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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mitchell v. Mitchell (3/18/2016) sp-7087

Mitchell v. Mitchell (3/18/2016) sp-7087

           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                                         



MICHAEL  J.  MITCHELL,                                            )  

                                                                  )          Supreme  Court  No.  S-15870  

                                 Appellant,                       )  

                                                                                                                                        

                                                                  )          Superior Court No.  1JU-09-01002 CI  

           v.                                                     )  

                                                                                                  

                                                                  )          O P I N I O N  

                           

JOHANNA M. MITCHELL,                                              )  

                                                                                                                    

                                                                  )          No. 7087 – March 18, 2016  

                                 Appellee.                        )  

                                                                  )  



                                                                                                                  

                                                   

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

                                                                                                     

                      Judicial District, Juneau, Philip M. Pallenberg, Judge.  



                                                                                                           

                      Appearances:  Michael J. Mitchell, pro se, Tucson, Arizona,  

                                                                                                        

                      Appellant.  Johanna M. Mitchell, pro se, Juneau, Appellee.  



                                                                                                                    

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

                                    

                      Bolger, Justices.  



                                    

                      FABE, Justice.  



I.         INTRODUCTION  



                                                                                                                                          

                      This appeal raises the question whether the superior court ordered the  



                                                                                                                                          

proper amount of child support in resolving a motion to modify support.  A mother and  



                                                                                                                                         

father divorced, and the final decree granted them joint physical custody of their two  



                                                                                                                                    

minor children.  Three years later, at age 47, the father quit his job, moved from Alaska  



                                                                                                                                         

to retire in Arizona, and withdrew significant funds from his retirement account.  The  



                                                                                                                        

mother moved for a modification of child support based on these changed circumstances.  


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She argued  that the withdrawn  retirement funds should  be included  in  the father’s  



                                                                                                                                     

income and that he could afford to pay more child support based on his earning potential.  



                                                                                                                               

The superior  court ordered that the withdrawn  retirement funds be included  in  the  



                                                                                                                               

father’s income for determining child support for a one-year period, effective from the  



                                                                                                                       

date of the mother’s motion. The father appeals, arguing that he cannot now be required  



                                                                                                                    

to pay child support based on his income from the previous year. The mother challenges  



                                                                                                                               

this contention and continues to argue that the court should have imputed income to the  



                                           

father based on his earning potential.  



                                                                                                                    

                    Because the father’s significant increase in income from his retirement  



                                                                                                                                

account withdrawal justifies a corresponding increase in his child support obligation, we  



                                                                                                                        

conclude that the superior court’s approach of ordering a year’s worth of child support  



                                                                                                                            

based on this year of increased income was not error.  But because the superior court  



                                                                                                                        

failed to consider the imputed income claim that the mother plainly raised in her motion,  



                                                                                  

we remand for further consideration of that question.  



                                  

II.       FACTS AND PROCEEDINGS  



                                                

          A.        Facts And Prior Proceedings  



                                                                                                                       

                    Johanna and Michael Mitchell married in 1996, had two children together  



                                                                                                                          

in 1998 and 2001, and then separated in the fall of 2009.  An attorney mediator helped  



                                                                                                                             

the parties reach a divorce settlement agreement, which the superior court accepted after  



                                                                                                                              

a  hearing  in  December  2009.                   Both  parties  represented  themselves  throughout  the  



                                      

divorce and subsequent proceedings.  



                                                                                                                            

                    The superior court issued a divorce decree and final child support order  



                                                                                                                              

following the December 2009 hearing.   The child support order gave Johanna and  



                                                                                                                              

Michael joint legal custody and shared physical custody of their two children, stating that  



                                                                                                                             

the children would reside with their mother 55% of the time and with their father 45%  



                                                                                                                        

of the time. Both parents were living in Juneau at that time. Based on the shared custody  



                                                               -2-                                                         7087
  


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arrangement and an evaluation of Michael’s and Johanna’s relative incomes, the court  



                                                                                                                          

ordered Johanna to pay $273.35 per month in child support and to purchase health  



                           

insurance for the children.  



                                                                                                                       

                    In November 2012, at age 47, Michael retired from his job at the National  



                                                                                                                             

Weather Service, and in March 2013 he moved to Tucson, Arizona.   Michael then  



                                                                                                                               

withdrew $50,000 from his pension account, which he apparently used to purchase his  



                                         

house in Arizona.  In July 2013 Johanna filed her first motion to modify child support  



                                                                                                                    

based on these changed circumstances.  Johanna explained that, following Michael’s  



                            

move to Arizona, “[t]he children are now living with the mother . . . 100% of the time  



                                                                                                                                 

and have been since mid-February 2013.  Mother is no longer paying child support to  



                                                                                                                             

father and father is not currently paying child support to [m]other.” Johanna did not state  



                                                                                           

a specific amount of child support she was requesting from Michael.  



                                                                                                                           

                    Michael filed a response, agreeing that the existing child support order  



                                                                                                                                

should be modified and that he should now pay child support to Johanna.   But he  



                                                                                                                                

explained that, for purposes of child support, his income should be calculated based on  



                                                                                                                             

his predicted future income rather than his current actual income because “[n]either [his]  



                                                                                                                              

2012 or 2013 income [was] representative of [his] future earnings.”  He claimed that  



                                                                                                                       

from 2014 through 2020 his “only source of earnings” would be his retirement account,  



                                                                                                                                

which would yield yearly payments of approximately $17,380.  He explained that he  



                                                       

would begin receiving a pension in 2021.  



                                                                                                                       

                    Michael filed several documents to support the contentions in his response  



                                                                                                                      

brief.  First, he filed a copy of his 2012 tax return showing a gross income of $95,319,  



                                                                                                                                  

earned while he was still working for the National Weather Service.  Second, he filed a  



                                                                                                                        

child support affidavit reporting his “2013 actual and expected” income of $8,991.  



                                                                                                                

Finally,  Michael  filed  another  child  support  affidavit  showing  his  “[e]stimated  



                                                                                                                               

2014-2020” income of $17,382 per year from his retirement account.   Based on his  



                                                               -3-                                                         7087
  


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

estimated future income, Michael calculated that he owed $341 per month in child  

                                                                                                                           



support.  In the affidavit showing his actual 2013 income, Michael noted that the figure  

                                                                                                                          



excluded “a 1 time lump sum withdrawal” from his Individual Retirement Account  

                                                                                                   



(IRA).  But he did not list the amount of this withdrawal.  Johanna did not file a reply or  

                                                                                                                                



otherwise contest Michael’s calculations.  

                                            



                    The superior court granted Johanna’s first motion to modify child support  

                                                                                                                        



in October 2013.   But rather  than using his actual income including the lump-sum  

                                                                                                                   



withdrawal, the court used Michael’s expected income calculations as the basis for  

                                                                                                                              



determining the amount of support he owed. In granting the motion, the court noted that  

                                                                                                                             



“Michael filed a response indicating that he agrees with the motion, but he requests that  

                                                                                                                             



the support order be based on his future retirement income.   Johanna filed no reply  

                                                                                                                           



disagreeing with this request.”  The court ordered Michael to pay $341 per month in  

                                                                                                                                



child support, which is the amount Michael had calculated based on his estimated future  

                                                                                                                          



income of $17,382.  Johanna did not appeal this decision.  

                                                                          



          B.        Proceedings Leading To This Appeal  

                                                                     



                    In July 2014 Johanna filed a second motion to modify child support, which  

                                                                                                                          



is the subject of this appeal.   Johanna argued that changed circumstances warranted  

                                                                                                                   



further modification of child support as permitted under Alaska Civil Rule 90.3(h)(1).  



Johanna alleged that Michael’s actual 2013 income had been much higher than the  

                                                                                                                              



expected income he had reported in his affidavit during the previous year’s proceedings.  

                                                                                                                



Johanna cited Michael’s 2013 tax return and explained that his actual “2013 adjusted  

                                                                                                                      



gross income was $58,506 compared to his July 2013 estimate of $17,382.”  Thus, she  

                                                                                                                              



continued, “[h]is taxable 2013 income was $41,124 higher than he told the court it would  

                                                                                                                          



be last year.”  To support this contention, Johanna filed a copy of Michael’s 2013 tax  

                                                                                                                              



return showing the $50,000 withdrawal from his retirement account, for a total gross  

                                                                                                                           



                                                               -4-                                                        7087
  


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                                                                                    1  

income of $58,506.                                                                       She also filed a child support guidelines affidavit using Michael’s                                                                                                                                                                              



2013 actual income, as reported on his tax return, to calculate his child support obligation                                                                                                                                                                                                                                              



at $1,230.98 per month.                                                                                 Based on his actual income, she concluded, “[h]e can afford to                                                                                                                                                                                                       



pay more than $3,852 per year.”                                                                                  



                                                          Johanna also argued that Michael should be required to pay more child                                                                                                                                                                                                                               



 support because he was capable of earning a higher income:                                                                                                                                                                                                       “He should use this access                                                              



 [to retirement funds] to also help support his children.”                                                                                                                                                                                   She emphasized that Michael’s                                                                



unemployment was voluntary and that it reduced his ability to support his daughters,                                                                                                                                                                                                                                                   



explaining that “[h]e ‘retired’ (quit) working at the National Weather Service voluntarily                                                                                                                                                                                                                                            



 [in] late 2012 of his own accord.                                                                                                           His children should not suffer for that decision.                                                                                                                                                               He is   



only 49 years old, too young to retire, capable of working.”                                                                                                                                                                                                     While Johanna did not file                                                                            



any new documentation of Michael’s earning potential, the record already contained                                                                                                                                                                                                                                                        



Michael’s 2012 tax return, which had been filed in the 2013 proceedings and showed that                                                                                                                                                                                                                                                                              



he earned $95,319 in the year leading up to his retirement.                                                                                                                                                  



                                                          Michael opposed Johanna’s motion to modify support.                                                                                                                                                                                        He did not contest                                



Johanna’s ability to move for modification based on the retirement withdrawal, instead                                                                                                                                                                                                                                                                



responding to her motion on the merits.                                                                                                                                    He argued that the lump-sum withdrawal from                                                                                                                                          



                             1                            The   record   does   not   reveal   exactly  how   or   when   Johanna   received  



Michael’s tax return showing his actual 2013 income.                                                                                                                                                                                   She may have received a copy of                                                                                                       

the return as part of a request for income information under Civil Rule 90.3(e)(2), which                                                                                                                                                                                                                                                                  

provides, in part:  “While there is an ongoing monthly support obligation, either party  

                                                                                                                                                                                                                                                                                                                                                                            

must provide to the other party, within 30 days of a written request, documents such as  

                                                                                                                                                                                                                                                                                                                                                                    

tax returns and pay stubs showing the party’s income for the prior calendar year.”  For  

                                                                                                                                                                                                                                                                                                                                                                        

our purposes, it suffices to note that this information was apparently not available at the  

                                                                                                                                                                                                                                                                                                                                                           

time of Johanna’s 2013 motion to modify, when Michael submitted his 2012 tax return  

                                                                                                                                                                                                                                                                                                                                                                          

and his estimated income for 2013, mentioning the IRA withdrawal but not giving its  

                                                                                                                                                                                                                                                                                                                            

amount.  Michael’s 2013 tax return — the only information in the record documenting  

                                                                                                                                                                                                                                                                                                                                          

Michael’s actual 2013 income — would not have been available until 2014.  



                                                                                                                                                                                     -5-                                                                                                                                                                        7087
  


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his retirement account should not be included in the calculation of his income because,  



                                                                                                                          

he argued again, his “2013 income [was] not representative of [his] 2014 and future  



                                                                                                                           

income.” He further explained that “the vast majority” of his 2013 income was the lump- 



                                                                                                                               

sum withdrawal from his retirement account, which he said was used to purchase his  



                                                                                                                             

primary residence in Arizona.  According to his own interpretation of Civil Rule 90.3  



                                                                                                                      

Commentary III.A, Michael argued that a pension withdrawal “is specific[al]ly excluded  



                                                                                                                                

from income calculations.”  He reiterated that his income from 2014 to 2020 would be  



                                                                            

“primarily an $18,000 yearly payment from [his] IRA.”  



                                                                                                                              

                    Michaelalso responded at leastindirectly to Johanna’sassertionthat hewas  



                                                                                                                    

voluntarily unemployed by contending that his “early retirement and move to Arizona  



                                                                                                                              

[was] in the best interest of [his] physical and mental health, which in the long term, will  



                                                                                                                                

be in the best interest of [his] daughters.”  Michael also stated that he “would like to  



                                                                                                                   

reserve the right to collect unpaid child support from [December] 2009 to [February]  



                                                                                                                     

2012 from the plaintiff,” though he provided no documentation to support the allegation  



                                                                                                                           

of unpaid child support.  With his response, Michael filed a copy of his 2013 tax return  



                                                                                                                            

showing $58,506 in income including the lump-sum withdrawal.  He also filed a child  



                                                                                                                          

support guidelines affidavit based on his estimated 2014 income of $18,000 plus capital  



                                                                                                                               

gains and dividends; this affidavit calculated his child support obligation at $546.32 per  



month.  



                                                                                                                             

                    In Johanna’s reply, in addition to highlighting the high costs and time  



                                                                                                                     

pressure she faces in raising the children, she again alleged that Michael’s voluntary  



                                                                                                       

unemployment was unreasonable and not in the best interest of the children:  



                                                                 

                    Michael sold his house, quit his full-time job with excellent  

                                                                                                          

                    benefits,  and  moved  over  2,200  miles  away  from  his  

                                                                                                          

                    daughters.         And  he  insists  that  he  is  “retired”  at  the  age  



                                                               -6-                                                         7087
  


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

                                                                        [  ]  

                                                  of 49,                  2  and can’t afford to pay more than $546.32 per month                                                                                                                           



                                                  to help support his children.                                                                             Why doesn’t he seek a job?                                                                                  He  

                                                  has a bachelor’s degree.                                       



Johanna also questioned the veracity of Michael’s reported income for 2014, requesting                                                                                                                                                                                                        



more details about Michael’s retirement plan and asking “why [it cannot] be used to help                                                                                                                                                                                                                             



 support his children.” She noted that she has heard Michael “does a lot of traveling” and                                                                                                                                                                                                                              



wondered “[h]ow [it] is . . . that he can afford to travel if his budget is indeed only                                                                                                                                                                                                                            



 $18,000 per year.”                            



                                                  InFebruary2015                                                  thesuperior                                   court granted Johanna’s modification                                                                                                       motion  



in part. The court accepted Michael’s estimate of his reduced income for future years but                                                                                                                                                                                                                                 



rejected his contention that the lump-sum withdrawal should be completely excluded                                                                                                                                                                                                                 



from his income.                                                     The superior court noted that the Commentary to Civil Rule 90.3                                                                                                                                                                                



provides:   “Lump sum withdrawals from pension or profit sharing plans . . . will not be                                                                                                                                                                                                                                    



counted as income to the extent that the proceeds have already been counted as income                                                                                                                                                                                                                    



for the purposes of calculating child support . . . (i.e.,                                                                                                                                                               contributions to a voluntary                                          

                                                          3       The superior court explained that this provision is intended “to avoid  

pension plan).”                                                                                                                                                                                                                                                                                                 



double-counting:  that is, counting income once when it is contributed to a retirement  

                                                                                                                                                                                                                                                                                          



account and again when it is withdrawn.  It does not say that lump sum withdrawals are  

                                                                                                                                                                                                                                                                                                                          



never  counted  as  income  for  child  support  purposes.”                                                                                                                                                                  Here,  the  court  found  that  

                                                                                                                                                                                                                                                                                                                     



“Michael provides no basis from which  the court could  conclude that  the $50,000  

                                                                                                                                                                                                                                                                                                     



withdrawn from [his] retirement account in 2013 was previously counted as income for  

                                                                                                                                                                                                                                                                                                                          



the purposes of calculating child support.”  The court also found that “Rule 90.3 bases  

                                                                                                                                                                                                                                                                                                                



child support upon the obligor parent’s ‘total income from all sources,’ which does  

                                                                                                                                                                                                                                                                                                                  



                         2                        The record shows that Michael was 49 at the time of these proceedings; he                                                                                                                                                                                                 



was 47 when he retired.                                        



                         3                        Alaska R. Civ. P. 90.3 cmt. III.A.  

                                                                                                                                                           



                                                                                                                                                              -7-                                                                                                                                                  7087
  


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

                                                                                                                            

include lump sum withdrawals when there is no double-counting.”  The superior court  



                                                                                                                     

therefore concluded that the withdrawal should properly be considered part of Michael’s  



          

2013 income.  



                                                                                                                  

                    But the court accepted Michael’s argument “that a one-time withdrawal  



                                                                                                                          

should not be used to determine child support for any period other than the one during  



                                                                                                

which it was made.”  The court reasoned that “[i]f it is truly a one-time withdrawal, it  



                                                                                                                         

would not be fair to include it in the obligor parent’s income for all subsequent years.”  



                                                                          

Thus, the court concluded that “Michael’s 2013 retirement withdrawal should be used  



                                                                                                                              

to determine child support for a period of one year only, but not thereafter.”  On this  



                                                                                                                            

basis, the court calculated that Michael’s child support obligation based on his 2013  



                                                                                                                      

income was $1,207.30 per month using the formula given in Civil Rule 90.3.  “Because  



                                                                                                                            

this amount is more than 15% greater than the amount order[ed] in 2013,” the court  



                                                                                                                      

concluded,  “there  has  been  a  material  change  of  circumstances  which  requires  



                                                                                                                       

modification of the 2013 order” under the Rule 90.3 threshold for presumptive changed  



                        

circumstances.  



                                                                                                                            

                    To capture Michael’s 2013 withdrawal in his current payments, the court  



                                                                                                                              

reasoned  that  “[t]ypically  child  support  is  calculated  one  year  late,  because  tax  



                                                                                                                            

information is not available for any given year until after that year is completed.”  Thus,  



                                                                                                                                

the court essentially ordered Michael to pay the year’s worth of child support based on  



                                                                                                                        

his 2013 income one year late, beginning the month after Johanna filed her motion.  



                                                                                                                         

Under this order, Michael would pay $1,207.30 monthly child support for 12 months  



                                                                                                                    

beginning August 1, 2014. Then on August 1, 2015, Michael’s child support obligation  



                                                                                                                              

would “revert to $546.32, the figure proposed by Michael.”  The court also ordered that  



                                                                                                                               

the parties exchange tax and income documents in early 2015 and explained that the  



                                                                                                                                 

parties were free to “move to modify child support in advance of August 1, 2015[,] if  



                                                    

they believe this figure should be changed.”  



                                                               -8-                                                         7087
  


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

                                       Although the superior court briefly acknowledged Johanna’s contention                                                                                                                   



that Michael is voluntarily unemployed, it failed to decide whether the unemployment                                                                                          



was unreasonable, seeming to conclude that Johanna had not adequately raised a claim                                                                                                                                                        



 for imputed income under the “potential income” provision of Rule 90.3.                                                                                                                                               “While Civil   



Rule   90.3(a)(4)   allows   the   court   to   impute   additional  income   to   a   parent   who   is  



voluntarily and unreasonably underemployed,” the superior court explained, “Johanna                                                                                                                                                

                                                                                                    4     In acknowledging that she had raised this issue to  

has not asked the court to do so.”                                                                                                                                                                                                                       



 some extent, the court mentioned only Johanna’s assertions made in her reply brief and  

                                                                                                                                                                                                                                                    



 stated that “fairness precludes the court from considering arguments made for the first  

                                                                                                                                                                           

time in a reply brief.”5   Thus, the court declined to assess Michael’s earning potential or  

                                                                                                                                                                                                                                                         



decide the question whether he was voluntarily and unreasonably unemployed.  

                                                                                                                                                                                                   



                                        Michael now appeals the trial court’s modification order.  

                                                                                                                                                                                              



III.                STANDARD OF REVIEW  

                                                                           

                                        Generally “[c]hild support awards are reviewed for abuse of discretion.”6  

                                                                                                                                                                                                                                                                  



                                                                                                                                                                                                                                               

 Similarly, “[t]rial courts have broad discretion in deciding whether to modify child  



                                                                                                                                                                                                                                         

 support orders”; thus “[w]e review a trial court’s determination of whether to modify  



                    4                   The court cited                               Nunley v. State, Department of Revenue, Child Support                                                                                            



Enforcement Division                                             for the proposition that a court may impute income to a parent who                                                                                                                

is voluntarily and unreasonably unemployed, but the court did not discuss whether                                                                                                                                                     

Johanna’s contentions might have raised an implied claim in this regard.                                                                                                                                            See  99 P.3d 7,                      

 11 (Alaska 2004).                



                    5                  See King v. Carey, 143 P.3d 972, 974 & n.4 (Alaska 2006); Alaska State  

                                                                                                                                                                                                                          

Emps. Ass’n v. Alaska Pub. Emps. Ass’n, 813 P.2d 669, 671 n.6 (Alaska 1991).  

                                                                                                                                                                                                                       



                    6                  Ruppe v. Ruppe, 358 P.3d 1284, 1289 (Alaska 2015) (quoting Heustess v.  

                                                                                                                                                                                                                                                          

Kelley-Heustess, 259 P.3d 462, 467 (Alaska 2011)).  

                                                                                                                                                            



                                                                                                                            -9-                                                                                                                 7087
  


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

                                                                         7  

child support for an abuse of discretion.”                                  “We will find an abuse of discretion when the                                



                                                                                       8  

decision on review is manifestly unreasonable.”                                            



                        However, “[w]hether the superior court applied the correct legal standard  

                                                                                                                                               



                                                                                                                                                            9  

to  its  child  support  determination  is  a  question  of  law  that  we  review  de  novo.”   

                                                                                                                                                



Similarly, “[t]he interpretation of Alaska Civil Rules governing child support orders is  

                                                                                                                                                           



reviewed de novo; we will adopt the rule of law that is most persuasive in light of  

                                                                                                                                                          

precedent, reason, and policy.”10  Thus, “[w]e reverse child support awards only if the  

                                                                                                                                                        

superior court abused its discretion or applied an incorrect legal standard,”11  or if “its  

                                                                                                                                                        

factual findings are clearly erroneous.”12  

                                                   



                        Finally, in determining whether a party has waived or adequately raised a  

                                                                                                                                                            



particular claim in the proceedings below, generally “[w]aiver is a legal issue that this  

                                                                                                                                     

                                              13    But we review for plain error when the parties have not  

court reviews de novo.”                                                                                                                                 

                                 



            7            Wilhour v. Wilhour                 , 308 P.3d 884, 887 (Alaska 2013) (citing                                   Olmstead v.   



Ziegler, 42 P.3d 1102, 1104 (Alaska 2002)).                          



            8           Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508  

                                                                                                                                                       

(Alaska 2015) (citing Tufco, Inc. v. Pac. Envtl. Corp., 113 P.3d 668, 671 (Alaska 2005)).  

                                                                                                                                                 



            9           Limeres v. Limeres, 320 P.3d 291, 295 (Alaska 2014) (citing Koller v. Reft,  

                                                                                                                                                      

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

                                                 



            10          J.L.P. v. V.L.A., 30 P.3d 590, 594 (Alaska 2001) (italics omitted); see also  

                                                                                                                                                       

Millette v. Millette, 240 P.3d 1217, 1219 (Alaska 2010).  

                                                                                           



            11          Koller, 71 P.3d at 804 (citing Beaudoin v. Beaudoin, 24 P.3d 523, 526  

                                                                                                                                                       

(Alaska 2001)).  

                



            12          Limeres, 320 P.3d at 296.  

                                                                



            13          State v. Jacob, 214 P.3d 353, 361 (Alaska 2009) (citing Lauth v. State,  

                                                                                                                                                    

Dep’t of Health & Soc. Servs., Div. of Pub. Assistance, 12 P.3d 181, 184 (Alaska 2000)  

                                                                                                                                                   

(“We . . . apply our independent judgment when determining whether an issue has been  

                                                                                                                                                     

                                                                                                                                     (continued...)  



                                                                           -10-                                                                     7087
  


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

                                                                                                       14  

technically appealed the superior court’s finding of waiver.                                                “Plain error exists where         



‘an obvious mistake has been made [that] creates a high likelihood that injustice has                                                             

resulted.’ ”   15  



IV.         DISCUSSION  



                       The fundamental question we must address in this case is whether the  

                                                                                                                                                  



superior court ordered Michael to pay the proper amount of child  support when it  

                                                                                                                                                     



decided Johanna’s second motion to modify support.  In considering this question, we  

                                                                  



recall our longstanding principle “that in child support cases the court’s paramount  

                                                                                                                                     

concern is the best interests of the child[ren].”16  We have explained that “[c]hildren have  

                                                                                                                                                

an interest in adequate support independent of either parent’s interest,”17 and therefore  

                                                                                                             



our ultimate duty here is to ensure that the superior court’s child support order serves the  

                                                                                                                                                   



best interests of Michael and Johanna’s children.  

                                                                                         



                       Michael argues that the amount of child support ordered here is improper  

                                                                                                                                        



because it uses the income he earned in 2013, including the IRA withdrawal he made in  

                                                                                                                                                     



that year, as the basis for his child support obligation in the following  year. He contends  

                                                                                                                                         



that  this  method  of  calculating  income  is  inconsistent  with  section  III.E.  of  the  

                                                                                                                                                  



Commentary  to  Alaska  Civil  Rule  90.3  regarding  the  appropriate  time  period  for  

                                                                                                                                                  



            13(...continued)  



waived  below  due  to  inadequate  briefing.”)).  



            14         See Laughlin v.  Laughlin,  229 P.3d 1002,  1005-06 (Alaska 2010) (applying  



the  plain   error   standard   of  review  to   an   element   of  the  trial   court’s decision  that  the  

parties  had  not  challenged  on  appeal).  



            15         Id.  at  1005 (citing In  re Estate  of Fields, 219  P.3d  995,  1011 (Alaska  

                                                                                                                                          

2009)).  



            16         Hinchey v. Hinchey, 722 P.2d 949, 952 n.5 (Alaska 1986).  

                                                                                                                   



            17         Laughlin, 229 P.3d at 1006.  

                                                               



                                                                        -11-                                                                   7087
  


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

 calculating income.                                                                                       Relatedly, he argues that the amount of child support ordered is                                                                                                                                                                                                                                                                                      



“excessive” because, when compared to his                                                                                                                                                                                                        current income                                                                        , “it exceeds the amount                                                                   



dictated by Civil Rule 90.3” and other guidelines. Johanna contests these arguments and                                                                                                                                                                                                                                                                                                                                                                 



 also argues that the court should have imputed income to Michael based on his earning                                                                                                                                                                                                                                                                                                                                             



 capacity, as permitted under Rule90.3(a)(4)’s“potential                                                                                                                                                                                                                                            income”provision. In                                                                                                 assessing  



whether the superior court used the proper method for determining child support, we first                                                                                                                                                                                                                                                                                                                                                             



 consider Michael’s arguments and then turn to Johanna’s imputed income argument.                                                                                                                                                                                                                                                                                                                           



                                    A.	                                The   Superior   Court   Did   Not   Err   In   Using   Michael’s   Actual   2013  

                                                                       Income To Calculate Child Support For The Following Year.                                                                                                                                                                                                                                                                  



                                                                        1.	                               Johanna’s   argument   for   including   the   IRA   withdrawal   in  

                                                                                                           Michael’s income is not barred.                                                                                                        



                                                                       Michael first contends that Johanna is now barred from arguing that the                                                                                                                                                                                                                                                                                                            



IRA withdrawal                                                                                 should be included in his income, because she did not appeal the                                                                                                                                                                                                                                                                                         



 superior court’s 2013 child support modification order.                                                                                                                                                                                                                                                This argument is based on the                                                                                                                     



principles of res judicata and finality.  He essentially argues that the trial court’s 2013   



 order, which accepted Michael’s own income estimates and his non-inclusion of the                                                                                                                                                                                                                                                                                                                                                                       



lump-sum retirement withdrawal, constituted a final judgment on the question whether                                                                                                                                                                                                                                                                                                                                            



to include the lump-sum withdrawal in his income. Because Johanna did not appeal that                                                                                                                                                                                                                                                                                                                                                                   



 order, he argues that Johanna cannot relitigate that issue.                                                                                                                                                                                                                                                        This argument fails for two                                                                                                       



reasons.   



                                                                       First, Michael never contended in the superior court that Johanna is barred                                                                                                                                                                                                                                                                                       

 from litigating the issue of the IRA withdrawal, and thus he has waived that argument.                                                                                                                                                                                                                                                                                                                                                                             18  



 Second, the appropriate framework for analyzing a motion to modify child support is not  

                                                                                                                                                                                                                                                                                                                                                                                                                                                           



                                    18                                 See, e.g.                                   ,  Still v. Cunningham                                                                                          , 94 P.3d 1104, 1111 (Alaska 2004) (“Issues                                                                                                                                                  



that are not raised in the superior court are waived and cannot be asserted on appeal as                                                                                                                                                                                                                                                                                                                                                                        

grounds for overturning a judgment.”).                                                                                               



                                                                                                                                                                                                                            -12-	                                                                                                                                                                                                                 7087
  


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

res judicata but rather the changed circumstances doctrine under Civil Rule 90.3. As we                                                                            



have previously explained, “motions to modify child support, under Alaska law, do not                                                                              

                                                                             19   “This is so because a motion to modify is not  

technically raise res judicata concerns.”                                                                                                                          



a  new  action.                 It,  rather,  asks  the  court  to  re-open  the  final  judgment  in  the  same  

                                                                                                                                                              

action.”20   But “the principle of finality is a sound one”21  even in this context, so we have  

                                                                                                                                                                



held that “[t]here must be a material change of circumstances before a support order can  

                                                                                                                                                                  

be modified.”22                   Our cases on this point reflect and interpret Rule 90.3(h)(1), which  

                                                                                                                                                            



likewise provides that “[a] final child support award may be modified upon a showing  

                                                                                                                                          



of a material change of circumstances.”  A material change of circumstances can arise  

                                                                                                                           



from “certain fact changes occurring after the entry of a judgment” or from “certain  

                                                                                                                                                         

changes in the law.”23  

                              



                          Here,  new  information  regarding  Michael’s  2013  IRA  withdrawal  

                                                                                                                                                 



constituted  changed  factual  circumstances.                                             The  record  provides  no  indication  that  

                                                                                                                                                                 



Johanna could have known the amount of Michael’s IRA withdrawal until she received  

                                                                                                                                                        



his 2013 tax return — necessarily sometime after the close of calendar year 2013 —  

                                                                                                                                                                    



which showed that the withdrawal amounted to $50,000, and which she submitted with  

                                                                                                                                                                



her 2014 motion to modify.  Although the withdrawal itself happened before the 2013  

                                                                                                                                                               



proceedings, and Michael briefly mentioned “a 1 time lump sum withdraw[a]l” in his  

                                                                                                                                                                   



2013 filings, Johanna could not be expected to move for modification based on the  

                                                                                                                                                                  



             19           Bunn  v.  House,  934  P.2d  753,  757  (Alaska   1997).  



             20           Id.  at  757  n.12.  



             21           Id.  at  757.  



             22           Id.  at  758.  



             23           Id.  



                                                                                -13-                                                                           7087
  


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

retirement   withdrawal   until   she   received   information   about   the   amount    of    the  



withdrawal.       Michael’s    IRA    withdrawal    thus    constituted    a    change    in    factual  



                                                                                                                                                            24  

circumstances at the time that Johanna received full information about it.                                                                                       



                                                                                                                                                                                     

                             Finally, the 2013 modification order did not expressly address the issue of  



                                                                                                                                                                          

Michael’s IRA withdrawal, nor did Michael provide any information about the amount  



                                                                                                                                                                                   

of the withdrawal during those proceedings.  So Johanna’s motion does not violate the  



                                                                                                                                                                                

principle of finality. Accordingly, even if Michael’s argument on this point had not been  



                                                                                                                                                                               

waived,  Johanna  would  still  be  permitted  to  argue  for  the  inclusion  of  his  IRA  



                                                                          

withdrawal in his income in these proceedings.  



                                                                                                                                                                         

                             2.	           The  superior  court  did  not  abuse  its  discretion  in  setting  

                                                                                                                            

                                           Michael’s 2014-2015 child support obligation.  



                                                                                                                                                                

                             Michael does not contest the superior court’s conclusion that a withdrawal  



                                                                                                                                                                        

from a retirement account is properly considered income for purposes of child support.  



                                                                                                                                                                                

He  concedes  that  the  exclusion  of  the  withdrawal  from  his  2013  affidavit  was  



                                                                                                                                                     

“incorrectly based on” his interpretation of Alaska Civil Rule 90.3.  Instead, Michael  



                                                                                                                                                                                     

argues on appeal that the court-ordered modification is erroneous because the timing of  



                                                                                                                                                                              

the income calculation was wrong.  He contends that the superior court erred by using  



                                                                                                                                                                               

his 2013 income as the basis for his child support obligation in the following year, from  



                                                                                                                                                                   

mid-2014 through mid-2015. Becauseascertaining the proper time periodfor calculating  



              24             As Johanna attested in her 2014 motion to modify, Michael’s 2013 tax                                                                                 



return showed that his actual gross income for 2013 was $58,506.                                                                                  This amount was                

more than $40,000 greater than the predicted income of $8,991 on which the 2013                                                                                               

modification order was based, equaling a 550% increase.                                                                       This large increase clearly                  

exceeds              the        15%          threshold               for        a     presumed                 change             in   circumstances                         under  

Rule 90.3(h)(1).   



                                                                                        -14-	                                                                                 7087
  


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

support   is   a   matter   of   applying   the   correct   legal   standard   for  a   child   support  



                                                                                                               25  

determination, we review the superior court’s decision de novo.                                                    



                       Michael’s  core  argument  relies  on  the  Commentary  to  Alaska  Civil  

                                                                                                                                             



Rule  90.3.            Section  III.E  of  the  Commentary,  titled  “Time  Period  for  Calculating  

                                                                                                                          



Income,” provides that courts should generally calculate child support based on the best  

                                                                                                                                               



possible approximation of the parent’s current income:  

                                                                                  



                                   Child support is calculated as a certain percentage of  

                                                                                                                            

                       the income which will be earned when the support is to be  

                                                                                                                           

                       paid.        This  determination  will  necessarily  be  somewhat  

                                                                                                             

                       speculative because the relevant income figure is expected  

                                                                                                                

                       future  income.                 The  court  must  examine  all  available  

                                                                                                              

                       evidence to make the best possible calculation.  

                                                                                     



                                   The determination of future income may be especially  

                                                                                                              

                       difficult when the obligor has had very erratic income in the  

                                                                                                                          

                       past. In such a situation, the court may choose to average the  

                                                                                                                          

                       obligor’s past income over several years.  

                                                                                     



Taking this provision at face value, Michael argues that the superior court’s modification  

                                                                                                                                 



order “clearly contradicts” the provision because his 2013 income — on which the  

                                                                                                                                                 



modification is based — is “unrepresentative of expected future income.”  

                                                                                                                 



                       It is true that a literal reading of Comment III.E might suggest that child  

                                                                                                                                      



support payments must be calculated based on “expected future income.”  But as we  

                                                                                                                                                 



have previously explained, “[t]he commentary to Civil Rule 90.3 has not been officially  

                                                                                                                                       

adopted,  but  it  can  provide  useful  guidance  in  applying  the  rule.”26                                                  We  did  cite  

                                                                                                                                               



Comment  III.E  in  the  somewhat  analogous  case  of  Swaney  v.  Granger,  where  we  

                                                                                                                                                 



            25         See Limeres v. Limeres                  , 320 P.3d 291, 295 (Alaska 2014) (citing                              Koller v.   



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



            26         Miller v. Clough, 165 P.3d 594, 599 n.10 (Alaska 2007) (citing Caldwell  

                                                                                                                                       

v. State, Dep’t of Revenue, Child Support Enf’t Div., 105 P.3d 570, 573 n.6 (Alaska  

                                                                                                                                        

2005)).  



                                                                       -15-                                                                  7087
  


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

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



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



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

              27  But our holding in that case ultimately focused on the fact that the modification  

apply.”                                                                                                                                    



order was effective back to a date before the motion to modify had been filed, making  

it an impermissible retroactive modification under Rule 90.3(h)(2).28   Here, the superior  

                                                                                                                                                   



court was careful notto modify Michael’s child supportobligation retroactively; it issued  

                                                                                                                                                       



a prospective order effective the first day of the month after Johanna filed the motion to  

                                                                                                                                                              

modify support.29                  And the modification was not an “ongoing award”30  but was instead  

                                                                                                                                                     



a one-year award that increased child support payments to reflect Michael’s significant  

                                                                                                                                               



one-year increase in income. So neither Swaney v. Granger nor Comment III.E dictates  

                                                                                                                                                    



the outcome of this case.  

                                                 



                         Injustice would result if child support calculations could never incorporate  

                                                                                                                                             



income information from the previous year.   At the time of the 2013 proceedings,  

                                                                                                                                          



Johanna had no way of knowing the amount of Michael’s IRA withdrawal.  Michael’s  

                                                                                                                                               



child support affidavit at that time simply mentioned “a 1 time lump sum withdraw[a]l  

                                                                                                                                          



from [his]  retirement  IRA”  but  did  not  specify  an  amount.                                                      Nothing  in  the  record  

                                                                                                                                                     



indicates that Johanna could have known the amount of the withdrawal until she received  

                                                                                                                                                   



a copy of Michael’s 2013 tax return, which could not have happened until the beginning  

                                                                                                                                               



            27           297  P.3d   132,   139  (Alaska  2013).  



            28           Id.  at   136.  



            29           See   Alaska   R.   Civ.   P.   90.3(h)(2);   see   also   Swaney,   297   P.3d   at   136  



(“Modifications  are  allowed  to  the  extent  that  they  are  ‘effective  on  or  after  the  date  that  

a  motion  for  modification  .  .  .  is  served  on  the  opposing  party.’  ”  (alteration  in  original)  

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



            30           See Swaney, 297 P.3d at 139.  

                                                                        



                                                                             -16-                                                                       7087
  


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

of 2014 at the earliest.                  Preventing modification in such a situation would diminish our                                               



                                                                                                                                            31  

policy of protecting a child’s independent interest in adequate child support.                                                                        

                                                                                                                                                 If one  



                                                                                                                                                        

parent won the lottery and the other parent had no information about the amount of the  



                                                                                                                                                       

winnings until the following year, it would be unjust for a court to conclude that the  



                                                                                                                                                       

lottery winner could not be ordered to pay child support on the amount of his or her  



                                                                                                                                                  

winnings.  In such a case, as in the current case, justice requires that the previous year’s  



                                                                                                                                                    

income be considered in setting child support for the following year even if it is a time- 



                                                                                                                        

limited adjustment of child support for a one-time income event.  



                                                                                                                                                  

                        In fact, a court’s refusal to consider the previous year’s income could  



                                                                                                                                                          

actually create an incentive for parents to hide short-term increases in income until it is  



                                                                                                                                 

too late for the other parent to collect child support on that income.   Here, Michael  



                                                                                                                                                       

himself  chose  not  to  report  the  amount  of  his  IRA  withdrawal  at  the  time  of  the  



                                                                                                                                                    

2013 proceedings.  If he had provided this information at the time, the superior court  



                                                                                                                                                     

could have modified his support obligation accordingly, and it would not have later been  



                                                                                                                                                    

necessary for the court to set Michael’s 2014 child support obligation based on his 2013  



                                                                                                                                              

income. But having chosen not to report the amount of his withdrawal in 2013, Michael  



                                    

may not argue that this income cannot factor into his child support obligation in 2014,  



                                                                                                                                                   

the first year in which both Johanna and the superior court received information about  



                                                                 

the amount of the IRA withdrawal.  



                                                                                                                                                    

                        Finally, thetrial court correctly observed that, inpractice, “[t]ypically child  



                                                                                                                                                   

support is calculated one year late, because tax information is not available for any given  



                                                                                                                                             

year until after that year is completed.”  And it is not unprecedented to order a one-year  



                                                                                                                                                        

change  in  child  support  reflecting  a  temporary  increase  in  a  parent’s  income.                                                                 In  



            31          See,   e.g.,   Laughlin   v.   Laughlin,   229   P.3d   1002,   1006   (Alaska   2010)  



(emphasizing children’s “interest in adequate support independent of either parent’s                                              

interest”).  



                                                                           -17-                                                                    7087
  


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

Brotherton v. State                   , for instance, we reviewed a child support determination following                                               



                                                                                                                                                                        32  

 a property division that included a significant amount of interest paid in a single year.                                                                                   



 There we held that it was appropriate to count the interest as part of the wife’s income  

                                                                                             



 for a single year but not beyond, essentially creating a similar one-year change in child  

                                                                                                                                                                  

 support reflecting a unique income source in that year.33                                                       Similarly, the Commentary to  

                                                                                                                                                                        



 Civil Rule 90.3 explains that “a temporary, unforeseen, and involuntary reduction in  

                                                                                                                                                                        



 income  may  justify  a  temporary  reduction  in  support  subject  to  the  retroactivity  

                                                                                                                                                  



provisions in Rule 90.3(h)(2),” despite the fact that “[a] temporary reduction in income  

                                                                                                                                                             

normally will not justify an ongoing modification reducing child support.”34                                                                            The same  

                                                                                                                                                                  



 logic applies to increases in income, so that a temporary increase in support would be  

                                                                                                                                                                       



justified under similar circumstances. Accordingly, under the specific circumstances in  

                                                                                                                                                                        



this case, we conclude that the superior court did not err in using Michael’s 2013 income  

                                                                                                                                                              



 as the basis for a one-year change in child support during the following year.  

                                                                                                                                                           



                           Michael  also  argues,  relatedly,  that  the  amount  of  his  child  support  

                                                                                                                                                            



 obligation for August 2014 through July 2015 “exceeds the amount dictated by Civil  

                                                                                                                                                                  



Rule 90.3” when compared to his actual income for that period. Rule 90.3(a)(2) provides  

                                                                                                                                                           



that when one parent has primary physical custody, “[t]he percentage by which the  

                                                                                                                                                                     



non-custodial parent’s adjusted income must be multiplied in order to calculate the child  

                                                                                                                                                                  



 support award is . . . 27% . . . for two children.”  When setting the amount of support, a  

                                                                                                                                                                          



trial court “presumptively does not abuse its discretion when it awards child support  

                                                                                                                                                             



              32           Brotherton v. State, Dep’t of Revenue, Child Support Servs. Div. ex rel.                                                                  



Brotherton, 201 P.3d 1206, 1211 (Alaska 2009).                                      



              33           Id. at 1213.  

                                       



              34           Alaska R. Civ. P. 90.3 cmt. X.A (emphasis added).  

                                                                                                                  



                                                                                  -18-                                                                           7087
  


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

                                                                35  

based on Civil Rule 90.3.”                                            Here, because we have determined that it was permissible                                                         



to use Michael’s 2013 income as the basis for his child support obligation the following                                                                                                   



year, the relevant inquiry is whether the amount of child support is appropriate compared                                                                                                  



to   Michael’s   2013   income.     The   superior   court  hewed   to   this   inquiry,   stating   that  



Michael’s    child    support    obligation    was    determined   by    “the    amount    calculated  



under Rule 90.3” based on Michael’s gross income for 2013.                                                                                            The court explained that                            



it   began   with   Michael’s   2013   gross   income   of   $58,506,   subtracted   the   applicable  



deductions, and then applied the formula dictated by Rule 90.3.                                                                                           This yielded a monthly              



payment of $1,207 including health insurance costs.                                                                                    So because the superior court                                  

                                                                                                                              36  using the appropriate baseline of  

“award[ed] child support based on Civil Rule 90.3”                                                                                                                                                            



Michael’s 2013 income, we conclude that the superior court did not abuse its discretion  

                                                                                                                                                                                           



in setting the amount of Michael’s child support obligation for August 2014 through July  

                                                                                                                                                                                                         



2015.  



                                 Michael  also  argues  that  his  child  support  obligation  “exceeds  the  

                                                                                                                                                                                                         



maximum allowable amount under Alaska Child Support Services Division[] (CSSD)  

                                                                                                                                                                                               



guidelines[] and the [f]ederal Consumer Credit Protection Act.” The guidelines Michael  

                                                                                                                                                                                               



refers to are codified in Title 15, section 125.540 of the Alaska Administrative Code,  

                                                                                                                                                                                                    



which specifies the maximum amount that may be withheld from a paycheck for child  

                                                                                                                     

support.37  But neither this section nor any other provision of the Administrative Code  



                35               Coghill  v.  Coghill,  836  P.2d  921,  924  (Alaska  1992)  (citing  Alaska  R.  Civ.  



P.  90.3  cmt.  VI);  see  Alaska  R.  Civ.  P.  90.3  cmt.  VI.A  (“[T]he  rule  presumes  that  support  

calculated  under  90.3(a)  .  .  .  does  not  result  in  manifest  injustice.”).  



                36               Coghill, 836 P.2d at 924.  

                                                                                   



                37               15  Alaska   Administrative   Code   (AAC)   125.540  (2015);  see   also  

                                                                                                                                                                                                      

FREQUENTLY   ASKED   QUESTIONS   ABOUT   CHILD   SUPPORT   ENFORCEMENT   SERVICES,  

                                                                                                                                                                                  (continued...)  



                                                                                                    -19-                                                                                              7087
  


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

                                                                                                          38  

creates an independent limit on the amount of a child support award.                                          Instead, the code     



makes   clear   that   the   provisions  of   Civil   Rule   90.3   govern   the   calculation   of   child  



             39  

                                                                                                                                   

support.         Similarly, the relevant section of the federal Consumer Credit Protection Act  



                                                                                                                                

deals exclusively with wage garnishment and has no bearing on the amount of child  



                                                               40  

                                                                                                                             

support that may be awarded by a court.                             So these provisions do not limit the amount  



                                                                                                                                   

of child support that Michael can be ordered to pay, and Michael does not contend that  



                                                                                                                          

any amount has been withheld or garnished from his earnings.  We therefore conclude  



                                                                                                                                   

that these provisions do not apply to the current case, and thus they do not alter our  



                                                                                                                            

conclusion that the superior court did not err in calculating Michael’s child support  



                                               

obligation based on his 2013 income.  



                                                                                                                            

           B.	       It Was  Plain Error To Decline To Consider The Imputed Income  

                                                                                                

                     Claim That Johanna Clearly Raised In Her Motion.  



                                                                                  

                     The second issue raised by the parties is whether the superior court erred  



                                                                                                           

by not considering Johanna’s claim for imputed income based on Michael’s earning  



               41  

potential.                                                                                                                  

                   In her brief before this court, Johanna specifically asks the court to “impute  



                                                                                                             

additional income to Michael for being voluntarily and unreasonably underemployed.”  



          37(...continued)  



http://www.csed.state.ak.us/faq/FAQ_Enforcement.aspx (explaining the Administrative  

Code  provision).  



          38         See   15  AAC   125.540.  



          39         See   15  AAC   125.070.  



           40        See   15  U.S.C.  §   1673(b)(2)(B)  (2012).  



           41        In   our   case   law   on   this   issue,   we   have   referred   to   these   claims   both   as  



“imputed   income”   and  “potential   income”   claims,   echoing   language   from   Civil  

Rule  90.3(a)(4).   See,  e.g.,  Horne v. Touhakis,  356  P.3d  280,  281(Alaska 2015)  (referring  

to  both   “potential  income”   and  “imputed  income”);   Ward  v.   Urling,   167  P.3d  48,   51  

(Alaska  2007)  (same).   We  therefore  use  these  two  terms  interchangeably  here.  



                                                                 -20-	                                                          7087
  


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

                                                                                                                                                                                                                                                                                                                                                                                                         42  

Johanna raises this issue in her statement of issues presented for review,                                                                                                                                                                                                                                                                                                                                        as well as in                                             



the body and conclusion of her brief.                                                                                                                                                                          In describing the relief she is seeking, Johanna                                                                                                                                                                          



 clearly lays out her imputed income argument by asking the court to                                                                                                                                                                                                                                                                                                     



                                                                         either (1) affirm or keep the Superior Court’s final judgment;                                                                                                                                                                                                                

                                                                         or (2) impute additional income to Michael based on his 2012                                                                                                                                                                                                                                              

                                                                         tax return and recalculate the amount of child support he                                                                                                                                                                                                                                                             

                                                                         should pay.                                                        This would force Michael to quit gaming the                                                                                                                                                       

                                                                         system   and   get   a   job   worthy   of   his   education   and   work  

                                                                         history.   Michael worked for the National Weather Service                                                                                                                                                                                                                                 

                                                                         for about 22 years, with a parting salary of at least $93,302                                                                                                                                                                                                                           

                                                                         per   year   .   .   .   ,   and  he   has   a   bachelor’s   degree   from   the  

                                                                         University of Arizona -                                                                                                    Tucson.  



Johanna also cites the Commentary to Civil Rule 90.3, emphasizing the section titled                                                                                                                                                                                                                                                                                                                                                                      



 “Potential  Income”   by   underlining   portions   of   its   text   that   are   identical   to   the  



 corresponding potential income provision of Rule 90.3(a)(4). Although Johanna clearly                                                                                                                                                                                                                                                                                                                                                            



raised this issue in her brief here, Michael elected not to file a reply addressing her                                                                                                                                                                                                                                                                                                                                                                            



imputed income argument.                                                                  



                                                                         Johanna did not cross-appeal the superior court’s order, and generally a                                                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                                                                                                                                                                       43   For  

party who “fail[s] to file a cross-appeal waives the right to contest rulings below.”                                                                                                                                                                                                                                                                                                                                                                             



 a self-represented party, however, we have held that courts may on occasion relax  

                                                                                                                                                                                                                                                                                                                                                                                                                                                         



procedural  requirements  if  it  is  clear  what  the  party  is  “obviously  attempting  to  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



                                     42                                  In her statement of the issues presented for review, Johanna contends that                                                                                                                                                                                                                                                                                                               



Michael should have been ordered “to pay an amount commensurate with his 2012                                                                                                                                                                                                                                                                                                                                                                            

income,” which would have required him “to get a job worthy of his skills and education                                                                                                                                                                                                                                                                                                                                           

in order to help support his daughters.”  Although her statement of the issues seems to                                                                                                                                                                                                                                                                                                                                                                                     

 suggest that the superior court’s 2013 order erred in failing to impute additional income                                                                                                                                                                                                                                                                                                                                                     

to Michael, Johanna later clarifies that she is also “hereby asking” for imputed income                                                                                                                                                                                                                                                                                                                                                       

in the current proceedings.                                                



                                     43                                 Peterson v. Ek, 93 P.3d 458, 467 (Alaska 2004).  

                                                                                                                                                                                                                                                                                                            



                                                                                                                                                                                                                                 -21-                                                                                                                                                                                                                        7087
  


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

                           44  

accomplish.”                    And in her appellee’s brief here, Johanna clearly seeks review of the                                                                        



superior court’s failure to “order[] Michael to pay an amount commensurate with his                                                                                          



2012 [pre-retirement] income.” Moreover, in the child support context, “[c]hildren have                                                                                   

                                                                                                                                               45 and thus neither  

an interest in adequate support independent of either parent’s interest,”                                                                                             



parent can waive the children’s right to adequate support through a procedural failure.  

                                                                                                                                                                                     



                            In the child support context, even where the parties have failed to raise a  

                                                                                                                                                   



challenge to a child support agreement, we have determined that we have an independent  

                                                                                                                                                           



duty to review the question whether the support order is permissible under Rule 90.3.  

                                                                                                                                                                                     



We faced this situation in Laughlin v. Laughlin, where divorced parents disputed certain  

                                                                                                                                                                      



elements of a “children’s fund” that they had established in lieu of child support.  Both  

                                                                                                                                                                         



parents seemingly agreed with the premise that they could establish such a fund to  

                                                                                                                                                                               

                                                                                                                                   46  But we addressed the  

replace child support, and neither challenged the fund’s validity.                                                                                                            

                                                                                                                   



question of the fund’s validity sua sponte. We recognized that our longstanding case law  

                                                                                                                                                                             



clearly established “that ‘parents may not make a child support agreement which is not  

                                                                                                                                                                             

                                                   47     “Given this case law,” we concluded, “we must address  

subject to Rule 90.3.’ ”                                                                                                                                           

                                                 



whether the agreement to create a children’s fund in lieu of child support is permissible  

                                                                                                                                                            



before considering [the appellant’s] argument” that challenged a specific element of the  

                                                                                                                                                                              



              44            Breck  v.   Ulmer,  745  P.2d  66,  75  (Alaska   1987);  see  also   Gilbert  v.  Nina  



Plaza  Condo  Ass’n ,  64  P.3d   126,   129  (Alaska  2003).  



              45            Laughlin  v.  Laughlin,  229  P.3d   1002,   1006  (Alaska  2010).  



              46            Id. at 1003-05.  

                                        



              47            Id.  at  1004  (alterations  omitted)  (quoting  Cox  v.  Cox,  776  P.2d  1045,  1048  



(1989)).  



                                                                                     -22-                                                                                7087
  


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

          48  

fund.          We then explained that “[w]e review matters that were not raised below and not                                                               



listed in a statement of points on appeal for plain error,” which “exists where ‘an obvious                                                        

mistake has been made [that] creates a high likelihood that injustice has resulted.’ ”                                                                     49  



                                                                                                                                                     

                         In the current case, we have a similar duty to review the superior court’s  



                                                                                                                                                          

decision  not  to  consider  Johanna’s  argument  that  Michael  was  unreasonably  and  



                                                                                                                                                             

voluntarily unemployed and whether income should be imputed to Michael in setting the  



                                                                                                                                                           

amount of child support. Our case law interpreting Civil Rule 90.3(a)(4) establishes that  



                                                                                                                                             

a child support award is properly “based upon a parent’s potential income if he or she  

                                                                                                                                                   50    And  

                                                                                                                                                         

is found to be voluntarily and unreasonably unemployed or underemployed.” 

while in Laughlin  neither party had raised the issue at all,51  here Johanna raised her  

                                                                                                                                                            



imputed income argument both in the trial court and in her briefing before this court. So  

                                                                                                                                                             



our obligation to consider this issue is even more apparent in this case than it was in  

                                                                                                                                                              

Laughlin .   In light of our case law on imputed income,52  and recognizing children’s  

                                                                                                                                               

                                                                                      53 we consider whether the superior court  

independent interest in adequate child support,                                                                                                          

                                                                        



erred in failing to address the imputed income claim that Johanna raised in her second  

                                                                                                            



motion to modify support.  

                                                   



             48          Id.  at   1005.  



             49          Id.  (quoting  In  re  Estate  of  Fields,  219  P.3d  995,   1011  (Alaska  2009)).  



             50          Nunley  v.  State,  Dep’t  of  Revenue,  Child  Support  Enf’t  Div.,  99  P.3d  7,  11  



(Alaska  2004)  (citing  Alaska  R.  Civ.  P.  90.3(a)(4);  15  AAC  125.020(b));  see  also  Dunn  

v.  Dunn,  952  P.2d  268,  270  (Alaska  1998);  Kowalski  v.  Kowalski,  806  P.2d  1368,  1370­ 

71  (Alaska   1991).   



             51          Laughlin, 229 P.3d at 1004-05.  

                                                                   



             52          See, e.g., Nunley, 99 P.3d at 11.  

                                                                               



             53          See Laughlin, 229 P.3d at 1006.  

                                                                           



                                                                             -23-                                                                       7087
  


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

                              Under Civil Rule 90.3(a)(4), titled “Potential Income,” a court may impute                                                                               



income “based on a determination of the potential income of a parent who voluntarily                                                                                         



andunreasonably                          is unemployed or underemployed.” The                                                      rule specifies that “[p]otential  



income    will  be   based   upon   the   parent’s   work   history,   qualifications,   and   job  



opportunities.   The   court   also   may   impute   potential   income   for   non-income   or   low  



income producing assets.”                                     Further, the Commentary to Rule 90.3 adds that “[t]he court                                                                 



shall consider the totality of the circumstances in deciding whether to impute income.                                                                                              



When a parent makes a career change, this consideration should include the extent to                                                                                                              

                                                                                                                                               54      We have repeatedly  

which the children will ultimately benefit from the change.”                                                                                                                  



confirmed that imputation of income based on a parent’s potential earning level is proper  

                                                                                                                                                                                       



under this provision of Rule 90.3, explaining that a “parent who voluntarily reduces his  

                                                                                                                                                                                                



or her income should not automatically receive a corresponding reduction in his or her  

                                                                                                                                                                                               

child support obligation.”55                                        Moreover, we have specifically held that the “potential  

                                                                                                                                                                               



income” provision applies to a parent who is nominally retired if the retirement was  

                                                                                                                                                                                             



                        56  

voluntary.                   



                                                                                                                                                                                       

                               Herethesuperior courtacknowledgedthat it mightbeappropriateto impute  



                                                                                                                                                                                              

income to Michael under Civil Rule 90.3(a)(4), but it found that “Johanna ha[d] not  



               54             Alaska R. Civ. P. 90.3 cmt. III.C.                               



               55             Dunn, 952 P.2d at 270 (quoting Nass v. Seaton, 904 P.2d 412, 418 (Alaska  

                                                                                                                                                                                     

 1995)); see also Nunley, 99 P.3d at 11; Beaudoin v. Beaudoin, 24 P.3d 523, 527 (Alaska  

                                                                                                                                                                                     

2001); Kowalski, 806 P.2d at 1370-71.  

                                                                     



               56             See Dunn, 952 P.2d at 271 (upholding the superior court’s imputation of  

                                                                                                                         

income to a parent who was “in his early fifties, had voluntarily retired,” and was still  

                                                                                                                                                                         

capable of working, as evidenced by his pastimes); Kowalski, 806 P.2d at 1371 n.5  

                                                                                                                                                                                              

(explaining that “the trial court must consider the nature and reasons for an obligor  

                                                                                                                                                                                     

parent’s unemployment” and citing cases from other jurisdictions where courts had  

                                                                                                                                                                                             

imputed income to voluntarily retired parents).  

                                                                                        



                                                                                              -24-                                                                                        7087
  


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

asked the court to do so.”                                          To the extent that the superior court recognized that Johanna                                                                             



had raised the issue of potential income, the court seemed to find that she had raised the                                                                                                                                  



issue for the first time in her reply, and it explained that “fairness precludes the court                                                                                                                           



from considering arguments made for the first time in a reply brief.”                                                                                                               Yet our review of                         



Johanna’s pleadings reveals that she expressly raised an imputed income                                                                                                                    argument in her                  



motion to modify child support and then reiterated that argument in her reply brief.                                                                                                                                         



                                   In assessing whether a claim was adequately raised, “[w]e consider pro se                                                                                                                  

                                                                                                                                                                                                              57   “This  

pleadings liberally in an effort to determine what legal claims have been raised.”                                                                                                                                   



proposition reflects a policy against finding unintended waiver of claims in technically  

                                                                                                                                                                                                       

defective pleadings filed by pro se litigants.”58                                                                             We have cautioned that “even when a  

                                                                                                                                                                                                                                



pro se litigant is involved, an argument is considered waived when the party ‘cites no  

                                                                                                                                                                                                                             

                                                                                                                                                                                   59   But we consider  

authority and fails to provide a legal theory’ for his or her argument.”                                                                                                                                     

                                                                                                                                                      



a claim to be raised when the “briefing was such that [the court] could discern [the  

                                                                                                                                                                                                                        

                                                                                                                                                                                             60   In Peterson  

party’s] legal arguments and [the opposing party] could reply to them.”                                                                                                                                     

                                                                                                                                                                           



v. Ek, for instance, we concluded that the appellant had preserved his claims in a contract  

                                                                                                                                                                                                             



dispute because “we could discern his legal arguments” despite the fact that “he failed  

                                                                                                                                                                                              

to cite legal authority for any of his arguments.”61                                                                                          Essentially, the court’s primary  

                                                                                                                                                                                                              



                  57               Briggs  v.  City  of  Palmer,  333  P.3d  746,  747  (Alaska  2014)  (quoting  Toliver  



v.  Alaska  State  Comm’n  for  Human  Rights,  279  P.3d  619,  622  (Alaska  2012)).  



                  58               DeNardo  v.  Calista  Corp.,  111  P.3d  326,  330  (Alaska  2005)  (citing  Zok  v.  



State,  903  P.2d  574,  576  n.2  (Alaska   1995)).  



                  59               Gilbert v. Sperbeck, 126 P.3d 1057, 1062 (Alaska 2005) (quoting Peterson  

                                                                                                                                                                                                             

v. Ek, 93 P.3d 458, 464 n.9 (Alaska 2004)).  

                                                                                               



                  60               Peterson, 93 P.3d at 464 n.9.  

                                                                                                      



                  61               Id.  



                                                                                                            -25-                                                                                                      7087
  


----------------------- Page 26-----------------------

                                                                                                                                          62  

concern is that the pleader not be allowed “to unreasonably catch an unwary litigant.”                                                         



                                                                                                          

                      Here,  Johanna’s  motion  to  modify  child  support  included  an  imputed  



                                                                                                                                        

income claim and specifically contended that Michael was voluntarily unemployed and  



                                                                                                                                     

could be earning a higher income. Her opening motion alleged that “[h]e ‘retired’ (quit)  



                                                                                                                                

working at the National Weather Service voluntarily [in] late 2012 of his own accord.”  



                                                                                                                                     

She argued that “[h]is children should not suffer for that decision.  He is only 49 years  



                                                                                                                                 

old, too young to retire, capable of working.” By using key words to allege that Michael  



had “quit . . . voluntarily” and was “capable of working,” Johanna’s motion contained  



                                                                                                                                     

the core elements of a claim for imputed income.   Although she did not cite Civil  



                                                                                                                                            

Rule 90.3(a)(4), the language she used echoed the “voluntarily and unreasonably . . .  



                                                                                                                                            

unemployed” phrasing from the rule itself.  Thus her language was sufficient to allow a  



                                                                                                                                    

court to understand that she was attempting to raise a claim for income imputation under  



                                                                                                                                        

the potential income provision of Rule 90.3(a)(4).   Furthermore, Michael’s 2012 tax  



                                                                                                                         

return — showing his earning potential — had been filed during the 2013 proceedings,  



                                                                                                                                           

so  the  superior  court  had  access  to  the  relevant  information  on  which  to  base  a  



                                       

calculation of imputed income.  



                                                                                                                             

                      Indeed, in hisresponseto the motion to modify support, Michael responded  



                                                                                                                                         

directly to Johanna’s contentions about his voluntary unemployment by arguing that his  



                                                                                                                                        

“early retir[e]ment and move to Arizona [was] in the best interest of [his] physical and  



                                                                                                                                               

mental health, which in the long term, will be in the best int[e]rest of [his] daughters.”  



                                                                                                                              

In her reply, Johanna in turn submitted an affidavit arguing that Michael’s voluntary  



                                                                                                                              

unemployment was not in the best interest of the children by explaining that “Michael  



                                                                                                                                     

sold his house, quit his full-time job with excellent benefits, and moved over 2,200 miles  



           62  

                                                                                                                                

                      Gamble v. Northstore P’ship, 907 P.2d 477, 482 (Alaska 1995) (quoting  

                                                                                                         

Lopez v. U.S. Fid. & Guar. Co., 15 Alaska 633, 637 (D. Alaska 1955)).  



                                                                   -26-                                                                  7087  


----------------------- Page 27-----------------------

away from his daughters.” In her reply Johanna also reiterated that Michael could afford                                                                  



to   pay   more   child   support   based   on   his   earning   potential,   given   that   “[h]e   has   a  



bachelor’s degree,” and she suggested that he should “seek a job” to better support his                                                                         



children.   Thus, Michael appeared able to “discern [Johanna’s] legal arguments and . . .                                                                           

                            63  in his response brief, before Johanna responded to his assertions and  

reply to them”                                                                                                                                                



reiterated her own arguments in her reply brief.  So the fairness concern raised by the  

                                                                                                                                                               



superior court, and the general rule that the court will not consider arguments raised for  

                                                                                                                                                                



the first time in a reply brief, do not in fact present a problem here.  To the contrary:  

                                                                                                                                                                       



Johannaadequatelyraisedan imputed incomeargument in her motion to modify support,  

                                                                                                                                                      



and Michael replied to it in his response brief.  Accordingly, we conclude that it was  

                                                                                                                                                             



error to fail to consider Johanna’s imputed income claimunder Civil Rule 90.3(a)(4), and  

                                                                                                                                                               



we remand for further proceedings on that issue.  

                                                                                               



                         On remand, the superior court must consider whether Michael’s choices to  

                                                                                                                                                                  



retire early and not to seek work in Arizona were unreasonable and, if so, assess his  

                                                                                                                                                                       



potential  income  in  determining  the  appropriate  amount  of  child  support  under  

                                                                                                                                                         

Rule 90.3.64   In considering this question, it is possible that imputing income to Michael  

                                                                                                                                                      



will obviate the need to make a one-year child support calculation based on Michael’s  

                                                                                                                                                  



2013  IRA  withdrawal.                            If  the  superior  court  decides  that  imputed  income  is  not  

                                                                                                                                                              



appropriate under Rule 90.3(a)(4) after weighing the facts and arguments presented by  

                                                                                                                                                                



the parties, then the superior court correctly based Michael’s 2014-2015 child support  

                       



on his actual 2013 income, including the IRA withdrawal.  

                                                                                         



             63          Peterson,  93  P.3d  at  464  n.9.  



             64          See  Alaska  R.  Civ.  P.  90.3(a)(4).  



                                                                              -27­                                                                               7087  


----------------------- Page 28-----------------------

                                    

V.        CONCLUSION  



                                                                                                                         

                   We AFFIRM the superior court’s use of Michael’s 2013 income as the  



                                                                                                                       

basis of child support in the following year but REMAND this case to the superior court  



                                                                                                                         

to consider  whether  additional income should be imputed to Michael based on his  



             

earning potential.  



                                                            -28-                                                      7087
  

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