Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fredrickson v. Button (9/14/2018) sp-7289

Fredrickson v. Button (9/14/2018) sp-7289

          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  



SHELLEY  FREDRICKSON,                                            )  

                                                                 )     Supreme  Court  No.  S-15857  

                              Appellant,                         )  

                                                                                                                                    

                                                                 )     Superior Court No. 3AN-13-04681 CI  

          v.	                                                    )  

                                                                 )                         

                                                                       O P I N I O N  

                    

FOREST J. BUTTON,                                                )  

                                                                 )                                              

                                                                       No.7289 - September 14, 2018  

                              Appellee.	                         )
  

                                                                 )
  



                                                                                                        

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

                                                                                                         

                    Judicial District, Anchorage, Erin B. Marston, Judge.  



                                                                                                

                    Appearances: Allison Mendel, Mendel Colbert & Associates,  

                                                                                                       

                    Inc., Anchorage, for Appellant. Maurice N. Ellis, Law Office  

                                                                                             

                    of Maurice N. Ellis, Anchorage, for Appellee.  



                                                                                                          

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

                                                                                                         

                    Bolger,        Justices.        [Fabe        and      Carney,         Justices,        not  

                    participating.]  



                                                  

                    STOWERS, Chief Justice.
  

                                                   

                    BOLGER, Justice, dissenting.
  



I.        INTRODUCTION  



                                                                                                                               

                    Forest Button and Shelley Fredrickson never married, but they had one  



                                                                                                                     

child together.  Button and Fredrickson separated in September 2006.  From September  



                                                                                                                                      

2006 until January 2013 neither sought a formal custody order or a child support order.  



                                                                                                                                   

Instead, they had an informal arrangement to share their son's expenses.  Button filed a  


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

                                                                                                                   

complaint  for  custody  in  January  2013.                         The  parties  participated  in  a  settlement  



                                                                                                                         

conference and entered into an agreement resolving all custody issues, but the parties  



                                                                                                                               

reserved issues of prospective and retrospective child support for later resolution by the  



court.  



                                                                                                                            

                    The superior court found that Fredrickson was the obligor parent from  



                                                                                                                           

September 2006 through August 2010, and calculated her child support obligation based  



                                                                                                                            

on Alaska Civil Rule 90.3.  The court then used the shared custody child support rules  



                                                                                                                    

in Rule 90.3 to calculate the parties' respective child support obligations fromSeptember  



                                                                                                                        

2010  until  2013.  For  purposes  of  these  calculations  the  court  included  as  income  



                                                                                                                               

$300,000 Fredrickson received from the Japanese government in connection with the  



                                                                                                                     

death of her brother, who died in the 2011 Japanese tsunami.  The court also calculated  



                                                                                                                             

a prospective child support award. It found that from2014 onward Fredrickson had been  



                                                                                                                  

voluntarily  unemployed, and it imputed income to her to calculate this prospective  



                                                                                                                               

award. Following the court's orders, Button filed a motion for attorney's fees, which the  



                        

court granted.  



                                                                                                                         

                    Fredrickson appeals.  We hold that (1) the court's finding that the money  



                                                                                                                  

from the Japanese government was paid out in three annual installments was clearly  



                                                                                                                                

erroneous; (2) there is insufficient evidence to determine whether the money should be  



                                                                                                                               

considered income for purposes of calculating a retrospective child support award; (3)  



                                                                                                                        

the  court  did  not  err  in  finding  that  a  deviation  from  retrospective  child  support  



                                                                                     

calculations under Rule 90.3 was unwarranted; and (4) the court's decisions to impute  



                                                                                                                                     

income to Fredrickson and not to impute income to Button were not clearly erroneous.  



                                                               -2-                                                         7289
  


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

                                 

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                              

                    Forest Button and Shelley Fredrickson never married, but they had one son  



                                                                                                                            

in  2003.        Button  and  Fredrickson  lived  together  from  November  2002  until  they  



                                     

separated in September 2006.  



                                                                                                                                

                    From September 2006 until Button filed his complaint for child custody in  



                                                                                                                            

January 2013 neither party sought a formal custody order. Instead, upon separation they  



                                                                                                                    

agreed to a schedule where Fredrickson cared for their son every Saturday when she  



                                                                                                                

finished work until his bedtime the following Monday - at that time, Fredrickson  



                                                                                                    

worked as a delivery driver five days a week, beginning at 5 a.m. - and Button cared  



                                                                                                                                

for him the rest of the week.  Fredrickson also had visitation on Thursday evenings.  In  



                                                                                                                                

2010 Fredrickson's brother volunteered to care for their son when Fredrickson was at  



                                                                                                       

work in the early mornings. Button and Fredrickson later agreed to a week-on/week-off  



                                                           

schedule, beginning in the summer of 2010.  



                                                                                                                             

                    There was no child support order in effect from 2006 until 2014; the first  



                                                                                                                   

child support order was the superior court's Order Regarding Child Support Payments,  



                                                                          

one of the orders at issue in this appeal.  Before the litigation began the parties had an  



                                                                                                                   

informal agreement to share their son's expenses, and they  executed an agreement  



                                                                                                                            

providing that neither party owed the other child support.  After moving out of their  



                                                                                                                           

shared home Fredrickson made monthly payments of $660 to Button to cover their son's  



                                                                                                                   

expenses.  Fredrickson also included their son on her medical insurance as a dependent,  



                                                                                                                           

and she paid the co-pays related to his medical needs. Fredrickson also paid for his other  



                                                                                                                              

activities, such as karate classes, swimming lessons, and football team expenses.  In the  



                                                                                                                    

spring of 2007 Fredrickson stopped paying Button a fixed dollar amount, but continued  



                                                       

to pay some of their son's expenses directly.  



                                                               -3-                                                        7289
  


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

                                                                                                                 

                    In March 2011 Fredrickson's younger brother went missing in Japan; he  



                                                                                                                         

had been killed in the 2011 tsunami. Fredrickson quit her delivery job when her brother  



                                                                                                                                     

went missing.  She testified that she was unable to work due to her grief and depression.  



                                                                                                                             

In early 2012 Fredrickson felt well enough to work part-time as a bartender and also  



                                                       

became heavily involved in charity work.  



                                                                                                                              

                    Fredrickson worked as a bartender for less than a year, working one to two  



                                                                                                                               

days per week at the beginning of the year and three to four days per week toward the  



                                                                                                                               

end of the year.  Since leaving her bartender position Fredrickson has not worked for  



                                                                                                                          

pay, instead appearing to support herself mainly from payments issued from a family  



                                                                                                                     

trust - the annual amount she received from this trust varied from year to year, and  



                                                                                             

Fredrickson had no control over the amount or timing of the distributions - and from  



                                                                                                                               

a $300,000 payment she received from the Japanese government in 2012 relating to her  



                                                                                                                               

brother's death. At the time of trial Fredrickson still had approximately $200,000 of the  



                                                                                      

Japanese government funds, and she planned to put the money toward a nonprofit she  



                                                                                                 

hoped to start "to help organizations in Japan in [her brother's] memory."  



                                                                                                                            

                    In 2012 Fredrickson also began thinking about returning to school to study  



                                                                                                                                  

nursing.   She did not feel that bartending or truck driving was something she had a  



                                                                                                               

passion for, because her brother's death caused her to realize that she wanted to do  



                                                                                                                               

something to make a difference. It was also difficult for her to find childcare for her son  



                                                                                             

because of her hours while working in bartending and truck driving.  



                                                                                                                                  

                    Since the parties' separation Button has received income from rentals, a  



                                                                                                                               

consulting business, employment, a time share, and the sale of a duplex; he also has  



                                                               -4-                                                         7289
  


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

received income as well as large losses from stock trading.                                                                                          Button's income varied                       



                                                                                                                         1  

greatly from year to year between 2006 and 2013.                                                                             



                B.              Proceedings  



                                                                                                                                                                                                

                                Button  filed  a  complaint  for  custody  in  January  2013.                                                                                       The  parties  



                                                                                                                                                                                              

participated in a settlement conference in June.   Button was represented by counsel  



                                                                                                                                                                                                 

during that conference but Fredrickson was not.   During the conference the parties  



                                                                                                                                                                                            

entered into an agreement resolving all custody issues.  The final agreement specified  



                                                                                                                                                      

that the parties would exercise joint legal custody and shared physical custody of their  



                                                                                                                                                                                                             

son, and the parties agreed to a week-on/week-off schedule.  The parties also agreed to  



                                                                                                                                                                                        

bear their own attorney's fees and costs. The court approved the settlement in November  



2013.  



                                                                                                                                                                                   

                                However, Button also raised issues related to prospective and retrospective  



                                                                                                                                                                                                       

child support at the settlement conference.  The parties reserved those issues for later  



                                                                                                                                                                                                           

resolution by the court.  Superior Court Judge Erin B. Marston conducted a trial on the  



                                                                                                                                                                                                     

child support issues in June 2014.  The court applied the guidelines set forth in Civil  



                                                                                           

Rule 90.3 to determine child support obligations.  



                                                                                                                                                                                                      

                                The court ultimately found that Fredrickson was the obligor parent from  



                                                                                                                                                                                                    

September 2006 through August 2010 and calculated her child support obligation based  



                                                                                                                                                                                                      

on Rule 90.3. The court then applied the shared custody child support rules in Rule 90.3,  



                                                                                                                                                                                      

using the parties' actual income to calculate their respective child support obligations  



                1               For example, in 2007 Button reported about $114,000 as income from his                                                                                                     



consulting work. Then, Button lost this position and was forced to live off of his savings                                                                                                      

and a credit card, among other sources.                                                              In 2010 Button reported no employment or                                                               

business income, but he did sell a duplex he owned in May of that year.                                                                                                                     In 2013   

Button's income rose substantially to nearly $120,000.                                                                                       At the time of trial Button                        

estimated that his income was about $125,000.                                                                        However, Button also reported large                                             

losses on stock trades throughout this time period.                                                      



                                                                                                      -5-                                                                                             7289
  


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

                                                                                                             

from September 2010 until 2013 (when the parties shared custody on a week-on/week- 



                                                                                                                  

off schedule). The court included the $300,000 payment from the Japanese government  



                                                                                                                        

as a part of Fredrickson's income for purposes of its child support calculations. Because  



                                                                                                              

of perceived difficulties tracking the exact amount and timing of the compensation  



                                                                                                                     

payment, the court split the $300,000 payment into three annual installments. Therefore,  



                                                                                                                                 

for 2011, 2012, and 2013, the court determined that Fredrickson's income consisted of  



                                                                                                                                     

the income she reported on her taxes plus $100,000 per year for each annual installment.  



                                                                                                                        

                    The court concluded that Fredrickson owed Button approximately $76,231  



                                                                                                          

in child support from September 2006 through the end of 2013.  It deducted around  



                                                                                                                            

$14,027 from this sum as a credit for the amount Fredrickson had paid toward their son's  



                                                                                                                         

expenses between 2006 and 2013, and it also offset the total amount by the four months  



                                                                                                                          

in 2010 for which Button owed Fredrickson child support.  This left Fredrickson owing  



                                                                                                                                     

Button  around  $61,233  in  past  child  support  for  September  2006  through  2013.  



                                                                                                                               

Fredrickson moved for reconsideration, and Button supported Fredrickson's motion and  



                                                                                                                      

raised additional points for reconsideration.  Upon reconsideration, the court corrected  



                                                                                                                                 

several errors in its calculations, reducing the total amount Fredrickson owed Button to  



                        

approximately $56,861.  



                                                                                                                            

                    With regard to future child support obligations, the court found that from  



                                                                                                                               

2014 onward Fredrickson had been voluntarily unemployed.  Based on this finding the  



                                                                                                                                

court  imputed  income  to  Fredrickson  in  the  amount  of  approximately  $57,395,  an  



                                                              

average of Fredrickson's adjusted gross income from her tax returns for 2006 through  



                                                                                                                               

2010.  The court did not impute income to Button.  Based on Button's 2014 income, the  



                                                                                                                        

court concluded that he owed Fredrickson approximately $431 per month from January  



          

2014 onwards.  



                                                                                                                               

                    After the court issued its child support orders, Button filed a motion for  



                                                                                                              

Alaska Civil Rule 82 attorney's fees.  Thereafter the court entered an amended final  



                                                               -6-                                                         7289
  


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

judgment awarding Button approximately $56,360, consisting of approximately (1)                                                                                       



 $48,963   for   child   support  from   prior   years   less   Button's   monthly   obligation   to  



Fredrickson beginning in January 2014 and (2) $7,396 in attorney's fees.                                                                            Fredrickson  



 appeals on multiple grounds.            



III.          STANDARD OF REVIEW                   



                           Whether the superior court used the correct method of calculating child                                                                 



               2                                                                                                                                                          3  

 support                                                                                                                                                    

                  and whether it applied the correct legal standard in calculating child support 



                                                                                                                                                                       

poses questions of law we review de novo. "Whether an item qualifies as income for the  



                                                                                                                                                                      

purposes of Rule 90.3 is a question of law that we review de novo, adopting the rule that  



                                                                                                                            4  

                                                                                                                          

 'is most persuasive in light of precedent, reason and policy.' " 



                                                                                                                                                               

                           A trial court's decision whether to impute income to a child support obligor  



                                                                                                                                                                       

 is reviewed for abuse of discretion, and the amount of income to impute is reviewed for  



                       5  

                                                                                                                                                                    

 clear error.               "A finding is clearly erroneous if we are 'left with a definite and firm  

                                                                                                      6   But "[w]hether there are sufficient  

                                                                                                                                                          

 conviction that the trial court has made a mistake.' " 



              2            Caldwell v. State                 , 105 P.3d 570, 573 (Alaska 2005).                       



              3  

                                                                                                                                                           

                           Rosenblum v. Perales, 303 P.3d 500, 503 (Alaska 2013) (citing Koller v.  

                                                               

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



              4            Robinson v. Robinson, 961 P.2d 1000, 1002 (Alaska 1998) (quoting Nass  

                                                                                                                                                                   

 v. Seaton, 904 P.2d 412, 414 (Alaska 1995)).  

                                                                                             



              5            Reilly v. Northrop, 314 P.3d 1206, 1212 (Alaska 2013).  

                                                                                                                              



              6            Heustess v. Kelley-Heustess, 259 P.3d 462, 468 (Alaska 2011) (quoting  

                                                                                                                                                           

Inman v. Inman, 67 P.3d 655, 658 (Alaska 2003)).  

                                                                                       



                                                                                    -7-                                                                           7289
  


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

                                                                                                           7  

findings for informed appellate review is a question of law."                                                  We "determine de novo             

whether an award of attorney's fees is governed by a rule or an exception to a rule."                                                                8  



IV.	        DISCUSSION  



                                                                                                                               

            A.	         The Court Made Insufficient Findings To Support Its Determination  

                                                                                                                                                    

                        That  Fredrickson's  $300,000  Payment  From  Japan  Should  Be  

                                                                                                                                                  

                        Considered Income For Purposes of Calculating Child Support.  



                                                                                                                                          

                        1.	         It was clear error to find that Fredrickson received the $300,000  

                                                                  

                                    in three annual installments.  



                                                                                                                                                    

                        The superior court found that Fredrickson received $300,000 from the  



                                                                                                                                                

Japanese government in three annual installments of $100,000 disbursed in 2011, 2012,  



                                                                                                                                                

and 2013.  But the court acknowledged that the record was unclear on this point.  While  



                                                                                                                                                    

Button provided Fredrickson's monthly bank statements from 2011 to 2013, this did  



                                                                                                                                                  

"little to dispel the confusion" because the payments fromthe Japanese government were  



                                                                                                                                                        

not identified.  Despite this confusion, the court found that the disbursement was not a  



                                                                                                                                                            

one-time payment and therefore it must be calculated as spread out over several years.  



                                                                                                                                                        

The court based this finding on the fact that "[n]owhere in the bank statements is a  



                                                                                                                                              

deposit for $300,000" and that at trial, "Fredrickson testified that she received money  



                                                                                                                                                 

beyond what was reported in her taxes to live on from 2011-2013," which the court  



                                                                                                                                                            

determined was "clearly a reference to the settlement from the Japanese government."  



                                                                                                                                               

We concludethat thecourt's finding ofthree annual installments of $100,000 was clearly  



                                        

erroneous for several reasons.  



                                                                                                                                         

                        First,  at  the  evidentiary  hearing  on  child  support,  the  only  evidence  



                                                                                                                         

presented as to the timing of the Japanese government's payment was Fredrickson's  



            7           Horne v. Touhakis, 356 P.3d 280, 282 (Alaska 2015) (quoting                                                    Hooper v.  



Hooper, 188 P.3d 681, 685 (Alaska 2008)).                        



            8           Rosenblum, 303 P.3d at 503.  

                                                                    



                                                                          -8-	                                                                   7289
  


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

                                                                                                                                                                                                                                                                                                                                                                                               9  

uncontradicted   testimony   that   she   received   $300,000   in   2012   from   the   Japanese  



 government for her brother's death in the tsunami. Neither party specifically argued that                                                                                                                                                                                                                                                                                                                                                                                                          



Fredrickson received more than one payment from the Japanese government, and the                                                                                                                                                                                                                                                                                                                                                                                                                       



 court made no finding that Fredrickson was not a credible witness.                                                                                                                                                                                                                                                                                                                                   Instead, the court's                                                      



 final order was the first time it was explicitly suggested that Fredrickson received the                                                                                                                                                                                                                                                                                                                                                                                                              



 funds as three annual payments.                                                                                                                                                                        While it is true that Fredrickson answered in the                                                                                                                                                                                                                                             



 affirmative when opposing counsel asked Fredrickson whether she had "received other                                                                                                                                                                                                                                                                                                                                                                                                        



moneys from 2011 through 2013" beyond what was reported in her taxes, opposing                                                                                                                                                                                                                                                                                                                                                                                    



 counsel did not ask further questions to clarify what "other moneys" Fredrickson was                                                                                                                                                                                                                                                                                                                                                                                                             



referencing or to distinguish specific dates.                                                                                                                                                                                                               Fredrickson's answer to this question is not                                                                                                                                                                                               



inconsistent with receiving the entire $300,000 payment in 2012; 2012 falls within the                                                                                                                                                                                                                                                                                                                                                                                                                 



2011 to 2013 range.                                                                                                    In addition, opposing counsel never asked Fredrickson to identify                                                                                                                                                                                                                                                                                    



which deposit or deposits were Japanese funds, nor was she ever asked why there was                                                                                                                                                                                                                                                                                                                                                                                                               



not a $300,000 deposit on her statements.                                                                                                                                                                                                           No other witnesses or evidence contradicted                                                                                                                                                  



Fredrickson's testimony that she received $300,000 in 2012.                                                                                                                                                                                                                                                                      



                                                                               Second, while it is true that the trial court did not find a $300,000 deposit                                                                                                                                                                                                                                                                                                                   



in the bank records Button submitted, these bank statements also fail to show any fixed,                                                                                                                                                                                                                                                                                                                                                                                                



recurring deposits of $100,000 or any other amount that would suggest regular payments                                                                                                                                                                                                                                                                                                                                                                            



 from the Japanese government.                                                                                                                                                                As Fredrickson states in her brief, "[t]he reasonable                                                                                                                                                                                                      



 conclusion   from   the   evidence   presented   is   that   the   payment   from   the   Japanese  



 government was maintained in a separate account."  There is evidence supporting this                                                                                                                                                                                                                                                                                                                                            



position.   Fredrickson's bank statements submitted at trial show multiple transfers from                                                                                                                                                                                                                                                                                                                                                                                                    



                                       9                                       The   superior   court   correctly   noted   that,   contrary  to   her   testimony,  



Fredrickson stated "in her closing argument . . . that she received the $300,000 in 2011."                                                                                                                                                                                                                                                                                                                                                                                                                                   

But in her closing argument, Fredrickson also argued, consistent with her testimony, that                                                                                                                                                                                                                                                                                                                                                                                                           

the settlement funds were "a large one-time payment."                                                                                                                                                                                                             



                                                                                                                                                                                                                                                      -9-                                                                                                                                                                                                                                      7289
  


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

a bank account numbered *94.                                                                                   As Fredrickson argues, this evidence is "consistent with                                                                                                                                



all   of   the   settlement   funds   being   placed   in  an  account   numbered   *94   and   being  



transferred into [Fredrickson]'s checking and savings accounts as needed."                                                                                                                                                                                                      



                                                Third, if the payments were spread out over three years, Fredrickson would                                                                                                                                                                       



have had to receive payments in 2012, 2013, and 2014.                                                                                                                                                      But the beginning balance of                                                                        



account *94, which likely held the Japanese funds, was $240,142.06 in January 2014.                                                                                                                                                                                                                                       



This suggests that Fredrickson received all of the funds prior to January 2014, as the                                                                                                                                                                                                                     



account's beginning balance is higher than the amount of two $100,000 payments, or                                                                                                                                                                                     



 $200,000,   and she does not appear                                                                                                 to   have received                                                a $100,000                                   payment into                                        this  



account during 2014.                                                             It is more likely that Fredrickson received the entire Japanese                                                                                                                                      



payment in 2012 as she testified, placed the $300,000 in the account in                                                                                                                                                                                                          2012, and   



withdrew from the account between 2012 and January 2014, resulting in a balance of                                                                                                                                                                                                                             



 $240,142.06 in January 2014.                                                          



                                                And while Button cites                                                             McDonald v. Trihub                                                          to argue that "[w]hen a party                                                     



fails to present sufficient evidence necessary to clarify an issue, the trial court is tasked                                                                                                                                                                                                   

                                                                                                                                                                                                                                                                        10  this case is  

with making its determination on the best evidence that it has available,"                                                                                                                                                                                                                                      



easily distinguishable. In contrast to McDonald, in which questions were raised as to the  

                                                                                                                                                                                                                                                                                                            

adequacy of the evidence of a party's income before the court's decision on the matter,11  

                                                                                                                                                                                                                                                                                        



Fredrickson  would  not  have  known  that  her  evidence  was  inadequate  because  the  

                                                                                                                                                                                                                                                                                                          

argument that the funds were received in installments was never made at trial.12                                                                                                                                                                                                                          We  

                                                                                                                                                                                                                                                                                                       



                        10                      See   173  P.3d  416,  426  (Alaska  2007)  (holding  that  a  party  "who  fail[s]  to  



present   sufficient  evidence  to  the  court cannot  later  object  on  the  basis  of  inadequate  

evidence").   



                        11                      Id . at 425-26.  

                                                                    



                        12                      See also  Caldwell v. State,  105 P.3d  570, 574 (Alaska 2005)  (rejecting  

                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                                       (continued...)  



                                                                                                                                                    -10-                                                                                                                                             7289
  


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

therefore conclude that it was clear error to find that Fredrickson's payment from the                                                                                                                                                                                                                                                                                                                                                                             



Japanese government occurred in $100,000 installments over three years from 2011 to                                                                                                                                                                                                                                                                                                                                                                                       



2013.   



                                                                         2.	                                 The superior court made no other findings that could support                                                                                                                                                                                                                                                              

                                                                                                             adeterminationthat Fredrickson's$300,000                                                                                                                                                                                                                     payment shouldbe                                                                              

                                                                                                             considered income for purposes of child support.                                                                                                                                                                                        



                                                                         Becausethe superior court's finding that Fredrickson received money                                                                                                                                                                                                                                                                                                               from  



the Japanese government in three installments was clearly erroneous, and because it                                                                                                                                                                                                                                                                                                                                                                                        



relied on that finding to treat the money as income rather than a one-time gift, its decision                                                                                                                                                                                                                                                                                                                                           



to include the money as income for purposes of calculating child support is called into                                                                                                                                                                                                                                                                           



question.     Yet   the   exact   nature   of   the   payment   remains   unknown.   We   note   that  



Fredrickson has referred to the $300,000 payment both as a gift and as a settlement,                                                                                                                                                                                                                                                                                                                             



though she argues that as a one-time gift the payment should not be considered income.                                                                                                                                                                                                                                                                                                                                                                                                  



And while Button relies in part in his briefing to this court on cases dealing with gifts,                                                                                                                                                                                                                                                                                                                                                                                              



he consistently refers to the payment as settlement funds.                                                                                                                                                                                                                                                                         The precise nature of the                                                                                                       



Japanese payment was not established in the superior court and remains unclear.                                                                                                                                                                                                                                                                                                                          



                                                                         The dissent argues that there is sufficient evidence on the record to support                                                                                                                                                                                                                                                                                      



a finding that the payments were a settlement, and that we should therefore affirm the                                                                                                                                                                                                                                                                                                                                                                             



court's determination that the payment should be treated as income.                                                                                                                                                                                                                                                                                                                    But the superior                                



court never made a finding that the payment was a settlement, nor any other finding                                                                                                                                                                                                                                                                                                                                                         



actually characterizing the payment.                                                                                                                                                                 Rather, the court merely found that "as the money                                                                                                                                                                                          



was paid out over several years, it is not a one-time gift or inheritance," and on that basis                                                                                                                                                                                                                                                                                                                                                             



                                     12                                  (...continued)  



                                                                                                                                                                                                                                                                                                                                                                                                                                       

 superior court ruling that the sale of stock proceeds constituted a five-year revenue  

                                                                                                                                                                                                                                                                                                                                                                                                                                                         

 stream for the purposes of determining prospective child support in part because " [the  

                                                                                                                                                                                                                                                                                                                                                                                                                                        

 State] first raised its proposal to characterize the sale proceeds as a five-year revenue  

                                                                                                                                                                                                                                                                                                                                                                                               

 stream at a late stage in the case," leaving no opportunity to respond).  



                                                                                                                                                                                                                                -11-	                                                                                                                                                                                                                      7289
  


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

concluded that it must be income.                                                                                                                                                                Rather than necessarily implying that the payment                                                                                                                                                                                                 



must have been a settlement, the                                                                                                                                                 court's reasoning could just as easily imply that it would                                                                                                                                                                                                               



have been inclined to treat the payment as a gift or inheritance but for its finding that the                                                                                                                                                                                                                                                                                                                                                                                      



money was paid out in installments.  Because we conclude it was clearly erroneous to                                                                                                                                                                                                                                                                                                                                         



find that the payment was made over time, the court's conclusion that the payment was                                                                                                                                                                                                                                                                                                                                                                                         



therefore not a one-time gift must be disregarded.                                                                                                                                                                                                                                      Because the superior court made no                                                                                                                                                            



other   findings  that  support its determination that the payment should                                                                                                                                                                                                                                                                                                                                              be treated as                                                  



income, that determination must be vacated. We therefore remand to the superior court                                                                                                                                                                                                                                                                                                                                                                                 



to determine whether the payment was a gift, a legal settlement, or something else and                                                                                                                                                                                                                                                                                                                                                                                         



recalculate its child support award accordingly.                                                                                                                                                   



                                                                           3.	                                  In the event the payment is determined on remand to be a gift,                                                                                                                                                                                                                                                                                       

                                                                                                                it may be included as income for purposes of child support to                                                                                                                                                                                                                                                                                                          

                                                                                                                the extent it was treated as equivalent to other income.                                                                                                                                                                                                                                                                                 



                                                                           Basedontheassumptionthat themoney                                                                                                                                                                                         fromtheJapanesegovernment was                                                                                                                                              



a gift, both parties advance arguments with respect to whether a gift should be treated as                                                                                                                                                                                                                                                                                                                                                                                               



income for purposes of calculating child support.                                                                                                                                                                                                                                          This debate will be relevant in the                                                                                                                                                    



event the superior court on remand determines that the payment was a gift, so we address                                                                                                                                                                                                                                                                                                                                                                  



it here.                                 Fredrickson argues that because the "funds were a one-time gift, it was error to                                                                                                                                                                                                                                                                                                                                                                



treat [them] as income."                                                                                                                Button argues that "the court only included the . . . funds in its                                                                                                                                                                                                                                                                             



retrospective  determination of her child support obligation" and, therefore, the court did                                                                                                                                                                                                                                                                                                                                                                                       



not err in including the funds in Fredrickson's income for the purposes of calculating the                                                                                                                                                                                                                                                                                                                                                                                          



child support award.                                                                                                 



                                                                           The Commentary to Rule 90.3 explains that "[t]he principal amount of one-                                                                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                                                                                                                  13  In Nass v. Seaton, we  

time gifts and inheritances should not be considered as income."                                                                                                                                                                                                                                                                                                                                                                                                                    



                                      13  

                                                                                                                                                                                                                                                                                                                                                                                                                         

                                                                           Alaska R. Civ. P. 90.3 cmt. III(A).  More specifically, the Commentary  

                                                                                                                                                                                                                                                                                                                                                                                                                           (continued...)  



                                                                                                                                                                                                                                        -12-	                                                                                                                                                                                                                             7289  


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

endorsed this approach because "any other approach blurs the easily administered and            

well-established historical distinction between gifts and earned income."                                            14  



                     However, our subsequent decision in Crayton v. Crayton deviated fromthe  

                                                                                                                                       

                                       15  In Crayton a father brought a motion seeking reimbursement  

strict rule set out in Nass .                                                                                       

                                

of child support from the mother.16                        The father argued that certain one-time monetary  

                                                                                                                            



gifts the mother had received should be included in her income when determining her  

                                                                                                                                      

child support obligation for a period in which no child support order existed.17                                                    The  

                                                                                                                                     

superior court relied on our holding in Nass  and rejected the father's request.18                                                   We  

                                                                                                                                     



reversed,  distinguishing  Nass  as  relating  to  calculating  support  obligations  for  the  

                                                                                                                                      

future.19  Because a gift will not necessarily be repeated in the future, we reasoned that  

               



"the inclusion as income of a one-time gift or an inheritance would unfairly inflate" child  

                                                                                                                                    

                                                                                                           20 Weconcludedthat  

supportobligations "beyondtheobligor's reliablefutureresources."                                                                      

                                                                                          



this logic does not apply where the mother's "future payments [were] not at issue" and  

                                                                                                                                      



           13        (...continued)  



                                                                                                                          

suggests that courts should treat gifts and inheritances as capital assets when calculating  

                                                                                                                             

a child support award. The Commentary states that "[t]he principal amount of one-time  

                                                                                                                              

gifts and inheritances should not be considered as income, but interest from the principal  

                                                                                                                                        

amount should be considered as income and the principal amount may be considered as  

                                                                                                          

to whether unusual circumstances exist as provided by 90.3(c)."  Id.  



           14        904 P.2d 412, 416 (Alaska 1995).  

                                                                  



           15        944 P.2d 487 (Alaska 1997).  

                                                          



           16        Id . at 489.  

                                



           17        Id .  



           18        Id. at 489-90.  

                                             



           19        Id. at 490.  

                                        



           20        Id.  

                            



                                                                  -13-                                                             7289
  


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

                                                                                                                                              21  

"the superior court will determine [the mother]'s income only in retrospect."                                                                     Because  



"it   [was]   fair   for   the   court   to   base   the   amount   of   reimbursement   on   the   resources  



available to [the mother]," we remanded, directing the superior court to consider gifts in                                                                     

determining the mother's retrospective child support obligation.                                                        22  



                         Crayton offered no citation to authority for the apparent holding that gifts  

                                                                                                                                                          

should always betreated asincomewhenmaking retrospectivecalculations,23 andJustice  

                                                                                                                                                      

Eastaugh wrote a concurring opinion taking issue with this court's analysis.24                                                                       Justice  

                                                                                                                                                     



Eastaugh reasoned that "most one-time gifts and inheritances should be considered to be  

                                                                                                                                                              



capital assets.  Such [funds] may represent the ability to earn income, an ability that  

                                                                                                                                                           



should be taken into account, but the gifts themselves are often treated as capital assets  

                                                                                                                                                       

by the donor and the recipient."25                               Thus, the touchstone of Justice Eastaugh's analysis  

                                                                                                                                                   



was the treatment of the gift by the parties involved.  

                                                                                 



                         We are persuaded by Justice Eastaugh's approach.  The Commentary to  

                                                                                                                                                              



Rule 90.3 provides that the term "income" "should be interpreted broadly to include  

                                                                                                                                                    



benefits  which  would  have  been  available  for  support  if  the  family  had  remained  

                                                                                                                                                

intact."26  To that end, trial courts may include one-time gifts as income when calculating  

                                                                                                                                              



retrospective child support awards to the extent that the principal amount of the gift was  

                                                                                                                                                           



            21           Id.   



            22           Id.   



            23           Id .  at  490.  



            24           Id.  at  490-91  (Eastaugh,  J.,  concurring).  



            25           Id.  at  491  (Eastaugh,  J.,  concurring).  



            26           Alaska  R.  Civ.  P.  90.3  cmt.  III(A).   Our  opinion  in  Crayton  mirrored  this  



language  in  holding  that  it  was  "fair  for  the  court  to  base  the  amount  of  reimbursement  

on  the  resources  available."  Crayton,  944  P.2d  at  490  (emphasis  added).  



                                                                             -14-                                                                       7289
  


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

treated as the equivalent of income, i.e., as a resource to be used for general support and                                                                                                                                



family expenses.                               By contrast, to the extent a gift is treated as a capital asset, with its                                                                                                      



principal   kept   separate   and   with   only   interest  or   rent   derived   therefrom   treated   as  



disposable income, the principal of the gift should not be included as income for child                                                                                                                                

                                                27         On  remand,  should  the  superior  court  determine  that  money  

support   purposes.                                                                                                                                                                                              



Fredrickson received from the Japanese government was a gift, it may include those  

                                                                                                                                                                                                                      



funds  in  the  income  calculation  to  the  extent  Fredrickson  treated  the  payment  as  

                                                                                                                                                                                                                              



equivalent to a source of income rather than as a capital asset.  

                                                                                                                                                     



                  B.               Fredrickson Is Not Entitled To An Exception To Rule 90.3.  

                                                                                                                                                                                            



                                    1.	              To  qualify  for  an  exception  to  Rule  90.3,  Fredrickson  must  

                                                                                                                                                                                                                     

                                                     prove by clear and convincing evidence that manifest injustice  

                                                                                                                                                                     

                                                     would result from an application of Rule 90.3.  

                                                                                                                                                                          



                                   Rule 90.3(c)(1) provides that a "court may vary the child support award as  

                                                                                                                                                                                                                               



calculated under the other provisions of this rule for good cause upon proof by clear and  

                                                                                                                                                                                                                           



convincing evidence that manifest injustice would result if the support award were not  

                                                                                                                                                                                                                            

varied."28  Fredrickson argues that the facts of her case warrant a deviation from the  

                                                                                                                                                                                                                           



normal application of Rule 90.3's methodology for calculating child support for periods  

                                                                                                                                                                                                                 



in which no support order was in effect. She claims that the parties' agreement to waive  

                                                                                                                                                                                                                     



child support and her reliance on the agreement, difficulties in proving past expenses and  

                                                                                                                                                                                                                           



                  27               Certain  language   in   Justice   Eastaugh's   concurring   opinion   in   Crayton  



suggests that the relevant question is                                                                   whether the gift-giver intended the gift to be                                                                      

equivalent to income.                                       See Crayton                        , 944 P.2d at 491 (Eastaugh, J., concurring).                                                                             But  

looking to the intent of the gift-giver is at best an indirect and imperfect predictor of                                                                                                                                     

whether gifted funds were available for support. And in a case like this, where the donor                                                                                                                            

was an abstract entity - a foreign sovereign government - determining the donor's                                                                                                                               

intent is likely impossible.                                           The simpler and more direct approach is to look at whether                                                                              

the gift was actually treated as income and as a resource available for support.                                                                                                         



                  28               Alaska R. Civ. P. 90.3(c)(1).  

                                                                                   



                                                                                                             -15-	                                                                                                     7289
  


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

income, and her son's adequate care during the period are unusual circumstances that                                                                                                                                                                                                      



make the application of Rule 90.3's regular methodology unfair.                                                                                                                                                                 She asserts that this                                     



unfairness is enough to avoid Rule 90.3's application through an exception to the rule  



she finds in its Commentary at VI(E)(1).                                                                                                    Fredrickson argues that "[t]his section of the                                                                                                  



Commentary makes no reference to Civil Rule 90.3(c)(1)[] and exists separate from the                                                                                                                                                                                                        



Commentary interpretingCivilRule90.3(c)(1)." Therefore,                                                                                                                                                 Fredrickson asserts shedoes   



not need to "include proof of 'manifest injustice' by 'clear and convincing evidence' "                                                                                                                                                                                                            



as typically required under Rule 90.3(c)(1).                                                                                                           We disagree.   



                                              As we explained in                                                Ruppe v. Ruppe                                         , Rule 90.3(c)(1) "permits the court to                                                                                  



 'vary the child support award as calculated under the other provisions of this rule for                                                                                                                                                                                                    



good cause upon proof by clear and convincing evidence that manifest injustice would                                                                                                                                                                                             



result if the support award were not varied' " and "[s]uch a variation may be particularly                                                                                                                                                                      



appropriate when the superior court is examining parents' conduct before any child                                                                                                                                                                                                   

                                                                                              29  We went on to note that while "we have held 'that absent  

support order was entered."                                                                                                                                                                                                                                                      



extraordinary circumstances, courts should apply the calculation methodology of Rule  

                                                                                                                                                                                                                                                                                      



90.3 to determine amounts to be reimbursed to custodial parents for support of children  

                                                                                                                                                                                                                                                                           



during periods not covered by support orders,' the commentary [at VI(E)(1)] to Rule  

                                                                                                                                                                                                                                                                                      



90.3 notes that 'in some circumstances unfairness may result from rigid [retroactive]  

                                                                                                                                                                                                                                                            

application of the rule.' "30  

                                                                                  



                                              Our articulation in Ruppe of the prevailing standard for deviations from  

                                                                                                                                                                                                                                                                                      



Rule 90.3's regular methodology made clear that its Commentary at VI(E)(1) does not  

                                                                                                                                                                                                                                                                                            



provide an independent exception to Rule 90.3's application in this context, but rather  

                                                                                                                                                                                                                                                                     



                       29                     358 P.3d 1284, 1291 (Alaska 2015) (quoting Alaska R. Civ. P. 90.3(c)(1)).                                                                                                                                                                                   



                       30  

                                                                                                                                                                                                                                                                                       

                                             Id. (alteration in the original) (first quoting Vachon v. Pugliese, 931 P.2d  

                                                                                                                                                                                                                                                                        

371, 382 (Alaska 1996); then quoting Alaska R. Civ. P. 90.3 cmt. VI(E)(1)).  



                                                                                                                                             -16-                                                                                                                                     7289
  


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

is   a   component   of   the   general   standard   governing   deviations   from   Rule   90.3's  



methodology.    In addition, the structure of the Commentary itself suggests that Part                                                                                                                       



VI(E)(1)'s instructive language is still subject to the requirements of Rule 90.3(c).                                                                                                                                    Part  



VI(A)   of   the   Commentary   provides   information   on   exceptions  in  general.     Parts  



VI(B)-(F), including Part VI(E) that Fredrickson relies on here, discuss more specific                                                                                                                          



issues, all of which fall under the general category of exceptions to Rule 90.3.                                                                                                                                        This  



indicates that Part VI(E) is subject to the general standard applied to the broader category                                                                                                                   



of exceptions governed by Rule 90.3(c). In light of our recent case law and the structure                                                                                                                     



of the Commentary to Rule 90.3, we hold that Fredrickson, like all parents seeking a                                                                                                                                              



variance   from   the   application   of   Rule   90.3's   methodology,   would   be   entitled   to   a  



variation   only   "for   good   cause   upon   proof   by   clear   and   convincing   evidence   that  



                                                                                                                                                                                        31  

manifest injustice would result if the support award were not varied."                                                                                                                        



                                   2.	               Fredricksondidnot proveby clearandconvincing evidencethat  

                                                                                                                                                                                                                          

                                                     manifest injustice would result from an application of Rule 90.3.  

                                                                                                                                                                                                                        



                                   Fredrickson argues that the superior court should have deviated from Rule  

                                                                                                                                                                                                                         



90.3 in calculating child support for the periods prior to Button's complaint on several  

                                                                                                                                                                                                                  



grounds.                     We  conclude  that  none  of  these  grounds  warrant  a  deviation  from  the  

                                                                                                                                                                                                                            



application of Rule 90.3's regular methodology.  

                                                                                                                                   



                                   Fredrickson contends that it is unfair to use Rule 90.3 calculations in this  

                                                                                                                                                                                                                           



case because she relied on the parties' agreement that no support was due, and if she had  

                                                                                                                                                                                                                            



known otherwise she would have kept careful track of her spending.  She explains that  

                                                                                                                                                                                                                           



between 2006 and 2013 the parties "made informal agreements to cover [their son's]  

                                                                                                                                                                                                                    



expenses as those expenses arose" and that "[i]n August of 2007, the parties executed an  

                                                                                                                                                                                                                               



agreement saying that neither party owed the other child support."  Button signed the  

                                                                                                                                                                                                                             



                  31               Alaska R. Civ. P. 90.3(c)(1).  

                                                                                   



                                                                                                             -17-                                                                                                                 7289  


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

agreement and both parties believed the agreement was fair and equitable at that time.                                                                                                                                                                                                          



Fredrickson argues that "the agreement between the parties that no additional support                                                                                                                                                                               



was owing is one of the unusual circumstances which makes the rigid application of Rule                                                                                                                                                                                       



90.3's calculation methodology unjust on these facts." She also offers the agreement as                                                                                                                                                                                               



evidence that she had no reason to be aware of her potential liability for retrospective                                                                                                                                                          



support obligations and that she therefore did not keep close records of her expenses                                                                                                                                                                          



related to the child.                        



                                            But we made clear in                                                 Cox v. Cox                           "that an agreement between the parties as                                                                                        



to   child   support   is   not   an   exceptional  circumstance   justifying   deviations   from   the  



guidelines,   where   the   agreement   requires   support   less   than   that   called   for   by   the  

                                        32         Cox involved  a prospective child support award,33   but we have also  

guidelines."                                                                                                                                                                                                                                                                   



applied similar logic to child support arrearages, holding in Nix v. Nix  that "a child  

                                                                                                                                                                                                                                                                           



support waiver is not valid and enforceable until a court has reviewed and approved the  

                                                                                                                                                                                                                                                                                   



waiver's substantive adequacy under Rule 90.3" and "a child support waiver presented  

                                                                                                                                                                                                                                                             



after the initial dissolution proceeding will be given only prospective effect fromthe date  

                                                                                                                                                                                                                                                                                



                                                                              

of judicial approval."34  Given these holdings, the superior court correctly ruled that the                                                                                                                                                                                        

                                   



existence of the parties' child support waiver cannot by itself support a deviation from                                                                                                                                                                                     



calculations of child support awards required by Rule 90.3.                                                                                                                                                        In addition, the court                                  



correctly recognized that Fredrickson was aware that she owed support, as indicated by                                                                                                                                                                                               



her payments to Button during this period.                                                                                                    These payments suggest she knew she was                                                                                           



at   least   partially   financially   responsible   for   supporting   their   son.    The   fact   that  



                      32                    776  P.2d   1045,   1049  (Alaska   1989).  



                      33                    Id.  at   1045-46.    



                      34                    855  P.2d  1332,  1334  (Alaska  1993)  (emphasis  omitted);  see  also  Rickmond  



v.  Pluid,  925  P.2d  251,  254-55  (Alaska   1996)  (applying  Cox  to  retrospective  awards).  



                                                                                                                                        -18-                                                                                                                                 7289
  


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

Fredrickson   might   have   done   something   different  in  the   absence   of   the   agreement  



between the parties is not an extraordinary circumstance that would permit the superior                                                                                                                                                                                                                                                                                                                                                         



 court to deviate from a calculation under Rule 90.3.                                                                                                                                                                                                            



                                                                          Fredrickson also contends that it is unfair to use Rule 90.3 calculations in                                                                                                                                                                                                                                                                                                                             



this case because she made substantial contributions to her child's expenses that she                                                                                                                                                                                                                                                                                                                                                                                     



 cannot prove.                                                                Fredrickson offered testimony and evidence about her actual spending                                                                                                                                                                                                                                                                                        



 during the time period at issue.                                                                                                                                                     She claimed that these expenses included $660 per                                                                                                                                                                                                                                   



month to Button for a time after they separated, including $400 for half the cost of the                                                                                                                                                                                                                                                                                                                                                                                    



 child's school; coverage of the child on her medical insurance; co-payments for medical                                                                                                                                                                                                                                                                                                                                                          



 care that insurance did not cover; and payments for karate, swimming, football, and other                                                                                                                                                                                                                                                                                                                                                                        



miscellaneous expenses. Fredrickson also testified that in the spring of 2007 she stopped                                                                                                                                                                                                                                                                                                                                                          



paying a fixed dollar amount directly to Button and began paying certain of the child's                                                                                                                                                                                                                                                                                                                                                                



 expenses on her own, including school fees, doctor's bills, and extracurricular activities                                                                                                                                                                                                                                                                                                                                                 



like soccer, football, and swimming.                                                                                                                                                                            Fredrickson submitted documentation showing                                                                                                                                                                                  



 expenses she paid, including a partial check register for 2007 through 2009. But she was                                                                                                                                                                                                                                                                                                                                                                                



 only able to document "partial" "example[s]" of what she paid on the child's behalf. She                                                                                                                                                                                                                                                                                                                                                                               



 argues   that   the   child   support   award   should   be   lower   because   there   were   many  



 expenditures she made that she could not prove.                                                                                                                                                                                      



                                                                          However, the court credited Fredrickson $13,602 against her retrospective                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                                                                                                                                   35                The court properly  

 support obligation for the contributions she was able to prove.                                                                                                                                                                                                                                                                                                                                                                             



                                     35                                   We held in                                                         Young v. Williams                                                                                             that when an obligor                                                                                                              "is required by a                                                                        



 divorce decree to pay to the plaintiff money for the support of the children and the                                                                                                                                                                                                                                                                                                                                                                                      

unpaid and accrued installments become judgments in favor of the plaintiff, [the obligor]                                                                                                                                                                                                                                                                                                                                                        

 cannot, as a matter of law, claim credit on account of payments voluntarily made directly                                                                                                                                                                                                                                                                                                                                                          

to the children."                                                                          583 P.2d 201, 203 (Alaska 1978) (quoting                                                                                                                                                                                                       Briggs v. Briggs                                                                             , 165 P.2d                   

 772, 777 (Or. 1946)).                                                                                                 However, we have explicitly held that "[t]he                                                                                                                                                                                                             Young  rule does not                                                                        

                                                                                                                                                                                                                                                                                                                                                                                                                     (continued...)  



                                                                                                                                                                                                                                     -19-                                                                                                                                                                                                                           7289
  


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

based   the   amount   it   credited   Fredrickson   on   the   evidence   presented,   including  



Fredrickson's bank records and check book register.                                                                                                                           We conclude that Fredrickson's                                



inability to prove additional claimed expenditures on her child in this context does not                                                                                                                                                                                       



establish by clear and convincing evidence that manifest injustice would result if the                                                                                                                                                                                         



court did not vary the retrospective child support from what was required under Rule                                                                                                                                                                                      



90.3  for the period from 2006 through 2013.                                                                                   



                                           Fredrickson further argues that the evidence suggests that the child was                                                                                                                                                         



well-supported   financially   and   she   would   have   paid   more   support  if   he   needed   it.   



Fredrickson contends the court's child support order "will only take support away from                                                                                                                                                                                    



 [her child] in the present" and that "[t]he substantial arrearage will effectively mean that                                                                                                                                                                                



the money available to [Fredrickson] to support [her child] will be greatly diminished                                                                                                                                                               



during the half of his life he spends with her."  And she asserts that a rigid application                                                                                                                                    



of Rule 90.3 would result in exactly the type of unfairness we have                                                                                                                                                        attempted to avoid                          

-  a " 'prolonged dispute' about who paid for what" in the past.                                                                                                                                                 36  



                                           Fredrickson's argument that the child support award will only take support  

                                                                                                                                                                                                                                                                 



away from their son in the present is without merit.   In addition to the retrospective  

                                                                                                                                                                                                                                              



award, the superior court entered an award for prospective child support.  Both of these  

                                                                                                                                                                                                                                                                        



awards are meant to provide for their son's needs, and the prospective award will ensure  

                                                                                                                                                                                                                                                                    



that both parents continue to provide for his needs in the future. Finally, using Rule 90.3  

                                                                                                                                                                                                                                                                           



to calculate the retrospective child support award will definitively end the dispute about  

                                                                                                                                                                                                                                                                       



                      35                    (...continued)  



                                                                                                                                                                                                                                           

apply where . . .  no child support order exists and the parties have not independently  

                                                                                                                                                                                                                                                                    

reached a clear agreement as to custody and their respective support obligations."  Ogard  

                                                                                                                                                                                                                                                                        

v.  Ogard, 808 P.2d 815, 817 (Alaska 1991). Therefore, in this case where no child  

                                                                                                                                                                                                                                             

support order existed during the relevant time period, Fredrickson was appropriately  

                                                                                                                                                            

credited with the expenditures she could prove.  



                      36                   See Vachon v. Pugliese, 931 P.2d 371, 381 (Alaska 1996).  

                                                                                                                                                                                                                                             



                                                                                                                                      -20-                                                                                                                               7289
  


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

past child support, not result in a "prolonged dispute" about who paid for what in the                                                                                            

past.37  



                            In order to qualify for an exception to calculating child support obligations  

                                                                                                                                                                 



under Rule 90.3, Fredrickson was required to prove by clear and convincing evidence  

                                                                                                                                   



that manifest injustice would result from an application of Rule 90.3. Because she failed  

                                                                                                                                                                             



to do so, we hold that the superior court did not err in using Rule 90.3 to calculate  

                                                                                                                                                                     



Fredrickson's support obligations.  

                                                 



              C.	           It Was Not Error To Impute Income To Fredrickson, Nor To Decline  

                                                                                                                                                                        

                             To Impute Income To Button.  

                                                                                



                             1.	           The court did not err in imputing income to Fredrickson.  

                                                                                                                                                



                            Button argued in the superior court that it "should treat . . . Fredrickson as  

                                                                                                                                                                                    



voluntarily unemployed and . . . impute her past income" for the purposes of calculating  

                                                                                                                                                                 



a  future  child  support  award.                                     The  court  agreed,  finding  that  from  2014  onwards  

                                                                                                                                                                                          



Fredrickson was voluntarily unemployed.   Based on this finding, the court imputed  

                                                                                                                                                                      



income to Fredrickson under Rule 90.3(a)(4), which allows the court to "calculate child  

                                                                                                                                                                              



support based on a determination of the potential income of a parent who voluntarily and  

                                                                                                                                                                                 

unreasonably is unemployed or underemployed,"38   in an amount of $57,395.72 per  

                                                                                                                                                                                 



           39  

year. 



              37            See id.          ("Requiring proof of actual costs can lead to prolonged disputes                                                          



when the interests of custodial parents in maximizing support may encourage deception                                                                               

and the interests of non-custodial parents in minimizing support may disadvantage the                                                                                             

children.").    



              38            Alaska R. Civ. P. 90.3(a)(4).  

                                                                   



              39            This amount represented an averageofFredrickson'sadjustedgross income  

                                                                                                                                                                         

from her tax returns for 2006 through 2010.  The superior court chose to use the years  

                                                                                                           

from 2006 to 2010 for the purposes of calculating her imputed income because "[t]hese  

                                                                                                                                                                        

                                                                                                                                                            (continued...)  



                                                                                        -21-	                                                                                7289
  


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

                       There are two aspects to the standard for imputing income in the child                                                



support context.  First, the superior court must find that the obligor is both voluntarily                            

                                                                                     40  Second, thesuperior court's method  

andunreasonablyunemployed                            or underemployed.                                                                    



for calculating the obligor's actual earning capacity must be supported by adequate  

                                                                                                                                      



factual  findings,  "based  upon  the  [obligor's]  work  history,  qualifications,  and  job  

                                                                                                                                                

opportunities."41              Fredrickson challenges the superior court's findings on both issues.  

                                                                                                                                         



                                   a.	        There is sufficient evidence to support the court's express  

                                                                                                                                         

                                              findingthat Fredrickson's unemployment wasvoluntary,  

                                                                                                                                    

                                              and the court's implied finding that it was unreasonable.  

                                                                                                                             



                       Fredrickson argues that the superior court made inadequate findings to  

                                                                                                                                                  



support imputing income to her. Specifically, Fredrickson argues that before income can  

                                                                                                                                                 



be imputed to an obligor, the obligor's unemployment or underemployment must be  

                                                                                                                                                  



"unreasonable" considering thetotality ofthecircumstances and that the trial court made  

                                                                                                                                             



insufficient findings to support a determination that she was unreasonably unemployed.  

                                                                                                                                



            39         (...continued)  



                                                                                                                                              

[were] the years that [Fredrickson] was working full-time" and because "[t]he years from  

                                                                                                             

2011 onward are not a good indication of imputed income, as [Fredrickson]'s income  

                                                                                   

[was] skewed by the money from the Japanese government."  



            40         Alaska R. Civ. P. 90.3(a)(4); see Barlow v. Thompson, 221 P.3d 998, 1003  

                                                                                                                                              

(Alaska 2009).  

               



            41         Alaska R. Civ. P. 90.3(a)(4); see Horne v. Touhakis, 256 P.3d 280, 283-84  

                                                                                                                                          

(Alaska 2015) (vacating order imputing income for lack of evidence and factual findings  

                                                                                                                                        

supporting the superior court's calculation); see also Barlow  at 221 P.3d 998, 1003;  

                                                                                                                                            

O'Connell v. Christenson, 75 P.3d 1037, 1041 (Alaska 2003); Koller v. Reft, 71 P.3d  

                                                                                                                                              

800, 805 (Alaska 2003).  

                                



                                                                       -22-	                                                                 7289
  


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

                         We have held that "to be considered voluntarily unemployed, a parent must                                                       



                                                                                                                                                             42  

engage in voluntary conduct for the purpose of becoming or remaining unemployed."                                                                                  



In Beaudoin v. Beaudoin we explained that "the relevant inquiry under Civil Rule 90.3  

                                                                                                                                                         



is simply  whether  a parent's current situation  and  earnings reflect a voluntary  and  

                                                                                                                                      

unreasonable decision to earn less than the parent is capable of earning."43  We have also  

                                                                                                                                                          



clarified  that  "[a]  court  may  find  that  underemployment  [or  unemployment]  [is]  

                                                                                                                                                          

voluntary even if the obligor acted in good faith."44   "The key inquiry is whether the lack  

                                                                                                                                                          

of employment is the result of 'economic factors' or of 'purely personal choices.' "45  

                                                                                                                                                                   



                         To determine the reasonableness of a parent's unemployment, the court  

                                                                                                                                                       



"must look to the totality of the circumstances, including 'such factors as whether the  

                                                                                                                                                           



obligor's reduced income is temporary, whether the change is the result of economic  

                                                                                                                                               



factors or of purely personal choices, the children's needs, and the parents' needs and  

                                                                                                                                                          

financial abilities.' "46                  So long as the superior court's findings "encompass the totality  

                                                                                                                                                    



of  the  relevant  circumstances,"  it  need  not  make  specific  findings  on  each  of  the  

                                                                                                                                                           

reasonableness factors.47  

                              



             42          Bendixen  v.  Bendixen,  962  P.2d   170,   172  (Alaska   1998).  



             43          24  P.3d  523,  528  (Alaska  2001).  



             44          Robinson  v.  Robinson,  961  P.2d   1000,   1004  (Alaska   1998).  



             45          Reilly  v.  Northrop,  314  P.3d  1206,  1213  (quoting  Nunley  v.  State,  Dep't  of  



Revenue,  Child  Support  Enf't  Div.,  99  P.3d  7,   11  (Alaska  2004).    



             46          Sharpe  v.  Sharpe,  366  P.3d  66,  69  (Alaska  2016)  (quoting Sawicki  v.  

                                                                                                                                                             

Haxby, 186 P.3d 546, 550 (Alaska 2008)).  

                                                                  



             47          Sawicki, 186 P.3d at 550-51.  

                                                                 



                                                                             -23-                                                                      7289
  


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

                              Theburdento producesufficientevidencetosupportthenecessaryfindings                                                                                 



                                            48  

lies with the parties,                                                                                                                                                                       

                                                pursuant to the burden-shifting mechanismfor imputed income we  

                                                                   49     We explained that "[o]nce the primary custodian has  

                                                                                                                                                                                           

                                                   

outlined in Sawicki v. Haxby,  



made out a prima facie case of voluntary and unreasonable underemployment the burden  

                                                                                                                                                                                    

of persuasion shifts to the obligor to rebut that claim."50  

                                                                                                                               



                              The   superior   court   here   ruled   that   Fredrickson   was   "voluntarily  

                                                                                                                                                                     



unemployed" because after receiving money from the Japanese government, she "quit  



working and concentrated on charitable work and other projects."  Fredrickson appears  

                                                                                                                                                                                  



to  have  argued  that  her  unemployment  was  not  voluntary  because  her  grief  and  

                                                                                                                                                                                          



depression made it impossible for her to work.  But while Rule 90.3(a)(4) states that  

                                                                                                                                                                                           



courts may not impute income to parents who are "physically or mentally incapacitated,"  

                                                                                                                                                                  



Fredrickson offered no evidence - apart from her own conclusory testimony that she  

                                                                                                            



could not work due to grief and depression - that she was "physically or mentally  

                                                                                                                                                                               



incapacitated."  Furthermore, as the court noted, Fredrickson had been employed as a  

                                                                                                                                                                                                 



bartender  and  had  undertaken  significant charitable work  after  her  brother's death.  

                                                                                                                                                                                                     



Therefore, even if she were initially incapacitated due to her grief and depression, those  

                                                                                                                                                                                       



issues were no longer a barrier to her employment.  In other words, Fredrickson failed  

                                                                                                                                                                                      



to offer evidence rebutting Button's prima facie case that Fredrickson was voluntarily  

                                                                                                                                                                          



unemployed based on the fact she quit working after receiving funds from the Japanese  

                                                                                                                                                                               



               48             Horne v. Touhakis                         , 356 P.3d 280, 284 (Alaska 2015) (remanding for more                                                           



detailed factual findings but noting that "the parties failed to provide evidence that would                                                                                         

have allowed the superior court to make more detailed findings," and that "[t]he parties                                                                                            

bear responsibility for this dearth of evidence").                                 



               49              186 P.3d at, 548-49.  

                                                           



               50             Id. at 548-49.  

                                                               



                                                                                             -24-                                                                                       7289
  


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

government. We therefore conclude that the superior court did not clearly err in finding                                                                                                                                                                                                                                                                                                                                                                      



that Fredrickson was voluntarily unemployed.                                                                                                                                              



                                                                            Thecourt                                             madenoexplicit ruling ontheunreasonableness ofFredrickson's                                                                                                                                                                                                                             



unemployment.   As discussed above, a court must find that an obligor's unemployment                                                                                                                                                                                                                                                                                                                              



 or underemployment is                                                                                                           both voluntary                                                                      and  unreasonable. However, on the record before                                                                                                                                                                                              



us, the finding of unreasonableness is clearly implied.                                                                                                                                                                                                                                                          The court explicitly recognized                                                                                        



therequirementto find theobligor bothvoluntarily                                                                                                                                                                                                                                        andunreasonablyunemployedbefore                                                                                                                                            



imputing income.                                                                                     Fredrickson argued that her unemployment was reasonable because                                                                                                                                                                                                                                                                                     



 she wished to pursue a career in nursing.                                                                                                                                                                                             The court acknowledged this argument in its                                                                                                                                                                                                       



December2014                                                                             order, butfound                                                                            it unconvincing,notingthat"Fredricksonhas expressed                                                                                                                                                                                                        



 an interest in attending nursing school, but has yet to take any classes."  Fredrickson's                                                                                                                                                                                                                                             



 argument that she could not work due to grief and depression is also relevant to the issue                                                                                                                                                                                                                                                                                                                                                                                



 of reasonableness. However, the court also considered and dismissed both of these                                                                                                                                                                                                                                                                                                                                                                                     



 arguments,   noting   that   Fredrickson   had   both   been   employed   as   a   bartender   and  



undertaken significant charitable work, evidencing an ability to work. Because the court                                                                                                                                                                                                                                                                                                                                                                                  



recognized the need to find the unemployment unreasonable before imputing income,                                                                                                                                                                                                                                                                                                                                                                        



 addressed and rejected each of Fredrickson's arguments on this issue, and ultimately                                                                                                                                                                                                                                                                                                                                                       



decided   to   impute   income   to   Fredrickson,   a   finding   of   unreasonableness   is   clearly  

implied.   On this record, that finding is not clearly erroneous.                                                                                                                                                                                                                                                                                          51  



                                      51                                   We note that in                                                                           Reilly v. Northrop                                                                                           , we stated that the court "must make                                                                                                                                                



 specific   findings   that   the   [obligor's]   underemployment   [or   unemployment]   is   both  

voluntary and unreasonable." 314 P.3d 1206, 1212 (Alaska 2013).                                                                                                                                                                                                                                                                                                                               To the extent this                                                                 

implies both findings must be explicit, it is an incorrect statement of the law.                                                                                                                                                                                                                                                                                                                                                               In  Reilly,  

the superior court did make explicit findings on both elements, so we never directly                                                                                                                                                                                                                                                                                                                                                                      

 addressed the question of whether explicit findings were required.                                                                                                                                                                                                                                                                                                                                       Id.   at 1210.                                                             In  

practice, however, we have permitted implicit findings in this context.                                                                                                                                                                                                                                                                                                                                                 In  Barlow v.   

 Thompson, the superior court's child support order incorporated a master's report, and                                                                                                                                                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                                                                                                                                                                                                             (continued...)  



                                                                                                                                                                                                                                         -25-                                                                                                                                                                                                                               7289
  


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

                                                                     b.	                    The court did not err in estimating Fredrickson's earning                                                                                                                        

                                                                                            capacity based on her previous employment.                                                                         



                                              Fredrickson also argues that "income should not have been imputed to her                                                                                                                                                                        



based solely on her income three or more years previously, in jobs she could no longer                                                                                                                                                                                             



obtain."   She argues that "[n]o evidence was presented to show that that job still existed                                                                                                                                                                                      



at the time of trial, or that she could find a similar job at the same pay level." She claims                                                                                                                                                                                      



that the superior court did not make any findings "regarding [her] ability to obtain the                                                                                                                                                                                                      



same work she did in 2006 through 2010, or what the job would pay if she did obtain it,"                                                                                                                                                                                                      



and she criticizes the court for finding that "her income would likely be the same as it                                                                                                                                                                                                  



was in those years" for the purposes of calculating the child support award.                                                                                                                                                               



                                              The   question   presented   here   is   whether,   when   the   superior   court   has  



determined   that the obligor's unemployment or                                                                                                                            underemployment is voluntary                                                                                    and  



unreasonable, the court is required to make explicit findings regarding the availability                                                                



of jobs and the obligor's ability to perform such jobs before imputing income.                                                                                                                                                                                                            We  



conclude that it is not.                                       



                                              Our past cases indicate that when an obligor parent voluntarily leaves her                                                                                                                                                                      



previous employment and unreasonably remains unemployed or underemployed, the                                                                                                                                                                                                                 



                       51                     (...continued)  



                                                                                                                                                                                                                                                                                                            

neither of those made an explicit finding of either unreasonableness or voluntariness.  

                                                                                                                                                                                                                                                                               

221 P.3d 998, 1003 (Alaska 2009).   On appeal, we found the voluntariness finding  

                                                                                                                                                                                                                                                                           

implied and supported by the record, but vacated and remanded because the master's  

                                                                                                                                                                                                                                                                             

failure to address factors relevant to reasonableness left us "unable to determine whether  

                                                                                                                                                                                                  

the implied imputation of income is clearly erroneous."  Id.  We therefore now clarify  

                                                                                                                                                                                                                                                           

that we will not vacate a child support order merely because the findings of voluntariness  

                                                                                                                                                                                                                                                                                             

and unreasonableness are implied rather than explicit, so long as the record indicates that  

                                                                                                                                                                                                                                                                                   

the court properly considered both elements and there is sufficient evidence in the record  

                                                                                                                                                                                                                                                                                      

for us to determine whether the imputation of income was clearly erroneous. That being  

                                                                                                                                                                                                                                                                                                  

said, best practice is for the trial court to make its findings explicit on both elements in  

                     

every case.  



                                                                                                                                              -26-	                                                                                                                                     7289
  


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

court can impute income based on the obligor's previous earnings unless the obligor                                                                                          



demonstrates that she would not be able to achieve a similar income.                                                                                           In  Sawicki v.   



Haxby, the obligor sought a modification and reduction of her child support obligation                                                                                 

                                                                                                                                  52   The superior court found  

after she left one job and took another that paid half as much.                                                                                                                  



that she was voluntarily and unreasonably underemployed, imputed her prior income to  

                                                                                                                                                                                         

her, and denied her motion.53                                     The superior court did not make any specific findings in  

                                                                                                                                                                                         



order to calculate her child support obligation, because it did not need to: a child support  

                                                                                                                                                                             



obligation had already been calculated previously,and thecourt simplydeniedSawicki's  

                                                                                                                                                                        

motion to reduce it.54   On appeal, after determining that the superior court did not clearly  

                                                                                                                                                                               



err  in  finding  the  obligor  voluntarily  and  unreasonably  unemployed,  we  held  that  

                                                                                                                                                                                    



"[g]iven [the mother's] extensive sales experience and savings, it was not error to impute  

                                                                                                                                                                               

                                                                                                          55  In Pugil v. Cogar, the obligor father,  

income to [her] at the salary she recently earned."                                                                                                                             

                                                                                        



who had previously been a commercial fisherman, moved to Texas shortly before trial  

                                                                                                                                                                                     

                                        56  The father asked the court to base his child support obligation on  

to change careers.                                                                                             

                                                                                                       57 Thesuperiorcourtdeclined, reasoning  

his lower prospectiveearnings in his newcareer.                                                                                                                         

                                                                                         



that "it is [the obligor's] earning capacity which [the court] should consider in setting his  

                                                                                                                                                                                       



               52             186 P.3d at 547.
         



               53            Id.
  



               54            Id.
  



               55            Id. at 551.  

                                          



               56             811 P.2d 1062, 1064 (Alaska 1991).                               



               57            Id.  



                                                                                          -27-                                                                                    7289
  


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

                                                                                                                             58  

child support obligation rather than what he actually chooses to make,"                                                          and computed    



                                                                                                                      59  

the father's income by averaging three years of his fishing income.                                                                                   

                                                                                                                          The trial court did  



                                                                                                                                                        

not make any specific findings that any particular fishing opportunity was available to  



                                                                                                                                                    

him.  Rather, the court noted that the father "ha[d] made no showing that he [could ]not  

                                                                             60   On appeal, we affirmed, concluding that  

                                                                                                                                                    

continue to work part time as a fisherman." 

"the superior court considered all of the relevant circumstances."61                                                       We have reached  

                                                                                                                                             



similar results, affirming the superior court's imputation of income based on previous  

                                                                                                                                      

earnings  without  findings  as  to  specific  job  opportunities,  on  several  occasions.62  

                                                                                                                                                             



However, because we acknowledge that our decisions in other cases may have created  

                                                                                                                                              



some uncertainty on this point, we take this opportunity to distinguish those cases and  

                                                                        



clarify our holding.  

                     



                        In two cases, we vacated the superior court's imputation of income for lack  

                                                                                                                                                    



of findings indicating the existence of real employment opportunities that would pay the  

                                                                                                                                                      



imputed amount. In O'Connell v. Christenson, the superior court had estimated imputed  

                                                                                                                                             



income by assuming that a fast food employee would make $20,000 per year and then  

                                                                                                                            



doubling that figure because the obligor "was capable of doing work substantially more  

                                                                                                                                                  

remunerative than that."63  Similarly, in Horne v. Touhakis, the superior court considered  

                                                                                                                                        



the self-employed obligor's estimate of his income, found that he had "underestimate[d]  

                                                                                                                           



            58          Id.  



            59          Id.  



            60          Id.  at   1066.  



            61          Id.  at   1067.  



            62          See  Silvan  v.  Alcina ,  105  P.3d  117,  125  (Alaska  2005);  Olmstead  v.  Ziegler,  



42  P.3d   1102,   1106  (Alaska  2002).  



            63          75  P.3d   1037,   1041  (Alaska  2003).  



                                                                          -28-                                                                    7289
  


----------------------- Page 29-----------------------

the market value of his skills and experience," and without further explanation doubled                                                             



                        64  

the estimate.                                                                                                                                      

                             In both of these cases, the imputed income was based not on previous  

                                                                                                                                             65  about the  

                                                                                                                                                             

                                                                                                                          

income, but on arbitrary multiplication and "the superior court's intuitions" 



obligor's earning capacity, without any evidentiary support. Thisis distinguishable from  

                                                                                                                                                          



the case at hand, where the superior court based the imputation of income on concrete  

                                                                                                                              



evidence as to Fredrickson's previous earnings.  

                                                                         



                         In Petrilla v. Petrilla, we also found an abuse of discretion in the superior  

                                                                                                                                                    

court's imputation of income to the obligor based on his prior salary.66   However, in that  

                                                                                                                                                            



case, the obligor's specific earning capacity was not at issue. The obligor in Petrilla had  

                                                                                                                                                            



moved out of state, and after an extended period of unemployment - during which his  

                                                                                                                                                              



income was imputed at a level equivalent to his previous salary - he eventually found  

                                                                                                                                                        

                                                            67   The obligor then filed a motion to modify his child  

a job with the State of Nevada.                                                                                                                          

                                            

support obligation based on his new employment income.68                                                          The superior court denied  

                                                                                                                                                      



this  motion,  reasoning  that  he  had  waited  an  unreasonable  amount  of  time  before  

                                                                                                                                                      



securing  employment,  and  that  "he  could  have  been  earning  more  than  twice  his  

                                                                                                                                                             

unemployment income had he made the effort."69                                                     On appeal, we vacated the order  

                                                                                                                                                        



denying the request for modification because "[i]n effect, the superior court concluded  

                                                                                                                                                



that[theobligor]was voluntarily and unreasonably underemployedeven after hesecured  

                                                                                                                                                     



             64          356 P.3d 280, 282 (Alaska 2015).
                   



             65          Id.  at 283.
   



             66
         305 P.3d 302, 303 (Alaska 2013).  

                                                                                           



             67          Id. at 304-05.  

                                     



             68          Id.  at 305.   



             69          Id.  



                                                                             -29-                                                                        7289
  


----------------------- Page 30-----------------------

                                                    70  

full-time employment."                                   In other words, we did not conclude that previous earnings                                                        



were an inappropriate basis for determining the amount of imputed income, but rather                                                                                             



that the superior court in that case had failed to show that                                                               any  amount of imputed income                      



was appropriate.   



                             We   reaffirm   the   burden-shifting   mechanism   for   imputed   income   we  

                                                                  71  and conclude that that mechanism applies equally to  

outlined in              Sawicki v. Haxby                        ,                                                                                                                        



determining whether to impute income and to determining how much income to impute.  

                                                                                                                                                                                                



The  obligor's  previous  earnings  can  serve  as  prima  facie  evidence  of  her  earning  

                                                                                                                                                                   



capacity, and the burden is on the obligor to show that no job opportunities are available  

                                                                                                                                                                           



to her that would pay an equivalent amount.   The superior court may not, however,  

                                                                                                                                                                         



impute as income an entirely arbitrary amount with no support in the record, or impute  

                                                                                                                                                                               



income based on previous earnings where there is no indication that the obligor is  

                                                                                                                                                                                          



currently unemployed or underemployed.  

                                                        



                             In this case, Fredrickson points to evidence that she did in fact earn less  

                                                                                                                                                                                      



after 2011, and asserts that there is no indication in the record that either her previous job  

                                                                                                                                                                                        



or a similar job would be available.  However, as we have explained, the burden was on  

                                                                                                                                                                                         



Fredrickson to show that a job of equivalent pay was not available, and we review the  

                                                                                                                                                                                        

amount of income imputed to a child support obligor only for clear error.72   Fredrickson  

                                                                                                                                                                    



never provided any reason for the court to think that if she returned to work full time she  

                                                                                                                                                                                       



would be unable to earn as much income as she did previously in her work as a delivery  

                                                                                                                                                                           



               70            Id.  at 307.   



               71             186 P.3d 546, 548-49 (Alaska 2008) ("Once the primary custodian has                                                                                     



made out a prima facie case of voluntary and unreasonable underemployment the burden                                                                                            

of persuasion shifts to the obligor to rebut that claim.").  

                                                                                                        



               72            Reilly v. Northrop, 314 P.3d 1206, 1212 (Alaska 2013).  

                                                                                                                                          



                                                                                           -30-                                                                                    7289
  


----------------------- Page 31-----------------------

 driver.    Thus, the superior court did not clearly err in relying on Fredrickson's past                                                                                                                                                                                                                                                                                          



 income to determine her earning capacity.                                                                                                            



                                                             b.	                           Fredrickson's proposed return to school did not justifya    change  

                                                                                           to the imputed income calculation.                                                                            



                                                             Fredrickson also argues that her plan to return to school justified a change                                                                                                                                                                                                                         



 to her calculated imputed income, relying on our cases that instruct trial courts "to                                                                                                                                                                                                                                                                                                 



 consider   all   the   circumstances   of   [a]   change   in   employment   to   determine   [child  



                                               73  

 support]."                                                                                                                                                                                                                                                                                                                                                                                 

                                                              When a superior court makes decisions about how a parent's plans to  



                                                                                                                                                                                                                                                                                                                                                                               

 change careers will impact a child support award, we have held that the court must  



                                                                                                                                                                                                                                                                                                                                                                         

 consider the needs of the child, the ability of the custodial parent to meet those needs,  



                                                                                                                                                                                                                                                                                                                          74  

                                                                                                                                                                                                                                                                                                                                                                                   

 and the parent's work history, qualifications, and job opportunities.                                                                                                                                                                                                                                                                  We have also  



                                                                                                                                                                                                                                                                                                                                                       

 cautioned that "Rule 90.3(a)(4) does not rigorously command pursuit of maximum  



                               73                           Pugil v. Cogar                                                      , 811 P.2d 1062, 1066 (Alaska 1991) (second alteration in                   



 original);   see Beaudoin v. Beaudoin                                                                                                                                   , 24 P.3d 523, 529-31 (Alaska 2001) (reversing                                                                                                                                

 summary judgment where all circumstances surrounding mother's decision to remain                                                                                                                                                                                                                                                                                      

 unemployed even after reducing custody from full-time to only a third of the time raised                                                                                                                                                                                                                                                                                   

 agenuineissueofmaterial fact regarding whethershewas "voluntarily                                                                                                                                                                                                                                                      and unreasonably  

 unemployed"); Pattee v. Pattee, 744 P.2d 658, 662 (Alaska 1987),                                                                                                                                                                                                                                               overruled on other   

grounds by Nass v. Seaton                                                                                                 , 904 P.2d 412 (Alaska 1995) ("[T]he judge [is] to consider  

 the nature of the changes and the reasons for the changes, and then to determine whether,                                                                                                                                                                                                                                                                      

 under all the circumstances, a modification is warranted." (quoting                                                                                                                                                                                                                                               In re Marriage of                                                         

Rome v. Rome                                                     , 621 P.2d 1090, 1092 (Mont. 1981)));                                                                                                                                     see also Flannery v. Flannery                                                                                                          , 950   

 P.2d 126, 131, 133 (Alaska 1997) (remanding for the superior court to consider whether                                                                                                                                                                                                                                                                           

 reduced income from medical practice justified a change in child support obligations);                                                                                                                                                                                                                                                      

Arndt v. Arndt                                                    , 777 P.2d 668, 669-70 (Alaska 1989) (remanding for the superior court                                                                                                                                                                                                                                       

 to modify child support awards where father's income decreased by more than 50%,                                                                                                                                                                                                                                                                                             

 mother's income increased, and child custody significantly changed);                                                                                                                                                                                                                                                    Curley v. Curley                                                            ,  

 588 P.2d 289, 292-93 (Alaska 1979) (refusing to modify child support award where                                                                                                                                                                                                                                                                                         

 father argued his income had decreased by about $400 per month and his expenses now                                                                                                                                                                                                                                                                                               

 exceeded his income).                                                                                  



                               74                            See Beaudoin, 24 P.3d at 528 n.14; Pugil, 811 P.2d at 1066.  

                                                                                                                                                                                                                                                                                                                                               



                                                                                                                                                                                           -31-	                                                                                                                                                                                 7289
  


----------------------- Page 32-----------------------

                    75  

earnings."               And the Commentary to Civil Rule 90.3 provides that "[w]hen a parent                                                                



makes a career change, this consideration should include the extent to which the children                                                                 



                                                                                76  

will ultimately benefit from the change."                                             



                                                                                                                                          

                          In Pattee v. Pattee we held that a non-custodial parent who voluntarily  



                                                                                                                                             

reduced his income to return to school should not automatically receive a corresponding  



                                                                                                                                                             

reduction  in  his child support obligation  because the children  and  custodial parent  

                                                                                                                                             77  In Olmstead  

                                                                                                                                                       

"should not be forced to finance the noncustodial parent's career change." 



v.  Ziegler  the superior court concluded that a father's decision "to  quit  the private  

                                                                                                                                                            



practice of law and undertake training for a new career cannot be viewed as anything but  

                                                                                                                                                                    

a voluntary move on his part."78                                  We affirmed the superior court's decision.79                                             And in  

                                                                                                                                                                      



Pugil v. Cogar we upheld the superior court's determination that the father's support  

                                                                                                                                                           



obligation should becalculated based on his potential incomeas acommercialfisherman,  

                                                                                                                                                      



rather than his actual income, even though the father had plans to continue his education  

                                                                                                                                                       

                                                       80   The father in Pugil asked the court to compute his child  

and leave his fishing career.                                                                                                                                   

                                          



support obligation based on his prospective earnings as a welder - the new career he  

                                                                                                                                                        



wished to pursue -  but the superior court stated that it would instead consider his  

                                                                                                                                                                    



earning capacity as a fisherman "rather than what he actually chooses to make" because  

                                                                                                                                                          



              75          Beaudoin, 24 P.3d at 530.                  



              76          Alaska R. Civ. P. 90.3 cmt. III(C).                     



              77          744 P.2d at 662.  

                                                  



              78          42 P.3d 1102, 1105 (Alaska 2002).  

                                                                                   



              79          Id.  at 1107.   



              80          811 P.2d 1062, 1067 (Alaska 1991).  

                                                                                     



                                                                                 -32-                                                                           7289
  


----------------------- Page 33-----------------------

                                                                                                                                                 81  

"his unilateral decision to go to school should not affect his child support obligation."                                                             



                                                                                                                                                  

We  upheld  the  court's  decision,  noting  that  the  father  could  work  part-time  as  a  



                                       82  

                      

commercial fisherman. 



                                                                                                                                                

                        At the same time, "we do not believe that an obligor-parent should be  



                                                                                                                            

'locked in' to a particular job or field during the minority of his or her children when  



                                                                                                                               

accepting a lower paying position may ultimately result in personal or professional  

                          83  We have ultimately explained that "[t]he [j]udge [is] to consider the  

advancement."                                                                                                                                  



nature of the changes and the reasons for the changes, and then to determine whether,  

                                                                                                                                     

under all the circumstances, a modification is warranted."84  

                                                                               



                       Fredrickson testified that she planned to return to school to study nursing  

                                                                                                                                       



because she did not have a passion for bartending or truck driving, explaining that her  

                                                                                                      



brother's death caused her to realize that she should do something to make a difference  

                                                                                                                                   



for others.  She also explained that truck driving and bartending make it too difficult for  

                                                                                                                                                



her to exercise shared custody.  While acknowledging that she had not yet solidified  

                                                                                                                                    



these plans to return to school, she argued that the ongoing litigation made it impossible  

                                                                                                                                  



to plan her return. Fredrickson contends that the superior court failed to make sufficient  

                                                                                                                                     



findings regarding her plans to return to school under Pattee 's requirement that the court  

                                                                                                                                            



consider her "reasons for returning to school, the other income available to the parties,  

                                                                                                                                        



and the reasonable needs of [her child]" when calculating her child support obligations.  

                                                                                                                                                      



           81          Id .  at   1064.  



           82          Id .  at   1066-67.  



           83          Nass  v.  Seaton,  904  P.2d  412,  418  (Alaska  1995)  (quoting  Pattee  v.  Pattee,  



744  P.2d  658,  662  (Alaska   1987)).    



           84          Id .  (quoting  Pattee,  744  P.2d  at  662)  (third  alteration  in  original).  



                                                                      -33-                                                                 7289
  


----------------------- Page 34-----------------------

                                                                 But the superior court did take Fredrickson's plans to return to school into                                                                                                                                                                                                                                                                     



consideration.   The court stated that Fredrickson "has expressed an interest in attending                                                                                                                                                                                                                                                                                             



nursing school, but has yet to take any classes."                                                                                                                                                                                        It is clear from the court's order that it                                                                                                                                           



concluded that Fredrickson's proposed return to school did not justify a change to the                                                                                                                                                                                                                                                                                                                                



imputed income calculation. This conclusion was not clearly erroneous. For this reason,                                                                                                                                                                                                                                                                                                            



and for the reasons discussed above, we conclude that it was not abuse of discretion for                                                                                                                                                                                                                                                                                                                               



the court to impute income to Fredrickson based on her previous earnings from 2006 to                                                                                                                                                                                                                                                                                                                                       



2010.  



                                                                 2.	                              The superior court did not err by declining to impute income to                                                                                                                                                                                                                                                          

                                                                                                  Button.  



                                                                 Fredrickson argues that the superior court erred in failing to impute income                                                                                                                                                                                                                                                     



to Button for 2010 through 2012.                                                                                                                                    She argues that Button was "capable of earning well                                                                                                                                                                                         



over $100,000 per year" but that "in relevant years [between 2010 and 2012], he had                                                                                                                                                                                                                                                                                                                                



much less, or no[,] employment income, for very unclear reasons."                                                                                                                                                                                                                                                                    Fredrickson claims   



that because Button's "tax returns show himbeing almost totally unemployed from2009                                                                                                                                                                                                                                                                                                                          



until sometime in 2011[] and earning far below his historic and future income in 2011                                                                                                                                                     



and 2012" and because "the [superior] court made no findings whatsoever regarding                                                                                                                                                                                                                                                                                                    



whether he was voluntarily unemployed or underemployed during that time," "it was an                                                                                                                                                                                                                                                                                                                                      



abuse of discretion for the [superior] court not to consider imputing income to [Button]                                                                                                                                                                                                                                                                                                   



during this period."                                   



                                                                 Typically, "[i]n making                                                                                           retrospective  rather than                                                                                              prospective  child support   

                                                                                                                                                                                                                                                                                                                                                                                                        85  The  

awards actual income rather than earlier predictions as to income should be used."                                                                                                                                                                                                                                                                                                                                



 superior court followed this rule.  It imputed income to Fredrickson based on her future  

                                                                                                                                                                                                                                                                                                                                                                                                        



earning capacity to determine the prospective child support award, and it used Button's  

                                                                                                                                                                                                                                                                                                                                                                                           



                                 85  

                                                                                                                                                                                                                                                                                                                                                                                                   

                                                                 Spott v. Spott, 17 P.3d 52, 56 (Alaska 2001) (emphasis added) (citing  

                                                                                                                                                                                                                                                                                

 Crayton v. Crayton, 944 P.2d 487, 490 (Alaska 1997)).  



                                                                                                                                                                                                         -34-	                                                                                                                                                                                                7289  


----------------------- Page 35-----------------------

                                                                                                                                                                                                                           86  

actual income from 2010 through 2012 to calculate the retrospective award.                                                                                                                                                        It would   



have been improper to impute income to Button pursuant to Rule 90.3(a)(4) for past                                                                                                                                                              



years, and we conclude that the court did not err in not imputing income to Button for                                                                                                                               

                                                                                                                                                                                             87      It therefore did not  

the purposes of calculating the retrospective child support award.                                                                                                                                                                                 



need to make findings about Button's unemployment during that period.  

                                                                                                                                                                                               



                   D.	                 The Superior Court Did Not Err In Concluding That Attorney's Fees  

                                                                                                                                                                                                                                              

                                       Should Be Awarded Under Rule 82.  

                                                                                                                                             



                                       After trial Button moved for an award of attorney's fees as the prevailing  

                                                                                                                                                                                                                              

party under Rule 82(a) and (b)(1).88  

                                                                                                                                                                                                                                                      

                                                                                                            Typically, Rule 82 permits the prevailing party to  



                                                                                                                                                                                                                                             

be awarded attorney's fees. However, we have held that attorney's fees in divorce cases  



                    86                 For example, the superior court included in Button's 2010 income a large                                                                                                                            



capital gain he received from the sale of his duplex.                                                                                                          Specifically, the superior court                                             

determined Button's support obligation for 2011, 2012, and 2013 by relying on the                                                                                                                                                                 

actual resources he had available, namely $33,057.40 in 2011, $49,158.04 in 2012, and                                                                                                                                                            

$80,882.48 in 2013, as his tax returns reflected.                                                                                                 Button did not appeal the superior                                               

court's calculation of his income. Fredrickson only challenged                                                                                                                                   the superior court's                 

decision not to impute income to Button, as discussed in Section IV.C.2. Thus, we need                                                                                                                                                        

not consider whether the superior court otherwise erred in its income calculations.                                                                                                                        



                    87                 Fredrickson  raises  a  similar  argument  about  the  court's  imputation  of  

                                                                                                                                                                                                                                                     

income to her for 2014, but she failed to raise it until her reply brief, and "we will not  

                                                                                                                                                                                                                                                  

consider issues raised for the first time in a reply brief."  Crane v. Crane, 986 P.2d 881,  

                                                                                                                                                                                                                                               

887 n.14 (Alaska 1999) (citing Alaska R. App. P. 212(c)(3); McGee v. McGee, 974 P.2d  

                                                                                                                                                                                                                                               

983, 989 (Alaska 1999); Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411 n.8 (Alaska  

                                                                                                                                                                                                                                     

 1990)).  



                    88                 Alaska R. Civ. P. 82(a) ("Except as otherwise provided by law or agreed  

                                                                                                                                                                                                                                

to by the parties, the prevailing party in a civil case shall be awarded attorney's fees  

                                                                                                                                                                                                                                                

calculated under this rule."); Alaska R. Civ. P. 82(b)(1) (requiring the court to adhere to  

                                                                                                                                                                                                                                                      

a specific schedule in fixing the amount of attorney's fees awarded).  

                                                                                                                                                                                                          



                                                                                                                        -35-	                                                                                                                7289
  


----------------------- Page 36-----------------------

should be "based on the relative economic situations and earning powers of the parties"                                                  89  



                                                                                                        

rather than prevailing party status, to ensure that "both spouses have the proper means  

                                                                                         90   And we have extended this  

                                                                                                                                      

                                                                              

to litigate the divorce action on a fairly equal plane." 



divorce  exception  to  quasi-divorce  actions  involving  child  custody  and  support  

                                                                                                                               

proceedings between unmarried couples.91  

                                                                        



                      Fredrickson contends that the issue of child support was part of the initial  

                                                                                                                                   



custody case but was reserved for later determination when the custody issues were  

                                                                                                                                    

settled.92      She argues that Alaska law precludes a Rule 82 award of fees in this case, as  

                                                                                                                                         



the facts resemble those in Bergstrom v. Lindback. The superior court disagreed, finding  

                                                                                                                                 



that the "issues being litigated do not resemble a divorce case, but rather involve issues  

                                                                                                                                   



relating to long past due child support" that were "strictly about money and arose long  

                                                                                                                                     



after the parties split up as a couple."  The court therefore awarded Button attorney's  

                                                                                                                            



fees.  



           89        Kowalski  v.  Kowalski,  806  P.2d   1368,   1372  (Alaska   1991).  



           90        Lone   Wolf  v.  Lone   Wolf,  741  P.2d   1187,   1192  (Alaska   1987).  



           91        Bergstrom  v.  Lindback,  779  P.2d   1235,   1238  (Alaska   1989)  (holding  that  



because  the  case  "between  unmarried  individuals  was  limited  to  issues  of  child  custody  

and  support,"  the  award  of  attorney's  fees  "should  be  governed  by  the  standard  used  in  

divorce  actions"  such that attorney's  fees are  "based  on  the  parties' relative  economic  

situations  and  earning  powers").  



           92         Fredrickson also argues that the parties agreed to bear their own costs and  

                                                                                                                                       

fees in the  settlement agreement, and the  superior court  should have  "honor[ed] the  

                                                                                                                                       

parties' express agreement that no attorney's fees would be awarded."  However, as the  

                                                                                                                                        

superior court found, "[w]hile the parties did agree to settle a portion of the case, the  

                                                                                                                                       

issue of past child support was expressly excepted out of the agreement and has been  

                                                                                                                                     

hotly litigated," suggesting that the attorney's fees agreement in the settlement document  

                                                                                                                             

applies only to the portion of the dispute settled there.  

                                                                                         



                                                                   -36-                                                             7289
  


----------------------- Page 37-----------------------

                                     We agree with the superior court's analysis. Typically, we decline to apply                                                                                                                 



the divorce exception to cases involving child support issues between unmarried parties.                                                                                                                                                           



In  Sanders v. Barth                                   we explained that                                   



                                     the divorce exception to Rule 82 should remain an exception                                                                                

                                     to the rule, not the rule itself.                                                        If a case does not closely                               

                                     resemble a divorce action or if it does not involve the kinds                                

                                     of issues - such as the initial determination of custody and                                                                                                

                                     child   support   -   that  generally   arise   in   the   immediate  

                                     aftermath of a long-term relationship break-up, the superior  

                                                                                                                                                                                                      

                                     court should not apply the divorce exception to the award of  

                                                                                [93]  

                                                                   

                                     attorney's fees. 



We refused to apply the divorce exception in Sanders because the case was "strictly  

                                                                                                                                                                                                                         



about money" and the parties were "litigating child support issues more than ten years  

                                                                                                                                                                                                         

after their relationship broke up."94  

                                                                                 



                                     Here, Button brought the underlying custody action in 2013, almost seven  

                                                                                                                                                                                                                                



years after the parties separated. Of greater significance, the child support portion of this  

                                                                                                                                                                                                                                       

case is "strictly about money."95  The parties participated in a settlement conference at  

                                                              



which they resolved the custody issues, but they expressly reserved issues of past and  

                                                                                                                                                                                                                                      



present child support for later resolution by the court.   This weighs in favor of not  

                                                                                                                                                                                                                                      



applying the divorce exception.   We conclude that the superior court did not err in  

                                                                                                                                                                                                                                          



determining that Rule 82(a) and (b)(1) was the correct standard to apply in this case.  

                                                                                                                                                                                                                                             



                                     But because we are reversing one of the superior court's decisions and  

                                                                                                                                                                                                                                     



remanding for further proceedings, the court's determination of the prevailing party and  

                                                                                                                                                                                                                                      



                   93                 12 P.3d 766, 768 (Alaska 2000).                                         



                   94                Id . at 769.     



                   95                Id .  



                                                                                                                  -37-                                                                                                            7289
  


----------------------- Page 38-----------------------

its fee award to Button must be vacated.                                                                                                                                                                                            The court can revisit the attorney's fee issue                                                                                                                                                                                    



after it decides nature and appropriate treatment of the Japanese payment.                                                                                                                                                                                                                                                                                             



V.                                    CONCLUSION  



                                                                           We VACATE the superior court's decision to treat Fredrickson's money  



from   the   Japanese   government   as   income   when   calculating   the   retrospective   child  



 support award and REMAND for a determination of the exact nature of that payment and                                                                                                                                                                                                                                                                                                                                                                                          



a recalculation of the retrospective award consistent with this opinion. We AFFIRM the                                                                                                                                                                                                                                                                                                                                                                                            



court's decision to apply Rule 90.3 in its calculation of retrospective child support. We                                                                                                                                                                                                                                                                                                                                                                                      



AFFIRM the court's decision to impute income to Fredrickson, AFFIRM the court's                                                                                                                                                                                                                                                                                                                                                                           



decision not to impute income to Button, and VACATE the award of attorney's fees to                                                                                                                                                                                                                                                                                                                                                                                                    



Button.   We do not retain jurisdiction.                                                                                                        



                                                                                                                                                                                                                                       -38-                                                                                                                                                                                                                             7289
  


----------------------- Page 39-----------------------

 BOLGER, Justice, dissenting.                                                         



                                                             Thesuperiorcourtfoundthat                                                                                                     ShelleyFredrickson                                                                         left her employment                                                                       after  



receiving $300,000 in settlement payments from the government of Japan.                                                                                                                                                                                                                                                                                    But this   



 court's   decision   requires   the   superior   court   to   reconsider   whether  Fredrickson's  



 compensation payment should be considered income for child support purposes.                                                                                                                                                                                                                                                                                           In my   



 opinion, the evidence is sufficient to support the superior court's conclusion.                                                                                                                                                                                                                                                                                      When  



 Forest   Button's   counsel   asked,   "Did   you   receive   a   settlement   from Japan                                                                                                                                                                                                                                                                  for   your  



brother?" (Emphasis added.) Fredrickson responded, "Yes, I did." She then confirmed                                                                                                                                                                                                                                                                    



that the settlement was $300,000 and that she received it in 2012.                                                                                                                                                                                                          



                                                            Many cases from other states hold that settlement payments should be                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                              1              These  cases  are  consistent  with  

treated   as   income   for   child  support   purposes.                                                                                                                                                                                                                                                                                                                     



                               1                            Stuart   v.   Stuart,    260    S.W.3d    740    (Ark.    App.   2007)    (holding    that  



 class-action settlement fell within the definition of "income" for child support purposes);                                                                                                                                                                                                                                                          

Slaughter v. Slaughter                                                                                , 867 A.2d 976 (D.C. 2005) (defamation settlement);                                                                                                                                                                                        Mayfield v.   

Mayfield, 989 N.E.2d 601 (Ill. 2013) (workers' compensation settlement);                                                                                                                                                                                                                                                                             Carmer v.   

 Carmer, 45 N.E.3d 512 (Ind. App. 2015) (structured settlement payments from personal                                                                                                                                                                                                                                                                          

 injury settlement);                                                                Chapman v. Evans                                                                         , No. 01-2060, 2002 WL 31528541 (Iowa App.                                                                                                                                                       

 2002) (lump sum wrongful termination settlement);                                                                                                                                                                                     Guidry v. Guidry                                                              , 6 So. 3d 845 (La.                                           

App.2009)(paymentsfrompersonal                                                                                                                                     injury settlement);                                                                Good v. Armstrong, 554N.W.2d                                                                                

  14 (Mich. App. 1996) (personal injury settlement);                                                                                                                                                                                     Sherburne Cty. Soc. Servs. ex rel.                                                                                                          

Schafer v. Riedle,                                                             481 N.W.2d 111 (Minn. App. 1992) (structured settlement payments);                                                                                                                                                                                                  

 Taranto v. State Dep't of Soc. Servs.                                                                                                                            , 962 S.W.2d 897 (Mo. App. 1998) (personal injury                                                                                                                                                       

 settlement payments);                                                                                 In re State ex rel. Taylor                                                                                        , 904 A.2d 619 (N.H. 2006) (personal                                                                                             

 injury settlements);                                                                   Cleveland v. Cleveland                                                                                     , 592 A.2d 20 (N.J. Super. App. Div. 1991)                                                                                                                             

 (personal injury settlement lump sum);                                                                                                                                         Mirkin v. Mirkin                                                            , 842 N.Y.S.2d 548 (App. Div.                                                                                        

 2007) (lawsuitsettlement);                                                                                             Spicer v. Spicer                                                      , 607 S.E.2d 678 (N.C. App.2005)                                                                                                                       ("income"  

 in child support guidelines included awards intended to compensate for non-economic                                                                                                                                                                                                                                                

 loss);   Dupay   v.   Dupay,   782   N.W.2d   42   (N.D.   2010)   (personal   injury   settlement);  

Herrera v. Herrera                                                                        , 298 P.3d 1209 (Okla. Civ. App. 2013) (sexual abuse settlement                                                                                                                                                                                            

payments);  Arneson v. Arneson                                                                                                                    , 670 N.W.2d 904 (S.D. 2003) (medical malpractice                                                                                                                                            

 settlement   proceeds);   Lyman   v.   Lyman,   795   N.W.2d   475   (Wis.   2011)   (wrongful  

                                                                                                                                                                                                                                                                                                                                          (continued...)  



                                                                                                                                                                                          -39-                                                                                                                                                                                 7289
  


----------------------- Page 40-----------------------

Civil Rule 90.3(a)(1), which defines child support income to include "the parent's total                                                                               



income from all sources."                                 The commentary                        explains that "[t]his phrase should                                       be  



interpreted broadly to include benefits which would have been available for support if                                

                                                                2   The settlement funds that Fredrickson received easily  

the family had remained intact."                                                                                                                                    



fit  within  this  broad  definition.                                    The  superior  court  found,  "After  receiving  the  

                                                                                                                                                                        



disbursement, Ms. Fredrickson quit her job and lived solely on the $300,000."  

                                                                                                                                         



                           But even if these funds are characterized as a gift, they should be counted  

                                                                                                                                                                



as part of Fredrickson's income. In Crayton v. Crayton, this court distinguished between  

                                                                                                                                                               



the  treatment  of  one-time  gifts  and  inheritances  in  actions  involving  retrospective  

                                                                                                                                                    



calculations of child support and the treatment of one-time gifts and inheritances in  

                                                                                                                                                                           

actionsinvolving prospective calculationsofchild support.3  Morespecifically, this court  

                                                                                                                                                                      



distinguished between (1) reimbursement-type child support calculations where a court  

                                                                                                                                                                     



is asked to retrospectively calculate a parent's child support obligation for periods in the  

                                                                                                                                                                          



past where no child support order existed and (2) prospective child support calculations  

                                                                                                                                                        



where a court is asked to determine a parent's future obligations based on expected  

                                                                                                                                                             

future income.4  

              



                           In Crayton, a father brought a motion for reimbursement of child support  

                                                                                                                                                                

from the mother for a period during which no child support order existed.5                                                                              At trial, the  

                                                                                                                                                                         



father argued that certain one-time monetary gifts the mother had received should be  

                                                                                                                                                                           



              1            (...continued)  



                         

termination settlement).  



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

                                                                                    



              3            944 P.2d 487, 490 (Alaska 1997).  

                                                                                   



              4            Id .  



              5            Id . at 488.     



                                                                                    -40-                                                                             7289
  


----------------------- Page 41-----------------------

included in her income for the purpose of determining her child support obligation for               



                     6                                                                                                                       7  

that period.                                                                                                                                           

                        The trial court rejected the father's request under Nass v. Seaton,  but this  



                                                    

court reversed, holding that  



                                                                                                                            

                        [i]n cases such as Nass, where the court must establish a child  

                                                                                                                                 

                        support obligation for the future, the inclusion as income of  

                                                                                                                              

                        a one-time gift or an inheritance would unfairly inflate that  

                                                                                                                                      

                        obligation  beyond  the  obligor's  reliable  future  resources.  

                                                                                                                                

                        However, in this case, [the mother]'s future payments are not  

                                                                                                                      

                        at issue and no question exists as to whether she will continue  

                                                                                                                   

                        to receive the gifts. Becausethe superior court will determine  

                                                                                                                                

                        [the mother]'s income only in retrospect . . . it is fair for the  

                                                                                                                         

                        court to  base the amount of reimbursement on  the  actual  

                                                                                                                          [  ]  

                                                                                                                           8 

                                                                                                              

                        resources available to [the mother] during that period. 



This precedent permitted the trial court in this case to count the funds from Japan as  

                                                                                                                                                         



income, since the funds wereused in calculating aretrospective, rather than a prospective  

                                                                                                                                        



award.  I see no reason to overturn that precedent in this case.  

                                                                                                        



                        In my opinion, the trial court did not err when it included Fredrickson's  

                                                                                                                                    



settlement funds as income in its calculation of her child support obligation during a  

                                                                                                                                                           



period when no child support order existed.  The funds were actual resources available  

                                                                                                                                             



to Fredrickson, "which would have been available for support if the family had remained  

                                                                                                                                             

intact."9  



            6           Id . at 489.     



            7           904 P.2d 412 (Alaska 1995).  

                                                                 



            8           Crayton, 944 P.2d at 490 (citations omitted).                     



            9  

                                                                            

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



                                                                           -41-                                                                    7289
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC