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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hill v. Bloom (7/9/2010) sp-6490

Hill v. Bloom (7/9/2010) sp-6490, 235 P3d 215

     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


ALLISON HILL, )
) Supreme Court No. S- 13338
Appellant, )
) Superior Court No. 3AN-06-4224 CI
v. )
) O P I N I O N
DEBORAH BLOOM, )
) No. 6490 July 9, 2010
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:  Herbert  A.  Viergutz,  Barokas
          Martin & Tomlinson, Anchorage, for Appellant.
          R.  Scott Taylor, Feldman Orlansky & Sanders,
          Anchorage, for Appellee.

          Before:     Fabe,   Winfree,   and   Stowers,
          Justices.  [Carpeneti,  Chief  Justice,   and
          Christen, Justice, not participating.]

          STOWERS, Justice.

I.   INTRODUCTION
          On February 20, 2008, following an evidentiary hearing,
the   superior   court  calculated  the  future   child   support
obligations that Allison Hill owed to Deborah Bloom.   The  court
used  a  five-year average of Hills income from 2002 to  2006  to
calculate  child  support for 2008 forward.  The  court  rejected
Hills  argument that her substantially reduced 2007 income should
be  the  basis  of  her  future  child  support  obligations  and
expressly  found  her reduced 2007 income to  be  an  aberration.
Hill did not appeal the courts child support order.
          Five   months   after  the  February  2008  evidentiary
hearing,  Hill  filed a motion to modify child  support,  arguing
that her reduced income for the first half of 2008 was a presumed
material   change  in  circumstances  under  Alaska  Civil   Rule
90.3(h)(1).   The superior court denied Hills motion  without  an
evidentiary   hearing,  finding  no  new  evidence   or   changed
circumstances.   Hill  appeals the superior courts  finding  that
there  was no new evidence presented and its denial of her motion
to  modify.  We conclude that the superior court did not  clearly
err  by finding that Hill had presented no new evidence.  We also
conclude  that  the superior court did not err in  denying  Hills
motion  without  an  evidentiary  hearing  because  she  had  not
presented  sufficient evidence of permanently reduced  income  to
show a material change in circumstances.  We therefore affirm the
superior courts denial of the motion to modify.
II.  FACTS AND PROCEEDINGS
          Allison  Hill  and  Deborah  Bloom  lived  together  as
domestic  partners from February 1995 until September 2005.   Two
children  were  born to and adopted by the parties  during  their
partnership.   Hill, a chiropractor, was the sole  owner  of  The
Hill  Clinic.  The majority of the parties financial issues  from
their  separation were settled in mediation on May 15, 2007.   As
part  of the settlement, both parties agreed to establish  future
child support under Alaska Civil Rule 90.3.
          Shortly   after  the  mediation,  both  parties   filed
affidavits for calculation of child support under Rule 90.3.  Due
to  differences in the calculations of the parties, Hill filed  a
request  for  an  evidentiary hearing specifically  in  order  to
testify as to the decline of her business.
            On  February  20, 2008, the superior  court  held  an
evidentiary  hearing  on child support.   At  the  hearing,  Hill
entered  into  evidence a report on her income  prepared  by  her
accountant.  As the sole owner of The Hill Clinic,  Hill received
all  the  net income from the clinic in addition to a  salary  of
approximately $36,000 a year.  The report showed that there  were
differences  in  the  year-to-year net income  from  the  clinic.
Specifically, the clinic experienced a large drop in  net  income
from 2006 ($106,148) to 2007 ($42,645).  Hill testified that  her
relocation  of  The  Hill Clinic and the  clinics  loss  of  some
massage  therapists and another chiropractor caused her  drop  in
income  in  2007.   Hill also testified that  although  The  Hill
Clinic  had previously hired independent contractors, the results
of  a  December 2007 Department of Labor audit would prevent  the
clinic from hiring independent contractors after March 25,  2008.
She testified that it took her years to build her business up  to
where  it  was before the audit and that the Department of  Labor
audit made it impossible for her to increase [her] income back to
what it was.
          At  the  conclusion of the hearing, the superior  court
calculated Hills child support obligation.  The court declined to
use  Hills  2007  income to calculate her ongoing  child  support
obligation because it found 2007 to be an aberration.  The  court
stated that Hills 2007 income was low because she had to move her
clinic,  but  she has a long-established history going  back  ten
years of managing a chiropractic clinic on an ongoing basis.  The
court  averaged Hills income from 2002 to 2006 and estimated  her
adjusted  annual income to be $94,017.  It set her ongoing  child
support payment at $888.50 monthly.
          On  July  16,  2008, five months after the  evidentiary
hearing,  Hill  filed  a motion to modify  child  support.   Hill
supported her motion with a sworn affidavit stating that her  net
income for the first six months of 2008 was $15,877.  Hill argued
that  her  net  income  for all of 2008  would  be  approximately
$31,754,  substantially less than the five-year average estimated
by  the  court.   Hill  asserted that her  decreased  income  was
explained at the [h]earing, and that the drop in her 2008  income
was  due  to a May 2008 Department of Labor ruling affirming  the
December  2007  audit, the clinics change in  location,  and  the
clinics loss of practitioners.
          On  October  14, 2008, the superior court denied  Hills
motion  to modify without an evidentiary hearing.  In its  order,
the  court stated that [u]pon review, this court finds no  change
[in]  circumstances  or  new evidence. The  same  arguments  were
considered  and  ruled on by this court in  setting  the  present
child support.
          This appeal follows.
III. DISCUSSION
          Alaska law allows for the modification of child support
orders  upon  a  showing of a material change in  circumstances.1
This  rule  provides an exception to the general  principle  that
final  judgments should not be disturbed.2  However, [t]he change
ordinarily must be more or less permanent rather than temporary.3
          A  material  change in circumstances is presumed  if  a
parents child support obligation calculated under Rule 90.3 using
her  present income is greater than fifteen percent more or  less
than her existing support obligation.4  We have held that because
Rule 90.3(h)(2) provides that child support arrearages may not be
modified  retroactively, it [is] incumbent upon [the parties]  to
promptly  apply  for  a modification of child  support  when  the
material change in circumstances occur[s]. 5
          We  have  never  drawn  a bright  line  establishing  a
minimum period of time that a party must wait after child support
has been calculated by a trial court before that party may file a
motion to modify support based upon an alleged material change in
circumstances.  In this case, where the superior court calculated
child  support  based on a multi-year averaging  of  income,  and
where  the  support obligor sought to modify support  after  only
five  months,  relying  on  essentially  the  same  evidence  and
arguments  previously provided to the court,  we  hold  that  the
court  did  not  err  in  denying the motion  without  conducting
another evidentiary hearing.
     A.   Standard Of Review
          We  review de novo [w]hether a moving party has made  a
prima  facie  showing sufficient to justify a  custody  or  child
support  modification hearing.6  We will affirm  a  denial  of  a
modification  motion  without a hearing if,  in  our  independent
judgment,  the  facts  alleged, even if  proved,  cannot  warrant
modification, or if the allegations are so general or  conclusory
          . . . as to create no genuine issue of material fact requiring a
hearing.7   Under  Alaska Civil Rule 52(a),  [f]indings  of  fact
shall not be set aside unless clearly erroneous.
     B.   The Superior Court Did Not Err In Finding That Hill Had
          Presented No New Evidence.
          
          Hill  argues that the superior court erred  in  finding
that  she  presented no new evidence in support of her July  2008
motion  to modify child support.  Bloom argues that Hill did  not
present new evidence to support a change in the circumstances  on
which the original child support order was based.
          The  record  shows  that  in addition  to  her  express
reliance  on  the  evidence  she adduced  at  the  February  2008
evidentiary  hearing, Hill produced evidence in  support  of  her
July  2008  motion  to  modify that her net  income  for  January
through  June 2008 was $15,877.  Her motion also included hearsay
business  summaries that showed that her gross  income  from  the
first  half  of 2008 was $19,874.  This evidence of Hills  actual
income  for  January through June 2008 was not presented  to  the
superior court in the February 2008 hearing, so in that sense  it
was  new  evidence,  but  it  was entirely  consistent  with  the
evidence and arguments that Hill did present to the court at  the
hearing.
          At  the  February 2008 hearing Hill presented  evidence
and  argued  that her decreased 2007 income was due to:  (1)  the
clinics  loss of massage therapists and another chiropractor  and
(2)  the  clinics relocation.  She also testified that a December
2007  Department  of Labor audit would prevent  her  from  hiring
independent  contractors in the future.   In  her  memorandum  in
support  of her motion to modify, Hill argued that her  decreased
2008 income was due to: (1) many of her practitioners having left
the clinic; (2) the relocation of her office; and (3) the actions
of  the  Department of Labor.  On appeal, Hill acknowledges  that
the  reasons for her reduced income had been previously presented
to  the  superior court to explain her 2007 income.8   Hills  new
evidence  of  her  2008 income was, at best, additional  evidence
bolstering her previously adduced evidence and arguments.
          In  February  2008  the  court considered  all  of  the
evidence that Hill presented in support of her argument that  her
future  income was likely to be consistent with her reduced  2007
income,  but  determined that her 2007 income was  an  aberration
after  looking  at  her history of success with her  chiropractic
practice.   Hill did not appeal the courts February  2008  order.
Given  the relatively brief passage of time between the  February
2008 evidentiary hearing and the July 2008 motion to modify,  and
given  that  the evidence presented in support of the  motion  to
modify was essentially the same as the evidence presented in  the
evidentiary  hearing, we cannot say that the court clearly  erred
in  concluding  that Hill had presented no new evidence  for  the
purpose of considering her motion to modify child support.9
          
     C.   The  Superior Court Did Not Err By Denying Hills Motion
          To Modify Without An Evidentiary Hearing.
          
          Even  if  we  agreed with Hill that the superior  court
          erred in determining that she had presented no new evidence
supporting  her motion to modify child support, the  evidence  of
Hills  actual income for the first half of 2008 did  not  make  a
prima  facie showing for modification of child support given  the
relatively   short  amount  of  time  that  passed  between   the
evidentiary  hearing and the motion to modify.  Hill argues  that
she  fulfilled the requirements for a presumptive material change
in   circumstances   under  Alaska  Civil  Rule   90.3(h)(1)   by
introducing evidence that her 2008 income would reduce her  child
support obligation by more than fifteen percent.  She argues that
her  2008 income was a continuation of her reduced income in 2007
and  implicitly argues that her 2008 income shows that  2007  was
not  an aberration.  Bloom argues that the superior court did not
err in denying Hills motion because the motion relied on the same
evidence and testimony presented to the superior court during the
February 2008 child support hearing.
          The  evidence that Hill presented supporting her motion
to  modify  support  included documents showing  that  her  gross
income  for the first half of 2008 was $19,874.  Hill  argued  in
her  July 2008 motion that her projected 2008 income would be far
below the income figures projected by the court in February 2008,
thus meeting Civil Rule 90.3(h)(1)s fifteen-percent threshold for
a presumptive material change in circumstances.
          Because  even a large drop in income is not a  material
change  in circumstances if it is temporary,10 parents must  also
provide some evidence that the drop in income is permanent.   For
example, a parent could not file a motion to modify child support
one  day  after  losing her job and prevail because  one  day  of
unemployment  is clearly insufficient evidence to show  that  her
drop of income was permanent.
          Evidence  that  a  drop  in  income  is  permanent   is
especially important in cases such as this one, where  the  trial
court  has  only  recently conducted an evidentiary  hearing  and
calculated child support based on a careful retrospective  multi-
year  income average approach.  It is also a consideration  where
an  obligor  parent owns a business.  Businesses, and  especially
small businesses, often experience income fluctuations seasonally
or from month to month.  Evidence that a business has experienced
reduced  income  for  several months may not,  without  more,  be
sufficient to show that the drop is permanent.
          The determination of when a change in income ceases  to
be  temporary and becomes permanent is an exercise in  drawing  a
line.    There   is   no  bright  line  test  for   making   this
determination,  and  each  case must be  evaluated  individually.
Hill  acknowledges that the reasons for her reduced  2008  income
had  been  previously presented to the superior court to  explain
her  reduced  2007 income.  The superior court had only  recently
heard Hills evidence and arguments explaining why her income  had
dropped  in  2007,  and the court found that  this  decrease  was
aberrational  and,  by  implication,  not  permanent.   When  the
superior  court denied Hills motion to modify and explained  that
it found no change in circumstances, the court necessarily had to
find  that Hill had not made a prima facie showing sufficient  to
justify  conducting  another child support  evidentiary  hearing.
          Given the relatively short time between the date of the hearing
and  the  date of the motion to modify, in our de novo review  of
the  record we cannot conclude that the superior court  erred  in
denying the motion to modify without conducting a hearing because
we  agree that Hills evidence did not make a prima facie  showing
that her reduction in income was permanent.11
     D.   Hills Other Arguments Are Waived Or Without Merit.
          Hill  also  alleges that the superior  court  erred  by
failing  to  force Bloom to produce additional income information
at  the  February hearing, by using a five-year average of income
to  calculate Hills future income at the February hearing, and by
failing to issue specific findings of fact in denying the  motion
to  modify.  None of Hills arguments have merit.  She has  waived
any  arguments alleging error at the February hearing by  failing
to  file  a  timely appeal.12  The superior courts order  on  the
motion  to  modify  contained  findings  adequate  for  appellate
review.13
IV.  CONCLUSION
     For  the  preceding reasons, we AFFIRM the  superior  courts
denial of Hills motion to modify child support.
_______________________________
     1    Alaska R. Civ. P. 90.3(h)(1) states:
          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    Bunn v. House, 934 P.2d 753, 757 (Alaska 1997).

     3     Patch  v.  Patch,  760  P.2d 526,  529  (Alaska  1988)
(quoting Curley v. Curley, 588 P.2d 289, 291 (Alaska 1979)).

     4    Alaska R. Civ. P. 90.3(h)(1).

     5     Flannery v. Flannery, 950 P.2d 126, 133 (Alaska  1997)
(citing   Alaska  R.  Civ.  P.  90.3,  Commentary  X)   (internal
alterations omitted).

     6     Harrington  v.  Jordan, 984 P.2d 1,  3  (Alaska  1999)
(quoting  Morino  v.  Swayman, 970 P.2d 426, 428  (Alaska  1999))
(footnote omitted).

     7    Id. (footnotes and internal quotations omitted).

     8     Hill argues on appeal that a May 2008 final ruling  by
the  Department  of  Labor  preventing  the  clinic  from  hiring
independent  contractors was new evidence supporting  a  material
change  in  circumstances.   But the  May  2008  ruling  was  not
mentioned  in  the  motion to modify until  Hills  reply  to  the
opposition  to  the motion to modify.  The function  of  a  reply
memorandum is to respond to the opposition to the primary motion,
not  to  raise  new issues or arguments.  Demmert v. Kootznoowoo,
Inc.,  960  P.2d  606, 611 (Alaska 1998).  Hill  also  failed  to
present the May 2008 final ruling to the superior court, and thus
it is not properly part of the appellate record.  See State, Dept
of  Natural Res. v. Transamerica Premier Ins. Co., 856 P.2d  766,
776 (Alaska 1993).  We therefore do not consider it.

     9     A  parents obligation to provide new facts on a motion
to modify is especially important because a motion to modify that
alleges no new facts could serve to circumvent the requirement of
a  timely appeal.  Cf. Cline v. Cline, 90 P.3d 147 (Alaska  2004)
(Civil  Rule 60(b) may not be used as a substitute for  a  timely
appeal).

     10     Patch  v.  Patch, 760 P.2d 526, 529-30 (Alaska  1988)
(affirming  lower courts denial of modification  because  fathers
eighty-percent decrease in income was temporary).

     11    In her affidavit submitted in support of her motion to
modify,  Hill also testified that she was diagnosed with  adrenal
adenoma  and  alleged that Bloom had quit her job and  was  self-
employed.   These  facts do not establish a  material  change  in
circumstances.  Hill stated that she did not know the  costs  and
recovery  time  of the surgery required for her adrenal  adenoma.
Without more information, Hills medical condition does not  cross
the  evidentiary  threshold to require  an  evidentiary  hearing.
Hill  also did not supply the superior court with information  on
Blooms self-employed income.  Hills bare assertion that Bloom was
self-employed is insufficient to warrant an evidentiary hearing.

     12     Appellate Rule 204(a) requires appeals  to  be  filed
within  thirty days of judgment.  The superior court  issued  its
order  setting  Hills child support obligation  on  February  21,
2008.   Hill did not file this appeal until after the  July  2008
hearing,  well  outside  of the thirty-day  window.   See,  e.g.,
Wagner v. Wagner, 205 P.3d 306, 310 (Alaska 2009).

     13    See Keating v. Traynor, 833 P.2d 695, 696 (Alaska 1992)
(The  trial  court has a duty to make findings of fact sufficient
to  provide this court with a clear understanding of the basis of
the award.).

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