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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. O'Neal v. Campbell (5/3/2013) sp-6778

O'Neal v. Campbell (5/3/2013) sp-6778

        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 



MELANIE YVETTE O'NEAL,                            ) 

                                                  )   Supreme Court No. S-14702 

                       Appellant,                 ) 

                                                  )   Superior Court No. 3AN-10-12448 CI 

        v.                                        ) 

                                                  )   O P I N I O N 

MELVIN CAMPBELL,                                  ) 

                                                  )   No. 6778 - May 3, 2013 

                       Appellee.                  ) 

                                                  ) 



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

               Judicial District, Anchorage, Mark Rindner, Judge. 



               Appearances: Melanie O'Neal, pro se, Anchorage, Appellant. 

               No appearance by Appellee. 



               Before:   Fabe, Chief Justice, Winfree, Stowers, Maassen, and 

               Bolger, Justices. 



               MAASSEN, Justice. 



I.      INTRODUCTION 



               A mother appeals pro se from a child support order.            She claims that the 



superior court erred in requiring her to pay child support to a father who shared physical 



custody and also erred in refusing to allow a deduction for her direct support of two 



children from a prior relationship.       We hold that the child support order was justified 



despite the shared custody, but we vacate the order and remand to the superior court for 


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consideration of the deduction that Alaska Civil Rule 90.3 allows for the mother's direct 



support of her other children. 



II.     FACTS AND PROCEEDINGS 



                Melanie Yvette O'Neal and Melvin Campbell are the parents of a daughter. 



In   December   2010   Campbell   filed   an   action   seeking   joint   legal   custody   and   shared 



physical custody. Following a trial at which both parties appeared pro se, Superior Court 



Judge Mark Rindner granted the parents joint legal custody and set a schedule for shared 



physical custody.   He issued a child support order in January 2012 and then a corrected 



order on March 8, 2012, which required O'Neal to pay child support of $240 a month. 



                On March 23, 2012, O'Neal moved for reconsideration of the corrected 



child support order, explaining that in addition to having her daughter fifty percent of the 

time, she had two children from a prior relationship for whom she was the sole provider.1 



The superior court invited Campbell to be heard on the   merits   of O'Neal's motion. 



Campbell's only response was that his work hours and income had dropped even further 



since the court's order. 



                The superior court denied the motion for reconsideration in a written order. 



It noted that "[t]he March 8, 2012 Child Support Order already takes into account that 



custody is shared" and further found that "the fact that Ms. O'Neal has other children [is 



not] a sufficient reason to deviate from Civil Rule 90.3." 



                O'Neal appeals. 



        1       O'Neal's motion to reconsider was procedurally deficient in two respects: 



she   failed   to   file   it   within   the   ten   days   allowed   by   Alaska   Civil   Rule   77(k)   and   it 

addresses claims that she had not previously raised.  See, e.g., Dunn v. Dunn , 952 P.2d 

268, 271 n.2 (Alaska 1998).         Judge Rindner, however, clearly considered and ruled on 

the merits of her motion, so we do the same here. 



                                                  -2-                                             6778
 


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III.	   STANDARD OF REVIEW 



                We "reverse child support awards only   if the superior court abused its 

discretion or applied an incorrect legal standard."2         Abuse of discretion exists when, in 



our review, we develop "a definite and firm conviction based on the record as a whole 

that a mistake has been made."3       The superior court's findings on a parent's income are 



reviewed for clear error.4     "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."5 



IV.	    DISCUSSION 



        A.	     The Superior Court Did Not Abuse Its Discretion In Ordering Child 

                Support Even Though The Parents Share Equal Physical Custody. 



                O'Neal argues that since she and Campbell have equal physical custody, 



neither of them should be required to pay child support.   Child support is based on both 

the parties' relative percentages of physical custody and their relative adjusted incomes.6 



In this case, the superior court accounted for the parents' equal physical custody but 



found   that   child   support   was   nonetheless   justified   because   of   the   disparity   in   their 



incomes.     The    record    shows   that  O'Neal's     adjusted   income    is  more   than  double 



        2       Koeller   v.   Reft ,   71   P.3d   800,   804   (Alaska   2003)   (citing  Beaudoin   v. 



Beaudoin , 24 P.3d 523, 526 (Alaska 2001)). 



        3       Id. (quoting Beaudoin , 24 P.3d at 526) (internal quotation marks omitted). 



        4       Id. (citing Routh v. Andreassen , 19 P.3d 593, 595 (Alaska 2001)). 



        5       Faulkner v. Goldfuss , 46 P.3d 993, 996 (Alaska 2002). 



        6       Alaska R. Civ. P. 90.3(a), (b)(1). 



                                                  -3-	                                          6778
 


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Campbell's.7    Given these facts, which are not challenged on appeal, there was no abuse 



of discretion in requiring O'Neal to pay child support. 



        B.	    O'Neal Is Entitled To A Deduction For The Direct Support Of Her 

               Two Children From A Prior Relationship. 



               Alaska Civil Rule 90.3 allows deductions for "child support for children 

from    prior   relationships   living   with   the   parent."8 The   commentary9 to   Rule  90.3 



provides: 



               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   make   child   support 

               payments to the other parent of the children.  In this situation, 

               support provided directly to the children is calculated by Rule 

               90.3 as if the children from the prior relationship were the 

               only children.[10] 



        7      There are several variations to the parties' calculations of adjusted income, 



but   O'Neal's    submissions    show   her  adjusted   income    to  be  more  than   two  times 

Campbell's even at the closest margin. 



        8      Alaska R. Civ. P. 90.3(a)(1)(D); see also id. at (b)(1)(A) (providing that 



child support in a shared physical custody case should be based on calculations required 

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



        9      "Although we have not adopted or approved the commentary [to Civil 



Rule 90.3], we often rely upon it for guidance in child support matters."          Faulkner , 46 

P.3d at 998 (quoting State, Child Support Enforcement Div. v. Bromley, 987 P.2d 183, 

194 (Alaska 1999)) (internal quotation marks omitted). 



        10     Alaska R. Civ. P. 90.3 cmt. III.D. 



                                               -4-	                                         6778
 


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

This   reflects   a   change   to   the   original   Civil   Rule   90.3.11 We   recently   addressed   the 



change in Gorton v. Mann, in which we observed that "subsection (D) allows a parent 



to deduct the amount necessary to raise and care for [prior children] who are living full 

time with the parent, even though no child support payment has been made."12 



                O'Neal's request thus concerns an allowed deduction under the revised 



rule, not a deviation.    It was error for the superior court to deny the request on grounds 



that O'Neal had failed to provide sufficient reason to deviate from the rule.               O'Neal is 



entitled to a deduction for her direct support of children from a prior relationship, though 



the actual amount of the deduction may differ from the figure she proposed.  On remand, 



the superior court should make the findings necessary to determine the amount of the 



required deduction and adjust the child support order accordingly. 



V.      CONCLUSION 



                We   VACATE   the   child   support   order   and   REMAND   the   case   to   the 



superior court for further proceedings consistent with this opinion. 



        11      See Alaska Supreme Court Order No. 1192 (July 15, 1995), available at 



http://courts.alaska.gov/sco.htm#1175.            Earlier    versions   of   Rule   90.3   allowed    no 

"explicit deduction" for direct support, although parents could receive credit for direct 

support through a section (c) deviation from the rule, available only "when necessary to 

avoid substantial hardship to the prior children." Renfro v. Renfro , 848 P.2d 830, 832-33 

(Alaska 1993) (quoting earlier versions of Alaska R. Civ. P. 90.3(c) and Alaska R. Civ. 

P. 90.3 cmt. VI.B.3). 



        12      281 P.3d 81, 83 (Alaska 2012). 



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