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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Limeres v. Limeres (2/12/2016) sp-7081

Limeres v. Limeres (2/12/2016) sp-7081

           Notice:   This opinion is subject to correction before publication in the P                      ACIFIC  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@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                         



RENE  E.  LIMERES,                                                )  

                                                                  )          Supreme  Court  No.  S-15489  

                                 Appellant,                       )  

                                                                                                                                         

                                                                  )          Superior Court No. 3AN-11-09292 CI  

           v.                                                     )  

                                                                                                  

                                                                  )          O P I N I O N  

                  

AMY W. LIMERES,                                                   )  

                                                                                                                        

                                                                  )          No. 7081 - February 12, 2016  

                                 Appellee.                        )  

                                                                  )  



                                                                                                                 

                                    

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

                                                                                                 

                      Judicial District, Anchorage, Andrew Guidi, Judge.  



                                                                                                                           

                      Appearances:  Rene E. Limeres, pro se, Nenana, Appellant.  

                                                                                                        

                      David  W.  Baranow,  Law  Offices  of  David  Baranow,  

                                                 

                      Anchorage, for Appellee.  



                                                                                                                    

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

                                    

                      Bolger, Justices.  



                                    

                      FABE, Justice.
  

                                                                                                                          

                      MAASSEN, Justice, with whom WINFREE, Justice, joins, dissenting.
  



I.         INTRODUCTION  



                                                                                                                                       

                      A couple with three children divorced after 15 years of marriage.  In 2012  



                                                                                                                                                 

the superior court ordered the father to pay roughly $1,500 per month in child support.  



                                                                                                                                   

This child support calculation relied on the superior court's finding, based on the parties'  



                                                                                                                           

testimony at trial, that the father's income was $40,000 annually despite his self-reported  



                                                                                                                                           

financial documents showing significantly less income.  The father appealed and we  


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

                                                                                                                                                                                                                                                                                                                                                                                                                                    1  

 affirmed the superior court's findings and support order in early 2014.                                                                                                                                                                                                                                                                                                                                                                   Before that   



 appeal was resolved, the father separately moved to modify his support obligation, filing                                                                                                                                                                                                                                                                                                                                                                                         



 similar self-reported financial documents and arguing that his actual income was less                                                                                                                                                                                                                                                                                                                                                                                                     



than $10,000 per year as shown on his 2013 tax return.  The superior court denied his   



motion to modify without an evidentiary hearing. It also awarded close to full attorney's                                                                                                                                                                                                                                                                                                                                                               



 fees to the mother despite the fact that she raised her fee request in her opposition to the                                                                                                                                                                                                                                                                                                                                                                                                   



motion to modify and never made a separate motion for fees.                                                                                                                                                                                                                                                                                                                The father appeals the                                                                                              



 denial of his motion to modify                                                                                                                                                              his   child support obligation without an evidentiary                                                                                                                                                                                            



hearing.   He also appeals the superior court's award of attorney's fees in the absence of                                                                                                                                                                                                                                                                                                                                                                                                           



 a motion for fees.                                                      



                                                                             We affirmthe superior court's denial of the father's motion to modify child                                                                                                                                                                                                                                                                                                                              



 support without a hearing and conclude that an evidentiary hearing was not required                                                                                                                                                                                                                                                                                                                                                                            



because the father presented no new evidence that would require a hearing.                                                                                                                                                                                                                                                                                                                                                                          But it was                             



 error to award attorney's fees without either requiring the mother to file a motion for fees                                                                                                                                                                                                                                                                                                                                                                                              



 or advising the father that he had a right to respond to the fee request made in the                                                                                                                                                                                                                                                                                                                                                                                                         



mother's opposition brief.                                                                                                                                    We therefore vacate the superior court's fee award and                                                                                                                                                                                                                                                                      



remand to give the father an opportunity to respond.                                                                                                                                                                                                                                                            



II.                                    FACTS AND PROCEEDINGS                                                               



                                                                             This appeal marks the second time we have been asked to review the child                                                                                                                                                                                                                                                                                                                                



 support determination made by the superior court in this case.                                                                                                                                                                                                                                                                                                                       The underlying facts                                                                           



remain the same as those we described in the first appeal:                                                                                                                                                                                                                                       



                                                                             Amy and Rene Limeres were married in 1997 and had three                                                                                                                                                                                                                                                                    

                                                                             children together. Amy is an attorney; Rene has made money                                                                                                                                                                                                                                                        

                                                                             from   a   variety   of   self-employment   activities,   including  

                                                                             guiding,   writing   articles   about   the   outdoors,   and   selling  



                                       1  

                                                                                                                                                                                                                                                                                                                                  

                                                                            Limeres v. Limeres, 320 P.3d 291 (Alaska 2014).  



                                                                                                                                                                                                                                                  -2-                                                                                                                                                                                                                                  7081  


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

                              books. The couple separated in July 2011, and Amy filed for                                                                        

                               divorce. . . .         The court held a two-day divorce and custody                                                    

                              trial in July 2012.                         Following trial it granted the requested                               

                               divorce and awarded sole legal and physical custody of the                                                                        

                              three   children   to   Amy.    The   court   found   that   Rene's   net  

                               annual income was $40,000 and that he was obligated to pay                                                                       

                               child support of $1,514 per month retroactive to August 1,                                                                          

                               2011. . . .         Rene filed a motion for reconsideration, which the                                                            

                                                                                                                              [  ]  

                               [superior] court denied.                               Rene appeal[ed].                         2 



                                                                                                                                                                                     3  

Although Rene was represented by counsel during the initial divorce proceeding,  he has  

                                                                                                                                                                                               



represented himself in the subsequent proceedings.  

                                                                                        



                               In the first appeal, Rene challenged the superior court's "determination of  

                                                                                                                                                                                                 

his child support obligations . . . [and] its denial of attorney's fees," among other issues.4  

                                                                                                                                                                                                       

We affirmed the superior court's order on all issues.5                                                                     Most relevant here, we observed  

                                                                                                                                                                                 



that "Rene testified at trial about his 'generation of substantial funds, in the hundreds of  

                                                                                                                                                                                                 



thousands of dollars, in terms of book sales, inventory on hand, royalties and guiding  

                                                                                                                                                                                    

fees.' "6   Then three months after trial, "Rene submitted his 2011 tax returns and a Child  

                                                                                                                                                                                        

Support Affidavit that showed  income of $8,426.82."7                                                                                 Faced with  this conflicting  

                                                                                                                                                                            

evidence,  the  superior  court  found  that  Rene  earned  "at  least  $40,000  annually."8  

                                                                                                                                                                                                       



Reviewing for clear error, we declined to overturn the superior court's finding: "[G]iven  

                                                                                                                                                                                  



               2              Id.  at 295.              



               3  

                                            

                              Id. at 302.  



               4  

                                            

                              Id. at 294-95.  



               5              Id.  at 295.   



               6  

                                            

                              Id. at 297.  



               7              Id.  



               8  

                                            

                              Id. at 296.  



                                                                                                -3-                                                                                       7081
  


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

Rene's earlier testimony,"                     we explained, "we                cannotsay          that thecourt clearly               erred when   



it found his yearly income to be approximately $40,000 despite what he reported on his                                                                

                                   9   We also concluded that the superior court did not err in denying  

income tax return."                                                                                                                          



additional attorney's fees to Rene after an initial award of interim fees, in connection  

                                                                                                                                       

with the divorce proceedings, under AS 25.24.140(a)(1).10  

                                                                         



                        Prior to our March 2014 decision, Rene filed numerous motions to stay  

                                                                                                                                                    



enforcement of the superior court's support order, to modify his support obligation, and  

                                                                                                                                                     



to expedite the superior court's consideration. The superior court denied these motions.  

                                                                                                                                            



In response Rene filed over a dozen motions to reconsider, which the superior court also  

                                                                                                                                                    



denied.  Most relevant here, in January 2013 Rene filed a motion for modification of  

                                                                                                                               



child support based on his alleged material change of circumstances.  Rene supported  

                                                                                                                                         



this  motion  with  documents  similar  to  those  he  had  presented  during  the  divorce  

                                                                                                                                             



proceedings just a few months earlier:  He filed a new child support guidelines affidavit  

                                                                                                                                            



and his latest tax return (now for 2012) showing an income of $5,770.93, all from self- 

                                                                                                                                                   



reported business profits and his Permanent Fund Dividend (PFD).  The superior court  

                                                                                                                                                  



denied  this  motion  for  modification  in  July  2013.                                          Rene's  subsequent  motion  for  

                                                                                                                                                     



reconsideration alleged that he was entitled to an evidentiary hearing on the evidence he  

                                                                                                                                                       



had presented, but the trial court denied reconsideration in August 2013.  

                                                                                                                        



                        Five  months  later,  in  January  2014,  Rene  filed  a  second  motion  for  

                                                                                                                                                     



modification of child support.  That motion is the subject of the current appeal.  Along  

                                                                                                                                                



with this 2014 motion for modification, Rene also filed another tax return and child  

                                                                                                                                                  



support  guidelines  affidavit,  now  showing  his  financial  information  for  2013  and  

                                                                                                                                                    



claiming an annual income of $7,120, entirely from self-reported business profits. Rene  

                                                                                                                                                   



            9           Id.  at  297.  



            10          Id.  at  302.  



                                                                           -4-                                                                         7081  


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

                                                                                                                            

also  submitted  a  sworn  affidavit  alleging  financial  hardship  in  an  effort  "to  enter  



                                                                                                                     

additional evidence into the [r]ecord to support [his] claim that the current obligation  



                                                                                                                        

[was] not based on a realistic assessment of [his] current earning capacity." The affidavit  



                                                                                                                              

claimed that Rene had no more books left to sell "nor any funds to print more" and that,  



                                                                                                                                

because of child support liens against him, his low credit score made it impossible for  



                                                                                                                                

him to borrow money to print more books.  Rene's affidavit also stated that, despite the  



                                                                                                                     

fact that he had "aggressively sought additional employment with every local business,"  



                                                                                                                                  

he had only been able to secure part-time work that "barely pa[id] enough for [him] to  



             

survive on."  



                                                                                                                               

                    Amy opposed Rene's motion to modify his support obligation.   In her  



                                                                                                                             

opposition brief she questioned the veracity of Rene's reported income of $7,120 from  



                                                                                                                               

his 2013 tax return, which she asserted was "necessarily inaccurate on its face."  She  



                                                                                                                        

suggested that it was nonsensical for Rene to be "earn[ing] less than one-half the Alaskan  



                                                                                                                          

minimum wage rate for a single individual working a full-time, 40 hour work week."  



                                                                                                                             

Amy also challenged Rene's assertion that he had no more books to sell, given that Rene  



                                                                                                                                

had received the whole book inventory in the superior court's property division yet  



                                                                                                                           

reported no book sale profits on his 2013 tax return.   Amy stated that "Rene would  



                                                                                                                          

apparently leave it to this Court to determine on which occasion (or both) he did perjure  



                                                                                                                          

himself as to the value/proceeds of these assets."  Amy concluded by noting that Rene's  



                                                                                                                                

"alleged proofs of his most recent de minimis earnings . . . strain credibility well past the  



                          

bursting point."  



                                                                                                                                 

                    Amy also asserted that Rene's motion to modify support was "devoid of  



                                                                                                                          

merit" and "frivolous in nature." Amy thus requested, in her opposition brief, an "award  



                                                                                                                        

of actual attorney's fees [under Alaska Civil Rule 82] and additional sanctions pursuant  



                                                                -5-                                                         7081
  


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

                                                                                                                                       11  

 to Alaska Civil Rule . . . 11."                                                                                                                Amy stated that she had incurred attorney expenses for                                                                                                                                                                                               



 "[a]   total   of   2.5  hours   attorney   time   at   $225.00   per   hour   .   .   .   to   pursue   and   draft  



 opposition and related pleadings, for a total of $562.50."                                                                                                                                                                                                                 But Amy did not attach any                                                                                           



 billing statements to support that figure, nor did she file a separate motion to request                                                                                                                                                                                                                                                                                       



 attorney's fees as normally required under Civil Rule 82. Rene did not respond to Amy's                                                                                                                                                                                                                                                                                           



 substantive arguments or the question of attorney's fees.                                                                                                                                                                                                                 



                                                               On   February  4,  2014,   the   superior   court   denied   Rene's   motion   for  



 modification of support.                                                                                          At the same time, without requiring that Amy make a separate                                                                                                                                                                                         



 motion for attorney's fees, the court awarded Amy $500 in attorney's fees but declined                                                                                                                                                                                                                                                                                    



 to impose Rule 11 sanctions "for the filing of a plainly meritless and frivolous motion."                                                                                                                                                                                                                                                                                



 Rene   then   filed   a   motion   for   reconsideration,   alleging   that   he   was   entitled   to   an  



 evidentiary   hearing   on   his  motion   to   modify   support   and   contesting   the   award   of  



 attorney's fees in the absence of a motion for fees under Civil Rule 82.                                                                                                                                                                                                                                                                 The motion for                                             



 reconsideration was denied, and Rene now appeals.                                                                                                                                                        



                                11                             In cases not involving a monetary judgment, Civil Rule 82 generally allows                                                                                                                                                                                                                                            



 the prevailing party to recover partial attorney's fees.                                                                                                                                                                                                 Alaska R. Civ. P. 82(b)(2).                                                                                                        The  

 rule   allows   enhanced   fees   upon   consideration   of   certain   factors   listed   in   the   rule,  

 including                                             full                     attorney's                                               fees                        for                     "vexatious                                                 or                  bad                       faith                          conduct"                                            under  

 Rule 82(b)(3)(G).                                                                    Civil Rule 11 requires attorneys and unrepresented parties to certify                                                                                                                                                                                                                         

 that the pleadings and motions they file are "not being presented for any improper                                                                                                                                                                                                                                                                                   

 purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of   

 litigation."   Alaska R. Civ. P. 11(b)(1).                                                                                                                                                We have interpreted it to authorize sanctions                                                                                                                              

 against parties who violate the rule.                                                                                                                                      Alaska State Emps. Ass'n v. Alaska Pub. Emps.                                                                                                                                                           

Ass'n , 813 P.2d 669, 671 (Alaska 1991) (citing                                                                                                                                                                                          Keen v. Ruddy                                                             , 784 P.2d 653, 658                                                         

 (Alaska 1989)).   



                                                                                                                                                                                                    -6-                                                                                                                                                                                     7081
  


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

III.         STANDARD OF REVIEW                 



                         "We use our independent judgment to decide whether it was error not to                                                              



                                                      12  

hold an evidentiary hearing."                                                                                                                                

                                                           This general principle applies equally in the context of  



                                                                                                                                                       

motions to modify child support: "We review de novo whether a moving party has made  



                                                                                                                                         

a prima facie showing sufficient to  justify a custody  or  child support modification  



                 13  

                                                                                                                                                             

hearing."             Thus we "will affirm a denial of a modification motion without a hearing if,  



                                                                                                                                                       

in our independent judgment, . . . the allegations are so general or conclusory . . . as to  



                                                                                                                14  

                                                                                                                     

create no genuine issue of material fact requiring a hearing." 



                                                                                                                                               15  

                                                                                                                                                           

                         "We review an award of attorney's fees for abuse of discretion,"                                                          so a fee  



                                                             

award "will not be disturbed on appeal unless it is 'arbitrary, capricious, or manifestly  

                              16  However, "[w]hether the superior court applied the appropriate legal  

                                                                                                                                                        

                             

unreasonable.' " 



standard in its consideration of a fee petition presents a question of law that we review  

                                                                                                                                                    

de novo."17  

                        



             12          Routh v. Andreassen                   , 19 P.3d 593, 595 (Alaska 2001);                              see also Hartley v.             



Hartley, 205 P.3d 342, 346-47 (Alaska 2009).                              



             13          Hill  v.  Bloom,  235  P.3d  215,  219  (Alaska  2010)  (alterations  omitted)  

                                                                                                                                                 

(quoting Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999)).  

                                                                                                      



             14          Id. (second alteration in original) (quoting Harrington, 984 P.2d at 3).  

                                                                                                                                                       



             15          Martin v. Martin, 303 P.3d 421, 424 (Alaska 2013) (citing McDonald v.  

                                                                                                                                                              

Trihub, 173 P.3d 416, 420 (Alaska 2007)).  

                                                                   



             16          Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (quoting Ferguson  

                                                                                                                                               

v. Ferguson, 195 P.3d 127, 130 (Alaska 2008)).  

                                                                            



             17          Powell v. Powell, 194 P.3d 364, 368 (Alaska 2008) (citing McDonald, 173  

                                                                                                                                                          

P.3d at 420).  

               



                                                                              -7-                                                                      7081
  


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

                       Finally, "[w]e review for abuse of discretion 'decisions about guidance to                                                 



                                18  

a pro se litigant.' "                                                                                                                             

                                     "An abuse of discretion exists when a party has been deprived of  



                                                                                                                         19  

                                                                                                             

a substantial right or seriously prejudiced by the lower court's ruling." 



IV.	       DISCUSSION  



                                                                                                                                   

           A.	         Rene's Motion For Modification Of Child Support, Filed Only Five  

                                                                                                                            

                       Months After The Denial Of His Previous Motion For Modification,  

                                                                                                                                              

                       Did  Not  Require  A  New  Evidentiary  Hearing  Because  It  Did  Not  

                                                                          

                       Provide Substantially New Evidence.  



                                                                                                                                              

                       Rene has argued, both in his motion for reconsideration before the trial  



                                                                                                                                         

court and on appeal here, that the superior court erred in denying an evidentiary hearing  



                                                                                                                                            

on his motion to modify child support.   Because this argument raises a legal issue  



                                                                                                                                                 

relating to the necessity of holding an evidentiary hearing, we address this question de  



          20  

novo.          



                       Alaska Civil Rule 90.3(h), which governs the modification of child support  

                                                                                                                                         



orders,   provides   for   modification   "upon   a   showing   of   a   material   change   of  

                                                                                                                                                

circumstances."21                The rule states that "[a] material change of circumstances will be  

                                                                                                                                                 



presumed if support as calculated under [Rule 90.3] is more than 15 percent greater or  

                                                                                                                                                  

less than the outstanding support order."22                                 But the burden is on the moving party to  

                                                                                                                                                  



            18         Greenway   v.  Heathcott,   294   P.3d   1056,   1062   (Alaska   2013)   (quoting  



Shooshanian v. Dire                 , 237 P.3d 618, 622 (Alaska 2010)).              



            19         Limeres, 320 P.3d at 296 (quoting Azimi v. Johns , 254 P.3d 1054, 1059  

                                                                                                                        

(Alaska 2011)).  

               



            20         Routh v. Andreassen , 19 P.3d 593, 595 (Alaska 2001).  

                                                                                                          



            21         Alaska R. Civ. P. 90.3(h)(1).  

                                                       



            22         Id.  



                                                                        -8-	                                                                7081
  


----------------------- Page 9-----------------------

                                                                                                                     23  

make a prima facie showing that this presumption applies.                                                                Thus, while "[t]rial courts              



must   take   [into   account]   all   evidence   necessary   to   accurately   reflect   the   parties'  

                                      24    a  motion  to  modify  child  support  may  be  denied  without  an  

economic   reality,"                                                                                                                                                     



evidentiary hearing when the moving party has "not presented sufficient evidence of  

                                                                                                                                                                          

permanently reduced income to show a material change in circumstances."25                                                                                     In other  

                                                                                                                                                                    



words, we have emphasized that "[a] hearing is not required when there is no genuine  

                                                                             



issue  of  material  fact.                        'Generalized  allegations  of  factual  issues  that  other  record  

                                                                                                                                                                 

evidence convincingly refutes' do not create genuine issues of material  fact."26                                                                                         In  

                                                                                                                                                                          



addition, we have held that a party's "bare claim," even in a sworn affidavit, does not  

                                                                                                                                                                        

create a dispute of material fact.27  

                                                        



                           Moreover,  to  create  an  issue  of  material  fact,  a  party  must  present  

                                                                                                                                                               



substantially new evidence showing changed circumstances - not simply "additional  

                                                                                                                                                        



             23            See Hill v. Bloom                 , 235 P.3d 215, 219 (Alaska 2010) (reviewing "[w]hether                                     



a moving party has made a prima facie showing sufficient to justify . . . a child support                                                                       

modification hearing" (first alteration in original) (quoting                                                           Harrington v. Jordan                        , 984   

P.2d 1, 3 (Alaska 1999))).           



             24            Routh, 19 P.3d at 595-96 (quoting Adrian v. Adrian , 838 P.2d 808, 811  

                                                                                                                                                                       

(Alaska 1992)).  

                                  



             25            Hill, 235 P.3d at 217.  

                                                              



             26            Wilhour v. Wilhour, 308 P.3d 884, 888 (Alaska 2013) (internal citation and  

                                                                                                                                                                        

alteration omitted) (quoting Acevedo v. Burley , 944 P.2d 473, 475 (Alaska 1997)).  

                                                                                                                                                                        



             27            Epperson v. Epperson, 835 P.2d 451, 453 & n.4 (Alaska 1992) (holding  

                                                                                                                                                             

that a party's "bare claim" that the custodial parent had low living expenses did not  

                                                                                                                                           

create a genuine issue of material fact); see also Hill, 235 P.3d at 220 n.11 ("Without  

                                                                                                                                      

more information, . . . [a] bare assertion . . . is insufficient to warrant an evidentiary  

                                                                                                                                                       

hearing.").  



                                                                                    -9-                                                                             7081
  


----------------------- Page 10-----------------------

                                                                                                                                                                                        28  

evidence bolstering . . . previously adduced evidence and arguments."                                                                                                                         We addressed   



this issue in                   Hill v. Bloom                      , a case analogous to the present one, where a parent similarly                                                                           



moved for modification of child support on the basis of allegedly low, self-reported                                                                                                              



business income just a few months after the initial child support determination.                                                                                                                                    



                                   In that case, Hill had presented her latest financial documents showing a                                                                                                                     



decrease in income from the business she owned, and at trial she had argued that her                                                                                                                                        

                                                                                            29   The trial court found instead that the decrease was  

decrease in income was permanent.                                                                                                                                                                                         



an  "aberration"  and  ordered  her  to  pay  child  support  based  on  her  earlier,  higher  

                                                                                                                                                                                                                  

income.30  Just five months after this evidentiary hearing, Hill moved for modification  

                                         



of her child support obligations, arguing that her continued low income constituted a  

                                                                                                                                                                                                                                 

changed circumstance.31   Hill supported this motion with a sworn affidavit and business  

                                                                                                                                                                                                              

                                                                                                                                                                   32     Yet the superior court  

summaries showing her income for the preceding six months.                                                                                                                                                             

                                                                                                                                              



found that this evidence was not enough to constitute new information for the purpose  

                                                                                                                                                                                                               



of  requiring  an  evidentiary  hearing  - despite  the  fact  that  it  was  technically  new  

                                                                                                                                                                                                                        



evidence - because it was completely consistent with the information she had recently  

                                                                                                                                                                                                               

presented at trial.33                                  We agreed:  "This evidence of Hill's actual income . . . was not  

                                                                                                                                                                                                     



presented  to  the  superior  court  in  the  [prior]  hearing,  so  in  that  sense  it  was  new  

                                                                                                                                                                                                                        



evidence, but it was entirely consistent with the evidence and arguments that Hill did  

                                                                                                                                                                                                                            



                  28               Hill, 235 P.3d at 219.
                       



                  29               Id.  at 217-18.
   



                  30
              Id. at 218.  

                                                   



                  31               Id.  



                  32               Id.  at 218, 219.            



                  33               Id. at 218.  

                                                   



                                                                                                             -10-                                                                                                      7081
  


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

present to the court at the hearing," and thus we held that the superior court did not err                                                             



                                                              34  

in denying an evidentiary hearing.                                 



                        We also emphasized that only five months had passed between the initial  

                                                                                                                                                  



child support determination and Hill's motion to modify child support based on changed  

                                                                                                                                              

circumstances.35                 We  suggested  that,  without  drawing  "a  bright  line  establishing  a  

                                                                                                                                                          



minimum period of time that a party must wait . . . before . . . fil[ing] a motion to modify  

                                                                                                                                               

support,"36  a very short time frame tends to make it less likely that a new evidentiary  

                                                                                                                                        

hearing would be required.37   Accordingly, we held that the superior court had not erred  

                                                                                                                                                   



in denying Hill's motion without conducting a new evidentiary hearing:  

                                                                                                                    



                        Given  the  relatively  brief  passage  of  time  between  the  

                                                                                                                              

                        February 2008 evidentiary hearing and the July 2008 motion  

                                                                                                                        

                        to modify, and given that the evidence presented in support  

                                                                                                                       

                        of  the  motion  to  modify  was  essentially  the  same  as  the  

                                                                                                                              

                        evidence presented in the evidentiary hearing, we cannot say  

                                                                                                                               

                        that  the  court  clearly  erred  in  concluding  that  Hill  had  

                                                                                                                             

                        presented no new evidence for the purpose of considering her  

                                                                                                                               

                        motion to modify child support.[38]  

                                                                   



The essence of this conclusion is that no hearing is required where a party files evidence  

                                                                                                                                            



at trial and then, shortly thereafter, refiles the same or similar information in an attempt  

                                                                                                                                               



to claim changed circumstances.  

                                 



            34          Id.  at  219-20.  



            35          Id.  at  218,  220.   



            36          Id.  at  218.  



            37          See  id.  at  220  ("Hill's  actual  income  for  the  first  half  of  2008  did  not  make  



a  prima  facie  showing  for  modification  of  child  support  given  the  relatively  short  amount  

of  time  that  passed  between  the  evidentiary  hearing  and  the  motion  to  modify.").  



            38          Id. at 219.  

                                   



                                                                          -11-                                                                     7081
  


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

                                                      This analysis applies equally in the current case.                                                                                                                                                         Rene argues that the                                                       



 evidence he presented creates an issue of material fact with regard to his level of income                                                                                                                                                                                                                                 



 and his earning capacity.                                                                                Rene explains that he provided (1) a tax return and child                                                                                                                                                                 



 support affidavit showing that his self-reported annual income was well below the level                                                                                                                                                                                                                                              



determined by the superior court, and (2) an affidavit attesting that he had sold out of his                                                                                                                                                                                                                                                  



 supply of books (a primary source of income for him), had sustained a leg injury in a                                                                                                                                                                                                                                                              



 snowmobile accident that reduced his earning capacity, and had "aggressively" sought                                                                                                                                                                                                                                         



 employment but had only been able to secure a part-time, minimum-wage job.                                                                                                                                                                                                                                                      Rene  



contends that the statement about his book inventory "was not seriously challenged" by                                                                                                                                                                                                                                                         



Amy, nor did Amy present a "cogent argument . . . to dispute" his testimony about his                                                                                                                                                                       



new part-time job.                                        



                                                     Amy   counters   that   Rene   is   not   entitled   to   "repetitive   and   successive  



hearings" on the proper amount of child support "simply because he has provided . . . tax                                                                                                                                                                                                                                              



returns to the court."                                                                    We agree.                                         Under  Hill v. Bloom                                                                     , none of the evidence Rene                                                                   



presented was sufficient to create a dispute of material fact because it did not offer any                                                                                                                                                                                                                                                



 substantially new information beyond what he had recently presented at trial.                                                                                                                                                                                                                                         



                                                     First,   the   short   timeline   of   Rene's   successive   motions   supports   the  



conclusion that a new evidentiary hearing was not required here.                                                                                                                                                                                                         In that respect, this                                            



case echoes                                     Hill 's suggestion that the "brief passage of time between the . . . evidentiary                                                                                                                                                                     



hearing and the . . . motion to modify" counsels against requiring a new evidentiary                                                                                                                                                                                                                       

                                 39        Rene filed his first motion to modify child support in January 2013, just two  

hearing.                                                                                                                                                                                                                                                                                                                                  



and  a  half  months  after  the  initial  trial  and  determination  of  child  support  in  

                                                                                                                                                                                                                                                                                                                                              



November 2012.  After briefing by the parties, the superior court denied Rene's motion  

                                                                                                                                                                                                                                                                                                                             



in July 2013.  Rene immediately filed a motion for reconsideration in which he argued  

                                                                                                                                                                                                                                                                                                                              



                           39                        See id.  

                                                                     



                                                                                                                                                                     -12-                                                                                                                                                                              7081  


----------------------- Page 13-----------------------

                                                                                                                               

that he was entitled to an evidentiary hearing, which the superior court denied.  Just five  



                                                                                                                                  

months after that, in January 2014, Rene filed the motion to modify child support that is  



                                                                            

now before us on appeal.  Moreover, at the time of filing - notwithstanding the large  



                                                                                                                               

number of motions filed in the intervening period - only slightly more than a year had  



                                                                                                                              

passed since the initial divorce decree and child support order. The short passage of time  



                                                                                                                                

between each of these stages thus points toward the conclusion that a new hearing is not  



required.  



                                                                                                                 

                    Furthermore, the evidence Rene filed with his motion was substantially  



                                                                                                                               

equivalent to the evidence he had recently presented at trial.  First, the tax return and  



                                                                                                                      

child support guidelines affidavit that Rene submitted with his 2014 motion to modify  



                                                                                                                               

were very similar to the documents he had submitted to the court in the divorce trial and  



                                                                                                                         

in his 2013 motion to modify support. The newly submitted tax return and child support  



                                                                                                                                

affidavit mirrored his earlier submissions in both character and content:  The 2011 tax  



                                                                                                                         

return submitted in the divorce trial showed a total income of $8,427 coming entirely  



                                                                                                                         

from self-reported business profits and Rene's PFD, while the 2013 tax return showed  



                                                                                            

a total income of $7,120 solely from self-reported business profits.  



                                                                                                                          

                    In addition to the fact that the amount of reported income is highly similar  



                                                                                                                      

across these years, the nature of the income is also identical, in that Rene's non-PFD  



                                                                                                                           

income consists entirely of self-reported business earnings.  To the extent that it differs  



                                                                                                                   

at all from his earlier filings, Rene's latest tax return actually provides less information  



                                                                                                                              

by failing to include a Schedule C showing the details of his business earnings.  And  



                                                                                                                                

Rene's new child support guidelines affidavit, like the affidavit he submitted during the  



                                                                                                                                

divorce trial, simply matches the amount of income reported on the corresponding tax  



                                                                                                                               

return.  So, like in Hill, this evidence "was entirely consistent with the evidence and  



                                                               -13-                                                         7081
  


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

                                                                                                           40  

arguments" that Rene did present to the court at trial.                                                         The superior court had already                  



found Rene's self-reported tax return and child support affidavit to be less credible than                                                                            

                                                                                                                                                             41    Now,  

his testimony suggesting a much higher income, and we upheld that finding.                                                                                         



because Rene's ostensibly new tax return shows "essentially the same" amount and  

                                                                                                                                                                       



source  of  income  as  the  tax  return  already  considered  at  trial,  it  fails  to  present  

                                                                                                                                                               



sufficiently  new  evidence  to  create  a  dispute  of  material  fact  warranting  a  new  

                                                                                                                                                                     

evidentiary hearing.42  

                                             



                           Nor does Rene's  supplemental affidavit provide sufficient evidence to  

                                                                                                                                                                          



require a new hearing. We have previously held in the child support context that "a court  

                                                                                                                                                                     



may deny a hearing where the moving party makes only bare assertions . . . that fail to  

                                                                                                                                                                           

create a genuine issue of material fact."43   In Hill, these "bare assertions" included Hill's  

                                                                                                                                                                    



sworn statement that she had been diagnosed with a kidney disorder requiring surgery.  

                                                                                                                                                                                



Because she did not provide information about the costs or recovery time for the surgery,  

                                                                                                                                                              



the  court  concluded  that  "Hill's  medical  condition  [did]  not  cross  the  evidentiary  

                                                                                                                                                       

                                                                                       44  Here, similarly, Rene offered no evidence  

threshold to require an evidentiary hearing."                                                                                                                

                                                                      



beyond his own unsupported assertions that he had "no more big books . . . left" to sell,  

                                                                                                                                                                       



"nor  any  funds  to  print  more,"  and  that  he  had  "aggressively  sought  additional  

                                                                                                                                                         



employment" but could only secure a part-time, minimum-wage job.  

                                                                                                                                            



             40            See id.
       



             41            Limeres v. Limeres                     , 320 P.3d 291, 296-97 (Alaska 2014).
                          



             42
           See Hill, 235 P.3d at 219.  

                                                                      



             43            Ward v. Urling, 167 P.3d 48, 53 n.18 (Alaska 2007); see also Hill, 235 P.3d  

                                                                                                                                                                      

at 220 n.11.  

              



             44            Hill, 235 P.3d at 220 n.11.  

                                                                       



                                                                                   -14-                                                                             7081
  


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

                             While the dissent considers Rene's assertions to be highly significant, it                                                                                     



fails   to   address   or   distinguish   our   conclusion   in  Hill   v.   Bloom   that   this   type   of  



unsupported claim does not justify a new hearing.                                                               The dissent emphasizes that Rene's                              



assertions differed from the more generalized statements that failed to justify a hearing                                                                                     

                                         45     But in  Ward we did not actually decide the question whether an  

in   Ward v. Urling                     .                                                                                                                                                 



evidentiary hearing was required or indicate where the line might be drawn.  Instead we  

                                                                                                                                                                                         



simply "note[d] that it [was] highly questionable whether Ward was . . . entitled to an  

                                                                                                                                                                                          

evidentiary hearing,"46  making no further pronouncements as to what would justify a  

                                                                                                                                                                                            



hearing. In Epperson v. Epperson, similarly, we concluded that general statements were  

                                                                                                                                                                                     



insufficient to justify a hearing but did not draw a hard line beyond which a hearing is  

                                                                                                                                                       

required.47               And in Hill we concluded that even the more specific contentions made by  

                                                                                                                                                                                          

                                                                   48    So although Rene's statements about diminished book  

Hill failed to require a hearing.                                                                                                                                                   

                                                



sales provided more detail than the statements in  Ward and Epperson, Rene - like  

                                                                                                                                                                                      



Hill -provided little information and no documentation to support his assertions. Thus,  

                                                                                                                                                                                   



we conclude that Rene's "bare assertion[s]," made without any supporting information,  

                                                                                                                                                                    

are "insufficient to warrant an evidentiary hearing."49  

                                                                                                                        



                             Rene now claims that he also offered information about a snowmobile  

                                                                                                                                                                    



injury that forced him to miss part of his book-selling season.  In fact, Rene made this  

                                                                                    



assertion in several affidavits pertaining to the 2013 motion to modify child support. By  

                                                                                                                                                                                         



               45            Dissent at 24-25.       



               46             167 P.3d at 53 n.18.             



               47             835 P.2d 451, 453, n.4 (Alaska 1992).                                 



               48            235 P.3d at 219, 220 n.11.                      



               49            See id.         at 220 n.11.     



                                                                                           -15-                                                                                     7081
  


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

contrast,   his  2014  affidavit   did   not   mention   this   fact,   let   alone   provide   further  



information to support it. Similarly, Rene now invites the court "to fully investigate [his]                                                                                                                                                                                                                                                                         



finances," and he made a similar offer in earlier proceedings before the superior court.                                                                                                                                                                                                                                                                      



But he neither provided any further financial documentation nor mentioned this offer at                                                                                                                                                                                                                                                                                         



the time of his 2014 motion to modify support.                                                                                                                                                             So these assertions, too, fail to meet the                                                                                                                      



bar for requiring an evidentiary hearing.                                                                                                  



                                                          In sum, given the similarity of the evidence presented at each of these                                                                                                                                                                                                                               



 stages, coupled with the short passage of time                                                                                                                                                  between each stage, we conclude that Rene                                                                                                                        



was not entitled to a new evidentiary hearing at the time of his 2014 motion to modify                                                                                                                                                                                                                                                       



 support.  



                             B.	                          It Was Error To Award Near-Full Attorney's Fees Without A Motion                                                                                                                                                                                                                            

                                                          For Fees And Without Advising Rene Of His Right To Respond.                                                                                                                                                                                                    



                                                          Rene also argues that it was improper for the superior court to award                                                                                                                                                                                                                            



near-full attorney's fees to Amy given that she did not file a motion for fees as required                                                                                                                                                                                                                                                         



by Alaska Rule of Civil Procedure 82(c).                                                                                                                                             Because this question relates to the superior                                                                                      



court's decision not to advise a pro se litigant of his right to respond before granting                                                                                                                                                                                                                                                          



                                                                                                                                                                                                                                           50  

attorney's fees, "[w]e review for abuse of discretion."                                                                                                                                                                                            



                                                                                                                                                                                                                                                                                                                                                                        

                                                          As  Rene  correctly  noted  in  his  motion  for  reconsideration  before  the  



                                                                                                                                                                                                                                                                                                                                                         

 superior court and notes again on appeal here, Civil Rule 82(c) provides that "[a] motion  



                                                                                                                                                                                                                                                                                                                                                         

is required for an award of attorney's fees under this rule or pursuant to contract, statute,  



                                                                                                                                                                                                                                                                                     

regulation, or law."  This requirement gives the opposing party a chance to respond to  



                             50  

                                                                                                                                                                                                                                                                                                                                                          

                                                          See Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013) (citing  

                                                                                                                                                                                                                      

Shooshanian v. Dire, 237 P.3d 618, 622 (Alaska 2010)).  



                                                                                                                                                                                    -16-	                                                                                                                                                                          7081  


----------------------- Page 17-----------------------

the fee request.              Accordingly, "it is error to award attorney's fees before the opposing                                           



                                                                     51  

party has an opportunity to respond."                                      



                         Rule 82 also prescribes a formulafor calculating attorney's fees, specifying  

                                                                                                                                             



that a court may only vary from the standard award of partial fees after considering  

                                                                                                                                          

certain factors listed in the rule.52                            As we recently explained, "[w]e have held that in  

                                                                                                                                                            



general, a trial court has broad discretion to award Rule 82 attorney's fees in amounts  

                                                                                                                                                



exceeding those prescribed by the schedule of the rule, so long as the court specifies in  

                                                                                                                                                            

the record its reasons for departing from the schedule."53   Yet we have also clarified that  

                                                                                                                                                         

"full fees may not be awarded under Rule 82(b)(3) except under Rule 82(b)(3)(G),"54 the  

                                                                                                                                                           



provision for "vexatious or bad faith litigation conduct."  Therefore, "[a] Rule 82(b)(3)  

                                                                                                                                                 



award of full fees is 'manifestly unreasonable' absent a finding of bad faith or vexatious  

                                                                                                                                               

conduct."55  



                         Here, Amy made no motion for attorney's fees. Instead, Amy's request for  

                                                                                                                                                           



fees was contained within her merits brief in opposition to Rene's motion to modify child  

                                                                                                                                                       



support. Amy's opposition briefrequestedactual attorney's fees under Civil Rule 82 and  

                                                                                                                                                          



sanctions under Civil Rule 11. It also briefly stated that her lawyer had worked "[a] total  

                                                                                                                                                        



of 2.5 hours attorney time at $225.00 per hour . . . for a total of $562.50."  The superior  

                                                                                                                                                 



court effectively treated this request as a nonconforming motion for attorney's fees,  

                                                                                                                                                       



            51           Gallant v. Gallant                , 945 P.2d 795, 800 (Alaska 1997) (citing                                      Bowman v.   



Blair, 889 P.2d 1069, 1075 (Alaska 1995)).                          



            52           See Alaska R. Civ. P. 82(b).  

                                                                  



            53          Kollander v. Kollander, 322  P.3d  897, 907 (Alaska 2014) (alterations  

                                                                                                                                           

omitted) (quoting Johnson v. Johnson, 239 P.3d 393, 400 (Alaska 2010)).  

                                                                                                                            



            54          Id. (quoting Johnson, 239 P.3d at 403).  

                                                                                        



            55          Id. (quoting Johnson, 239 P.3d at 400).  

                                                                                        



                                                                            -17-                                                                      7081
  


----------------------- Page 18-----------------------

despite the fact that no such motion had been made, and it awarded $500 of actual                                                                                                



                                                     56  

attorney's fees to Amy.                                                                                                                                                              

                                                            Thus the superior court awarded near-full attorney's fees  



                                                                                                                                                                                       

without any motion for fees, and without informing Rene that it intended to treat the  



                                                                                                                         

language in Amy's brief as a separate motion for fees.  



                                                                                                           

                             In Breck v. Ulmer we held that the courts have a duty to "inform a pro se  



                                                                                                                                                                                         

litigant of the proper procedure for  the action he or she is obviously attempting to  

                             57    Although our subsequent case law has "decline[d] to extend Breck to  

accomplish."                                                                                                                                                                              



require judges to warn pro se litigants on aspects of procedure when the pro se litigant  

                                                                                                                                                                               

has  failed  to  at  least  file  a  defective  pleading,"58   we  have  also  recognized  special  

                                                                                                                                                                              



circumstances giving rise to a heightened duty when the trial court itself deviates from  

                                                                                                                                                                                    



normal procedures.  For instance, in Bush v. Elkins, where the superior court removed  

                                                                                                                                                              



a  pro  se  litigant's  name  from  the  case  caption  and  instructed  him  to  cease  filing  

                                                                                                                                                                                 



pleadings, we held that "a duty to inform [the  pro  se party] of his ability to file a  

                                                                                                                                                                                           



                                                                                                                     59  

response . . . arose from the superior court's actions."                                                                    

                                                                                                   



               56            Although the superior court found that Rene's motion was "meritless and                                                                                  



frivolous," it declined to impose a monetary sanction.                                                                  It is unclear whether the phrase                        

"meritless and frivolous" is intended to reflect a finding that Rene's motion constituted                                                                             

"vexatious   and   bad   faith   conduct"   justifying   a   possible   full   fee   award   under   Rule  

82(b)(3)(G).   However, we need not consider that question here because we conclude                                                                                       

that the enhanced fee award was improper on other grounds.                                                        



               57            Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (italics omitted).  

                                                                                                                                                       



               58            Bauman v. State, Div. of Family & Youth Servs., 768 P.2d 1097, 1099  

                                                                                                                                                                                   

(Alaska 1989).  

                   



               59            342 P.3d 1245, 1254 (Alaska 2015).  

                                                                                                



                                                                                           -18-                                                                                    7081
  


----------------------- Page 19-----------------------

                       We   considered   the   same   question   in   Pedersen   v.   Blythe,   a   case   that  



                                                                                            60  

presented similar procedural issues to the current one.                                                                                           

                                                                                                There, in ruling on a motion to  



                                                                                                                                   

dismiss,thesuperior courtconsideredevidencebeyondthepleadings,thereby converting  



                                                  

the motion to dismiss into a motion for summary judgment, without informing the pro  

                                                                                                              61   We emphasized that  

                                                                                                                                               

se litigant of this procedural shift or giving him a chance to reply. 



a motion  for  summary  judgment requires that opposing  parties have a "reasonable  

                                                                                                                                

opportunity" to respond.62                     Moreover, we explained, "[t]he 'reasonable opportunity' is  

                                                                                                                                                  



particularly important for pro se parties, given that trial judges are obligated to inform  

                                                                                                 

pro se litigants of procedural requirements" in this context.63   Accordingly, we held that  

                                                                                                                                               



"the superior court erred when, in deciding the motion to dismiss, it considered matters  

                                                                                                                                         



outside the pleadings without advising Pedersen of its intent to do so and giving him a  

                                                                                                                                                   

reasonable opportunity to respond."64  

                                              



                       A motion for attorney's fees similarly requires that "the opposing party [be  

                                                                                                                                                

                                                          65  Yet in the current case, the superior court converted  

given] an opportunity to respond."                                                                                                   

                                           



Amy's opposition to the motion to modify support into a motion for attorney's fees  

                                                                                                                                              



without advising Rene of "its intent to do so and giving him a reasonable opportunity to  

                                                                                                                                                  



            60         292 P.3d 182 (Alaska 2012).            



            61  

                                  

                       Id. at 185.  



            62         Id.  



            63         Id.  (citing  Genaro v. Municipality of Anchorage                                , 76 P.3d 844, 846 (Alaska           



2003)).  



            64  

                                  

                       Id. at 183.  



            65  

                                                                                                                                  

                       Gallant v. Gallant, 945 P.2d 795, 800 (Alaska 1997) (citing Bowman v.  

                                                               

Blair, 889 P.2d 1069, 1075 (Alaska 1995)).  



                                                                       -19-                                                                 7081
  


----------------------- Page 20-----------------------

                          66  

 respond."                      In light of our case law on this issue, we conclude that it was error to award                                                                                                      



 attorney's fees without a motion for fees and without notifying Rene of his right to                                                                                                                          



 respond to Amy's request for fees. If the superior court chose to treat Amy's merits brief                                                                                                                            



 as a nonconforming motion for fees, it had a duty to inform Rene of this procedural shift                                                                                                                              



                                                                                                                                    67  

 and give him a reasonable opportunity to respond.                                                                                        



                                    Rene's right to respond is particularly important in light of the fact that  

                                                                                                                                                                                                                         



 Amy requested full fees under Rule 82(c) and sanctions under Rule 11.  Because full  

                                                                                                                                                                                                                          



 attorney's fees are only permitted after a finding of "vexatious or bad faith conduct,"  

                                                                                                                                                                                                          



 Rene should have had an opportunity to contest Amy's allegation that his motion was  

                                                                                                                                                                                                                         



 "frivolous." Indeed, the record shows that Rene did contest this allegation in his motion  

                                                                                                                                                                                                                 



 for reconsideration, arguing that his motion was "a reasoned and legitimate cry for  

                                                                                                                                                                                                                           



justice" and that it was not "meritless" or "frivolous" because he submitted "[s]ufficient  

                                                                                                                                                                                                    



 supporting evidence."   If he had been afforded an opportunity to respond to Amy's  

                                                                                                                                                                                                                 



 request for fees, Rene might have made these same arguments in his response.   The  

                                                                                                                                                                                                                        



 failure to afford Rene this opportunity, as Rene argued, "represents a . . . violation of due  

                                                                                                                                                                                                                          



process."  



                                   Accordingly, we find that the superior court's fee award constituted an  

                                                                                                                                                                                                                            



 abuse of discretion.  We thus vacate the superior court's order of attorney's fees against  

                                                                                                                                                                                                                 



 Rene and remand to give Rene an opportunity to respond to Amy's request for fees and  

                                                                                                                                                                                                                          



 sanctions.  



                  66               Pedersen, 292 P.3d at 183.                                  



                  67               Although Amy contends that the fee request in her brief put Rene "on                                                                                                                  



 notice of the request being made," this argument is beside the point. Even if Rene could                                                                                                                            

 discern from Amy's brief that she was requesting fees, he had no way of knowing that  

                                                                                                                                                                                                                          

 the court would treat this portion of the merits brief as an independent motion for fees.                                                                                                                             



                                                                                                             -20-                                                                                                     7081
  


----------------------- Page 21-----------------------

                          On remand, after giving Rene an opportunity to respond, the superior court                                                          



may   then   decide   whether   an   enhanced   fee   award  is  appropriate.     In   making   this  



determination,   the   superior   court   should   follow   the   two-step   process   that   we   have  



described in past cases. Specifically, for a fee award under Rule 82(b)(3), the trial "court                                                                



must   first   calculate   what   award   is   authorized   under   the   schedule   set   forth   in   Civil  

                                                                                                                                                            68      A  

Rule   82[(b)(2)]   and   then   state   its   reasons   for   deviating   from   that   award."                                                                   



Rule 82(b)(3) award of full fees is manifestly unreasonable absent a finding of bad faith  

                                                                                                                                                               

or vexatious conduct.69                        The superior court's decision on remand, therefore, should not  

                                                                                                                                                                  



only  consider  Rene's  response  to  Amy's  fee  request  but  should  also  provide  an  

                                                                                                                                                                  



explanation for any fee award that deviates from the formula specified in Rule 82(b)(1).  

                                                                                                                                                       



                          Indetermining whether alitigant'sclaims "weremadevexatiously or in bad  

                                                                                                                                                                 



faith," we have previously explained, "[t]he issue is not whether they were ultimately  

                                                                                                                                                    



unsuccessful, but whether they were collectively or individually so lacking in merit that  

                                                                                                                                                                 



it is permissible to infer that [the party] acted in bad faith or engaged in vexatious  

                                                                                                                                                     

                                      70     So  the fact that Rene did not prevail on the merits does not  

litigation conduct."                                                                                                                                             

                   



necessarily mean his motion was filed vexatiously or in bad faith.  If the superior court  

                                                                                                                                                              



finds, even after considering Rene's response, that the motion to modify support was  

                                                                                                                                                                



vexatious or in bad faith within the meaning of Rule 82(b)(3)(G), it should make a  

                                                                                                                                                                     



specific finding to that effect.  Only after such a finding would enhanced attorney's fees  

                                                                                                                                                                



be warranted.  

                            



             68           Kowalski v. Kowalski                      , 806 P.2d 1368, 1373 (Alaska 1991) (citing                                          Mullen  



v.  Christiansen, 642 P.2d 1345, 1351 (Alaska 1982)).                                                     



             69            Johnson v. Johnson, 239 P.3d 393, 400 (Alaska 2010).  

                                                                                                                         



             70           Id. at 401.  

                                      



                                                                                -21-                                                                          7081
  


----------------------- Page 22-----------------------

V.                    CONCLUSION  



                                            We AFFIRM the superior                                                                      court's denial of an                                                   evidentiary  hearing   on  



Rene's motion to modify child support.                                                                                               We VACATE the fee award and the Rule 11                                                                                                          



sanctions and REMAND to the superior court to afford Rene an opportunity to respond  

                                                                                                                                                                                                                                                                     



to Amy's request for full attorney's fees and sanctions.                                                                                                                                 



                                                                                                                                                   -22-                                                                                                                       7081
  


----------------------- Page 23-----------------------

MAASSEN, Justice, with whom WINFREE, Justice, joins, dissenting.                                                                        



                              I respectfully dissent from the court's holding that it was not error to deny                                                                              



an evidentiary hearing on Rene Limeres's motion to modify child support. I believe that                                                                                                     



Rene presented unrefuted evidence that was sufficient to raise a genuine issue of material                                                                                        

                                                                                                                                                                            1     He was  

fact about whether he had suffered a permanent reduction in his income.                                                                                                                   



therefore entitled to a hearing.  

                                                  



                              When Rene filed the motion to modify, his child support was based on the  

                                                                                                                                                                                             



superior court's $40,000 estimate of his 2011 income.  As we described in our 2014  

                                                                                                                                                                                        



opinion,  this  estimate  was  based  in  large  part  on  Rene's  testimony  at  trial,  which  

                                                                                                                                                                                     



conflicted with the relatively modest income of $8,426.82 disclosed by his late-filed  

                                                                                                                                                                                

income tax return.2  At an interim custody hearing Rene had estimated his annual income  

                                                                                                                                                                                    

                                                                                   3     At  trial  he  testified  "about  his  'generation  of  

as  $40,000  or  "closer  to  $38,000."                                                                                                                                                        

                                                            



substantial  funds,  in  the  hundreds  of thousands  of  dollars,  in  terms  of  book  sales,  

                                                                                                                                                                                       



inventory on hand, royalties and guiding fees, and claim[ed] to have provided at least  

                                                                                                                                                                                          



$23,000.00, prior to the parties' separation, for the direct needs of the children over the  

                                                                                                                                                                                             

course of one year.' "4                                 Rene was "unwilling or unable to provide specifics as to the  

                                                                                                                                                                                             



amount of money he had made in recent years from guiding," but he did give numbers  

                                                                                                                                                                                 



               1              See  Hill v. Bloom,  235  P.3d  215,  219  (Alaska  2010)  ("We   'will  affirm  a  



denial  of  a  modification  motion  without  a  hearing  if,  in  our  independent judgment,  the  

facts  alleged,  even  if  proved,  cannot  warrant  modification, or  if  the  allegations  are  so  

general   or   conclusory   .   .   .   as   to   create   no genuine   issue   of   material   fact   requiring   a  

hearing.'  "  (alteration  in  original)  (quoting  Harrington  v.  Jordan,  984  P.2d  1,  3  (Alaska  

 1999))).  



               2              Limeres v. Limeres, 320 P.3d 291, 296-97 (Alaska 2014).  

                                                                                                                                                  



               3              Id.  



               4              Id. at 297 (alteration in original).  

                                                                                    



                                                                                             -23-                                                                                        7081
  


----------------------- Page 24-----------------------

for his book sales, describing one book that "he said had generated between $273,000     



and $364,000" in gross revenues; testifying that "the hardcover edition of the same book                                                                          



generated revenue of $22,000 to $29,000"; and identifying two other books that he said                                                                              

                                                                                                                                                  5     Whatever  

"generated as much as $42,000 and $17,000 in revenues respectively."                                                                                   



money Rene may have made from guiding, it is clear that the books - both sales of his  

                                                                                                                                                                      



own inventory and royalties from sales by others - were a significant source of income  

                                                                                                                                                             



that helped justify the superior court's $40,000 estimate.  

                                                                                                                   



                          I agree that Rene's January 2013 motion to modify child support - with  

                                                                                                                                                                   



which he simply submitted his 2012 income tax return, showing little difference fromhis  

                                                                                                                                                                      



reported income in 2011 - was inadequate to raise a genuine issue of material fact and  

                                                                                                                                                                     



entitle him to an evidentiary hearing.  But in his January 2014 motion Rene presented a  

                                                                                                                                                                          



different case.  

                   



                          By  affidavit,  Rene  directly  addressed  his  book-sales  income  source,  

                                                                                                                                                            



asserting in straightforward terms that it was no longer viable.  He attested that he had  

                                                                                                                                                               



"no more big books (Alaska Fishing) left, nor any funds to print more"; that because of  

                                                                                                                                                                        



damage to his credit rating "borrowing money to print more books is not an option"; and  

                                                                                                                                                                     



that he "had to 'give away' [his] latest book to a royalty publisher for 10%," a rate he  

                                                                                                                                                                       



implied was too low to generate any significant income.   I do not agree that these  

                                                                                                                                                                 



statements of fact with clear financial consequences can be dismissed as "bare assertions  

                                                                                                                                                        

. . . that fail to create a genuine issue of material fact," as the court does today.6  

                                                                                                                                                              



                          In Wardv. Urling, the"bareassertions or generalizedallegations"thiscourt  

                                                                                                                                                                  



found likely to be insufficient to justify a hearing were characterized as "allegations  

                                                                                                                                                    



             5            Id.   



             6  

                                                                                                                                                                      

                          Opinion at 14 (alteration in original) (quoting Ward v. Urling, 167 P.3d 48,  

                                  

53 n.18 (Alaska 2007)).  



                                                                                  -24-                                                                           7081
  


----------------------- Page 25-----------------------

[that] expressed little more than [the father's] ongoing dissatisfaction with the court's                                              



                                                                                                                 7  

previous   factual   findings   pertaining   to   [the   mother's]   income."                                                              

                                                                                                                      To  support  this  



                                                                                                                                             

discussion in Ward we cited Epperson v. Epperson, in which the father claimed that the  



                                                                                                                                          

mother had "unusually low living expenses" justifying a deviation from the Alaska Civil  



                                                                                                                                              

Rule 90.3 child support formula but "failed to set forth specific facts substantiating his  



                                                                                                                                            

bare claim," nor did he "specifically dispute" any of the expenses she listed in her  

                                                                                                       8   Here, in contrast, Rene  

                                                                                                                                          

financial declaration and Child Support Guidelines Affidavit. 



identified a major source of his past income and explained why it no longer existed; these  

                                                                                                                                          



are not "bare assertions or generalized allegations" like those we have found insufficient  

                                                                                                                               



before.  And while Rene's statements of fact may be subject to challenge, Amy filed no  

                                                                                                                                              



evidence in opposition, relying largely (as the court does today) on the fact that Rene had  

                                                                                                                                            



                                                                                9  

attempted modification before without success.    

                                                                   



                      Because Rene's 2011 income was substantially based on the availability of  

                                                                                                                                               



a particular commodity - books - for him to sell, and because he asserted by affidavit  

                                                                                                                                    



that the books were gone and he lacked the funds to print more, he demonstrated a  

                                                                                                                                                



genuine issue of material fact as to whether his income was permanently reduced.  This  

                                                                                                                                           



showing entitled him to an evidentiary hearing. I therefore dissent from today's opinion  

                                                                                                                                      



affirming the judgment of the superior court.  

                                                                             



           7           Ward,   167  P.3d  at  53  n.18.  



           8          Id. ;  Epperson  v.  Epperson,  835  P.2d  451,  453  n.4  (Alaska   1992).  



           9          Amy countered   Rene's   claims   about   lost   book-sales   income   simply   by  



questioning  whether  he  could  already  have  depleted  "the  entirety  of  the  book  inventory"  

granted  him  in  the  division  of  marital  property.   Even  if  this  statement  from  an  attorney's  

memorandum  had  evidentiary  value,  it  would  simply  be  to  highlight a  dispute  over  a  

highly  material  issue  of  fact.   



                                                                     -25-                                                                7081
  

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