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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gorton v. Mann (7/27/2012) sp-6698

Gorton v. Mann (7/27/2012) sp-6698

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

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JEFFREY E. GORTON,                              ) 

                                                )       Supreme Court No. S-14277 

                        Appellant,              ) 

                                                )       Superior Court No. 3AN-09-11006 CI 

        v.                                      ) 

                                                )       O P I N I O N 

STEPHANIE J. MANN,                              ) 

                                                )      No. 6698 - July 27, 2012 

                        Appellee.               ) 


                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Peter A. Michalski, Judge. 

                Appearances:        Rhonda     F.   Butterfield,    Anchorage,       for 

                Appellant.  Lance C. Wells, Law Offices of Lance C. Wells, 

                P.C., Anchorage, for Appellee. 

                Before:      Carpeneti,     Chief   Justice,   Fabe,    Winfree,    and 

                Stowers, Justices. 

                FABE, Justice. 


                Jeffrey Gorton and Stephanie Mann are the parents of a young son.  When 

they divorced, the superior court awarded them a shared physical custody schedule and 

proceeded to calculate child support.   This appeal arises from that calculation and from 

the   amount   the   superior   court   allowed   Jeffrey   to   deduct   from   his   income   for   child 

----------------------- Page 2-----------------------

support payments he was already making for his two children from a prior marriage.  The 

superior   court   allowed   Jeffrey   to   deduct   from   his   adjusted   gross   income   the   actual 

amount of child support he paid to the mother of his two older children from the prior 

marriage. But Jeffrey claimed that he should receive a deduction for a hypothetical 27% 

of his income that caring for the older children would cost him if they lived with him full 

time and   he did   not have shared custody of those children.              We affirm the superior 

court's decision that Jeffrey was only entitled to deduct from his adjusted income the 

amount of child support actually paid for the children from his prior marriage under 

Alaska Civil Rule 90.3(a)(1)(C). 


                Jeffrey Gorton is the father of three children: Satcher, Trice, and Mason. 

Jeffrey   and   his   ex-wife,   Shannon,   share   custody   of   Satcher   and   Trice   on   a   50-50 

schedule.  Jeffrey pays $5,756.88 per year to support Satcher and Trice, an amount that 

was calculated under Civil Rule 90.3(b)(1).1 

        1       Civil Rule 90.3(b)(1) states in relevant part: 

                A   child   support   award   in   a   case   in   which   the   parents   are 

                awarded shared physical custody as defined by paragraph (f) 

                will be calculated by: 

                        (A)     Calculating      the   annual   amount     each   parent 

                would pay to the other parent under paragraph (a) assuming 

                the other parent had primary custody.   In this calculation the 

                income      limit  in   subparagraph      (c)(2)   and   the  minimum 

                support amount in subparagraph (c)(3) apply. 

                        (B)     Multiplying this amount for each parent by the 

                percentage      of  time   the   other   parent   will  have    physical 

                custody of the children.        However, if the court finds that the 

                percentage of time each parent will have physical custody 

                will not accurately reflect the ratio of funds each parent will 


                                                   -2-                                             6698

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                Stephanie Mann and Jeffrey are the parents of Mason, whose child support 

is the point of contention in this appeal.   In May 2010 the superior court ordered a shared 

physical custody arrangement for Mason.  Due to Jeffrey's work on the North Slope, he 

spends only two weeks a month in Anchorage.  Under this custody arrangement, Jeffrey 

has custody of Mason for a total of ten days every month during the two weeks he is in 

Anchorage.      Thus, Jeffrey has custody of Mason for 36% of the year, while Stephanie 

has custody of Mason for 64% of the year. 

                In the litigation over the proper amount of child support that Jeffrey must 

pay for Mason, Jeffrey filed a child support affidavit listing his gross income as $84,341. 

He then claimed that he was entitled to deduct 27% of his income to account for the cost 

of caring for his children from the prior marriage.             After making this 27% deduction, 

combined      with   other   undisputed     deductions,   Jeffrey    calculated   his  net   income    as 

$45,949.40 .     Using Jeffrey's income calculation, Jeffrey proposed that he should pay 

Stephanie $443.25 per month for Mason's support.  Stephanie opposed Jeffrey's income 

calculation.    She argued that under Rule 90.3, Jeffrey was only entitled to deduct the 

amount of child support that he actually paid to his prior wife, Shannon, to support their 

two children. Using Stephanie's calculation, Jeffrey's net income would be $58,416.28, 

and his child support obligation would be $642.72 per month to support Mason. 


                directly spend on supporting the children, the court shall vary 

                this percentage to reflect its findings. 

                        (C)     The parent with the larger figure calculated in 

                the   preceding   subparagraph   is   the   obligor   parent   and   the 

                annual   award   is   equal   to   the   difference   between   the   two 

                figures multiplied by 1.5.       However, if this figure is higher 

                than the amount of support which would be calculated under 

                paragraph (a) assuming primary custody, the annual support 

                is the amount calculated under paragraph (a). 

                                                  -3-                                             6698

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                The superior court concluded that Jeffrey was only entitled to deduct the 

amount of child support actually paid to his ex-wife, reasoning that "the court is bound 

to apply the amount actually paid as child support of the prior child or children."  The 

superior   court   ordered   Jeffrey   to   pay   $631.64   per   month   for   Mason's   support,   the 

amount calculated by Stephanie, minus a minor health insurance adjustment.                     Jeffrey 

filed a motion for reconsideration which was denied, and he now appeals. 


                "Whether   a   trial   court   applied   the   correct   method   of   calculating   child 

support is a matter of law to which we apply our independent judgment."2 


                Civil Rule 90.3 provides that child support is to be calculated as a specified 

percentage of the non-custodial parent's adjusted annual   income.3                The rule defines 

adjusted annual income as "the parent's total income from all sources minus" certain 

allowable deductions.4       Included in the list of deductions are the following:         "(C) child 

support and alimony payments arising from prior relationships which are required by 

other court or administrative proceedings and actually paid," and "(D) child support for 

children from prior relationships living with the parent, calculated by using the formula 

provided by this rule."5 

                The     parties   agree    that  Jeffrey    is  entitled   to   a  deduction     under 

Rule 90.3(a)(1)(C) to account for support paid for the children of his prior marriage. 

        2       Tillmon v. Tillmon, 189 P.3d 1022, 1026 (Alaska 2008) (citing Turinsky v. 

Long , 910 P.2d 590, 594 n.10 (Alaska 1996)). 

        3       Alaska R. Civ. P. 90.3(a). 

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

        5       Alaska R. Civ. P. 90.3(a)(1)(C), (D). 

                                                  -4-                                            6698

----------------------- Page 5-----------------------

Stephanie   correctly   points   out   that   "[t]he   plain   language   of   Rule   90.3(a)(1)(C)   ties 

[Jeffrey's] deduction to what is ordered in other court or administrative proceedings." 

Because Jeffrey is required to pay child support for his two older children, he contends 

that "there is no dispute that that money is ordered and is actually paid. . . . [and that he] 

qualifies for the deduction under Civil Rule 90.3(a)(1)(C)."                  Jeffrey pays $5,756.88 a 

year in child support for his older children, and the superior court correctly deducted 

from   Jeffrey's   income   this   "amount   actually   paid   as   child   support   of   the   prior   .   .   . 


                 But    Jeffrey    argues    that   he   is   also   entitled   to   a  deduction      under 

subsection      (D)   of  Civil   Rule    90.3(a)(1).      He    claims    that  "[t]here    is  nothing    in 

[Rule 90.3], the Commentary, or in cases, that suggest[s] that a parent who has shared 

physical custody of two prior children . . . is entitled to only one or the other of the above 

two     specified    deductions,     but   not   both."6     (Emphasis       omitted.)     We      disagree. 

Subsection (D) provides for a deduction based on an assumption that the child from the 

prior relationship is living with the parent full time.  Subsection (D) states that a parent 

can deduct from the parent's income "child support for children from prior relationships 

living with the parent, calculated by using the formula provided by this rule."7                      Thus, 

subsection (D) allows a parent to deduct the amount necessary to raise and care for 

children of a prior marriage who are living full time with the parent, even though no 

child support payment has been made.  And the commentary to Rule 90.3 explains that 

under subsection (D), a deduction "is allowed for the support of the children of prior 

relationships even if the party is the custodial parent of the 'prior' children and does not 

        6           Jeffrey    also   argues     that   the   deductions      are   "mandatory"        under 

Rule 90.3(a)(1)(A), which allows for "mandatory deductions such as:  (i) federal, state, 

and local income tax." 

        7        Alaska R. Civ. P. 90.3(a)(1)(D). 

                                                     -5-                                                 6698 

----------------------- Page 6-----------------------


make child support payments to the other parent of the children."  The rule does not 

contemplate allowing a parent to apply deductions for both (C) and (D). 

                 Jeffrey claims that he is entitled to a 27% deduction from his child support 

payment for Mason to account for the direct support he provides for Satcher and Trice 

when they are living in his home.           He maintains that a 27% deduction would reflect a 

combination   of   subsections   (C)   and   (D)   and   would   total   "the   amount   specifically 

authorized by   subsection (D)."          But as the superior court recognized, "[w]hen child 

support   is   paid   to   the   prior   parent   in   shared   custody   a   sophisticated   calculation   has 

occurred   which   attempts   to   take   into   account   the   equities   of   sharing   child   rearing 

expenses." Under Jeffrey's shared custody agreement with Shannon, Jeffrey pays some 

child support for the time that Satcher and Trice are in Shannon's custody.  But Jeffrey's 

child support payments to Shannon do not cover her full cost of child care.                     Under the 

shared custody child support agreement, Jeffrey's obligation to Shannon is reduced in 

consideration of the expense he incurs while caring for the children.9 

                 The commentary to Rule 90.3 explains that the first consideration when 

calculating child support for shared custody is "the fact that the obligor is spending a 

substantial amount of the time with the children," which "probably means the obligor 

also is paying directly for a substantial amount of the expenses of the children."10                     To 

compensate for this, "the first step in calculating shared custody support is to calculate 

reciprocal support amounts for the time each parent will have custody based on the 

        8        Alaska R. Civ. P. 90.3 cmt. III.D (emphasis added). 

        9        See Alaska R. Civ. P. 90.3(b)(1). 

        10       Alaska R. Civ. P. 90.3 cmt. V.B. 

                                                    -6-                                                 6698 

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income of the other parent."11     Thus, in shared custody arrangements, the amount of child 

support paid to the other parent already reflects the cost of child care relative to the 

percentage of time spent caring for the child as well as the income of the other parent. 

                Allowing Jeffrey to deduct the hypothetical 27% he would have paid to 

support his older children if they lived full time with him would artificially inflate the 

deduction for his child care expenses and would fail to take into account the savings in 

the support he provides to his children that result from Shannon's own contribution to 

the children's support. The superior court thus correctly permitted Jeffrey to deduct only 

the amount of child support actually paid to support his children from the prior marriage 

under Rule 90.3(a)(1)(C). 


                We AFFIRM the decision of the superior court. 

        11      Id. 

                                                 -7-                                              6698 

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