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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Martin v. Martin (6/14/2013) sp-6787

Martin v. Martin (6/14/2013) sp-6787

        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  


GREGORY C. MARTIN, JR.,                         ) 

                                                )       Supreme Court No. S-14508 

                        Appellant,              ) 

                                                )       Superior Court No. 3HO-06-00127 CI 

        v.                                      ) 

                                                )       O P I N I O N 

MELODY C. MARTIN,                               ) 


                        Appellee.               )       No. 6787 - June 14, 2013 


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

                Judicial District, Homer, Peter G. Ashman, Judge pro tem. 

                Appearances:        Gregory      C.  Martin,    Jr.,  pro  se,  Homer, 

                Appellant.    No appearance by Appellee. 

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

                Stowers, Justices. 

                WINFREE, Justice. 


                Five   years   after   dissolving   their   marriage,   the   parents   of   two   children 

sought to change or clarify aspects of their original decree.             The superior court found 

circumstances had not changed sufficiently to modify the parties' custody agreement, but 

made changes to the visitation schedule.   The superior court also ruled on child support, 

life insurance, the children's Permanent Fund Dividends, and attorney's fees.  The father 

appeals.    Because the superior court's child support award was erroneously calculated, 

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

and because the superior court linked its assignment of federal income tax deductions 

with the erroneous calculation of child support, we reverse those parts of the superior 

court's order and remand for renewed consideration.               We affirm the superior court's 

rulings in all other respects. 


                Gregory and Melody Martin married in 1996 and had two children.  They 

dissolved their marriage in 2006, when their children were seven and five years old. 

With   their   dissolution   petition   the   couple   submitted   a   detailed   parenting   agreement 

providing for joint legal and shared physical custody of the children. By the terms of the 

agreement,   the   children     would    be   with   Melody   during   the   week   and   Gregory    on 

weekends.     For child support purposes, the parties calculated that Melody would have 

the children 70% of the time and Gregory would have them 30% of the time, although, 

based on computing three nights out of seven, their agreement was a 57% - 43% shared 

custody arrangement.       The parties agreed to "provide the children with visitation with 

the grandparents and extended family on their own side of the family . . . during their 

custody time." They agreed that Melody would apply for the children's Permanent Fund 

Dividends each year and place the money in an investment account and that Melody 

would claim the children on her federal income taxes each year. 

                In late 2010 the parties filed cross-motions to modify the child custody 

terms   of   their   dissolution. Gregory   alleged   that   he   actually   had   exercised   physical 

custody nearly 50% of the time and sought a change in the decree to reflect this.  Melody 

countered that she had the children   58%   of the time, but she also asked the court to 

modify the decree to give her some weekend time with the children. 

                The superior court held a hearing on the cross-motions in March 2011 and 

issued findings of fact and conclusions   of law in May.              The parties "struggled with 

                                                  -2-                                            6787

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

interpreting the summer schedule set out by the court," so the court clarified its rulings 

in an August 2011 order. 

                Gregory appeals. 


                "The superior court has broad discretion in deciding child custody issues,"1 

including whether a proposed custody modification is in the children's best interests.2 

We reverse the superior court "only if the record shows an abuse of discretion or if 

controlling factual findings are clearly erroneous."3        An abuse of discretion occurs when 

"the superior court considers improper factors in making its custody determination, fails 

to consider statutorily mandated factors, or assigns disproportionate weight to particular 

factors while ignoring others."4      "A factual finding is clearly erroneous if, after reviewing 

the record as a whole, we are left with a definite and firm conviction that a mistake has 

been made."5     Whether tax credits or other sources of income are included as income for 

purposes of Alaska Civil Rule 90.3 is a matter of law we review de novo.6                 We review 

        1       Hunter   v.   Conwell ,   276   P.3d   413,   418   (Alaska   2012)   (quoting  Wee   v. 

Eggener , 225 P.3d 1120, 1124 (Alaska 2010)) (internal quotation marks omitted). 

        2       Heather W. v. Rudy R. , 274 P.3d 478, 481 (Alaska 2012) (quoting Rego v. 

Rego , 259 P.3d 447, 452 (Alaska 2011)). 

        3       Havel v. Havel , 216 P.3d 1148, 1150-51 (quoting Long v. Long , 816 P.2d 

145, 150 (Alaska 1991)) (internal quotation marks omitted). 

        4       Heather W. , 274 P.3d at 481 (quoting Borchgrevink v. Borchgrevink , 941 

P.2d 132, 134 (Alaska 1997)). 

        5       Havel ,   216   P.3d   at   1151   (citing Jenkins   v.   Handel ,   10   P.3d   586,   589 

(Alaska 2000)). 

        6       See Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002) ("The proper

method of calculating child support is a question of law, which we review de novo,


                                                  -3-                                            6787

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


an award of attorney's fees for abuse of discretion,  but "the determination of which 

statute or rule applies to an award of attorney's fees is a question of law that we review 

de novo."8 


        A.      The Superior Court Did Not Err In Modifying The Visitation Schedule. 

                The Martins' 2006 agreement was that Gregory would have custody of the 

children every weekend from Friday at 6:00 p.m. until Monday morning - three nights 

a week.    This arrangement resulted in a 57% - 43% physical custody division, but the 

Martins' child support calculation indicated a 70% - 30% division. 

                In 2010 the Martins cross-moved for custody modification. Gregory argued 

the original order reflecting a 70% - 30% physical custody division was incorrect and the 

computed division should have been 58% - 42%.   He contended he actually had custody 

46%     to  48%    of  the   time  during    the  prior   three  years   and   requested    a  custody 

modification   providing   an   equal   division,   with   each   parent   having   the   children   in 

alternating weeks. Melody agreed the decree should be modified to reflect a 58% - 42% 

division, but opposed Gregory's proposed modifications of the custody agreement.  She 

argued Gregory had custody only 42% of the prior three years, as set forth in the 2006 

Parenting Agreement.          Melody requested modifications also, asking for custody two 

weekends each month and that weekends   end on Sunday nights instead of Monday 


        6       (...continued) 

adopting the rule of law that is most persuasive in light of precedent, reason, and policy." 

(citing Spott v. Spott, 17 P.3d 52, 55 (Alaska 2001))). 

        7       McDonald v. Trihub , 173 P.3d 416, 420 (Alaska 2007) (citing Valley Hosp. 

Ass'n v. Brauneis , 141 P.3d 726, 729 (Alaska 2006)). 

        8       Id. (citing Koller v. Reft , 71 P.3d 800, 808 (Alaska 2003)). 

                                                  -4-                                            6787

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

                The court held a hearing on the parties' motions in March 2011.  In its May 

2011   order   the   superior   court   stated   that   it   was   "concerned   that   a   shared   custody 

agreement may not be appropriate" because the Martins "disagree on many . . . day-to- 

day    issues   and   seem   to  be   unable   to  discuss   any   of   their   issues   appropriately  or 

effectively."    Because it could not "see a way to make the children's lives any better," 

the court felt "resigned to simply adjust and clarify the custody arrangement so as to 

minimize the need for contact between the parties."  The court concluded there had been 

no significant change in circumstances warranting a custody modification, and because 

the existing arrangement had worked for several years, the court decided to "maintain 

approximately the same division of time" but "reconsider the way in which that time is 

actually allocated."       During the school year, the court decided Melody should have 

custody one weekend each month, with that time being made up by awarding Gregory 

additional summer visitation. 

                After the superior court's ruling, Gregory contended that the court failed 

to divide    custody in the same percentage that had developed between the parties.  In 

August 2011 the court stated that its May 2011 decision had been an attempt "to fashion 

a schedule that was in the best interests of the children and which would reduce the 

number of encounters between parties who so plainly cannot get along."                       The court 

declined   to   change   the   percentage   of   time   each   parent   had   the   children   because   it 

considered the children's best interests and fewer encounters between the Martins to be 

"more important than any fractional advantage to one party or the other."  The court also 

decided that "[b]ecause [Gregory] has most of the summer, any days that both of the 

children spend overnight at camp shall be counted as part of the father's weeks." 

                Gregory contends the superior court erred in finding no substantial change 

in circumstances yet modifying the visitation schedule in the parties' original parenting 

                                                   -5-                                             6787

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

agreement.  He argues the court "reduced" his custody in its order and also claims he is 

entitled to an equal custody division. 

                We   conclude   the   superior   court   did   not   err   in   its   order   modifying   the 

custody schedule.   Alaska Statute 25.20.110(a) provides that "[a]n award of custody of 

a child or visitation with the child may be modified if the court determines that a change 

of circumstances requires the modification of the award and the modification is in the 

best interests of the child."      A party seeking custody modification must first make a 

prima   facie   showing     that   a   significant   or   substantial   change   in   circumstances   has 

occurred "relative to the facts and circumstances that existed at the time of the prior 

custody order."9     However, "a lesser showing is required for a 'change in circumstances' 

determination when a parent seeks to modify visitation rather than custody."10                      The 

superior court could therefore properly modify the time-sharing schedule as set out in the 

parties' agreement yet find that Gregory had not made a sufficient showing to modify the 

underlying custody provisions of that agreement. 

                The superior court listed several factors that had not changed in the years 

since approval   of the parties' dissolution agreement, and it consequently decided to 

"maintain approximately the same division of time."               This ruling was both legally and 

factually sound.      But it also found a change in the visitation schedule would be in the 

children's best interests because of ongoing conflicts between the parents and the need 

to minimize contact between the parents. Under the superior court's May order, Gregory 

was awarded custody 42% of the time, and Melody was awarded custody 58% of the 

        9       Heather W. , 274 P.3d at 481 (citing Barrett v. Alguire , 35 P.3d 1, 6 (Alaska 

2001); Jenkins , 10 P.3d at 589). 

        10      Collier v. Harris, 261 P.3d 397, 408 (Alaska 2011) (citing Havel , 216 P.3d 

at   1151   n.6);  see   also   id.   at   408   n.35   (explaining   "visitation"   is   synonymous   with 

"custody schedule" in shared physical custody context). 

                                                   -6-                                             6787

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

time.  This division is very close to the parties' original agreement, and we see no abuse 

of discretion in the superior court's decision. 

                Gregory also argues the superior court erred in ordering that time spent at 

overnight summer camps should be counted as part of his time.                 We might agree with 

Gregory had the superior court's order unfairly allowed Melody to enroll the children 

in camps during Gregory's physical custody time.  We do not read the order as allowing 

this, and we caution that neither party should commit the children to overnight camps 

during the other parent's physical custody period without the other parent's consent.  The 

superior court appropriately fashioned a method for scheduling the children's summer 

activities,   with   the   court   to   resolve   any   disputes,   so   it   appears   the   superior  court 

fashioned a method to promote a clear summer schedule for the children and minimize 

the risk of mid-summer scheduling conflicts. 

        B.	     The Superior Court Did Not Err In Declining To Grant Gregory's 

                Parents Separate Visitation. 

                Gregory      argues   the   superior   court   should   have   ordered   "autonomous 

visitation" for his parents under AS 23.30.065 and contends the court shortened his time 

with the children because the children spend two weeks with his parents, with those 

overnights counting as part of his custody. 

                The superior court did not err in declining to grant separate visitation for 

Gregory's parents.      Under the terms of the parties' agreement, each parent agreed to 

"provide the children with visitation with the grandparents . . . on their own side of the 

family . . . during their custody time." The two weeks the children spend with Gregory's 

parents were part of Gregory's custody under the initial agreement, and the superior 

court did not err by declining to allocate separate time for Gregory's parents as part of 

its modification order.       Furthermore, Gregory has no standing to assert any potential 

rights his parents may have under AS 23.30.065. 

                                                  -7-	                                           6787

----------------------- Page 8-----------------------

        C.      There Was Error In Calculating Child Support. 

                Gregory argues that the superior court incorrectly applied Alaska Civil Rule 

90.3 when it calculated child support by:          (1) ordering that Melody could claim both 

children as dependents on her federal tax return after allowing Gregory a deduction for 

health insurance payments; (2) excluding from Melody's income a stipend she receives 

for children she adopted after the dissolution; and (3) deciding the parties did not need 

to report income tax refunds as income.          We agree with Gregory on his first argument, 

although   not   in   the   precise   manner   raised,   but   disagree   with   Gregory   on   the   other 


                1.      Health insurance costs 

                The parties originally agreed that Melody could claim both children as 

dependents on her federal income taxes.           In his motion to modify, Gregory asked the 

court to order each parent to claim one child as a dependent when filing his or her federal 

tax return.     Gregory also sought to deduct from his income the entire amount of his 

monthly medical insurance premium, even though the premium was the same whether 

he covered only himself or added his family.  The court allowed Gregory to deduct the 

entire   amount   of   his   medical   insurance   premium;   because   the   court   considered   this 

deduction from his gross income "a benefit" to Gregory, it decided that Melody could 

continue to claim both children as dependents for federal income tax purposes. 

                Because the superior court concluded that allowing Melody to continue 

claiming both children as dependents for federal income tax purposes was warranted by 

its decision granting Gregory the "benefit" of deducting his entire medical insurance 

premium from his gross income, deciding Gregory's claim of error requires examining 

the bases of both decisions.        Gregory understandably did not challenge whether the 

health insurance ruling was correct, but we may raise and consider an issue of law that 

                                                 -8-                                            6787

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is "critical to a proper and just decision."11       "Plain error exists where an obvious mistake 

has been made which creates a high likelihood that injustice has resulted."12                       Under 

Rule 90.3(d)(1) the superior court shall "require health insurance for the   children if 

insurance is available to either parent at a reasonable cost."               The rule also provides in 

relevant part: 

                 The cost of insurance is the cost attributable to the children 

                 for   whom   support   is   paid.   If   the   cost   to   the   employee   of 

                 covering the employee alone is the same as the cost to the 

                 employee   of   covering   the   employee   and   dependents,   then 

                 there is no additional cost to the employee for adding the 

                 children     and   no   portion   of   the   cost   of   coverage   may   be 

                 allocated to the children.[13] 

Although the insurance cost is allocated equally between the parents,14  "the cost to be 

allocated   is   limited   to   that   portion   of   the   total   cost   necessary   to   insure   the   children 

involved - not the parent."15        Accordingly, it was plain error to allow Gregory to deduct 

his insurance premium from his gross income.16                 Because the cost of insurance is the 

same whether or not the children are added, Gregory is not entitled to either a deduction 

or a credit for the health insurance.   We reverse the superior court's treatment of the cost 

        11       See Vest v. First Nat'l Bank of Fairbanks, 659 P.2d 1233, 1234 n.2 (Alaska 

1983) (explaining plain error rule and circumstances in which court will raise issue sua 


        12       Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1124 (Alaska 1996) (quoting Miller 

v. Sears, 636 P.2d 1183, 1189 (Alaska 1981)). 

        13       Alaska R. Civ. P. 90.3(d)(1). 

        14       Id. 

        15       Alaska R. Civ. P. 90.3 Commentary, VII.A. 

        16       Rule 90.3(d) also states that the cost of health care coverage for the children 

is subtracted from the amount of child support, not from gross income. 

                                                    -9-                                               6787

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of health care coverage and remand for recalculation of support.              Because the superior 

court linked the health care deduction and claiming dependents for tax purposes, the 

superior court should reconsider its decision to permit Melody to continue to claim both 

children as dependents on her federal income tax return. 

                2.      Adoption subsidies 

                Gregory contends that the court erred in excluding from Melody's income 

a stipend from the state for children she adopted after the dissolution.              The state pays 

Melody an Alaska Adoption Subsidy for the children; these subsidies are paid when the 

Department of Health and Social Services decides that children are hard to place.17 

                Although Rule 90.3 requires the court to consider a parent's income "from 

all sources," certain payments are not considered income for purposes of the rule.18 

Addressing whether adoption subsidies and foster care payments should be included in 

a parent's income when computing child support, other courts have held that "because 

these payments are intended to benefit the adopted or foster child, they are considered 

income to the child and not to the parent."19          One court has explained that foster care 

payments "are received by the foster parent acting in a fiduciary capacity" and "the 

        17      AS 25.23.190-.230. 

        18      Alaska R. Civ. P. 90.3(a); Alaska R. Civ. P. 90.3 Commentary, III.A. 

        19      In re Marriage of Dunkle , 194 P.3d 462, 465 (Colo. App. 2008); see also 

Hamblen v. Hamblen , 54 P.3d 371, 374 (Ariz. App. 2002) (explaining such payments 

"are made on the child's behalf to meet his or her needs"); In re Marriage of Newberry , 

805 N.E.2d 640, 643-44 (Ill. App. 2004) (adoption subsidies are benefits belonging to 

the   children);  Strandberg   v.   Strandberg,   664   N.W.2d   887,   890   (Minn.   App.   2003) 

(same); A.E.   v.   J.I.E. ,   686   N.Y.S.2d   613,   615   (N.Y.   Sup.   1999)   (same);  Gambill   v. 

Gambill, 137 P.3d 685, 690 (Okla. Civ. App. 2006) (same). 

                                                 -10-                                            6787

----------------------- Page 11-----------------------

money   is not considered   income available to   the foster parent."20             We consider   the 

adoption subsidies to be similar to child support received for other children and conclude 

they should not be included in a parent's income for purposes of Rule   90.3.21                     The 

superior court thus correctly decided that Melody is not required to include the adoption 

subsidy as income for purposes of Rule 90.3. 

                3.      Tax credits 

                Gregory next argues that the superior court erred in not counting Melody's 

tax refund as income.  He specifically argues that Melody's Earned Income Tax Credit 

(EITC) should count as income. The superior court initially required Melody to "include 

the amount of any tax refund in her calculations, or adjust her calculations to reduce the 

monthly withholding to an amount that would result in a zero refund." Melody asked the 

court to clarify its ruling, arguing that the EITC was a means-based benefit that should 

not be included in income when calculating child support.22             The court then decided that 

neither party was required to declare income tax refunds as income. 

                We agree with Melody's superior court argument and hold that the EITC 

should not be considered income for calculating child support.23              Unlike tax credits that 

        20      Bryant   v.   Bryant ,   218  S.W.3d   565,   569   (Mo.   App.   2007)   (citing In   re 

Paternity of M.L.B., 633 N.E.2d 1028, 1029 (Ind. App. 1994)). 

        21      Cf.   Alaska   R.   Civ.   P.   90.3   Commentary,   III.A   ("Child   support   is   not 


        22      See id. ("Means based sources of income . . . should not be considered as 


        23      In   an   unpublished   memorandum   opinion   we   previously   ruled   that   the 

superior court should include any tax credits received by a parent when calculating 

income under  Rule  90.3.        Wedman v. Wedman, Mem. Op. & J. No. 1206, 2005 WL 

628806, at *4 (Alaska, Mar. 16, 2005).            But in that case the argument that the EITC 


                                                  -11-                                            6787

----------------------- Page 12-----------------------

only reduce an individual's tax, any EITC amount exceeding the actual tax obligation 

can be refunded to that individual and is considered a payment.24     The EITC is available 

only to low-income households,25  and the credit amount depends on household income 

as well as the number of qualifying children.26     Federal courts have identified several 

purposes of the EITC:  (1) "to reduce the disincentive to work caused by the imposition 

of Social Security taxes on earned income"; (2) "to stimulate the economy by funneling 

funds to persons likely to spend the money immediately"; and (3) "to provide relief for 

low-income families hurt by rising food and energy prices."27     Several states exclude the 

EITC from income for purposes of calculating child support, either through judicial 

decision28 or rules and regulations.29  Because the EITC is only available to and intended 

       23     (...continued) 

should be excluded from income because it was means based was not raised, and we 

have not considered this specific issue before. 

       24     Sorenson v. Sec'y of the Treasury of U.S., 475 U.S. 851, 854 (1986). 

       25     See In re Steinmetz, 261 B.R. 32, 35 (Bankr. D. Idaho 2001) (noting that 

EITC eligibility ends when income is $30,850). 

       26     26 U.S.C.  32 (2006).   In tax year 2012 the maximum credit is $5,891 for 

households with three or more qualifying children, $5,236 for those with two children, 

and $3,169 for those households with only one qualifying child. See 


       27     Sorenson, 475 U.S. at 852. 

       28     Brausch v. Brausch , 265 S.W.3d 837, 840-41 (Ky. App. 2008); Riggs v. 

Riggs , 622 N.W.2d 861, 867 (Neb. 2001). See also T.E.N. v. T.J.C., 2003 WL 22476257 

at *5 (Del. Fam. Ct., Aug. 20, 2003) (refusing to include EITC in mother's income for 

child support purposes because formula excluded needs-based credits). 

       29     See Marrocco v. Giardino, 767 A.2d 720, 724 n.6 (Conn. 2001) (quoting

regulation excluding EITC from income for child support purposes); Walker v. DeMoss,


                                            -12-                                        6787

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to benefit low-income families, we consider it a means-based source of income not 

countable for calculating child support.30      The superior court therefore did not err in not 

counting Melody's EITC as income. 

        D.	     The Superior Court Did Not Err In Its Decision About The Children's 

               Permanent Fund Dividends. 

                Gregory     next  argues   that  the  superior   court  abused    its  discretion  in 

permitting Melody to deposit the children's Permanent Fund Dividends "into investment 

accounts of her choosing."      The parties' initial agreement provided that Melody would 

apply for the children's Permanent Fund Dividends each year and place the money in an 

investment account.  In the litigation related to the cross-motions to modify, the parties 

disputed   whether   either   or   both   parents   had   borrowed   money   from   the   children's 

accounts and whether that money had been repaid.             The superior court found that "any 

loans taken by either parent from the children's accounts [were] deemed satisfied."  The 

court   permitted    Melody    to  move    the  money    to  different   accounts,   but   prohibited 

withdrawals except to pay the children's taxes or for reinvestment.             The court required 

Melody to provide an accounting "in accordance with the original decree."               We see no 

error in the superior court's decision in light of the parties' inability to cooperate and 

their original agreement. 

        29      (...continued) 

781 N.W.2d 101, 2010 WL 624237 at *2 (Iowa App., Feb. 24, 2010) ("Gross monthly 

income does not include public assistance payments or the earned income tax credit." 

(quoting Iowa Ct. R. 9.5)). 

        30      Gregory did not mention other types of tax credits in this appeal.  The 

record reflects that both parties claimed other tax credits that were considered payments 

on their federal tax returns.    We express no opinion about the other credits. 

                                                -13-	                                         6787

----------------------- Page 14-----------------------

        E.	     The Superior Court Did Not Err In Requiring Gregory To Maintain 

                A Life Insurance Policy. 

                Gregory contends the superior court erred in requiring him to maintain a 

life insurance policy on himself for the children's benefit.            Gregory maintains that the 

parties' original agreement required only Melody to maintain a life insurance policy.  He 

also argues that his "current will and life insurance policy fulfill the obligation" and that 

Social Security would "fulfill[] the obligation that the court feels is needed."               Gregory 

thus   raises   two   issues:  whether   the   superior   court   correctly   construed   the   original 

dissolution agreement and whether it correctly found he was not in compliance with the 


                The   original   agreement   between   the   parties   said   that   the   "obligee   will 

maintain a life insurance policy which names the children as beneficiar[ies]."                 Because 

Gregory had to pay monthly child support to Melody, he was the obligor, and she was 

the obligee.    In the litigation related to the parties' cross-motions to modify, Melody 

argued that under   the   terms of the agreement Gregory was required to obtain a life 

insurance policy for the benefit of the children; she asked the court to require Gregory 

to   provide   proof   of   that   insurance. In   response,   Gregory   did   not   deny   that   he   was 

required to obtain a life insurance policy - he argued instead that his will would provide 

adequate financial protection for the children. 

                After the hearing on the cross-motions, Gregory filed a copy of his will 

together with a pleading discussing Social Security benefits, which he thought would 

"cover the concerns that ha[d] arisen at the trial in regard to support for [the] children 

should [he] die prematurely."  Melody filed an affidavit indicating she had life insurance 

in the amount of $75,000, with the children listed as beneficiaries. 

                The superior court found that the original agreement required Gregory "to 

maintain life insurance on himself for the benefit of the children."             It further found that 

                                                  -14-	                                            6787

----------------------- Page 15-----------------------

"[t]he provisions of [Gregory's] will [were] insufficient to meet this requirement."  The 

superior court ordered Gregory to "purchase and file proof of conforming life insurance 

designating the children as direct beneficiaries" within 60 days of the date of the order. 

                We construe settlement agreements in dissolutions using traditional contract 

principles.31    The   goal   of   contract   interpretation   "is   to   give   effect   to   the   reasonable 

expectations of the parties."32      "We review the interpretation of a contract de novo, with 

any inferences that the superior court has drawn from extrinsic evidence being reviewed 

for 'support[] by substantial evidence.' "33 

                Substantial evidence supports the superior court's finding that the parties 

intended Gregory to carry a life insurance policy for the children's benefit.  Gregory did 

not dispute in his pre-hearing pleadings that the agreement required him to carry life 

insurance with the children as beneficiaries, nor did he dispute that the purpose of the 

insurance provision was to benefit the children in case Gregory died before they were 

adults. Although the agreement said that the obligee was required to carry life insurance, 

the parties used the wrong term to identify who had an obligation several places in the 

agreement.      For   example,   the   dissolution   petition   said   that   rather   than   use   income 

withholding for child support payments, the "obligee will make automatic funds transfers 

to obligor's bank."     The petition also provided that the "obligee" would receive half of 

the residential property equity; under the terms of the agreement, Melody retained the 

house and paid Gregory his share of the equity.              Given the purpose of the insurance 

        31       Villars v. Villars, 277 P.3d 763, 768 (Alaska 2012) (citing Zito v. Zito, 969 

P.2d 1144, 1147 n.4 (Alaska 1998)). 

        32      Id. (quoting Knutson v. Knutson , 973 P.2d 596, 600 (Alaska 1999)). 

        33      Burns v. Burns , 157 P.3d 1037, 1039 (Alaska 2007) (quoting Wahl v. Wahl, 

945 P.2d 1229, 1231 n.2, 1232 n.3 (Alaska 1997)) (alteration in original). 

                                                  -15-                                             6787

----------------------- Page 16-----------------------

provision and the other uses of "obligee" in the dissolution petition, the superior court 

did not err in interpreting the parties' agreement as requiring Gregory to purchase life 

insurance naming his children as beneficiaries. 

                 The superior court also did not clearly err in finding that Gregory's will and 

potential   Social Security   benefits   did   not   fulfill   his   obligation   under   the   dissolution 

agreement. The agreement required Gregory to maintain a life insurance policy with the 

parties' two children as beneficiaries.  Gregory's will did not fulfill this obligation, nor 

did the possibility of Social Security payments for the children.                 We thus affirm the 

superior court's order requiring Gregory to maintain a life insurance policy with the 

children as beneficiaries. 

                 Gregory asks in the alternative that Melody be ordered to carry a reciprocal 

policy   and   that   the   superior   court   designate   a   policy   coverage   amount.  The   record 

indicates that Melody already has a policy naming the children as beneficiaries.  While 

we have "approve[d] the use of [life] insurance as security for a support obligation where 

appropriate,"34 the amount and type of insurance can be left "to the ingenuity of lawyers, 

judges,   insurance   brokers   and   actuaries." 35    The   superior   court   was   not   required   to 

specify a policy coverage amount differing from Melody's existing policy. 

        F.       The Superior Court Did Not Err In The Attorney's Fees Award. 

                 Gregory argues that the award of attorney's fees to Melody was erroneous. 

Melody's actual attorney's fees exceeded $20,000, and the court awarded her $7,500, 

representing 75% of what the court found to be reasonable fees.                    The court initially 

applied AS 25.24.140(a), authorizing the award of attorney's fees while a divorce action 

is pending.  After Gregory moved for reconsideration, the superior court acknowledged 

        34      H.P.A. v. S.C.A. , 704 P.2d 205, 210 (Alaska 1985). 

        35      Id. at 210 n.4. 

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it had "identified the wrong statute" in its attorney's fees ruling. The court noted that AS 

25.20.115 was controlling,36 but after applying that statute decided the amount of fees 

would remain unchanged. 

                Gregory argues on appeal that:  (1) the superior court erred by applying the 

Rule 82 divorce exception to award Melody fees; (2) he prevailed and is entitled to a 

Rule 82 attorney's fees award; and (3) he cannot afford to hire his own attorney, let alone 

pay   for   Melody's   attorney.   Gregory   does   not   acknowledge   that   the   superior   court 

changed the basis of its attorney's fees award after Gregory's motion for reconsideration. 

                Three types of attorney's fees standards can apply in child custody and 

support cases:   (1) the "divorce exception to Rule 82" in initial custody determinations; 

(2) AS 25.20.115 in proceedings to modify custody and visitation; and (3) Rule 82 in 

postjudgment child support modification and enforcement proceedings.37  As the superior 

court noted, the Martins were not before the court for an initial custody determination, 

so AS 25.24.140(a) and the divorce exception to Rule 82 did not apply. And because the 

primary focus of the Martins' cross-motions concerned modification of child custody and 

visitation, the superior court correctly relied on AS 25.20.115 as the basis for its fee 

award. Finally, based on the record before us, we cannot conclude that the superior court 

abused its discretion in awarding attorney's fees to Melody under the statute. 

        36      AS 25.20.115 provides: "In an action to modify . . . [a custody or visitation 

order], the court may . . . award attorney fees and costs . . . .      In awarding attorney fees 

and costs under this section, the court shall consider the relative financial resources of 

the parties and whether the parties have acted in good faith." 

        37      Collier v. Harris, 261 P.3d 397, 409 (Alaska 2011); see also Rowen v. 

Rowen , 963 P.2d 249, 257 (Alaska 1998) (modifying custody or visitation); Bergstrom 

v.  Lindback ,   779   P.2d   1235,   1238   (Alaska   1989)   (determining   initial   custody   and 

support); Patch v. Patch , 760 P.2d 526, 531 (Alaska 1988) (deciding postjudgment child 

support modification and enforcement). 

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               For   the   foregoing   reasons,   we   REVERSE   the   child   support   award   and 

allocation of federal tax deductions for the children and REMAND to the superior court 

for further proceedings on those issues.  In all other respects, we AFFIRM the superior 

court's decisions. 

                                                -18-                                         6787

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