. Brotherton (03/06/2009) sp-6342, 201 P3d 1206

      Notice:   This opinion is subject to correction before  pub
lication 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


DOUGLAS WAYNE )
BROTHERTON, ) Supreme Court No. S- 12588
)
Appellant, ) Superior Court No. 3AN-94-01210 CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, ) No. 6342 March 6, 2009
DEPARTMENT OF REVENUE, )
CHILD SUPPORT SERVICES )
DIVISION ex rel. TAHNI )
BROTHERTON, )
)
Appellee. )
)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  Douglas  Brotherton,  pro   se,
          Anchorage,  Appellant.  Leroy K. Latta,  Jr.,
          Assistant  Attorney General,  Anchorage,  and
          Talis  J. Colberg, Attorney General,  Juneau,
          for Appellee.

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

          FABE, Chief Justice.
          WINFREE, Justice, dissenting in part.

I.   INTRODUCTION
          Douglas Brotherton appeals the superior courts November
2006  modification of Tahni Brothertons child support obligation.
He  argues  that the superior court erred in excluding  from  its
calculation  of  Tahnis income her share of the  divided  marital
real  property.   He  also contends that Tahnis  income  did  not
justify  the reduction in child support, that she was capable  of
earning more than she reported, and that the reduction represents
an  improper  variance from Alaska Civil Rule 90.3.  We  conclude
that the superior court properly excluded from its calculation of
Tahnis  income  the value of Tahnis share of the divided  marital
real property.  But the trial courts calculation of income should
have  included the portion of post-judgment interest attributable
on  a pro rata basis to 2006.  We remand the case to the superior
court for additional findings on Tahnis 2006 income.
II.  FACTS AND PROCEEDINGS
          Douglas  and Tahni Brotherton married in 1981 and  have
two  sons,  born  in 1988 and 1990.  Tahni was initially  awarded
primary  physical  custody of the boys  after  the  couples  1995
divorce, but Douglas gained full custody in November 2004.  After
this  shift, Tahni requested a variance from her Rule 90.3  child
support obligation, claiming that her gross income was below  the
poverty line and that her obligation should be set at the $50 per
month  minimum  or  manifest injustice would  result.   She  also
requested that the court average her income over several years to
determine  her child support obligation.  The superior court  was
unpersuaded by Tahnis arguments, and in March 2005 it set  Tahnis
child support obligation at $426.67 per month for both boys.
          Douglass relationship with the children became strained
and  on  October 16, 2005, Douglas sent them to stay  with  their
maternal uncle and his wife, Douglas Warner and Pamela Neiswanger
(the  Warners), to cool off for a couple of months. Tahnis  child
support  obligation to Douglas, paid through  the  Child  Support
Services Division (CSSD), continued, but Douglas paid the Warners
$500 per month for boarding the boys.  Tahni also made a one-time
$500  payment  to the Warners in October 2005.  In December  2005
Tahni paid off her child support arrears to Douglas through CSSD.
The  Warners  then  sent a letter to Douglas requesting  that  he
forward  them  the  $426.67 per month he was receiving  in  child
support from Tahni through CSSD, retroactive to November 2005, in
addition to his $500 per month direct payments.  Douglas  refused
and  retrieved the boys from the Warner household  on  March  18,
2006.
          The  return  to  Douglass household had a  particularly
deleterious  effect  on the younger son, whose  emotional  health
suffered  over  the years of his parents protracted  custody  and
child  support  battles.  Dr. David Sperbeck, a psychiatrist  who
evaluated  both boys, noted that the younger boy had contemplated
suicide several times and that he stated that he would rather die
than continue to experience the conflict between his parents.  In
accordance with the childs wishes, the Warners moved to intervene
and  take custody of the younger son in April 2006.1  In  a  June
2006  stipulated  order the parties agreed that  custody  of  the
child would be transferred to the Warners until further order  of
the  court,  and  that Douglas and the Warners  would  engage  in
mediation to consider long-term custody.
          After  a  settlement conference, the parties stipulated
to  an  award of custody of the younger boy to the Warners.   The
          stipulation, which was entered as an order by the superior court
on  September 11, 2006, provided that Douglas would  continue  to
pay  the  Warners $500 per month and that Douglas would  instruct
CSSD  to  direct half of Tahnis monthly child support payment  to
the  Warners.   Although  the stipulated order  varied  from  the
standard child support procedures directed by Civil Rule 90.3 for
third-party custody of fewer than all the children, it was deemed
necessary due to the unusual circumstances of the case.
          Several  months  earlier,  in  June  2006,  Tahni   had
contacted  CSSD  and  requested that  the  March  2005  order  be
modified  to decrease her child support obligation.  She included
her 2006 child support guidelines affidavit, a schedule detailing
her 2006 income estimate, her 2005 tax return, and pay stubs from
her  three 2006 employers.  Her June estimate of gross income for
2006  was  $20,000.  In September she supplemented her affidavit,
decreasing her 2006 gross income estimate to $16,000 based on the
loss  of  her  job.   CSSD reviewed the information  provided  by
Tahni, and in October it calculated her obligation to be $294 per
month for both children, retroactive to July 1, 2006, and filed a
motion  to  decrease  Tahnis  child support  obligation  to  that
amount.
          Also  in  October  2006 Tahni filed with  the  superior
court a notice that Douglas had paid her in full for her share of
the  marital  real  property divided in their 1995  divorce  (the
Wasilla  property), after resolution of all litigation on  appeal
and  remand.2   Douglas  had been ordered  to  pay  $15,600  plus
interest  at 10.5 percent per annum, effective from the  date  of
the divorce decree, April 18, 1995, until the date of payment, to
compensate  Tahni for her share.  On October 16,  2006,  he  paid
$34,417.50, which included $18,817.50 in post-judgment interest.3
          The  court  granted  CSSDs motion  to  decrease  Tahnis
obligation to $294 per month.  But due to mailing irregularities,
Douglas did not receive CSSDs motion to modify and reduce  Tahnis
child  support obligation until after the court had  granted  it.
On  November  14, 2006, the day after the superior  courts  order
modifying support, Douglas requested an extension of time to file
an opposition to the modification motion.  The court granted that
request  on November 17, but after Douglas informed the court  of
the  service  problem  with  the original  motion  and  requested
clarification  in  light of the fact that  the  modification  had
already  been  granted, the court ruled that Douglass  responsive
filing   would   actually  be  considered   as   a   motion   for
reconsideration.
          In  his motion for reconsideration, Douglas agreed that
Tahnis  child support obligation should be modified but contended
that  it should be increased, not reduced.  He proposed that  she
pay $847 per month, a figure that reflected his belief that Tahni
was  capable of earning a gross income of $28,862.40 per year and
his  view  that his payment for her share of the Wasilla property
should  be  included  in the calculation of Tahnis  2006  income.
Douglas did not request a hearing on this motion.
          In its response to Douglass motion for reconsideration,
CSSD  emphasized that it had no financial interest in the  matter
and  did  not represent either party.  CSSD maintained  that  its
          calculation of Tahnis child support obligation was correct, while
acknowledging  that the figure was based on information  provided
by Tahni, including her sworn child support guidelines affidavit.
CSSD  noted  in particular Tahnis poor employment history,  which
was marked by frequent discharges for unsatisfactory performance.
Addressing Douglass argument that the payment compensating  Tahni
for  her share of the Wasilla property should be included in  her
Rule 90.3 income, CSSD stated that such an interpretation of Rule
90.3s  definition of income may be too broad.  Tahni also opposed
reconsideration.  Douglas replied, contending that CSSDs reliance
on information provided by Tahni was improper because she had not
included  the  payment for her share of the divided marital  real
property  in her income and claiming that she had not  accurately
reported her wages.
          On  January 4, 2007, the superior court denied Douglass
motion  for reconsideration without comment.  Douglas then  moved
again  for  reconsideration, expanding on his  earlier  arguments
that Tahni was capable of earning more than she had reported  and
that she had improperly excluded the payment for her share of the
Wasilla  property  from  her income.  The  superior  court  again
denied reconsideration, without comment, on January 31.
          Douglas  appeals the November 13, 2006  order  reducing
Tahnis child support obligation.4  Douglas argues that (1)  Tahni
was  capable of maintaining a higher income than she had reported
in  her request for a modification and her income did not justify
the  reduction in support; (2) the court failed to make  specific
findings  to support its decision to reduce Tahnis child  support
obligation;  (3)  the  payment for Tahnis share  of  the  divided
marital  real  property,  including the  post-judgment  interest,
should have been included in Tahnis income; and (4) the reduction
was an improper variance from Rule 90.3.
III. STANDARD OF REVIEW
          Modifications of child support orders are reviewed  for
abuse  of discretion.5  We will find an abuse of discretion  only
when we are left with a definite and firm
      conviction that a mistake has been made based on the record
as  a whole.6  Factual findings will not be set aside unless they
are clearly erroneous.7
          Whether a financial benefit qualifies as income for the
purposes  of  Rule  90.3 is a question of law requiring  de  novo
review.8   Under  such  review we adopt the  rule  that  is  most
persuasive in light of precedent, reason, and policy.9
IV.  DISCUSSION
     A.   Further  Factual  Findings Are  Required  To  Ascertain
          Whether Tahnis 2006 Income Supported a Reduction in Her
          Child Support Obligation.
          Douglas argues that Tahni was capable of maintaining an
income to support the pre-modification level of child support and
that  her  income level did not warrant a reduction in her  child
support  obligation.  CSSD responds that the superior  court  had
broad discretion to evaluate Tahnis financial situation and  that
the superior courts finding that a modification was warranted was
not clearly erroneous.
          The  superior court based its reduction of Tahnis child
          support obligation on a projected gross income estimate of
$16,000  for 2006.10  In her child support guidelines  affidavit,
Tahni  explained that this figure was based on the  approximately
$12,000 that she made between January 2006 and July 2006, plus  a
liberal  estimate of $4,000 for July through December.   But  the
validity  of  this second, estimated figure is not apparent  from
the  record.   In  2005 Tahni had a gross income  of  $24,801.55.
Deducting the $3,604 of unemployment benefits she collected  that
year,  she  still  generated approximately  $21,200  through  her
employment  in 2005.  In 2006 she made approximately  $12,000  in
seven  months, which over the course of a year would have totaled
approximately  $20,570  about the same amount  she  made  through
work in 2005.  Tahnis estimate of $4,000 in earnings for the last
five months of 2006 is problematic, even in light of the loss  of
her  position as a medical coding auditor, since a job paying the
minimum  wage would generate more than $4,000 of income  in  five
months.  In light of these issues, and because the superior court
did not make precise findings regarding Tahnis 2006 income,11  we
cannot  determine  whether the superior court erred  in  reducing
Tahnis  child support obligation.  We remand for further  factual
findings  to  ascertain whether Tahnis 2006 income warranted  the
reduction.12
     B.   Although  the  Superior Court Did Not Err in  Excluding
          the  Payment  for  Tahnis Share of the Divided  Marital
          Real  Property  from  Her Income for  Rule  90.3  Child
          Support  Calculation Purposes, It Should Have  Included
          the  Portion of Post-Judgment Interest Attributable  to
          2006.
          
          When  the  superior court adopted CSSDs calculation  of
Tahnis child support obligation, it excluded from its calculation
the  $34,417.50  payment  that Tahni  received  from  Douglas  in
October 2006 for her share of the Wasilla property, divided under
the  terms of their 1995 divorce.  Douglas argues that  both  the
property value itself and the post-judgment interest paid  should
have  been  included in Tahnis income for purposes of calculating
her Rule 90.3 child support obligation.
          1.   Tahnis share of the divided marital real property
          Tahnis share of the marital real property divided under
the  1995  divorce decree amounted to $15,600.  Douglas  contends
that  the payment she received for this property should count  as
income under Rule 90.3.  CSSD disagrees.
          Douglas  recognizes that Part III of the Commentary  to
Civil  Rule  90.3 does not specifically list property  settlement
payments  as income and that we have concluded in the  past  that
property  settlements do not represent income for  child  support
purposes.   In Kiel v. Alexander, we held that a $10,000  payment
from an ex-husband to his former wife for her interest in a piece
of  real  property  [c]learly  . .  .  represent[ed]  a  property
settlement and [was] therefore not income for Rule 90.3 purposes.13
Other  courts have adopted this principle as well.  For instance,
in  Kyle  v.  Kyle14  an Indiana appellate  court  considered  an
argument similar to the one Douglas makes.  There, the ex-husband
was  ordered to pay his ex-wife $100 per month for her  share  of
          the equity in the marital home.15  The ex-husband contended that
the lower court erred in excluding this payment from his ex-wifes
income for child support calculation purposes.16  The Kyle  court
affirmed   the   exclusion,  concluding  that  marital   property
distributions do not count as income in that regard:
          The   $100.00   per  month  is   a   property
          settlement  payment.  It is  not  maintenance
          and   is   not  properly  included   in   the
          definition  of gross income for the  purposes
          of  calculating child support.  .  .  .   The
          trial  court could have required  Richard  to
          pay  the  [total  equity amount]  immediately
          after  the divorce . . . .  We do not believe
          the terms of the property distribution should
          impact an order of child support.[17]
          Although  Douglas  recognizes  that  there  have   been
previous  court  opinions  exempting  property  settlements  from
income,  he contends that this concept should be evaluated  on  a
case-by-case basis.  He argues that because Rule 90.3s definition
of  income  coincides (with very few exceptions)  with  the  IRSs
definition of income and because there may be circumstances which
disqualify  the $15,600 payment from being excluded  from  income
under  Internal Revenue Code rules, we should follow the Internal
Revenue  Code and count the settlement as income under Rule  90.3
as well.18
          But  Douglas fails to cite any authority to support his
dubious  position.   There is no dispute  that  the  payment  for
Tahnis  share of the marital real property was made  pursuant  to
the 1995 divorce order.  Even if Douglas could find authority  to
support  his  position, we have recognized in the past  that  the
Rule  90.3  definition  of income may differ  from  the  Internal
Revenue Codes definition of income.19  The superior court properly
excluded  the  payment representing Tahnis share of  the  marital
property  from  her  income  in  calculating  her  child  support
obligation under Rule 90.3.
          2.   Post-judgment  interest on  Tahnis  share  of  the
               divided marital real property
               
          Douglas  also  argues  that  the  $18,817.50  in  post-
judgment  interest  on Tahnis share of the divided  marital  real
property  should have been included in Tahnis Rule  90.3  income.
As  Douglas points out, the commentary to Rule 90.3 does  include
interest and dividends as income.20  But to include in Tahnis 2006
income  the  entire  amount  of  interest  she  received    which
represented   interest  accrued  not  just  in  2006   but   over
approximately eleven years21  would paint a distorted picture  of
Tahnis  2006  income.   We  have  in  the  past  employed  income
averaging to ensure a fair assessment when an obligors income has
fluctuated.22  Thus, the trial court should only deem the portion
of  the total post-judgment interest payment by Douglas to  Tahni
attributable to 2006 as income earned in 2006.23
          This  approach  is consistent with the goals  of  post-
judgment interest.  Had Tahni been timely paid her judgment,  she
could  have  invested the money and generated interest  on  it.24
          That interest would have counted as Rule 90.3 income.  But
importantly,  only  the  interest accruing  in  2006  would  have
counted  as  income  to her in that year.   Therefore,  only  the
portion  of  interest attributable to 2006 should be  counted  as
income  to  Tahni  in  2006.  The superior  court  erred  in  not
including  this fraction of the total interest in its calculation
of  Tahnis  2006  income  and  the  corresponding  child  support
obligation for that year.
          On  remand,  the court should include the proportionate
share  of  interest attributable to 2006 as income to  Tahni  for
calculation  of her 2006 child support obligation.  Because  this
interest  is non-recurring, it should not be counted for  support
after 2006.25  We also note that the portion of the post-judgment
interest that is included in Tahnis 2006 income should be reduced
by Tahnis federal income tax liability for that portion.26
V.   CONCLUSION
          The  superior court properly excluded from Tahnis  Rule
90.3 income her share of the divided marital real property.   But
the  portion of post-judgment interest that accrued on it in 2006
must  be included in Tahnis 2006 Rule 90.3 income, and we  REMAND
for  calculation  of  that amount.  Because  the  $16,000  income
estimate  for  2006  used  to  calculate  Tahnis  child   support
obligation  has  not  been explained, we  REMAND  for  additional
factual   findings  to  determine  whether  Tahnis  2006   income
warranted a reduction in her child support obligation.
WINFREE, Justice, dissenting in part.
          I   respectfully  disagree  with  the  courts  ultimate
resolution  of Tahnis October 16, 2006, receipt of $18,817.50  in
post-judgment interest.  The court acknowledges Douglass argument
that  the interest is income that should be included in the  Rule
90.3(a)   calculation   of  Tahnis  2006  income,   and   further
acknowledges that the receipt of interest generally is income for
Rule   90.3  purposes.   The  court  appropriately  expresses   a
legitimate  concern  that  including the  entire  amount  of  the
interest  would paint a distorted picture of Tahnis 2006  income.
But in attempting to allay its concern, the court goes astray  by
creating  a  new  rule  of  law that abridges  the  trial  courts
discretion to calculate an appropriate child support award.1
          Although  true  that the question of  whether  an  item
qualifies  as income for the purposes of Rule 90.3 is a  question
of  law,2 calculating income for future child support payments is
a  matter within the trial courts discretion.  The commentary  to
Rule 90.3 observes:
          Child   support  is  calculated   as   a   certain
          percentage of the income which will be earned when
          the  support  is  to be paid.  This  determination
          will  necessarily be somewhat speculative  because
          the  relevant  income figure  is  expected  future
          income.   The  court  must examine  all  available
          evidence to make the best possible calculation.[3]
          
In  my  view  the  court  should allow  the  superior  court  the
opportunity on remand to consider all evidence of Tahnis 2006 and
future  income,  including but not limited to  Douglass  one-time
payment  of long-accrued interest, and to exercise its discretion
in fashioning an appropriate child support award for 2006 onward.
          Tahni  has asked the superior court to lower her  child
support  obligation,  and  a  modification  of  a  child  support
obligation  is within the discretion of the superior court.   The
superior  court  certainly is capable of:   (1)  recognizing  the
income  distortion created by Douglass one-time  payment  of  the
entire  eleven  and  one-half  years of  post-judgment  interest;
(2)  exercising  its authority and discretion  to  apply  income-
averaging  to  this  non-recurring  source  of  income   in   its
calculations, if appropriate;4 and (3) recognizing and exercising
its  discretion  to vary the child support award under  the  Rule
90.3(a) formula to avoid manifest injustice, if good cause to  do
so  exists.5  After examining all evidence of Tahnis  income  for
2006 and beyond, the superior court may determine that some, all,
or  none of the interest payment should be taken into account  in
the  Rule  90.3(a)  calculations or that a variation  from  those
calculations is warranted under Rule 90.3(c).
          Instead   the  court  fashions  a  new  rule  on   what
constitutes income for purposes of Rule 90.3.  The court holds as
a  matter  of  law that when a non-recurring payment  of  accrued
interest is received in a given year, only the amount of interest
that  actually  accrued in that year is income for  Rule  90.3(a)
calculations.   The  rule  is  inappropriate  because  it  cannot
reasonably  fit  all facts and circumstances  and  may  encourage
          manipulation of the timing for receipts of income.  If Douglas
had  paid  Tahni on January 1, 2006, as a matter of law only  one
days  interest  would  be  income for  Rule  90.3(a).   In  other
situations the party receiving interest income might cause it  to
be  received January 1 to ensure that virtually all of it is  not
treated as Rule 90.3 income, which may not be fair to either  the
custodial  parent  or the affected children.  The  rule  is  also
unnecessary because, at least until today, the superior court had
the  authority  to evaluate unusual receipts of income  and  take
them  into  account  along  with all  other  relevant  facts  and
circumstances,  and  then had broad discretion  to  determine  an
appropriate child support award.6
          If   the  court  is  concerned  that  Douglas  unfairly
attempted to skew Tahnis income in his favor after she moved  for
modification  of her support obligation, the proper  response  is
not to tie the lower courts hands in all cases with a new rule of
law  fashioned for this particular case.  Instead, it is to allow
the superior court to exercise its sound discretion by making the
best possible calculation of Tahnis income going forward in light
of all available evidence.
_______________________________
     1     At  that point, the older son was two months away from
turning eighteen.

     2     The  parties appeared before us three times on  appeal
regarding  their  marital property division.  See  Brotherton  v.
Brotherton,   142   P.3d  1187  (Alaska  2006);   Brotherton   v.
Brotherton,  Mem.  Op.  & J. No. 957, 2000 WL  34545647  (Alaska,
March  1, 2000); Brotherton v. Brotherton, 941 P.2d 1241  (Alaska
1997).

     3    Although judgment was not entered until August 7, 2006,
we  use  the term post-judgment interest to describe all interest
accruing  on  the principal from the date of the divorce  decree,
April 18, 1995.

     4     Douglas  does not appeal the September 2006 stipulated
order granting custody of the younger son to the Warners and  the
child support arrangements detailed therein.

     5     Robinson  v.  Robinson, 961 P.2d  1000,  1002  (Alaska
1998).

     6    Id.

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

     8    Robinson, 961 P.2d at 1002.

     9    Id.

     10     Although  the  superior court did not  make  explicit
findings  about  Tahnis 2006 income, it implicitly  accepted  the
$16,000 figure by adopting CSSDs recommendation of $294 per month
for two children, which was based on a projected gross income  of
$16,000 for 2006.

     11     CSSD argues that the superior courts factual findings
were adequate and cites Mattfield v. Mattfield, 133 P.3d 667, 675
(Alaska  2006),  a case in which we held that a  standard  DR-301
order for modification of child support form, as was used by  the
superior  court  in  this  case, provided  sufficiently  detailed
findings to support the superior courts child support order.  But
Mattfield  is  inapposite  because there  the  appellant  neither
challenge[d]  the accuracy of the information used by  the  court
nor  allege[d]  that  the  courts  order  contain[ed]  errors  in
calculation.  Id.  Here, Douglas has consistently argued that the
superior  court  overlooked or misconceived  the  material  facts
regarding [Tahnis] income in granting the reduction.

     12    The superior court stated in its order modifying child
support that application of the Rule 90.3 formula would be unjust
because  this  is  a  divided custody  case  with  a  third-party
custodian that is a variance from the requirements of Civil  Rule
90.3(i)  as  specified in [the] order dated September  11,  2006.
If,   on  remand,  the  superior  courts  ordered  child  support
represents  a  variance  from  the Rule  90.3  formula,  specific
findings  explaining that variance will also be  necessary.   See
Alaska R. Civ. P. 90.3(c)(1).

     13     Mem.  Op.  &  J. No. 1144, 2003 WL  22320611,  at  *7
(Alaska, October 8, 2003).

     14    582 N.E.2d 842 (Ind. App. 1991).

     15    Id. at 844.

     16    Id. at 846.

     17    Id. at 847.

     18     Douglas  implicitly relies on Internal  Revenue  Code
1041,  which  governs transfers of property incident to  divorce.
See  26  U.S.C.   1041  (2000).  That code section  provides  the
general  rule that transfers of property between spouses incident
to  divorce  are  treated for tax purposes as gifts  rather  than
income,  and  that  no  gain or loss will be  recognized  on  the
transfer.     Id.    1041(a)-(b).    The   Treasury    regulation
implementing  this  code section, however,  provides  that  if  a
transfer  is not made within one year after the date the marriage
ceases, it must be made within six years of the date the marriage
ceases and be pursuant to a divorce order or the general rule  is
not applicable.  See 26 C.F.R.  1.1041-1T(b), Q&A (6)-(7) (2008).
This  regulation provides that transfers made even after the six-
year  period may still qualify for the general tax treatment upon
a  specific showing that the transfer was made in connection with
a   divorce-related   property  division  and   that   sufficient
justification exists for the delayed transfer.  See  id.  at  Q&A
(7).   Douglas claims that because he did not actually pay  Tahni
for  her 1995 property transfer to him until 2006, well after six
years of the date the marriage ceased, the general rule does  not
apply and we should recognize the payment as income.

     19     See,  e.g.,  Osmar v. Mahan, 53 P.3d  149,  151  n.11
(Alaska 2002) (Although the Internal Revenue Codes definition  of
income  differs from Rule 90.3s definition in other respects,  it
is  noteworthy  that federal income tax law also  excludes  child
support from income. (emphasis added)).

     20    Alaska R. Civ. P. 90.3 cmt. III.A (Income includes, but
is not limited to . . . interest and dividends[.]).

     21     Douglas was ordered to pay $15,600 plus interest from
the date of the divorce decree, April 18, 1995, until the date of
payment.  He actually paid that amount on October 16, 2006.

     22    Keturi v. Keturi, 84 P.3d 408, 413 (Alaska 2004) ([W]e
have  held in a number of cases that income-averaging may be used
to  calculate a non-custodial parents income where  it  has  been
erratic in the past.); see also Alaska R. Civ. P. 90.3 cmt III.E.

     23     Douglass  post-judgment obligation  accrued  for  138
months before payment, nine and one-half of which were in 2006.

     24     In  fact,  this scenario demonstrates  the  rationale
behind  awarding  pre-  and post-judgment interest.   See,  e.g.,
Ogard  v.  Ogard, 808 P.2d 815, 817-18 (Alaska 1991) (recognizing
that such awards are meant to compensate the successful party for
lost  use of the money and [to] prevent unjust enrichment of  the
unsuccessful party who had the money).  A related purpose  is  to
eliminate  the  incentives  to  litigate  a  case  or  prolong  a
judgment.  Morris v. Morris, 724 P.2d 527, 529 (Alaska 1986).  We
note  that this purpose is also served in the case at  bar.   See
Brotherton v. Brotherton, 142 P.3d 1187, 1191 (Alaska 2006) ([I]t
is  undisputed that Douglas vigorously appealed the award of one-
half  of the equity in the Wasilla property until all avenues  of
appeal  were exhausted.).  To treat all of the interest as though
it  was  earned  in 2006 would allow the payor to manipulate  the
child support calculation.

     25    In defining income, Rule 90.3 generally contemplates an
income  stream rather than non-recurring payments.  For instance,
it   excludes  one-time  gifts  and  inheritances,  but  includes
recurring  payments  such  as salary, royalties,  and  dividends.
Alaska R. Civ. P. 90.3 & cmt III.A.

     26     See Shepherd v. Haralovich, 170 P.3d 643, 650 (Alaska
2007)  ([F]ederal  income tax is to be deducted  from  a  parents
gross  income  in order to determine the parents adjusted  annual
income [under Rule 90.3.]).

1     See  Keturi  v.  Keturi, 84 P.3d  408,  412  (Alaska  2004)
(We  will  not  overturn a child support award unless  the  trial
court abused its discretion in calculating the award.).

     2     Robinson  v.  Robinson, 961 P.2d  1000,  1002  (Alaska
1998).

     3     Alaska R. Civ. P. 90.3, Commentary III.E, 232  (2008).
The  commentary  to  Civil  Rule 90.3  has  not  been  officially
adopted, but it can provide useful guidance in applying the rule.
Miller  v.  Clough, 165 P.3d 594, 600 n.10 (Alaska 2007)  (citing
Caldwell v. State, 105 P.3d 570, 573 n.6 (Alaska 2005)).

     4     See  Keturi  84 P.3d at 413 (noting our holdings  that
income-averaging may be used to deal with erratic income).

     5    See Alaska R. Civ. P. 90.3(c)(1).

     6    Keturi, 84 P.3d at 812.

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