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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Swaney v. Granger (3/22/2013) sp-6762

Swaney v. Granger (3/22/2013) sp-6762

        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  


CLINTON SWANEY,                                 ) 

                                                )       Supreme Court No. S-14356 

                        Appellant,              ) 

                                                )       Superior Court No. 3AN-04-09668 CI 

        v.                                      ) 

                                                )       O P I N I O N 

AIMEE GRANGER,                                  ) 

                                                )      No. 6762 – March 22, 2013 

                        Appellee.               ) 


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

                Judicial District, Anchorage, Eric A. Aarseth, Judge. 

                Appearances: Laurence Blakely and Allison Mendel, Mendel 

                &   Associates,   Anchorage,   for   Appellant.      Notice   of   non- 

                participation filed by Appellee. 

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

                Maassen, Justices.     [Stowers, Justice, not participating.] 

                FABE, Chief Justice. 


                In May 2011, the superior court modified an existing child support order, 

specifying that the modification was to be effective as of March 2007.   But because the 

motion   requesting   modification   was   not   filed   until   February   15,   2008,   the   superior 

court’s   order   constituted   a   retroactive   modification.   In   addition,   the   superior   court 

modified the child support award based on its finding that the father’s income exceeded 

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the maximum amount specified in Alaska Rule of Civil Procedure 90.3(c)(2).  Because 

retroactive modification of child support is prohibited and because the superior court’s 

determination      of  the  amount     owed    did  not   conform    to  the  analysis    specified   in 

Rule 90.3(a), we vacate the superior court’s modification of the child support order and 

remand this case for further proceedings. 


                When Aimee Granger and Clinton Swaney divorced in 2005 they had four 

minor children, born between 1993 and 2003. In granting the divorce, the superior court 

awarded   the   parents   joint   legal   custody   and   named   Aimee   the   children’s   primary 

physical custodian.      The superior court granted Clinton visitation rights and ordered 

Clinton to pay Aimee $3,000 per month in child support.   The child support award was 

based on the couple’s agreement that Clinton’s income exceeded $100,000 annually, the 

maximum amount specified at the time by Civil Rule 90.3(c)(2).1 

        1       Civil Rule 90.3(a) provides a formula for the determination of child support 

awards in cases where one parent has primary physical custody.  The formula is based 

on a percentage of the non-custodial parent’s income. Rule 90.3(c)(2) provides that, with 

certain   exceptions,   the   amount   of   the   non-custodial   parent’s   income   to   be   used   in 

determining child support is capped at a specific amount.  In December 2005, when the 

couple’s divorce was finalized, the cap was $100,000; it was increased to $105,000 on 

April 15, 2009.      Supreme Court Order Nos. 1526 (Feb. 1, 2005) and 1686 (Dec. 19, 

2008).  In the order on appeal in this case, the superior court applied $105,000 as the cap 

for the entire period from March 2007 forward.              As explained in the commentary to 

Rule 90.3, this was error; courts are to apply the income cap in effect for the month for 

which support is being calculated.  Alaska R. Civ. P. 90.3 cmt. VI.E.2.   Thus, assuming 

the father’s income exceeded $105,000 for the entire period, the superior court should 

have applied a cap of $100,000 before April 15, 2009 and $105,000 thereafter.                    (The 

commentary to Alaska R. Civ. P. 90.3 has not been officially adopted by this court, but 

it provides useful guidance in applying the rule. See Caldwell v. State, Dep’t of Revenue, 

Child Support Enforcement Div., 105 P.3d 570, 573 n.6 (Alaska 2005)). 

                                                  -2-                                            6762

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                In July 2006, the superior court temporarily changed the children’s primary 

physical custodian to Clinton and ordered Aimee to pay Clinton $200 per month in child 

support.2   In November 2007, the superior court denied Aimee’s motion to terminate the 

temporary custody order and reinstate the December 2005 custody order.                     In doing so, 

the superior court made “explicit . . . that it has found there has been a substantial change 

in circumstances from the original custody order, leading to (among other things) the 

interim order.” 

                In   February   2008,   Aimee   again   moved   to   be   named   as   the   children’s 

primary physical custodian, as well as their sole legal custodian.                 In her motion, she 

stated   that,   in   accordance   with   the   recommendation   of   the   custody   investigator,   the 

children had been residing with her since December 2007.3                In April 2008, the superior 

court    granted   her   motion.    The    superior    court   indicated   that  it  would    issue  “the 

appropriate child support orders” after the parents filed updated child support guideline 

affidavits.   But for reasons not apparent from the record, the superior court did not issue 

new child support orders at that time. 

                In April 2010, Superior Court Judge Eric A. Aarseth, to whom the case had 

been    assigned    in  the  interim,   determined     that   the  support   arrangement   should      be 

modified to reflect the custody arrangements that had been in place since March 2007. 

The superior court held a hearing in December 2010 and January 2011 that focused in 

large part on the income that Clinton, a small-business owner, had derived from his 

        2       The change in custody was intended to allow a custody investigator time 

to investigate allegations that one or more of the children had suffered abuse while in 

Aimee’s      care.   In   December     2007,    the  investigator    recommended        that  Aimee    be 

reinstated as the children’s primary physical custodian. 

        3       This arrangement was at odds with the custody order that was in effect until 

April 2008. 

                                                   -3-                                             6762

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businesses during 2007 and 2008. In calendaring the hearing, the superior court told the 

parties that it intended to issue two support orders.            The first order would be for the 

period March through November 2007, when the parents shared physical custody, and 

the   second   order   would   be   effective   as   of   December   2007,   when   Aimee   reassumed 

primary physical custody.4       The orders were to be based on Clinton’s income in 2007 and 


                At the hearing, Clinton, who in 2005 had stipulated to having an annual 

income of more than $100,000, testified that his income had declined significantly by 

2007 and 2008.  He testified that he had operated a drywall contracting business in 2005. 

He also pointed out that he had formed a partnership with Aimee’s brother-in-law several 

years earlier to build and sell houses “on spec.”          When that partnership was dissolved 

in 2006, the partners divided the remaining lots. Clinton built houses on his lots and sold 

them during the following years. The primary source of revenue for his business during 

the period he was building and selling houses was from that activity, not from drywall 

work.  Clinton stopped building houses following a market decline in the middle of the 

decade; he built his last house in 2006.  But during 2007 and 2008, Clinton’s business 

sold several houses that were already built and also sold assets used in the construction 

business.    Clinton   testified   that   in   spite   of   the   sales   in   2007   and   2008   the   business 

operated at a loss during those years.   He testified that they were “horrible” years for his 

        4       Under Civil Rule 90.3(b), when parents share physical custody a support 

award is calculated using the incomes of both parents.  McDonald v. Trihub , 173 P.3d 

416, 423 (Alaska 2007).        Here, according to the superior court, only Clinton’s income 

was at issue, because the court found that Aimee had no income for the relevant period. 

The superior court did not apply, and did not explain its reason for not applying, the 

minimum support award provision of Rule 90.3(c)(3).                But, given our holding that the 

award   modification   for   the   entire   period   during   which   the   parents   shared   physical 

custody was erroneous, any error the superior court may have made in calculating that 

award was harmless. 

                                                  -4-                                             6762

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business.  By 2010 Clinton had returned to operating only a drywall business, which he 

claimed was unable to generate an income similar to the income he had derived from 

building houses. 

                 Clinton’s 2007 individual income tax return, which he filed jointly with his 

wife,   Mandy,   showed   an   adjusted   gross   income   of   negative   $237,533   and   medical 

expenses of $24,071. The return showed no items of positive income, instead reflecting 

losses from Clinton’s various businesses. 

                 Clinton’s drywall and construction business’s return reflected receipts of 

$487,310,   which,   when   reduced   by   the   cost   of   goods   sold,   left   a   gross   income   of 

$12,161.     After deduction of more than $165,000 in expenses for the year, the business 

declared     a  net   loss   for  tax  purposes   of   $151,327.    According       to  Clinton    and   his 

accountant, the bulk of the business’s receipts that year were from the sale of existing 

homes and the sale of business assets.  The deductions claimed by the business included 

amounts for repairs and maintenance, rents, taxes and licenses, interest, depreciation, 

advertising,      training    and   education,     supplies,    bank     service   charges,     dues    and 

subscriptions, insurance, office supplies, postage and delivery, professional fees, travel, 

utilities, telephone, automobile expenses, fees, a commission fee, storage, equipment 

rental, and meals and entertainment.   Testimony as to the nature and amount of many of 

these deductions was presented to the superior court. 

                 The business return also contained an “item affecting shareholder basis,” 

further    denominated       as  a   “property    distribution,”     of  $104,157,     which    Clinton’s 

accountant testified reflected a distribution to Clinton. The accountant explained that this 

amount represented money that Clinton’s business could not account for, and that the 

amount was therefore categorized for tax purposes as a distribution for the benefit of the 

sole shareholder, Clinton.         The accountant testified that Clinton may have spent these 

                                                    -5-                                              6762

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funds    for  personal   expenses     or  for  business    expenses    for  which    he  did  not   have 


                The evidence showed that Clinton’s business improved in 2008.  While in 

2007 the business declared a loss for federal tax purposes of more than $150,000, in 

2008   it   declared   net   income   of   $794.  This   figure   was   determined   by   subtracting 

$426,280 as the cost of goods sold and deducting $161,879 for various expenses from 

the business’s gross receipts of $588,953. 

                On their 2008 individual tax return, Clinton and Mandy declared $22,500 

as income from salary, $3,794 from rent, $30 in interest, $9,072 from Mandy’s real estate 

business, and $6,538 from PFDs.  In addition, Clinton received a distribution of $38,308 

from his business, which his accountant testified was similar to the $104,157 distribution 

Clinton received in 2007.        But after deducting more than $200,000 for a “Prior Year 

NOL,”6     the   couple   declared   an   adjusted   gross   income   for   tax   purposes   of   negative 


                Following   the   hearing,   the   superior   court   modified   the   existing   child 

support award to require Clinton to pay support to Aimee.                  The new support orders 

specified     different    support    amounts     for   March     through     November       2007    and 

December 2007 going forward.  The superior court based the award for March through 

        5       Testimony   was   also   presented   about   yet   another   business   that   Clinton 

operated   with   a   partner   during   a   portion   of   2007.  That   business   was   targeted   at 

providing cleanup services for damage caused by Hurricane Katrina.                   Clinton claimed 

not to have made any profit from that business, which was dissolved during the year. His 

individual tax return reflected a loss of $82,539 on the sale of assets from that business. 

No tax return for that business was submitted to the superior court. 

        6       The amount of this loss does not match any figure from the portions of 

Clinton and Mandy’s 2007 returns that appear in the record.  Neither this figure nor any 

other aspect of the 2008 individual return was the subject of testimony at the hearing. 

                                                  -6-                                             6762

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November 2007 on Clinton’s income in 2007, and it based the ongoing award on his 

income in 2008.  The superior court found that in both years Clinton’s income exceeded 

the maximum specified in Rule 90.3(c)(2).              The superior court’s finding regarding the 

2007     income     appears    to  have   been   based    primarily    on  its  characterization     of   the 

$104,157 shareholder distribution as income to Clinton.  In addition, the superior court 

stated,   without   further   discussion   or   analysis,   that   Clinton     “likely”   received    some 

personal benefit from “many” of the deductions claimed by his business,7 but the court 

did not otherwise parse the business’s tax returns or analyze the net loss of more than 

$150,000 that the business claimed in 2007. 

                 The    superior    court   relied   on  its  finding    that  Clinton’s    2007    income 

exceeded the maximum under the rule as the basis for making a similar finding regarding 

his 2008 income.  The superior court noted that in 2008 the business’s receipts increased 

over those of 2007, while the cost of goods sold decreased, resulting in gross income of 

more than $162,000, compared   to   gross income in 2007 of less than $13,000.   The 

superior court thus concluded that Clinton “was much better off in 2008 than in 2007,” 

but, once again, the court did not analyze the deductions claimed by the business or 

address the fact that, after its expenses were deducted from its gross income, the business 

showed net income in 2008 of only $794. 

                 Clinton     moved     for   reconsideration,     challenging      the  superior    court’s 

findings that his income in both 2007 and 2008 exceeded the cap listed in Rule  90.3(c), 

and raising for the first time an assertion that a portion of the superior court’s order 

violated   the   rule   against   retroactive   modification   of   child   support   awards.     He   also 

asserted   for   the   first   time   that   instead   of   considering   his   2007   and   2008   income   in 

        7        In   particular,   the   superior   court   listed   “supplies,   office   supplies,   home 

insurance, professional fees, travel, utilities, telephone, automobiles and miscellaneous 


                                                    -7-                                                 6762 

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isolation,   the   superior   court   would   have   arrived   at   a   more   realistic   portrayal   of   his 

finances by averaging his income over a number of years.  The superior court denied the 

motion for reconsideration. 

                Clinton appeals the superior court’s order awarding child support to Aimee. 

On appeal, he asserts that insofar as the award was effective before the date of Aimee’s 

motion to modify custody (February 15, 2008) the order constitutes an impermissible 

retroactive   modification   of   child   support.    He   also   challenges   the   superior   court’s 

findings that his income in both 2007 and 2008 exceeded $105,000. 


                We review an award of child support, including a modification to such an 

award, for abuse of discretion, which we will find only when, based on a review of the 

entire record, we are left with a definite and firm conviction that the trial court made a 

mistake.8   We review factual findings regarding a party’s income when awarding child 

support for clear error.9    The proper method of calculating child support is a question of 

law, which we review de novo, adopting the rule of law that is most persuasive in light 

of precedent, reason, and policy.10 

        8       Faulkner v. Goldfuss , 46 P.3d 993, 996 (Alaska 2002); Nass v. Seaton , 904 

P.2d 412, 414 (Alaska 1995). 

        9       Williams v. Williams, 252 P.3d 998, 1005 (Alaska 2011) (citing Koller v. 

Reft , 71 P.3d 800, 804 (Alaska 2003)). 

        10      Faulkner , 46 P.3d at 996. 

                                                  -8-                                            6762

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        A.	     The   Superior   Court’s   Modification   Of   The   Support   Order   Before 

                February 15, 2008 Was An Impermissible Retroactive Modification. 

                Clinton argues that the superior court erred by ordering a modification to 

the existing child support order to be effective before February 15, 2008, the date Aimee 

moved to modify the custody order.            Because Clinton did not timely raise this issue in 

the superior court,11 we review the superior court’s decision for plain error, which “exists 

where an obvious mistake has been made which creates a high likelihood that injustice 

has resulted.”12    Here, the superior court’s ruling meets that standard.            Civil Rule 90.3 

prohibits retroactive modification of existing child support orders.13             Modifications are 

allowed   to   the   extent   that   they   are   “effective   on   or   after   the   date   that   a   motion   for 

modification . . . is served on the opposing party.”14 

                On   January 10, 2007, the superior court issued   an   order that   obligated 

Aimee to pay Clinton $200 per month in child support. On May 29, 2007, Aimee moved 

        11      See DeNardo v. GCI Commc’n Corp., 983 P.2d 1288, 1290 (Alaska 1999) 

(issue raised for the first time in a motion for reconsideration is not timely raised for 

purposes of appellate review). 

        12      Paula E. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs. , 

276 P.3d 422, 436 (Alaska 2012) (internal quotation marks and citation omitted). 

        13      Alaska R. Civ. P. 90.3(h)(2); Yerrington v. Yerrington, 933 P.2d 555, 558 

(Alaska 1997) (“Although the plain language of the rule applies only to arrearages, we 

have held that, appropriately interpreted, this rule prohibits both retroactive decreases 

and increases in child support awards . . . .”) (citations omitted).  Limited exceptions to 

the prohibition on retroactive modification apply when paternity has been disestablished 

or on an obligor’s motion when a clerical mistake was made or the support order was 

based on a default amount.         Teseniar v. Spicer, 74 P.3d 910, 915 (Alaska 2001); see 

AS 25.27.166(d); Alaska R. Civ. P. 90.3(h)(2). 

        14      Alaska R. Civ. P. 90.3(h)(2). 

                                                  -9-	                                            6762

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to clarify or correct that order, asserting that under Rule 90.3(c)(3) her obligation should 

have been $50 per month, and she also moved to terminate the temporary custody order 

on which the support order was based.   On November 5, 2007, the superior court denied 

Aimee’s motion to terminate the temporary custody order, and it issued an amended 

child support order under which Aimee’s obligation remained $200 per month.                           That 

order    was    in  effect   when    Aimee     next    moved     to  modify     the  custody     order,   on 

February   15,   2008.15     Thus   the   superior   court’s   order   modifying   the   child   support 

arrangement could be effective only as far back as February 15, 2008.  Any modification 

intended to be effective before that date was erroneous.  Clinton should not be obligated, 

as the result of a clear error by the superior court, to pay child support for the months in 


        15       Clinton   concedes   that   Aimee’s   motion   to   modify   custody   satisfied   the 

provision of Alaska R. Civ. P. 90.3(h)(2) that specifies that modification of a support 

award may be effective on or after the date of a motion for modification, even though her 

request     to  modify    custody     was   silent   as  to  child   support.     We     note   that  under 

Rule 90.3(a) the change of a child’s primary physical custodian from one parent to the 

other ordinarily will require modification of an existing support order. 

        16       We note that although the parents testified that they shared physical custody 

during     the   months   in   question,   under   the   custody   order   in   place   Clinton    was   the 

children’s primary physical custodian.             A court errs if it bases a support award on a 

custody arrangement that differs from a court-ordered arrangement.                    We have stated: 

                 Child   support   awards   should   be   based   on   a   custody   and 

                 visitation   order.    If   the   parties   do   not   follow   the   custody 

                 order, they should ask the court to enforce the custody order 

                 or should move to modify the child support order. 

                         . .   .   [T]he   trial court erred to the extent it based its 

                 calculation of support arrearages on the visitation exercised, 

                 rather than the visitation ordered. 


                                                    -10-                                              6762

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        B.	     The Superior Court Must Make Adequate Findings In Accordance 

                With Civil Rule 90.3 In Determining Clinton’s Income. 

                The superior court apparently based its modified child support order for 

March      through    December      2007    on  Clinton’s    2007    income     and   its  award   from 

January   2008   forward   on   Clinton’s   2008   income.17      Even   though   we   hold   that   the 

modified award is invalid for the entire period that was based on Clinton’s 2007 income, 

we still must review the superior court’s determination of the 2007 income because the 

court relied on that determination in finding that Clinton’s 2008 income exceeded the 

maximum specified in Rule 90.3(c).  Thus, if the 2007 determination was erroneous, the 

2008 determination also must fail. 

                Civil Rule 90.3(a) provides the framework for determining a child support 

award when one parent has primary physical custody.18               Under the rule, the foundation 

of a proper award is an accurate determination of the non-custodial parent’s “adjusted 

        16      (...continued) 

Turinsky v. Long, 910 P.2d 590, 595 (Alaska 1996) (footnote and citation omitted).  Cf. 

Karpuleon v. Karpuleon , 881 P.2d 318, 320 (Alaska 1994) (parents have burden to move 

promptly to modify a child support order when a child changes residency). 

        17      An award of child support for a period in the past is properly based on the 

parent’s actual income for that period.          Spott v. Spott, 17 P.3d 52, 56 (Alaska 2001) 

(citing  Crayton   v.   Crayton,   944   P.2d   487,   490   (Alaska   1997)).     According   to   the 

commentary to Rule 90.3, an ongoing award should be based on the parent’s expected 

income   during   the   period   in   which   the   award   will   apply.  Alaska   R.   Civ.   P.   90.3 

cmt. III.E.  Here, in 2011, the superior court used Clinton’s 2008 income as the basis for 

an ongoing award, apparently because at the time of the hearing the court was under the 

impression that its modified custody order would be effective only through May 2008. 

But the order ultimately issued by the superior court contains no termination date and no 

indication that it is not an ongoing order. 

        18      Turinsky, 910 P.2d at 595. 

                                                  -11-	                                           6762

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annual   income.”19       The   rule   defines   this   term,   and   the   commentary   explicates   the 

definition.20   Together, the rule and commentary contain an extensive list of items that 

are   properly   included   in,   or   excluded   from,   a   parent’s   income.21    The   commentary 

specifically addresses the situation of a self-employed parent, prescribing that “[i]ncome 

from self-employment . . . includes the gross receipts minus the ordinary and necessary 

expenses required to produce the income.”22              We have approved this approach.23   The 

commentary lists certain business expenses that are allowed by the IRS for federal tax 

purposes   that   are   not   appropriate   when   calculating   child   support,   and   it   notes   that 

“[e]xpense reimbursements and in-kind payments such as use of a company car, free 

housing or reimbursed meals should be included as income if the amount is significant 

and reduces living expenses.”24 

                 Here, the superior court found that Clinton “intermingled his business and 

assets with his personal income and expenses” to an extent that “made it impossible for 

him to prove that the cash available to him for expenses was not just as available to him 

        19      Adrian v. Adrian , 838 P.2d 808, 810 (Alaska 1992). 

        20       Civil   Rule   90.3(a)(1)   defines   “adjusted   annual   income”   to   mean   “the 

parent’s   total   income   from   all   sources”   minus   certain   items   listed   in   the   rule.  The 

commentary to the rule contains a list of benefits that are considered income for purposes 

of the rule.    Alaska R. Civ. P. 90.3 cmt. III.A.          Civil Rule 90.3 comments III.B, C, D, 

and E specifically address self-employment income, potential income, deductions, and 

the time period for calculating income. 

        21       Alaska R. Civ. P. 90.3(a)(1); Alaska R. Civ. P. 90.3 cmt. III.A, B, D. 

        22       Alaska R. Civ. P. 90.3 cmt. III.B. 

        23       See, e.g., Faulkner v. Goldfuss , 46 P.3d 993, 997 (Alaska 2002); Hammer 

v. Hammer , 991 P.2d 195, 200 (Alaska 1999); Neilson v. Neilson , 914 P.2d 1268, 1272­ 

73 (Alaska 1996). 

        24       Alaska R. Civ. P. 90.3 cmt. III.B. 

                                                   -12-                                              6762

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for purposes of paying child support.”          The superior court thus indicated that it needed 

to consider Clinton’s personal financial situation in tandem with that of his business. 

This approach was correct.          But after stating that it was “not obligated to accept the 

federal tax return as the measure of a person’s access to funds available to pay child 

support” and noting that not all deductions allowed under federal tax law apply to the 

determination   of   income   for   purposes   of   child   support,   the   superior   court   did   not 

examine the affairs of Clinton’s business in relation to his personal finances to determine 

his adjusted annual income, nor did it meaningfully discuss or analyze the deductions 

claimed by the business. 

                In its finding that Clinton’s 2007 income exceeded $105,000, the superior 

court relied primarily on its determination that the $104,157 shareholder distribution that 

Clinton received was income to him.             Neither Clinton nor his accountant was able to 

adequately account for those funds.          On appeal, Clinton argues that because the source 

of the distribution was not apparent, the distribution should not be considered as income 

to   him.   He   asserts   that   the   distribution   was   likely   funded   by   money   his   business 

borrowed, which the business would have been obligated to repay.                    In support of this 

assertion, he points to uncontroverted evidence that the business incurred loans during 

2007 of nearly $700,000. 

                We     cannot   determine     from   the   superior   court’s   findings   whether    the 

shareholder      distribution   was    income    to  Clinton.   Regardless      of  the   nature   of  the 

distribution the business made to Clinton, the commentary to Rule 90.3 makes clear that 

a   probing    review    of   Clinton’s  —    and   his  business’s   —    financial   affairs  must   be 

conducted to determine his adjusted annual income for child support purposes.  We have 

noted that determining the adjusted annual income of a self-employed parent is generally 

                                                  -13-                                             6762

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more complicated than determining the income of a parent who earns regular wages.25 

To determine a self-employed parent’s income, the superior court must subtract the 

ordinary and necessary expenses required to produce the income of the parent’s business 

from the business’s gross receipts.26   The superior court was not wrong to consider the 

$104,157 shareholder distribution in determining Clinton’s adjusted annual income.  We 

have held that courts should closely scrutinize parents’ claimed business expenses.27 

Courts should be mindful of “the potential of a self-employed obligor to manipulate 

income for the purpose of avoiding payment of child support.”28       But a court may not 

categorically disallow all deductions without conducting a proper analysis.29 

              Because the superior court’s findings regarding Clinton’s financial affairs 

were insufficient to support its ultimate finding that Clinton’s income in 2008 exceeded 

the maximum specified in Rule 90.3(c), we cannot affirm the   superior court on this 

record.  On remand, the superior court should determine, in accordance with Rule 90.3, 

       25     Saleem v. State, Child Support Enforcement Div., Mem. Op. & J. No. 1036, 

2001 WL 34818267, *3 (Alaska, July 18, 2001). 

       26     Neilson , 914 P.2d at 1272-73. 

       27     See id. at 1274-75, n.8 (“The deduction of depreciation and other business 

expenses is a common issue when a parent owns a closely held company.          Like salary, 

business    expenses   can  be  manipulated   to  affect  net  income,  and  some  business 

deductions may have a minimal effect on the business owner’s cash flow.” (quoting 


       28     Taylor v. Fezell, 158 S.W.3d 352, 358 (Tenn. 2005).  Cf. Snow v. Snow, 24 

S.W.3d 668, 672 (Ky. App. 2000) (A trial court establishing child support has “the 

discretion and the duty to scrutinize taxable income and to deviate from it whenever it 

seems to have been manipulated for the sake of avoiding or minimizing a child support 

obligation.”) (citations omitted). 

       29     Neilson , 914 P.2d at 1274-75;  Watson v. Watson, 60 P.3d 124, 128-29 

(Wyo. 2002). 

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an   appropriate   award   of   child   support   beginning   on   February   15,   2008,   the   date   of 

Aimee’s motion to modify custody.   In formulating its award, the superior court should 

be mindful that a child support award that is applicable to a past period should be based 

on a parent’s actual income for that period, while an ongoing award should be based on 

the income the parent is expected to receive during the period to which the award will 

apply.30   It will be up to the superior court to evaluate Clinton’s argument that income 

averaging is an appropriate vehicle for determining the correct child support award in 

this case.31 


                Based on the foregoing considerations, we VACATE the superior court’s 

order modifying the existing child support order and REMAND this matter for further 

proceedings consistent with this opinion. 

        30      Spott   v.   Spott,   17   P.3d   52,   56   (Alaska   2001);   Alaska   R.   Civ.   P.   90.3 

cmt. III.E. 

        31      Hammer v. Hammer , 991 P.2d 195, 200-01 (Alaska 1999) (citing Alaska 

R. Civ. P. 90.3 cmt. III.E). 

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