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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 . 

        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, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



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. 



I.      INTRODUCTION 



                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). 



II.     FACTS AND PROCEEDINGS 



                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 

                                                                                         (continued...) 



                                                   -2-                                             6698
 


----------------------- Page 3-----------------------

                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. 



        1(...continued) 



                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
 


----------------------- Page 4-----------------------

                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. 



III.    STANDARD OF REVIEW 



                "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 



IV.     DISCUSSION 



                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   .   .   . 



children." 



                 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-----------------------

                                                                                    8 

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 


----------------------- Page 7-----------------------

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). 



V.      CONCLUSION 



                We AFFIRM the decision of the superior court. 



        11      Id. 



                                                 -7-                                              6698 

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