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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Holmes v. Holmes (3/30/2018) sp-7233

Holmes v. Holmes (3/30/2018) sp-7233

           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                                       



BRANLUND  T.  HOLMES,                                                )  

                                                                     )      Supreme  Court  No.  S-16387  

                                Appellant,                           )  

                                                                                                                                      

                                                                     )      Superior Court No. 3VA-05-00049 CI  

           v.                                                        )  

                                                                                                

                                                                     )     O P I N I O N  

                    

TAMARA HOLMES,                                                       )  

                                                                                                                 

                                                                     )     No. 7233 - March 30, 2018  

                                Appellee.                            )  

                                                                     )  



                                                                                                              

                      A            

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

                                                                                          

                      Judicial District, Valdez, Daniel Schally, Judge.  



                                                                                                                   

                      Appearances:  Herbert M. Pearce, Law Office of Herbert M.  

                                                                                                                

                      Pearce, Anchorage, for Appellant.  Justin Eschbacher, Law  

                                                                                                               

                      Offices of G.R. Eschbacher, Anchorage, for Appellee.  



                                                                                                           

                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                           

                      and Carney, Justices.  



                                                     

                      STOWERS, Chief Justice.  



I.         INTRODUCTION  



                                                                                                                                

                      The superior  court issued an  order modifying  a father's child  support  



                                                                                                                                        

obligation.  The father appeals, arguing that the court erred in multiple respects.  He  



                                                                                                                                     

asserts  that  the  court  erred  in  disallowing  his  claimed  business  losses  from  self- 



                                                                                                                                        

employment and his claimed travel expenses when calculating his income.   And he  



                                                                                                                                          

argues that the court erred in not counting his at-will visitation with his children and in  



                                                                                                                                      

recognizing an aberration in the school calendar when calculating the percentage of time  


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

he had custody of the children.                                                                                                                                            We affirm the order of the superior court.                                                                                                                                                             



II.                                  FACTS AND PROCEEDINGS                                                           



                                     A.                                  Background Facts   



                                                                         Branlund T. Holmes and Tamara Holmes are the parents of two minor                                                                                                                                                                                                                                                                                                           



 children.   Branlund lives in Oregon; Tamara lives in Valdez.                                                                                                                                                                                                                                                                                      Under an August 2013                                                                                   



 court order Tamara has physical custody of the children in Valdez during the school                                                                                                                                                                                                                                                                                                                                                              



year; Branlund has physical custody of the children in Oregon during "summer vacation                                                                                                                                                                                                                                                                                                                                                    



 from one week after school gets out until a week before school begins" and during other                                                                                                                                                                                                                                                                                                                                                                    



 school vacations.                                                                                       Branlund is also permitted at-will visitation with the children in                                                                                                                                                                                                                                                                                                



Valdez after providing Tamara 30 days' notice.                                                                                                                                                                                



                                                                         In March 2014 the superior court issued a child support order.                                                                                                                                                                                                                                                                                           The only   



 disputed issue                                                              was whether Tamara had primary physical custody or custody was shared,                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                                                                              1  The court found that  

which depended on the number of days each party had custody.                                                                                                                                                                                                                                                                                                                                                                                                       



Tamara had primary physical custody in 2012 and 2013   but ruled that from 2014  

                                                                                                                                                                                                                                                                                                                                                                                                                                                          



 onwards, the parties would exercise shared physical custody and Branlund would on  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



                                     1                                   "A parent has primary physical custody (or primary custody) of children                                                                                                                                                                                                                                                                                                                                           



 . . . if the children reside with the other parent for a period specified in the custody order                                                                                                                                                                                                                                                                                                                                                            

of less than 30 percent of the year."  Alaska R. Civ. P. 90.3(f)(2).  "A parent has shared                                                                                                                                                     

physical custody (or shared custody) of children . . . if the children reside with that parent                                                                                                                                                                                                                                                                                                                                                        

 for a period specified in writing in the custody order of at least 30, but no more than 70,                                                                                                                                                                                                                                                                                                                                                                           

percent of the year . . . ."                                                                                                             Alaska R. Civ. P. 90.3(f)(1).                                                                                                                                    A parent with primary physical                                                                                                  

custody receives child support in the amount of the adjusted annual income of the non-                                                                                                                                                                                                                                                                                                                                                                        

custodial parent multiplied by a specified percentage based on the number of children the                                                                                                                                                                                                                                                                                                                                                                               

parties   have.     See   Alaska   R.   Civ.   P.   90.3(a).     Child   support   for   parents   with   shared  

physical custody is based on the incomes of both parents and the percentage of custody       

 each parent has, as well as the number of children the parties have.                                                                                                                                                                                                                                                                                                         See  Alaska R. Civ.                                                               

P.  90.3(b)(1).  



                                                                                                                                                                                                                                     -2-                                                                                                                                                                                                                       7233
  


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

average "have just over 115 overnights per calendar year." The court did not include at-                                                                                                                                                                                                                                          



will   visitation   in   this   calculation   because   that   had   "historically   not   occurred  with  



 sufficient regularity to be able to predict that there [was] a substantial chance of it                                                                                                                                                                                                                                              



occurring regularly in the future."                                                                 



                                                    In November 2014 Branlund filed a motion to modify child support "due                                                                                                                                                                                                 



to the fact that [he] ha[d] experienced a change in employment which ha[d] resulted i[n]                                                                                                                                                                                                                                       



a decrease in his pay of more than 15%."  Tamara filed a partial opposition and cross-                             



motion for modification of child support arguing that Branlund's income had actually                                                                                                                                                                                                                          



increased and that she now had primary physical custody. An evidentiary hearing on the                                                                                                                                                                                                                                           



matter was held in September and November 2015.                                                                                                                                                        The superior court issued an order                                                                               



modifyingchild supportin                                                                             February2016,                                               agreeing with Tamarathat                                                                           Branlund'sincome   



had increased and that Tamara had primary physical custody. Branlund appeals multiple                                                                                                                                                                                                                        



aspects of this order.                                   



                          B.                        Claimed Business Losses                                                   



                                                   Branlund claimed business losses from his oil spill consulting firm, HRM                                                                                                                                                                                            

                                             2  and argued that these losses should be deducted from his income for the  

Consulting,                                                                                                                                                                                                                                                                                                                     



purpose of calculating child support. HRM had not earned money in several years at the  

                                                                                                                                                                                                                                                                                                                                 



time of the evidentiary hearing.  The superior court did not allow Branlund's claimed  

                                                                                                                                                                                                                                                                                                              



business losses, finding that "HRM Consulting ha[d] not earned income in several years  

                                                                                                                                                                                                                                                                                                                         



and [was] not likely to do so in any foreseeable future" and that "[a]llowance of such  

                                                                                                                                                                                                                                                                                                                          



losses [would] lower[] Branlund's income which [would] lower[] his child support  

                                                                                                                                                                                                                                                                                                              



obligation,  and  this  [did]  nothing  to  benefit  the  children."                                                                                                                                                                                    Branlund  appeals  the  

                                                                                                                                                                                                                                                                                                                               



disallowance of his claimed business losses.  

                                                                                                                                                



                          2                        Branlund's briefs refer to the business as "HRH Consulting," but the record                                                                                                                                                                                       



reveals that the business was called "HRM Consulting."                                                                                                                



                                                                                                                                                                 -3-                                                                                                                                                                       7233  


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

          C.        At-Will Visitation  

                                  



                    The August 2013 custody order provides, "The father will be allowed at  

                                                                                                                                 



will visitation with the children in Valdez, Alaska if he provides a minimum of 30  

                                                                                                                                



days['] notice to the mother.  The girls will stay with their father during the at will visits  

                                                                                                                            



in Valdez."  Branlund's wife testified that because of at-will visitation Branlund had a  

                                                                                   



total of 131 days with the children in 2014 and was scheduled to have a total of 115 days  

                                                                                                                             



with the children in 2015.  The custody order provided for 127 days in 2014 and 100  

                                                                                                                              



days in 2015 not counting at-will visitation.  

                                                    



                    In its March 2014 child support order the superior court included at-will  

                                                                                                                          



visitation that had already occurred when determining past visitation but did not include  

                                                                                                                         



an  estimate  of  at-will  visitation  in  its  prospective  order  because  Branlund  had  not  

                                                                                                                               



exercised at-will visitation regularly enough to allow the court to predict that it would  

                                                                                                     



regularly occur in the future. In its February 2016 order the court did not include at-will  

                                                                                                                          



visitation, explaining, "There is no reason to revisit the prior determination to not include  

                                                                                                                         



so-called 'at will' overnights in the calculation of the number of annual overnights."  

                                                                                                                                     



Branlund appeals this determination.  

                                   



          D.        School Calendar  

                                 



                    The custody order based custody on the Valdez school calendar, providing  

                                                                                                                     



that Branlund would have custody during "summer vacation from one week after school  

                                                                                                                          



gets out until a week before school begins."  The superior court's March 2014 child  

                                                                                                                            



support order was based in part on the 2014 Valdez school calendar, a year when  

                                                                                                                           



summer vacation was two weeks longer than normal because of the construction of a  

                                                                                                                                  



new school building.   In its February 2016 child support order the court found this  

                                                                                                                              



aberration  provided  "sufficient  cause  to  reexamine  the  number  of  overnights"  and  

                                                                                                                              



accordingly reduced the number of summer overnights afforded to Branlund to reflect  

                                                                                                       



the normal vacation length.  Under this correction the court concluded that Tamara had  

                                                                                                                               



                                                                -4-                                                         7233
  


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

primary physical custody.                                                                                               Branlund appeals the court's decision to recalculate the                                                                                                                                                                                           



number of days each parent would have custody, arguing that all the facts about the                                                                                                                                                                                                                                                                                        



 school calendar were known at the time of the prior order and cannot now be relitigated.                                                                                                                                                                                                                                                                                                     



                              E.                           Travel Expenses   



                                                           Branlund alleged that in a May 2009 hearing the court had orally ordered                                                                                                                                                                                                                     



that he be allowed to deduct work-related travel expenses - flights from his home in                                                                                                                                                                                                                                                                                             



 Oregon to his job in Alaska - from his total income.  He did not provide the superior                                                                                                                                                                                                                                                               



 court with either the transcript or the recording of this alleged order.                                                                                                                                                                                                                                    Branlund argued  



that, in reliance on this alleged order, he had always deducted his travel expenses from                                                                                                                                                                                                                                                                            



his income when calculating child support. In its February 2016 order the superior court                                                                                                                                                                                                                                                                            



ruled that Branlund could not deduct his travel expenses from his income, noting that                                                                                                                                                                                                                                                                                    



 Branlund himself described the deduction as for "self employment expenses and travel"                                                                                                                                                                                                                                                                      



but he was no longer self employed.                                                                                                                             Branlund appeals, arguing that the superior court                                                                                                                                                  



was bound by its prior order.                                                                       



 III.                         STANDARD OF REVIEW                                                              



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

 discretion, applied an incorrect legal standard, or clearly erred in its factual findings.                                                                                                                                                                                                                                                                                            3  

                                                                                                                                                                                                                                                                                                                                                                                              



                                                                                                                                                                                                                                                                                                                                                                   

 Given the broad definition of income in Alaska Civil Rule 90.3(a)(1), the superior court  



                                                                                                                                                                                                                                                                                                                                                                    

has discretion in deciding whether certain funds should be included in income for Civil  



                                                                                        4  

                                                                                                                                                                                                                                                                                                                                                           

 Rule 90.3 purposes.                                                                              We therefore review for abuse of discretion the superior court's  



                                                                                                                                                                                                                                                                                                                                                      

 decision to disallow Branlund's claimed business losses. We review the factual findings  



                              3                            O'Neal v. Campbell                                                                     , 300 P.3d 15, 16 (Alaska 2013).                                                                                



                              4                            Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992) (citing Bergstrom v.  

                                                                                                                                                                                                                                                                                                                                                                                  

Lindback , 779 P.2d 1235, 1237 (Alaska 1989)).  

                                                                                                                                                                               



                                                                                                                                                                                        -5-                                                                                                                                                                          7233
  


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

the court made to reach this conclusion for clear error.                                                                                   5  



                                                                                                                                                                                                     6  

                                                                                                                                                                                                          

                                   "[S]etting child support is in large part a predictive function."                                                                                                        "[T]he  



                                                                                                                                                                                                                       

 amount of visitation a parent will exercise in the future[] is . . . a prediction that can be  

                                                               7   The trial court's act of predicting a future event is necessarily  

                                                                                                                                                                                                 

                                    

based on past practices." 



 a discretionary act - the court considers a range of reasonable possibilities informed in  

                                                                                                                                                                                                                        

part by past practices and in part by forecasting the future.8                                                                                                 We review the superior  

                                                                                                                                                                                                       



 court's decision regarding at-will visitation for abuse of discretion.  

                                                                                                                                                 



                                   "A final child support award may be modified upon a showing of a material  

                                                                                                                                                                                                       

 change of circumstances as provided by state law."9                                                                                       "In deciding whether to modify  

                                                                                                                                                                                                          



 child support orders, trial courts have broad discretion," and "[w]e review a decision by  

                                                                                                                                                                                                                       



                  5                O'Neal, 300 P.3d at 16.                                     In  Gallant v. Gallant                               we said that "[d]etermination       



 of net income is a question of fact and is reviewed under the clearly erroneous standard."                                                                                                                                    

 945 P.2d 795, 800 (Alaska 1997).                                                     Determination of income for Civil Rule 90.3 purposes                                                             

 often requires many findings of fact, which we review for clear error.                                                                                                           See O'Neal                    , 300   

 P.3d at 16.                  But the decision whether to include certain funds when calculating income                                                                                                   

 is left to the superior court's broad discretion and should be reviewed for abuse of that                                                                                                                         

 discretion.   See Coghill                                   , 836 P.2d at 926;                            see also Faulkner v. Goldfuss                                               ,  No. S-13018,  

                                                          *3, *5-6              (Alaska Mar. 24, 2010)                                       .  

 2010 WL 1135745, at  



                  6               Potter  v.  Potter ,  55  P.3d  726,  730  (Alaska  2002).  



                  7               Id.  



                  8               See   Cox  v.   Cox,  776  P.2d   1045,   1049  (Alaska   1989)  (reviewing  for  abuse  



 of   discretion   when   the   superior   court   made   "a   prediction   of   annual   income   for   the  

 foreseeable  future"  to  determine  child  support);  cf.  Henrichs  v.  Chugach  Alaska  Corp.,  

 250  P.3d  531,  535  (Alaska  2011)  ("Because  there  is  a  range  of  reasonable  decisions  a  trial  

judge  might  make  in  determining  how  long  a  bar  from  corporate  board  service  to  impose  

upon   a   defendant,   this   determination   is   reviewed   for   abuse   of   discretion."   (quoting  

Martinez  v.  Cape  Fox  Corp.,   113  P.3d   1226,   1229  (Alaska  2005))).  



                  9  

                                                                                

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



                                                                                                           -6-                                                                                                  7233
  


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

the superior court to modify child support for an abuse of discretion."                                                                                      10  "On the other   



hand, whether the trial court applied the proper legal standard in determining that a                                                                                                         



 change of material circumstances occurred is an                                                                   issue of law which                            we review de              

novo."11  



 IV.	          DISCUSSION  



               A.	            The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Disallowing  

                                                                                                                                                                     

                              Branlund's Claimed Business Losses.  

                                                                                                      



                              Branlund argues that the superior court should have allowed his claimed  

                                                                                                                                                                                



business losses from HRM.   We conclude that the superior court did not abuse its  

                                                                                                                                                                                            



 discretion or clearly err in its factual findings when it disallowed these losses.  

                                                                                                                                                               



                              Civil Rule 90.3(a)(1) defines income for child support purposes as the  

                                                                                                                                                                                          



parent's total income from all sources minus specified exceptions that do not apply here.  

                                                                                                                                                                                                   



 The commentary to the rule explains, "Income from self-employment, rent, royalties, or  

                                                                                                                                                                                             



joint ownership of a partnership or closely held corporation includes the gross receipts  

                                                                                                                                                                                

minus the ordinary and necessary expenses required to produce the income."12                                                                                                       Given  

                                                                                                                                                                                   



the broad definition of income, the superior court has broad discretion in determining  

                                                                                                                                                                      

what to include in its income calculation,13 and we will reverse such a determination only  

                                                                                                                                                                                        



               10             Richardson v. Kohlin                            , 175 P.3d 43, 46 (Alaska 2008) (citing                                                  Olmstead v.   



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



               11	  

                                                                                                                                                

                              Id.  (citing Koller v. Reft , 71 P.3d 800, 804 (Alaska 2003)).  



               12  

                                                                                                                

                              Alaska  R.  Civ.  P.  90.3  cmt.  III.B.                                          "While this court has not officially                         

 adopted or approved the commentary, we have relied on it for guidance in determining                                                                                  

 adjusted annual income for self-employed parents."                                                                Eagley v. Eagley                     , 849 P.2d 777, 779               

 (Alaska 1993).   



               13  

                                                                                                                                                                        

                              Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992); see also Faulkner v.
  

                                                                                                                                                                                       

 Goldfuss, No. S-13018, 2010 WL 1135745, at *6 (Alaska Mar. 24, 2010) ("We have
  

                                                                                                                                                                    (continued...)
  



                                                                                              -7-	                                                                                    7233
  


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

if the superior court abused its discretion, applied an incorrect legal standard, or clearly                                                        

erred in its factual findings.                     14  



                         In this case it is undisputed that HRM had not generated any revenue in  

                                                                                                                                                             



several  years  and  that  Branlund  earned  all  his  income  from  full-time  employment  

                                                                                                                                        



completely separate from HRM. And, as Tamara noted in her written closing statement,  

                                                                                                                                              



"despite discovery requests and an order to compel issued by the court, [Branlund] did  

                                                                                                                                                          



not produce a single receipt, canceled check or any other back-up documentation to  

                                                                                                                                                            



support his business deductions for HRM Consulting."  Based on this the superior court  

                                                                                                                                                       



did not clearly err in "agree[ing] with Tamara" and finding that HRM would not earn  

                                                                                                                                                        



income "in any foreseeable future" and that "[a]llowance of such losses . . . [would do]  

                                                                                                                                                          



nothing to benefit the children"; nor did it abuse its discretion in denying the claimed  

                                                                                                                                                  



losses.  



                         "The primary purpose of Rule 90.3 is to ensure that child support orders are  

                                                                                                                                                           



                                                                                                                                                             15  

adequate  to  meet  the  needs  of  children,  subject  to  the  ability  of  parents  to  pay."                                                                  

                                                                                                                                                   



Deductions  for  self-employment  expenses  are  "intended  to  apply  to  closely  held  

                                                                                                                                                       

corporations that serve as  an  income source of the party in  question."16                                                                   Allowing  

                                                                                                                                              



deduction of losses from a corporation that did not serve as a source of Branlund's  

                                                                                                                                           



income could undermine the primary purpose of Rule 90.3.   We affirm the superior  

                                                                                                                                                 



             13          (...continued)  



interpreted Civil Rule 90.3 a number of times regarding what self-employment expenses  

                                                                                                                                                

are and are not deductible, but we have never held that net losses from self-employment  

                                                                                                                                 

income must or must not be deducted from a parent's other sources of income." (citing  

                                                                                                                                                    

Eagley , 849 P.2d at 778; Gallant v. Gallant, 945 P.2d 795, 800 (Alaska 1997))).  

                                                                                                                                     



             14  

                                                                                                              

                         O'Neal v. Campbell, 300 P.3d  15, 16 (Alaska 2013).  



             15  

                                                                             

                         Alaska R. Civ. P. 90.3 cmt. I.B.  



             16          Gallant,  945  P.2d  at  800.  



                                                                             -8-                                                                       7233
  


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

court's disallowance of Branlund's claimed business losses.                                                                                            



                   B.	                The Superior Court Did Not Abuse Its Discretion In Not Counting                                                                                                                 

                                      At-Will Visitation Days Toward Branlund's Custody Percentage.                                                                                                    



                                      Branlund argues that the superior court should have credited him with                                                                                                                           



additional days of custody                                                     because of his                               at-will  visitation.     We conclude that the                                                                 



superior court did not abuse its discretion when it declined to include at-will visitation                                                                                                           



in its custody calculation.             



                                      We   have   held   that   generally   "the   percentage   of   time   each   parent   has  



custody must be determined by reference to the child custody order, not the parties'                                                                                                                                          



                                              17  

actual conduct."                                                                                                                                                                                                        

                                                    We have also commented that in a court order allowing for additional  



                                                                                                                                                                                                                          

visitation above that scheduled in the order "[t]he parties must be free to seek amended  



                                                                                                                                                                                                                                           

prospective support orders based on realistic estimates of the total amount of custody the  



                                                                              18  

                                                  

parents will each exercise." 



                                                                                                                                                                                                                                            

                                      In the similar context of child support orders based on de facto custody we  



                                                                                                                                                                                                                                         

have explained that "setting child support is in large part a predictive function" and that  



                                                                                                                                                                                                                                            

"[t]he court must sometimes make what is little more than an educated guess based on  

                                                         19  As with predictions of income, "the amount of visitation a parent  

                                                                                                                                                                                                                                

available evidence." 

will exercise in the future, is . . . a prediction that can be based on past practices."20  

                                                                                                                                                                                                                                                      



Because there is a range of reasonable decisions a trial court may make when predicting  

                                                                                                                                                                                                                       



future visitation, we review the court's decision regarding at-will visitation for abuse of  

                                                                                                                                                                                                                                              



                   17                Rowen v. Rowen                                , 963 P.2d 249, 254 (Alaska 1998) (citing                                                                       Turinsky v. Long                               ,  



910 P.2d 590, 595 (Alaska 1996)).                                            



                   18                 Turinsky,  910  P.2d  at  594.  



                   19                Potter  v.  Potter ,  55  P.3d  726,  730  (Alaska  2002).  



                   20                Id.  



                                                                                                                      -9-	                                                                                                            7233
  


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

 discretion.21  



                                              In its March 2014 child support order the superior court explained that at-                                                                                                                                                                      



 will visitation "ha[d] historically not occurred with sufficient regularity to be able to                                                                                                                                                                                                       



 predict that there [was] a substantial chance of it occurring regularly in the future."                                                                                                                                                                                                                    



 Branlund did not appeal this order.  Branlund filed his motion to modify child support                                                                                                                                                                                        



 in November 2014, and Tamara responded and cross-moved to modify child support in                                                                                                                                                                                                                



 December 2014.                                              At that point the prior child support order had been in place for less                                                                                                                                                        



 than a year, and the record reveals that Branlund had exercised at most four days of at-                                                                                                                                                                                                      

                                                                                                                22          Any practices of the parties  after the motions in  

 will visitation during that time.                                                                                                                                                                                                                                                              



 November and December carried little weight:  "post-litigation events should either be  

                                                                                                                                                                                                                                                                                                

 discounted entirely or viewed with suspicion as evidence of the parties' practices."23  The  

                                                                                                                                                                                                                                                                                           



 superior court did not abuse its discretion by not revisiting its prior decision.  

                                                                                                                                                                                                                                        



                                              Branlund argues that the superior court should have at least based the  

                                                                                                                                                                                                                                                                      



 retrospective portion of its order - the portion addressing the time between Branlund  

                                                                                                                                                                                                                                         



 filing the motion to modify child support in November 2014 and the superior court  

                                                                                                                                                                                                                                                                                      



                        21                    See Cox v. Cox                                       , 776 P.2d 1045, 1049 (Alaska 1989) (reviewing for abuse                                                                                                                          



 of   discretion   when   the   superior   court   made   "a   prediction   of   annual   income   for   the  

 foreseeable future" to determine child support);                                                                                                                  cf. Henrichs v. Chugach Alaska Corp.                                                                                                ,  

 250 P.3d 531, 535 (Alaska 2011) ("Because there is a range of reasonable decisions a trial                                                                                                                                                                                              

judge might make in determining how long a bar from corporate board service to impose                                                                                                                                                                                           

 upon   a   defendant,   this   determination   is   reviewed   for   abuse   of   discretion."   (quoting  

Martinez v. Cape Fox Corp.                                                                       , 113 P.3d 1226, 1229 (Alaska 2005))).                                                                   



                        22  

                                                                                                                                                                                                                                                                                

                                              Tamara calculated, based on the 2013 custody order and the 2014 Valdez  

                                                                                                                                                                                                                                                                                                            

 school calendar, that Branlund would have custody of the children for 127 days in 2014;  

                                                                                                                                                   

 the superior court adopted this calculation.  Branlund's wife testified that Branlund had  

                                                                                                                                                                                                                      

 custody of the children for 131 days in 2014, including at-will visitation.  



                        23  

                                                                                                                                                                                                                                                                                 

                                              Potter , 55 P.3d at 730 (citing Karpuleon v. Karpuleon , 881 P.2d 318, 321-22  

                             

 (Alaska 1994)).  



                                                                                                                                              -10-                                                                                                                                      7233
  


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

issuing its order in February 2016 - on what actually occurred. But again courts should                                                             



                                                                                                                  24  

"view[] with suspicion" post-litigation practices of the parties.                                                                                          

                                                                                                                       The superior court did  



                                                                                                                              

not abuse its discretion in not counting the at-will visitation that Branlund actually  



                                                   

exercised after he filed his motion.  



                                                                                                                                                           

             C.	         The Superior Court  Did Not  Improperly Ignore The Principle Of  

                         Finality.  



                                                                                                                                                       

                         Branlund argues that the superior court ignored principles of finality when  



                                                                                                                                                         

it  revisited  the  issues  of  the  school  calendar  and  Branlund's  travel  expenses.                                                                We  



disagree.  



                                                                                                                                                             

                         We explained how principles of finality apply to child support rulings in  



                                                                                                                                                        

Bunn v. House :  "Civil Rule 90.3(h)(1), recognizing that courts have a special duty with  



                                                                                                                                                             

regard to the support of children whose parents have divorced, provides an exception to  



                                                                                                                         25  

                                                                                                                                                   

the general principle that final judgments should not be disturbed."                                                         Motions to modify  



                                                                                                                                                            

child support "do not technically raise res judicata concerns," but "the principle of  

                                          26  Therefore, "[t]here must be a material change of circumstances  

                                                                                                                                       

finality is a sound one." 

before a support order can be modified."27  

                                                                                                                                                       

                                                                              A child support order may be modified when  

                                                                           28   Such changes include "shifts in the needs of  

                                                                                                                                                             

"certain fact changes [have] occurr[ed]." 



the  children";  "a  change  in  one  or  both  parents'  level  of  income";  "[a]  change  in  

                                                                                                                                                            



            24           Id.  



            25           934 P.2d 753, 757 (Alaska 1997).                   



            26           Id.  



            27  

                                    

                         Id.  at 758.  



            28           Id.  



                                                                            -11-	                                                                      7233
  


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

                                                                                                                      29  

custodial or visitation patterns"; and "certain changes in the law."                                                      A court may also         



modify a child support order if "the needs of the children are not being met by the                                                                  

                            30   While courts have broad discretion in deciding whether to modify  

original order."                                                                                                                             



child  support  orders,  "whether  the  trial  court  applied  the  proper  legal  standard  in  

                                                                                                                                     



determining that a change of material circumstances occurred is an issue of law which  

                                                                                                                                   

we review de novo."31  

                          



                        As an initial matter Branlund concedes that his income changed by more  

                                                                                                                            



than 15% due to his change in employment and that this constituted a presumptively  

                                                                                                                                

material change of circumstances.32                               He argues that this change of circumstances only  

                                                                                                                                                  



allowed the court to make modifications to child support that arose from this change. He  

                                                                                                                                                      



cites no authorities for the proposition that courts are so limited when modifying child  

                                                                                                                              



support.  Ordinarily, "[t]rial courts have broad discretion in deciding whether to modify  

                                                                                                                                              

child support orders."33                      "The primary purpose of Rule 90.3 is to ensure that child  

                                                                                                                                                 



support orders are adequate to meet the needs of children, subject to the ability of parents  

                                                                                                                                              

              34    And in cases where multiple material changes of circumstances have been  

to pay."                                                                                                                                          

     



alleged, we have stopped our analysis after concluding that one existed, while noting that  

                                                                                                                                                    



            29          Id.  



            30          Id.  



            31          Richardson  v.  Kohlin ,  175  P.3d  43,  46  (Alaska  2008)  (citing  Koller  v.  Reft ,  



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



            32          See  Alaska  R.  Civ.  P.  90.3(h)(1)  ("A  material  change  of  circumstances  will  



be  presumed  if  support  as  calculated  under  this  rule  is  more  than  15  percent  greater  or  less  

than  the  outstanding  support  order.").  



            33  

                                                                                                                 

                        Petrilla v. Petrilla , 305 P.3d 302, 305-06 (Alaska 2013).  



            34          Alaska  R.  Civ.  P.  90.3  cmt.  I.B.  



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

                                                                                                                                                    35  

the others "may bear on the amount of support due."                                                                                                        The change in Branlund's income                                             



due to his change in employment may have been enough to allow the superior court to                                                                                                                                                                   



reopen the entire case, including the school-calendar and travel-expenses issues.                                                                                                                                                               We  



need   not   reach   this   question,   however,   because   there   was   a   material   change   of  



circumstances with respect to both issues.                                                             



                                       1.                  School calendar   



                                       For its March 2014 order the superior court averaged the days each parent                                                                                                                          



had or would have custody in 2013 and 2014 to determine the number of days per year                                                                                                                                                             



each parent would have custody in the future.                                                                                        The result was that Branlund would have                                                                   



custody   for   115   days  each  year,   just   over   30%   of   the   year.     The   court   therefore  

concluded that Branlund and Tamara had shared physical custody.                                                                                                                                   36  



                                                                                                                                                                                                                                         

                                       In its February 2016 order the court found that "[t]he 2014 Valdez school  



                                                                                                                                                                                                                                              

calendar was anomalous based on the construction of a new school building."   The  



                                                                                                                                                                                                                                

calendar that year provided for an extra two weeks of summer vacation and, therefore,  



                                                                                                                                                                                                                                               

an extra two weeks that Branlund had custody in the summer.  Averaging the days each  



                                                                                                                                                                                                                                                   

parent would have custody in 2015 and 2016 resulted in Branlund having custody for  



                                                                                                                                                                                                                                                    

 107  days  each  year,  or  just  under  30%.                                                                                          This  constituted  a  material  change  of  



                                                                                                                                                           37  

                                                                                                                          

circumstances from the previous custody calculation. 



                    35                 Boone v. Boone                                ,  960 P.2d 579, 583 (Alaska 1998).                                                



                    36                 See  Alaska R. Civ. P. 90.3(f)(1) ("A parent has shared physical custody (or                                                                                                                                 



shared   custody)   of   children   .   .   .   if   the   children   reside   with   that   parent   for   a   period  

specified in writing in the custody order of at least 30, but no more than 70, percent of the                                                                                                                                                       

year . . . .").         



                    37  

                                                                                                                                                                                                                                      

                                       See Alaska R. Civ. P. 90.3(f)(2) ("A parent has primary physical custody  

                                                                                                                                                                                                                                                   

(or primary custody) of children for purposes of this rule if the children reside with the  

                                                                                                                                                                                                                                                   

other parent for a period specified in the custody order of less than 30 percent of the  

                                                                                                                                                                                                                      (continued...)  



                                                                                                                        -13-                                                                                                                  7233
  


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

                                       Branlund characterizes Tamara's argument about the school calendar as                                                                                                                                         



arguing that the superior court made a mistake in its March 2014 order.                                                                                                                                           In May 2014,             



after the superior court had issued its prior decision and after she had filed a motion for                                                                                                                                                        



reconsideration, Tamara filed a "Notice of Additional Information Regarding Child                                                                                                                                                         



 Support Calculation" in which she explained that the 2014 school calendar was aberrant                                                                                                                                             



and asked the court to base the custody percentage on other years.   The superior court   



denied her motion for reconsideration and Tamara did not appeal.                                                                                                                                           Thus, Branlund   



argues that the school-calendar issue was already decided and that there has been no                                                                                                                                                                



change of circumstances since that decision.                                                           



                                       It is true that                     "the change in circumstances                                                       test relates to changes in external                                    

                                                                  38   But the superior court's March 2014 determination of custody  

 facts, not to mistakes."                                                                                                                                                                                                            



percentage going forward was inherently predictive.  The extra two weeks of summer  

                                                                                                                                                                                                                                    



vacation had not even happened yet and the 2015-2016 school year was far in the future.  

                                                                                                                                                                                                                                                              



By February 2016 it was clear that the earlier prediction had not borne out.  The court  

                                                                                                                                                                                                                



used the same methodology it had used previously of averaging two years to reach a  

                                                                                                                                                                                                                                                        



custody percentage, and it relied on facts that had occurred after its prior order.  The  

                                                                                                                                                                                                                                              



court was responding to a change of facts, not correcting a prior mistake.  

                                                                                                                                                                                            



                                       Branlund also argues that no material change of circumstances occurred  

                                                                                                                                                                                                                                  



because he still had greater than 30% custody when including at-will visitation. But the  

                                                                                                                                                                                                                                                   



prior  order  did  not  count  at-will  visitation.                                                                                          Using  the  prior  order's  method  for  

                                                                                                                                                                                                                       



determining custody percentage, there was a material change in fact. Branlund was free  

                                                                                                                                                                                                                                                



to argue, and has argued, that his regular use of at-will visitation justified changing the  

                                                                                                                                                                                                                                                  



                    37                 (...continued)  



year.").  



                    38                 Bunn v. House                               , 934 P.2d 753, 758-59 (Alaska 1997) (quoting                                                                                              Larson v.   



Larson , 661 P.2d 626, 628 (Alaska 1983)).                                                             



                                                                                                                        -14-                                                                                                                 7233
  


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

method for determining the custody percentage; but the aberration in the school calendar                                                                                                                                                         



still constituted a material change of circumstances sufficient to revisit the issue.                                                                                                                                                  



                                         The superior court did not err in concluding that there had been a material                                                                                                                            

change of circumstances with respect to the school calendar.                                                                                                                               39  



                                         2.                   Travel expenses  

                                                                                      



                                         Branlund alleged that in a May 2009 hearing the superior court orally  

                                                                                                                                                                                                                                                        



ordered that he be allowed a credit for his travel expenses between Oregon, where he  

                                                                                                                                                                                                                                                                    



lived, and Alaska, where he worked.   He did not provide to the court a copy of the  

                                                                                                                                                                                                                                                                



transcript or the recording of this hearing.  Branlund also alleged that he had deducted  

                                                                                                                                                                                                                                               



his travel expenses every year when calculating his income for child support purposes.  

                                                                                                                                                                                                                                                                              



Branlund argues that because he still lived in Oregon and worked in Alaska there was  

                                                                                                       



no change of circumstances that would justify the court revisiting its prior order.  

                                                                                                                                                                                                                                       



                                         The superior court found that "[r]egardless of the history of the allowance  

                                                                                                                                                                                                                                            



of the deduction in issue, Branlund's employment situation is now completely different  

                                                                                                                                                                                                                                                 



than it was in 2009.  He himself has labeled the deduction a 'self employment expenses  

                                                                                                                                                                                                                                               



and travel' deduction and is not now self-employed." Branlund argues that the deduction  

                                                                                                                                                                                                                                             



was for all employment-related travel and not just self-employment travel.  Even if true,  

                                                                                                                                                                                                                                                             



Branlund's employment situation had materially changed:   his salary has decreased  

                                                                                                                                                                                                                                            



                     39                  Branlund also argues that "the superior court erred in failing to apply the                                                                                                                                              



legal doctrine of res judicata."                                                              Branlund acknowledges that res judicata does not apply   

to motions to modify child support but asks us to apply a "principle of finality" to the                                                                                                                                                                         

case.   In  Bunn  we explained, "While we believe that motions to modify child support,                                                                                                                                                           

under Alaska law, do not technically raise res judicata concerns, the principle of finality                                                                                                                                                          

is a sound one."                                    Bunn , 934 P.2d at 757.                                                      But the requirement of a material change of                                                                                        

circumstances is the bulwark against violations of the principle of finality.                                                                                                                                                   See id.              at 757-  

58.    We have determined that requirement has been met.                                                                                                                              Because Branlund has                                                      not  

identified any separate principle of finality that we may apply, this res judicata argument                                                                                                                                                   

fails.  



                                                                                                                                -15-                                                                                                                        7233
  


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

materially and he had not earned any revenue from self-employment in years.                                                                                                                                                                                                                                                                                                                                             Given  



these changes, and assuming that the superior court had previously permitted Branlund                                                                                                                                                                                                                                                                                                                       



a credit for his travel expenses, the court did not err in revisiting this employment-related                                                                                                                                                                                                                                                          



deduction.  



V.                                 CONCLUSION  



                                                                     We AFFIRM the superior court's order modifying child support in all                                                                                                                                                                                                                                                                                                      



respects.  



                                                                                                                                                                                                                     -16-                                                                                                                                                                                                           7233
  

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