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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Christopher D. v. Krislyn D. (9/21/2018) sp-7303

Christopher D. v. Krislyn D. (9/21/2018) sp-7303

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

CHRISTOPHER  D.,                                                 )  

                                                                 )          Supreme  Court  Nos.  S-16586/16626  

                                Appellant  and                   )  

                                Cross-Appellee,                  )          Superior  Court  No.  4FA-14-01381  CI  



                                                                 )         O P I N I O N  



KRISLYN D.,                                                                                                             

                                                                 )         No. 7303 - September 21, 2018  



                                Appellee and                     )  

                                Cross-Appellant.                 )  




                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                      Fourth Judicial District, Fairbanks, Michael P. McConahy,  



                      Appearances:  Margaret O'Toole Rogers, Foster & Rogers,  


                      LLC,        Fairbanks,           for     Appellant           and      Cross-Appellee.  


                      Daniel  L.  Callahan,  Callahan  Law  Office,  Fairbanks,  for  


                      Appellee and Cross-Appellant.  


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


                      Bolger, Justices.  [Carney, Justice, not participating.]  


                      MAASSEN, Justice.  



                      Following a protracted custody dispute, the superior court awarded the  


mother primary physical custody of a couple's two children and ordered the father to pay  


child support.  Both parents appeal.  The father contends that the superior court abused  

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

its discretion when it refused to vary his child support obligation pursuant to the "good                                                                                                                                                             

cause" exception of Alaska Civil Rule 90.3(c)(1), given the parents' disparate incomes                                                                                                                                                         

and the expenses the father was incurring to comply with conditions on his visitation.                                                                                                                                                                                      

The mother contends that the superior court erred in setting the child support order's                                                                                                                                                            

effective date.   

                                         We conclude that the superior court did not abuse its discretion by denying                                                                                                                            

a "good cause" variance because the evidence did not support it.                                                                                                                                     But it was error not to                                       

expressly consider child support for the period between the parties' separation and the                                                                                                                                                                        

order's   effective   date.     We   remand  the child                                                                                           support   issue   for   further   proceedings  

consistent with this opinion.                                                             

II.                  FACTS AND PROCEEDINGS                        

                                         Christopher D. and Krislyn D. were married in 1996 and have two minor                                                                                                                                        



                                   Christopher was a city police officer and Krislyn was a veterinarian who  


owned  her  own  practice.                                                            The  couple  separated  in  January  2014  after  Christopher  


allegedly committed an act of domestic violence while under the influence of alcohol.  


In February Krislyn filed a complaint for legal separation, which was later converted to  


a divorce.  Both her complaint and Christopher's answer asked that child support be set  


pursuant to Alaska Civil Rule 90.3.  The superior court approved an interim custody  


schedule by which Krislyn had custody of the children 9 of every 14 nights on an  


alternating two-week schedule.  Neither party pursued a request for child support until  


the custody trial over two years later.  


                                         Christopher resigned from the police force in August 2014, and the parties  


briefly reconciled. But in November they separated again, this time for good, following  


another alleged incident of domestic violence fueled by alcohol.  



                                         We use initials to protect the parties' privacy.  

                                                                                                                                -2-                                                                                                                                   7303  

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


                    In January 2015 Christopher was arrested for driving under the influence  


and possessing a firearm while intoxicated.  In the divorce case the court approved the  


parties'  stipulation  to  a  temporary   custody  order  which,  among  other  things,  


reestablished the alternating two-week custody schedule, prohibited Christopher from  


driving  with  the  children,  and  required  him  to  submit  to  blood  alcohol  testing  at  


Krislyn's  request.            A  custody  investigation  was  delayed  because  of  Christopher's  


pending criminal charges, which in turn delayed the trial.  


                    The parties settled their property issues in October 2015, but permanent  


custody remained to be decided. A few weeks later Christopher was arrested for driving  


under theinfluence, reckless endangerment, violating conditions of release, and resisting  


arrest, and Krislyn moved for modification of the temporary custody order.  The court  


granted her motion in December:   its order granted Krislyn sole legal and physical  


custody, conditioned Christopher's contact with the children on his wearing an ankle  


monitor, and required that his visitation be supervised by a third party.   Christopher  


sought treatment for substance abuse and in March 2016 graduated successfully from a  


chemical dependency program. He wore the ankle monitor as required for visitation and  


continued with therapy. His pending criminal charges were ultimately resolved by a plea  




                    A custody trial was scheduled for November 2016. Krislyn asked for child  


support effective November 1, 2015, the month after entry of the property settlement and  


divorce decree, on grounds that "[p]rior to entry of the Decree of Divorce, there was an  


informal interim financial arrangement . . . regarding on-going joint expenses such as . . .  


child support," and the decree "settled any potential claim by either party in regard to  


interim financial matters, including child support."   Christopher asked that his child  


support  obligation  be  waived  pursuant  to  the  "good  cause"  exception  of  Civil  

                                                                -3-                                                         7303

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


Rule 90.3(c)(1), citing the disparity between his income and Krislyn's and the ongoing  


expenses of his therapy and the court-ordered conditions on visitation.  


                    In December 2016 the superior court issued written findings of fact and  


conclusions of law, a custody decree, and a child support order.  The court adopted the  


parties' agreement that Krislyn continue to have sole legal and primary physical custody.  


It found that Christopher had successfully maintained sobriety for at least six months, but  

it approved his proposals - also recommended by the custody investigator - that he  


continue to engage in "an after-care programregarding his alcohol abuse and addiction,"  


complete  a  parenting  class,  undergo  a  psychological  evaluation  and  follow  all  its  


recommendations, and keep Krislyn informed of his progress in all these areas.  But the  


court released Christopher from both the ankle-monitor condition on contact with the  


children  and  the  third-party  supervision  requirement,  allowing  his  father  and  his  


significant other to act as visitation supervisors.  


                    The court also ordered Christopher to pay child support pursuant to the  


formula of Civil Rule 90.3.   The court denied Christopher's request for a variance,  


concluding that "[d]isparity of earning potential does not, in this case, obviate the need  


for support to be calculated pursuant to Civil Rule 90.3."   The child support order  


provided that Christopher's payments were to commence the next month, on January 1,  



                    Both parties timely appealed.  Christopher challenges the superior court's  


refusal to apply a variance to his child support obligation to reflect his ongoing expenses  


and the parties' disparity of income. Krislyn challenges the court's selection of the child  


support order's effective date.  

                                                               -4-                                                         7303

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

III.	         STANDARD OF REVIEW                       

                             " '[W]e reverse child support awards only if the superior court abused its                                                                             

discretion or applied an incorrect legal standard,' or if 'its factual findings are clearly                                                                                


erroneous.' "                    "A superior court abuses its discretion by making a decision that is                                                                                



arbitrary, capricious, manifestly unreasonable, or . . . stem[s] froman improper motive." 


"Abuse of discretion occurs when a trial court fails to consider statutorily mandated  



factors, weighs factors improperly, or includes improper factors in its decision." 


                             "We review de novo the trial court's determination of the inception date for  



a child support obligation." 

IV.	          DISCUSSION  


              A.	            The Superior Court Did Not Abuse Its Discretion By Declining To  


                            VaryChristopher'sChildSupport ObligationPursuant To The"Good  


                             Cause" Exception Of Civil Rule 90.3(c)(1).  


                             Christopher contends that the superior court abused its discretion when it  


refused to vary his child support obligation pursuant to the "good cause" exception of  


Civil Rule 90.3(c)(1).  In support of this argument he contends that Krislyn's earning  


capacity - which he asserts is over twenty times his own - "is more than adequate by  


itself to provide for the children's needs"; that the amount he is required to pay under the  


child  support  order  therefore  "significantly  exceeds  the  amount  of  the  children's  

              2             Mitchell v. Mitchell                      , 370 P.3d 1070, 1076 (Alaska 2016) (footnote omitted)                                            

(first quoting               Koller v. Reft               , 71 P.3d 800, 804 (Alaska 2003); and then quoting                                                           Limeres  

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

              3             Sharpe v. Sharpe, 366 P.3d 66, 68 (Alaska 2016) (alterations in original)  


(quoting Morris v. Horn, 219 P.3d 198, 203-04 (Alaska 2009)).  


              4             Ruppe v. Ruppe, 358 P.3d 1284, 1289 (Alaska 2015) (quoting Michele M.  


v. Richard R., 177 P.3d 830, 834 (Alaska 2008)).  


              5             Skinner v. Hagberg, 183 P.3d 486, 488-89 (Alaska 2008).  


                                                                                          -5-	                                                                                7303

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

reasonable needs"; and that his contribution "provides little more than a token benefit to                                                                                                                                                 

the children."  Christopher further asserts that the substance abuse aftercare, parenting                                                                                                 

classes, and other court-ordered visitation conditions "cost a substantial investment of  

both time and money" and that he cannot afford to pay child support while also bearing                                                                                                                                     

these costs and the expenses of daily living.                                                                               

                                     "The superior court may vary a support award calculated under Rule 90.3                                                                                                                        

only 'for good cause upon proof by clear and convincing evidence that manifest injustice                                                                                                                                 

                                                                                                                                                         6      "Good cause may include a  

would result if the support award were not varied.' "                                                                                                                                                                                       

finding that unusual circumstances exist which require variation of the award in order  


to award an amount of support which is just and proper for the parties to contribute  


toward the nurture and education of their children."7                                                                                               To justify a good cause variation,  


a finding of unusual circumstances must be followed by a finding that "these unusual  


circumstances make application of the usual formula unjust."8  


                                     We conclude that the superior court did not abuse its discretion when it  


found that the parties' disparity in income did not justify a good cause variation.  We  


observed in Laughlin v. Laughlin that "[i]t is not unusual for one spouse to have a greater  


income than the other."9                                                The disparity in Laughlin was much less dramatic than it is  


                   6                 Berkbiglerv. Berkbigler                                           , 921 P.2d 628, 631                                  (Alaska1996) (quoting                                           Alaska  

R.  Civ. P. 90.3(c)(1));                                     see also               Alaska R. Civ. P. 90.3 cmt. I.C. ("The support guidelines                                                                       

in the rule may be varied only as provided by paragraph (c) of the rule.").                                                                                                              

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


                   8                 Alaska R. Civ. P. 90.3 cmt. VI.B.  


                   9                 229 P.3d 1002, 1006 (Alaska 2010).  


                                                                                                                    -6-                                                                                                           7303

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


here, however;                       assuming, therefore, that this case presents "unusual circumstances"                                               

because of the parties' respective incomes, the question remains whether "these unusual                                                                                 

circumstances make application of the usual formula unjust."                                                                      11  


                            First, that Krislyn can afford to support the children on her own, while  

                                                                                     12  does not by itself excuse Christopher's own  


relevant to a good cause determination, 

obligation to contribute.13   "Rule 90.3 provides the presumptive formula for calculating  


a non-custodial parent's child support obligation."14  One "expectation" of the rule is that  


increases in the parents' income will result in corresponding increases in the amount  


available to spend on the children; "[t]hus, at least in the primary custodial situation, the  


contribution of one parent does not affect the obligation of the other parent."15                                                                                             Both  


continue to contribute a certain percentage of their income even as their incomes vary.  


              10            See id.         at n.17 (noting that mother's income was approximately $67,000                                                             

and father's was approximately $32,000).                             

              11            Alaska R. Civ. P. 90.3 cmt. VI.B.  


              12            Alaska  R.  Civ.  P.  90.3(c)(1)  ("The  court  shall  consider  the  custodial  


parent's income in this determination.").  


              13            Maloneyv.Maloney,969P.2d1148,1152(Alaska1998) ("[N]on-custodial  


parents should not be relieved of their child support obligations simply because custodial  


parents can afford to maintain their children.").  


              14            Morris v. Horn, 219 P.3d 198, 205 n.28 (Alaska 2009); see also Alaska R.  


Civ. P. 90.3 cmt. I.B ("[T]he guidelines presumptively apply to all child support awards  


. . . .").  


              15            Alaska R. Civ. P. 90.3 cmt. II.  


                                                                                         -7-                                                                                 7303

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

Even a "token benefit" from the non-custodial parent serves to recognize that "[e]very                                  

parent has a duty to support his or her child."                                       16  

                         Christopher's argument hinges not only on Krislyn's ability to support the  


children on her own but also his inability to help because of his debts and expenses.  He  


points to the "substantial investment of both time and money" he is required to make in  


counseling  and  classes  in  order  to  comply  with  the  court-imposed  conditions  on  


visitation.   But it was Christopher's burden to demonstrate good cause by clear and  


convincing evidence.17                        "We do not intend that the [good cause] exception become the  


rule."18   And the fact that a party "has significant debts does not, by itself, mean that the  


award amount should be reduced."19  


                         Christopher first raised the issue of a good cause variance in his pretrial  


memorandum, in which he asserted that he was "required to take several classes, engage  


in counseling, and pay for supervised visitation" such that "[h]e cannot afford the $763  


per month" child support obligation calculated under Rule 90.3(a). He did not elaborate  


on the actual costs of these requirements.  He reasserted the argument at trial, testifying  


that he was engaged in therapy and had started the classes recommended by the custody  


             16          Alaska R. Civ. P. 90.3 cmt. I.B;                            see Kestner v. Clark                 , 182 P.3d 1117, 1123            

(Alaska 2008) ("As we have repeatedly recognized, a parent should not be relieved of                    

the   obligation  to  support   his   or   her   children   except   under   the   most   extreme  


             17          See Alaska R. Civ. P. 90.3(c)(1).  


             18          Coats v. Finn, 779 P.2d 775, 777-78 (Alaska 1989).  


             19          Berkbigler v. Berkbigler, 921 P.2d 628, 631 (Alaska 1996); see Alaska R.  


Civ. P. 90.3 cmt. VI.B.4 ("Prior or subsequent debts of the obligor, even if substantial,  


normally will not justify a reduction in support.").  


                                                                               -8-                                                                        7303

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

investigator.   But he again failed to present any evidence of the costs of these activities.                                                                                                                                                                                   

In closing argument he asserted that he was paying $500 per month for ankle monitoring                                                                                                                                                    

services  and  $1,300   per   month   for   a   visitation   supervisor,   but   the   superior   court  

eliminated   these   two   expenses   in   its   custody   decree   by   recognizing  Christopher's  

progress, terminating the ankle monitor requirement, and                                                                                                                                   authorizing Christopher's   

father or significant other to supervise visitation.                                                                                                   All that remains in the record now are                                                                      

Christopher's   conclusory   statements   that   his   unspecified   expenses   are   sufficient   to  

constitute good cause for a variance.                                                                                This falls far short of the "clear and convincing                                                                    

evidence" necessary to show "that manifest injustice would result if the support award                                                                                                                                                                   


were not varied."                                           

                                         We conclude that the superior court did not abuse its discretion when it  


denied the request for a good cause variance.  


                     B.	                  The Superior Court's Selection Of January 1, 2017 As The Effective  


                                         Date                   For                Christopher's                                         Child                    Support                           Obligation,                                  Without  


                                          Explanation, Was Error.  


                                          In its December 2016 findings of fact and conclusions of law, the superior  


court determined that Christopher's child support obligation would be calculated on the  


basis of his child support guidelines affidavit filed in November 2016; the accompanying  


child support order required the first monthly payment to be made on January 1, 2017.  


Krislyn  argues  that  the  court  erred  by  selecting  this  effective  date  instead  of  


"November 1, 2015, the first month following entry of the property settlement and  


                     20                  Alaska R. Civ. P. 90.3(c)(1);                                                            see McDonald v. Trihub                                                      , 173 P.3d 416, 428-                            

29 (Alaska 2007) (affirming superior court's refusal to find good cause for variance in                                                                                                                                                                               

father's claimed disability, where father "failed to offer sufficient evidence, through                                                                                                                           

further evidence of his medical disability or of his personal financial straits, that . . .                                                                                                                                                                          

manifest injustice would result in his case.").                                                                     

                                                                                                                                  -9-	                                                                                                                       7303

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

Decree of Divorce."                                                       She contends that any claim for child support before that date was                                                                                                                                                           

"extinguished" by the parties' settlement of their respective financial claims.                                                                                                                                                                                                     

                                                Christopher defends the order's January 2017 effective date.                                                                                                                                                            He contends   

that the parties'                                           "informal financial arrangements" reflect their                                                                                                                                 "understanding that   

interim   child   support   would   not   be   paid   by   either   party";   that   Krislyn   "waived  

entitlement to interim child support" by agreeing to the property settlement agreement                                                          

in October 2015 that was silent on child support; that Krislyn's request is unfairly                                                                                                                                                             

retroactive; and that given these facts -                                                                                                         along with the parties' "relative personal and                                                                                                         

financial   circumstances,"   Christopher's   court-ordered   costs,   and   the   late   timing   of  

Krislyn's request - it was within the superior court's discretion to decline to award                                                                                                                                                                                                          

child support for past periods.                                                                               

                                                We conclude that neither parent's argument is correct, and that the superior                                                                                                                                                             

court   must   revisit   the   issue   of   child   support   for  the   entire   interim period                                                                                                                                                                                      between  

separation and January 1, 2017, the effective date of the existing order.                                                                                                                                                                

                                                The obligation of parents to support their children "begins . . . on the date                                                                                                                                                                          

                                                                                                                   21  "[t]his duty exists even in the absence of a court order  

the parents stop living together";                                                                                                                                                                                                                                                                 

of support."22                                        We have repeatedly recognized that child support should be calculated  


from the date of separation.23  Here, the superior court found in its October 2015 findings  


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

                        22                     Matthews  v.  Matthews,  739  P.2d  1298,  1299  (Alaska  1987); see  also  


 Vachon    v.    Pugliese,   931   P.2d   371,   382   (Alaska   1996)   ("[A]bsent   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.").                                                                         

                        23                      See, e.g., Spott v. Spott, 17 P.3d 52, 54 (Alaska 2001) ("[The parent] owed  


back child support for the period not covered by the interim order - from the date of  



                                                                                                                                                    -10-                                                                                                                                            7303

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

of fact and conclusions of law that "[t]he parties separated in November of 2014";                                                                                      

though arguing for different effective dates,                                              neither partyappearsto challengethecourt's                                    

finding of when they separated.                                      

                            Contrary to Christopher's characterization of it, calculating child support                                                                

fromthedateofseparation                                 is not impermissibly retroactive. "The                                          ruleagainst             retroactive  

modification . . . only prohibits modifying 'arrearage' already due under a 'final child                                                                                     

                                                                                                                                  24   When there is no child  

support award' in existence when a motion to modify is filed."                                                                                                               

support order covering the relevant time period, applying the methodology of Rule 90.3  


"does not modify an existing arrearage."25                                                    Indeed, "[p]recluding a retroactive award  


would create an incentive . . . to avoid . . . child support obligations for some period of  


time by delaying the process . . . .  The creation of such an incentive would, of course,  



run counter to the statutory purpose of providing for the needs of children . . . ."                                                                                           


                            We must also reject Christopher's arguments that Krislyn waived interim  


child support by entering into other "informal financial arrangements" with him or by  


failing to address the issue in the parties' 2015 property settlement agreement, as well  

              23            (...continued)  


separation until December 1, 1995."); State, Dep't of Revenue, Child Support Enf't Div.  


v.  Pealatere,  996  P.2d  84,  88  (Alaska  2000)  ("The  trial  court,  however,  failed  to  


calculate the amount of back child support from the date of separation.");  Ogard v.  


Ogard, 808 P.2d 815, 816 (Alaska 1991) ("[The parent] clearly owed some amount of  


child support beginning with the date of separation.").  

              24            Duffus v. Duffus, 72 P.3d 313, 320 (Alaska 2003).  


              25             Craytonv.Crayton, 944P.2d487,490(Alaska1997) (quoting Vachon,931  


P.2d at 382).  


              26            State, Dep't of Revenue, Child Support Enf't Div., ex rel. Hawthorne v.  


Rios, 938 P.2d 1013, 1015 (Alaska 1997) (quoting Cyrus v. Mondesir, 515 A.2d 736,  


738-39 (D.C. 1986)).  


                                                                                       -11-                                                                                  7303

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

 as Krislyn's assumption that the settlement agreement resolved any earlier child support                                                                       

 claims.     "[N]o   parental agreement regarding child                                                    support is valid                  until it receives     

                                                                       27    From this rule follows a corollary:  "a custodial  

judicial scrutiny under Rule 90.3."                                                                                                                         

parent's conduct cannot amount to an estoppel or waiver altering the obligation to pay  


 child support."28  


                           As explained above in section IV.A, the superior court does have discretion  


to vary an award "for good cause upon proof by clear and convincing evidence that  


manifest injustice would result if the support award were not varied."29                                                                              Christopher  


 suggests reasons why the court may have decided to apply the "good cause" variance to  


 any obligation he had to pay child support before January 1, 2017.  But any variance  


must be explained.  "The court must specify in writing the reason for the variation, the  


 amount  of  support  which  would  have  been  required  but  for  the  variation,  and  the  


 estimated value of any property conveyed instead of support calculated under the other  


                                                      30   The failure to "issue written reasons for deviating from the  

provisions of [Rule 90.3]."                                                                                                                                              



 guidelines" is error.                       


                           For these reasons weremandthechild supportorder for the superior court's  


 explicit consideration of the unaddressed period between legal separation and January 1,  


 2017, the effective date of the existing order.   Because support is being calculated  


              27           Laughlin v. Laughlin                       , 229 P.3d 1002, 1005 (Alaska 2010) (quoting                                                Nix v.   

Nix, 855 P.2d 1332, 1334 (Alaska 1993)).                               

              28           Paxton v. Gavlak, 100 P.3d 7, 13 (Alaska 2004) (quoting Rios, 938 P.2d  


 at 1017 n.8)).  


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


              30           Id.  

              31           Boone v. Boone, 960 P.2d 579, 584 (Alaska 1998).  


                                                                                   -12-                                                                             7303

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

retrospectively rather than prospectively, "actual income rather than earlier predictions                                                          

as to income should be used" to set the amounts due.                                                   32  

                          This decision is not intended to restrict the parties' ability to mutually agree  


on support arrearages and seek judicial approval of their agreement, nor is it intended to  


limit the superior court's discretion to vary the support obligation as required to prevent  


"manifest injustice" pursuant to Rule 90.3(c)(1).  


V.           CONCLUSION  

                          We AFFIRM that aspect of the superior court's child support order that  


applies  prospectively.                         We  REMAND  the  order  to  the  superior  court  for  explicit  


consideration of child support for the interim period between the parties' separation and  


January 1, 2017.  


             32           Spott v. Spott, 17 P.3d 52, 56 (Alaska 2001).  


                                                                                -13-                                                                                 7303  

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