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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tillmon v. Tillmon (07/25/2008) sp-6289
Notice: This opinion is subject to correction before
publication in the Pacific 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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| CLIFTON T. TILLMON, | ) |
| ) Supreme Court No. S- 12685 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-06-5696 CI | |
| v. | ) |
| ) O P I N I O N | |
| SUSAN L. TILLMON, | ) |
| ) No. 6289 - July 25, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Peter A.
Michalski, Judge.
Appearances: Clifton T. Tillmon, pro se,
Anchorage. John C. Pharr, Law Offices of
John C. Pharr, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
WINFREE, Justice.
I. INTRODUCTION
Clifton Tillmon appeals from October 2006 divorce
orders granting Susan Tillmon primary physical custody of the
Tillmons four children, ordering Clifton to pay Susan monthly
child support, and awarding Susan sixty percent of the marital
estate (including fifty percent of the marital portion of
Cliftons military retirement). We conclude that the trial court
did not abuse its discretion in awarding primary physical custody
of the children to Susan or in dividing the marital estate. But
Clifton was entitled to two specific deductions from income for
the calculation of his monthly child support obligation, and
because we cannot discern from the record if or when those
deductions were taken into account, we remand and direct the
court to ensure that they were.
Clifton also argues that a child support modification
made effective May 1, 2007, should have been retroactive to when
the Tillmons oldest daughter came to live with him in late
September 2006. The applicable rule is that a modified support
order can be retroactive only as early as the service date for
the modification motion, but a trial court may exercise its
discretion to select a later effective date if it finds good
cause to do so. Because we cannot discern from the record
whether the court had good cause to make the new support order
effective May 1, 2007, instead of the modification motion date of
November 2, 2006, we remand for further consideration.
II. FACTS AND PROCEEDINGS
Clifton and Susan married in May 1993. They separated
in December 2005 and Clifton filed for divorce in March 2006.
Clifton and Susan have four children currently ranging in age
from five to sixteen.
A June 2006 interim custody order and visitation
schedule from the trial court gave Susan the greater share of
physical custody of the children prior to the parties August 2006
trial. In mid-June 2006 the State of Alaska Child Support
Services Division (CSSD) set Cliftons support obligation at
$1,713 per month effective February 1, 2006. Clifton
administratively appealed the CSSD determination but agreed to
delay the appeal pending completion of the divorce proceedings.
At trial the parties were able to resolve most custody
and visitation issues. One of the sticking points was whether,
after weekend visitation with the children during the school
year, Clifton would return the children to Susan on Sunday
nights, as Susan wanted, or take them to school on Monday
mornings, as he wanted. Another was Susans request that Clifton
be required to pay half of Susans work-related daycare costs for
the three youngest children in addition to child support.
On August 8, 2006, the trial court rendered oral
rulings which later were followed by written findings of fact and
conclusions of law. The court followed the parties agreement to
divide the marital portion of Cliftons military retirement fifty-
fifty, but the marital estate as a whole was divided sixty-forty
in Susans favor in light of the parties disparate incomes. The
court determined that it was in the childrens best interests for
the parties to share legal custody and for Susan to have primary
physical custody, but granted Clifton visitation two of every
three weekends during the school year and some variation of
alternate weeks during the summer. With respect to the sticking
points, the court ruled in Susans favor: (1) Cliftons weekend
visits with the children during the school year were to end
Sunday nights rather than Monday mornings; and (2) Clifton was to
pay for half of Susans daycare costs in addition to child support
because daycare costs are a cost of having children and . . . the
parents have an obligation to share them, and it ought to be
fifty-fifty. The court directed Susan to prepare appropriate
orders.
The Qualified Domestic Relations Order (QDRO) proposed
by Susan provided that she would be entitled to a percentage of
[Cliftons] disposable military retired pay defined as 151 months
[the marital term] divided by the number of months of [Cliftons]
military service times 50%. However, Clifton already had
proposed an alternative order intended to limit Susans share of
the retirement to fifty percent of its value as of the date of
separation, instead of allowing Susan to benefit from post-
divorce pay raises and promotions that would increase the
cumulative value of the retirement.
Clifton also objected to Susans proposed findings and
conclusions and child support order, he simultaneously moved for
reconsideration of some of the trial courts rulings. Clifton
argued that the court should have granted a shared custody
arrangement instead of granting Susan primary custody, and should
have used the corresponding shared custody formula of Alaska
Civil Rule 90.3(b) to calculate his child support obligation
instead of the Rule 90.3(a) formula for non-custodial parents.1
To support this argument, Clifton contended that the court failed
to make necessary findings when it awarded primary physical
custody of the children to Susan instead of awarding shared
custody.2 He also argued that it was improper for the court to
order him to pay one-half of Susans daycare costs in addition to
child support, asserting that these costs fall within the ambit
of normal needs and are covered by support payments.
Alternatively, he argued that he at least should be entitled to
the allowable child care deduction from his income for the
calculation of his support obligation.3 He similarly argued that
the court erred in not giving him the allowable deduction for
retirement contributions when calculating his support obligation.4
On September 25, 2006, Susan moved for an order
directing Clifton to explain why he was not paying all of his
child support or any of his share of daycare expenses. The next
day, Susan had a physical altercation with the Tillmons oldest
daughter, who was removed from Susans home and delivered to
Clifton. On September 29, 2006, Clifton moved for primary
custody of all four children.
On October 3, 2006, the trial court issued its written
orders from the August divorce trial. The court ordered that
Cliftons reconsideration motion be largely denied, but noted
apparent agreement that Cliftons daycare payments should be taken
into account when calculating his child support obligation. The
court signed the findings and conclusions lodged by Susan, with
minor corrections to clarify the sixty-forty division of the
marital estate and the fifty-fifty division of the marital
portion of Cliftons military retirement. The court also signed
the form child support order lodged by Susan, which did not
incorporate the child care deduction, and set Cliftons support
obligation at $2,038 per month for four children, $1,868 per
month for three children, $1,528 per month for two children, and
$1,132 per month for one child. The support order was effective
June 1, 2006, and the court noted that pre-June child support
would be set by CSSD in Cliftons administrative proceeding.
Finally, the court signed the QDRO submitted by Susan.
At the conclusion of a hearing in late October 2006 the
court orally granted interim custody of the oldest daughter to
Clifton. In early November 2006 Clifton filed a motion to modify
his child support obligation, making three points about changed
circumstances:5 (1) because one child now resided with him, the
Tillmons were in a new and different custody arrangement;
(2) Clifton was entitled to the child care deduction from income
in the calculation of his support obligation; and (3) Susans
income had materially changed since the August trial. Clifton
also lodged a proposed interim order to document the existing
custody arrangement for the oldest daughter pending the final
resolution of his [September 29, 2006] custody modification
motion, but the trial court later denied Cliftons September 29,
2006 motion to modify custody without comment about the existing
interim custody arrangement.
Later in November 2006 the trial court heard Susans
motion regarding Cliftons failure to obey the courts child
support order. Clifton conceded that he had not been paying all
of his financial obligations under the courts earlier orders. As
the court and the parties discussed Cliftons arrearage, it was
not in dispute whether Clifton was entitled to the child care
deduction from income in the calculation of his child support
obligation. Clifton agreed to make payments to Susan, and Susan
withdrew her motion.
On December 1, 2006, the administrative law judge for
Cliftons CSSD appeal issued a final order setting Cliftons child
support for February through May 2006, noting that the trial
courts October 3, 2006 support order mooted this appeal as to
child support after [June 1, 2006].
On December 6, 2006, the trial court signed Cliftons
interim custody order for the oldest daughter, even though the
court already had denied the September motion to modify custody.
In early January 2007 the court directed Clifton to submit a
proposed child support order that [took] into account deductions
from gross income of the share of child care expenses paid by
Clifton. The court stated that the support order should be for
4, 3, 2 and 1 children [sic], and presently administered pursuant
to 3 children as [the oldest daughter] is still with [Clifton].
The court also noted that if it granted long-term primary custody
of the oldest daughter to Clifton, his support obligation would
be recalculated on the basis of hybrid or divided custody.6
At a hearing in late March 2007 Susan acknowledged that
a divided custody arrangement had existed since October 1, 2006.
Clifton continued to assert his entitlement to retirement
contribution and child care deductions from income in the
calculation of his child support obligation. The trial court
agreed that these deductions were warranted; it affirmed that the
child care payments were work-related, thus deductible under Rule
90.3, and included a deduction for Cliftons retirement
contribution in its summary of the calculations. The court
tentatively calculated Cliftons new support obligation and gave
the parties time to file objections.
On April 19, 2007, the trial court issued a
modification order, awarding long-term primary custody of the
oldest daughter to Clifton and reducing Cliftons child support
obligation to $1,213.07 per month. The effective date of the
modified support order was May 1, 2007.
Clifton appeals. Specifically, he argues that the
court erred in originally awarding Susan primary custody of the
children; in denying allowable deductions when calculating child
support; in failing to timely modify his child support obligation
after he assumed custody of the eldest child; in dividing the
estate sixty-forty in Susans favor; and in failing to calculate
Susans share of his military retired pay according to his
proposed formula. We address these arguments in turn.
III. DISCUSSION
A. Standard of Review
Trial courts have broad discretion in determining child
custody issues.7 We review custody orders for an abuse of
discretion, which occurs only if based on the record as a whole
this court is left with a definite and firm conviction that a
mistake has been made.8 This deferential standard also applies
to our review of child support awards9 and to a trial courts
equitable division of marital property in a divorce proceeding.10
Whether a trial court applied the correct method of calculating
child support is a matter of law to which we apply our
independent judgment.11
B. Custody Order
Clifton asserts that the trial court erred by not
originally awarding him shared physical custody of the children.
At trial, the parties were in agreement about all custody issues
except when weekend visits would end during the school year:
Monday morning, as proposed by Clifton, or Sunday evening as
preferred by Susan. The distinction between Sunday evenings and
Monday mornings seems trivial, but the financial ramifications
may be significant. Under Rule 90.3(f)(1), shared physical
custody results when a child resides with each parent at least
thirty percent of the year, and Cliftons proposed schedule
apparently would have enabled him to barely clear that threshold
and avail himself of a potential reduction in his child support
obligation.12 But the court instead terminated his visits on
Sunday nights, incidentally denying him shared custody for
purposes of Rule 90.3(f)(1).
Clifton argues that the trial court failed to
adequately justify awarding primary physical custody to Susan as
required by AS 25.20.100, which states: If a parent . . .
requests shared custody of a child and the court denies the
request, the reasons for the denial shall be stated on the
record. Susan responds that Cliftons argument would carry more
weight if more [were] involved than the single night of
visitation. She asserts that the reason for the courts action is
sufficiently clear; in addition to it being impractical for
Clifton to deliver the children to school on Monday mornings,
Clifton could not interact with sleeping children on Sunday
nights, and he has not pointed out any [statutory factors] that
support visitation with the children on Sunday nights.
We defer to the trial courts determination that it was
desirable to have the children returned to Susan on Sunday
evenings. The record does not support a conclusion that the
court abused its discretion: the parties agreed it was in the
childrens best interests to reside primarily with Susan during
the school year, and returning the children to her on Sunday
evenings is consistent with that plan.
It is true that Clifton requested shared physical
custody in his trial brief. But the narrow dispute remaining at
trial was whether Clifton should return the children to Susan on
Sunday nights or to school on Monday mornings, not whether
Clifton should have shared physical custody. It is not clear
that the trial court was required to take into consideration any
broader legal implications of its determination of that dispute.
As it was, Clifton waited until his reconsideration motion to
characterize his proposed schedule as a shared physical custody
schedule.13
C. Child Support
Clifton disputes three aspects of the trial courts
child support orders. First, he argues that the courts original
support order was an improper modification of CSSDs earlier
order. Second, he argues that the court erred by consistently
denying him two allowable deductions from income in the
calculation of his original support obligation, namely work-
related child care expenses and retirement contributions. Third,
he argues that the court failed to modify the support order in a
timely manner after primary custody of the oldest daughter was
transferred to him. We discuss these three points below.
1. The trial courts original support order did not
retroactively modify an existing final child
support award.
In mid-June 2006, after Clifton filed for divorce but
before the August 2006 trial, CSSD initially set Cliftons child
support at $1,713 per month effective February 1, 2006. The
trial court made its long-term custody and child support awards
at the August 2006 trial; these were later reiterated in its
October 3, 2006 written orders. The courts order setting
Cliftons support obligation at $2,038 per month was effective
June 1, 2006.
Clifton points to Civil Rule 90.3(h)(1)-(2)14 and argues
that the trial court wrongfully retroactively modified an
existing administrative order with Alaska CSSD . . . without a
material change of circumstances and that a promotion he received
in June 2006 did not constitute a material change of
circumstances because the pay [increase] did not exceed 15%.15
Cliftons argument lacks merit. Nothing in the record
suggests that CSSDs June 2006 support order was a final child
support award. Clifton appealed the initial CSSD determination
but then agreed to delay that appeal to allow the trial court to
make its own support determination. In his trial brief, Clifton
stated that the court will need to establish a child support
order for the interim period and post[-]divorce period.
Moreover, because CSSDs final support award for February through
May 2006 was issued after the trial courts award for June 2006
forward, the courts award could not have been a modification of
the CSSD award.16
2. Cliftons original child support obligation should
be calculated with allowable deductions.
Clifton argues that when calculating his original child
support obligation, the trial court did not grant him allowable
deductions for work-related daycare expenses17 and involuntary
retirement contributions.18 Susan does not dispute that the
deductions are allowable, but asserts that Clifton waived the
argument because (1) he did not argue his entitlement to the
deductions at trial and therefore cannot argue the point on
appeal;19 and (2) he failed to insist that the trial court rule on
his September 2006 motion for reconsideration.20 Susans arguments
lack merit and will not preclude our review of this issue.
It is undisputed that when originally considering
Cliftons support obligation, the court did not take into account
his ordered daycare payments or his payroll deductions for
retirement contributions. It also is undisputed that when
responding to Cliftons reconsideration motion on October 3, 2006,
the court indicated agreement that at least Cliftons daycare
payments should be taken into account. Yet the record does not
reveal any contemporaneous change in Cliftons support obligation
calculation.
At the November 2006 hearing about Cliftons failure to
pay child support and his share of the daycare expenses, the
court again indicated that Clifton should be entitled to a
deduction for his daycare payments. Yet the record does not
reveal what action was to be taken, or if any action was taken,
to correct Cliftons support obligation. Because Clifton
apparently had not made any daycare payments at all, but at the
hearing agreed to do so, it is possible that the court and
parties took a correction into account when calculating Cliftons
arrearage; but the record does not reflect a change in the
continuing support obligation.
At the March 2007 hearing on the change of long-term
primary custody of the oldest daughter and the modification of
Cliftons child support, the trial court indicated that both
deductions from income should be allowed in the calculation of
Cliftons support obligation. The two deductions presumably were
taken into account in the calculation of Cliftons new support
obligation effective May 1, 2007, and Clifton makes no argument
to the contrary. But it is not clear from the record whether or
how the trial court or the parties remedied the incorrect
calculation of Cliftons prior support obligation, and Clifton
continues to assert that it never was remedied. We are unable to
determine from the record whether he is entitled to any relief,
and we therefore remand and direct the trial court to ensure that
Cliftons original child support obligation was properly
calculated.
3. In the absence of good cause, the modified support
order should be effective on the date Cliftons
motion for modification was served.
Clifton argues that the court did not timely modify the
child support order to reflect a material change of circumstances
after Clifton received emergency custody of the Tillmons oldest
daughter in late September 2006.21 At the March 30, 2007 hearing,
the parties recognized that a divided custody arrangement had
existed since October 1, 2006. The April 19, 2007 modified
support order had no retroactive effect, but rather provided that
the first payment of the new support amount of $1,213.07 would be
due no later than May 1, 2007.
Rule 90.3(h)(2) provides that child support obligations
generally may not be modified retroactively, but that a
modification made effective on the date that a motion for
modification is served is not considered retroactive.22 As we
explained in Boone v. Boone:
The rules text does not express a preference
or presumption that a modification become
effective on the motion service date, and
does not prevent the superior court from
exercising its discretion and selecting a
later effective date. But we are nonetheless
persuaded that the motion service date should
be the preferred effective date, and that the
superior court should exercise its discretion
in selecting a different effective date only
if it finds good cause for doing so.[23]
Accordingly, in the absence of good cause to use a
different effective date, the April 19, 2007 modified support
order should have been effective on the service date of the
November modification motion. The court instead chose to make it
effective May 1, 2007, but the record does not reveal the courts
reasoning.24 We remand and direct the court to make the modified
order effective on the service date of the November modification
motion unless the court, in its discretion, chooses a later
effective date and states its reasons for doing so.
D. Property Division
1. The trial court did not abuse its discretion in
dividing the marital estate sixty-forty in Susans
favor.
Although an equal division of property is presumed to
be the most equitable, the trial court has broad discretion to
deviate from absolute equality.25 Alaska Statute 25.24.160(a)(4)
lists several property division factors for the court to take
into consideration, among them the earning capacity of the
parties, including their educational backgrounds, training,
employment skills, work experiences, length of absence from the
job market, and custodial responsibilities for children during
the marriage,26 and the circumstances and necessities of each
party.27
Clifton argues that the trial court penalized him in
the property division for earning more yet both parties have the
capability to work. Clifton implies that the trial court should
have considered Susans potential income, not her actual income.
Although he did not raise this argument below and thus
impermissibly raises it here,28 we note that it probably would
have been inappropriate to impute income to Susan. A court can
in its discretion impute income where a party is voluntarily and
unreasonably underemployed.29 Susan doubtless could have made
more money if she held several jobs, as Clifton suggests, but
given that the four minor children in her primary custody would
necessitate significant work-related child care expenses, her
decision not to hold several jobs does not seem unreasonable.
The biggest and most valuable asset of the marital
estate was Cliftons military retirement benefit, which the court
estimated to be worth at least $100,000. The parties already had
agreed to split the marital portion of the retirement fifty-fifty
and the court reasoned that when an equal division of that asset
was taken into account, the division of the relatively
insignificant remainder of the marital estate largely in Susans
favor was appropriate given the parties disparate incomes.
In light of the entire record, we are not left with a
definite and firm impression that the trial court made a mistake
in dividing the marital estate. The court did not abuse its
discretion, and we will not set the property division aside.
2. The trial court did not abuse its discretion in
entering Susans proposed QDRO.
As discussed above, the parties agreed to a fifty-fifty
split of the marital portion of Cliftons military retirement and
this was set forth in Susans proposed QDRO. Clifton raises two
closely related arguments with respect to the courts use of
Susans proposed QDRO to implement the division of his retirement.
First, he argues that the court ignored evidence
presented which would have aided in a fair division of [Cliftons]
unvested military retirement, thus allowing Susan to double-dip
into the retirement. He then argues that by not limiting the
marital portion of the retirement to his current pay grade, Susan
will wrongfully benefit from his future promotions and pay raises
(which will presumably increase the final value of the retirement
and thus her share of it). These arguments appear to be one and
the same: Clifton wants to prevent Susans share of the marital
portion of his military retirement pay from increasing in value
due to his future pay raises and promotions.30
According to the Uniformed Services Former Spouses
Protection Act,31 Dividing Military Retired Pay (USFSPA
guidelines), there is no magic language necessary to express a
percentage award of retired pay; all that is necessary is that
the decree state that [t]he former spouse is awarded ___ percent
. . . of the members military retired pay. This was accomplished
by the QDRO submitted by Susan and signed by the court stating
Susan shall be entitled to a percentage of [Cliftons] disposable
military retired pay defined as 151 months [the length of the
Tillmons marriage] divided by the number of months of [Cliftons]
military service times 50%.32
The USFSPA guidelines also note that while this formula
award is sufficient, many States take the approach that the
former spouse should not benefit from any of the members post-
divorce promotions or pay increases based on length of service
after the divorce. These guidelines imply that the agency
administering the benefit is willing to comply with court orders
designed to accommodate this, if clearly expressed by court
decree. These guidelines also suggest that one way of achieving
an unambiguous result is to grant a hypothetical award . . .
based on a retired pay amount different from the members actual
retired pay that is figured as if the member had retired on the
date of separation or divorce.33 The result is that the spouses
share of the retirement pay is derived exclusively from the value
accrued during the marriage.
To achieve what he perceived as a fairer division of
his military retirement, Clifton submitted a proposed Qualifying
Military Order (QMO) that briefed the trial court on the
hypothetical award method of determining Susans interest in the
asset. Clifton also submitted several examples of QMOs issued by
Alaska trial courts. But the court chose to use Susans QDRO,
applying the more traditional method of division.
The court has wide latitude in fashioning an
appropriate property division,34 and as with the sixty-forty split
of the entire marital estate, we are not left with the firm and
definite conviction that the court made a mistake by dividing the
military retirement asset according to Susans QDRO instead of
Cliftons QMO. The traditional fraction method may provide more
certainty in application and enforcement and it would be
speculative to assume any material difference to Clifton in the
ultimate property division.35 The court did not abuse its
discretion by using the QDRO.
IV. CONCLUSION
We AFFIRM the trial courts orders awarding Susan
initial primary custody of the four children and granting Susan
sixty percent of the marital estate, and we AFFIRM the trial
courts use of the QDRO proposed by Susan.
We REMAND for further proceedings with direction to the
trial court (1) to ensure that its original child support
calculations accounted for Cliftons allowable deductions for
retirement contributions and daycare expenses; and (2) to either
make the modified child support order effective on the date the
modification motion was served or to state its reasons for
choosing a later effective date.
_______________________________
1 Alaska Civil Rule 90.3 provides different child support
award formulas for different custody arrangements. Where one
parent has primary physical custody (as defined by Rule
90.3(f)(2)), the other parent is required to pay child support
according to the formula set forth in Rule 90.3(a), which here,
because four children are involved, amounts to 36% of Cliftons
adjusted annual income. See Alaska R. Civ. P. 90.3(a)(2)(C)-(D).
Had there been a shared physical custody arrangement (as defined
in Civil Rule 90.3(f)(1)), Cliftons support obligation probably
would have been reduced by use of a different formula. See
Alaska R. Civ. P. 90.3(b)(1)(B). Clifton noted that he missed
the shared-custody threshold by just two nights; he would have
the children 29.45% of the time (107.5 nights), not the 30%
(109.5 nights) required for application of the potentially more
favorable formula. Compare Alaska R. Civ. P. 90.3(f)(1) with
Alaska R. Civ. P. 90.3(f)(2).
2 See AS 25.20.100 (when a request for shared custody is
denied, the reasons for the denial shall be stated on the
record).
3 See Alaska R. Civ. P. 90.3(a)(1)(E); Duffus v. Duffus,
72 P.3d 313, 319-20 (Alaska 2003) (actual reasonable child care
expense necessary to enable the parents to work should be
deducted when calculating parents incomes for child support
purposes).
4 See Alaska R. Civ. P. 90.3(a)(1)(B).
5 Cf. Alaska R. Civ. P. 90.3(h)(1) (final child support
award may be modified upon showing of material change of
circumstances).
6 See Alaska R. Civ. P. 90.3(f)(3) (divided custody
exists if one parent has primary physical custody of one or more
children of the relationship and the other parent has primary
custody of one or more other children of the relationship, and
the parents do not share physical custody of any of their
children); Alaska R. Civ. P. 90.3(f)(4) (hybrid custody exists if
at least one parent has primary physical custody of one or more
children of the relationship and the parents have shared physical
custody of at least one child of the relationship).
7 See Carstens v. Carstens, 867 P.2d 805, 807 (Alaska
1994).
8 Flannery v. Flannery, 950 P.2d 126, 129 (Alaska 1997)
(internal quotations and citation omitted).
9 See State, Dept of Revenue, Child Support Enforcement
Div. v. Rios, 938 P.2d 1013, 1015 (Alaska 1997).
10 Mellard v. Mellard, 168 P.3d 483, 484-85 (Alaska 2007).
11 See Turinsky v. Long, 910 P.2d 590, 594 n.10 (Alaska
1996).
12 See supra note 1.
13 Clifton opines that the court only denied my request
for shared custody due [to] its . . . bias against me. Clifton
does not point to anything specific to support this opinion, and
nothing in the record raises a question of bias by the trial
court. We remind pro se appellants that judicial bias should not
be inferred merely from adverse rulings, and we reject this
putative point of error because (1) Clifton did not raise it
below, see Anchorage Nissan, Inc. v. State, 941 P.2d 1229, 1239-
40 (Alaska 1997); (2) it is not properly briefed and presented,
see Kelso v. Rybachek, 912 P.2d 536, 541 n.4 (Alaska 1996); and
(3) it has no legitimate basis on the record before us.
14 Rule 90.3(h) provides:
(1) Material Change of Circumstances. A
final child support award may be modified
upon a showing of a material change of
circumstances as provided by state law. A
material change of circumstances will be
presumed if support as calculated under this
rule is more than 15 percent greater or less
than the outstanding support order . . . .
(2) No Retroactive Modification. Child
support arrearage may not be modified
retroactively, except as allowed by
AS 25.27.166(d). A modification which is
effective on or after the date that a motion
for modification, or a notice of petition for
modification by the Child Support Services
Division, is served on the opposing party is
not considered a retroactive modification.
15 Clifton infers that the trial court based its support
order on a paycheck issued after his June 8, 2006 promotion,
which presumably reflected income greater than that reflected in
the financial statement used for CSSDs earlier determination.
This may explain the difference in the support orders as well as
Cliftons assertion of error.
16 Even if CSSDs June 2006 support order could be
considered a final child support award that could be modified
only upon a material change of circumstances, there would be no
error. A material change of circumstances is presumed if support
calculated under Rule 90.3 would vary by more than fifteen
percent because of changed conditions. Alaska R. Civ. P.
90.3(h)(1). CSSD originally calculated Cliftons support
obligation at $1,713 per month based on his then-current
financial statement, and the trial court calculated Cliftons
support obligation at $2,038 per month based on his later payroll
information. (Both calculations were made without the claimed
deductions for child care expenses and retirement contributions.)
The difference exceeds the fifteen percent change threshold
($1,713 x 1.15 = $1,970).
17 At trial and in his reconsideration motion, Clifton
argued it was improper for the trial court to order him to pay
daycare expenses in addition to his child support payments.
Clifton does not pursue this point on appeal and we do not reach
it here.
18 Contributions to retirement plans are deductible so
long as mandatory and voluntary deductions collectively do not
exceed 7.5% of gross income. See Alaska R. Civ. P.
90.3(a)(1)(B).
19 The actual dispute at trial was whether the court
should order Clifton to pay a portion of Susans daycare expenses.
After the trial court issued its oral decision in Susans favor,
Clifton filed an objection to Susans proposed findings and
conclusions and a contemporaneous motion for reconsideration,
raising the alternative argument that he at least should be
entitled to the deduction. The trial court agreed about the
deduction and Clifton now argues on appeal that it never was
implemented. This point is properly before us.
It may be that the retirement contribution deduction
was not expressly raised by Clifton during trial, but the payroll
deduction for his retirement contribution was reflected in the
document relied on by the trial court to calculate Cliftons
support obligation and Clifton immediately contested the courts
failure to take it into account when he filed his objections to
the proposed findings and conclusions. Clifton thus raised his
objection prior to the courts final October 2006 order and his
point was preserved for appeal.
20 No legal authority is provided to support this
proposition; Susans reliance on Taylor v. Johnston, 985 P.2d 460,
466 (Alaska 1999), is misplaced. There, a party insisted on a
court action that it later wished to contest. That is not the
case here. Moreover, the trial court did rule on the
reconsideration motion and, although noting that it was largely
denied, did agree that a deduction for daycare expenses should be
allowed. Susan further argues that Clifton essentially invited
the error he now complains of. This argument is inadequately
presented and will not be considered. See Kelso, 912 P.2d at 541
n.4.
21 Cliftons brief is somewhat difficult to decipher on
this point. He asserts that he had primary physical custody of
the daughter beginning September 26, 2006, and he points out that
the trial court signed the written order for temporary primary
custody on December 6, 2006 (but does not mention the October
oral order for interim primary custody). Clifton suggests that
the court erred by not (presumably sua sponte) ordering a
modification of his child support at least as early as
December 6, 2006, but the suggestion is inadequately presented
and will not be considered. See Kelso, 912 P.2d at 541 n.4. The
point of error regarding the retroactive application of the
April 17, 2007 modification order is sufficient to address
Cliftons arguments.
In Cliftons original statement of points on appeal, he
also alleged that the trial court erred in allowing Susan certain
deductions from income in the calculation of her adjusted income
for the determination of the divided custody support award.
Clifton did not discuss this alleged error in his brief and his
argument therefore is waived. See Kelso, 912 P.2d at 541 n.4.
22 For this reason, the Commentary to Rule 90.3 cautions
an obligor parent [to] promptly apply for a modification . . .
when a material change in circumstances occurs. Alaska R. Civ.
P. 90.3 Commentary X.B. See supra note 16.
23 Boone v. Boone, 960 P.2d 579, 585 (Alaska 1998).
24 Clifton opines that his requests for retroactive relief
were ignored because the trial court had an obvious undisclosed
bias against him evidenced by the lower courts abuse of
discretion. We again reject Cliftons unsupported suggestion of
bias. See supra note 13.
25 Veselsky v. Veselsky, 113 P.3d 629, 637 (Alaska 2005)
(quoting Ulsher v. Ulsher, 867 P.2d 819, 822 (Alaska 1994)).
26 AS 25.24.160(a)(4)(C).
27 AS 25.24.160(a)(4)(G).
28 See McMullen v. Bell, 128 P.3d 186, 190 (Alaska 2006)
(Ordinarily this court will not consider an issue raised for the
first time on appeal. The only exception is where the issue is
1) not dependent on any new or controverted facts; 2) closely
related to the appellants trial court arguments; and 3) could
have been gleaned from the pleadings. (quoting State v. Nw.
Constr., Inc., 741 P.2d 235, 239 (Alaska 1987))).
29 See Olmstead v. Ziegler, 42 P.3d 1102, 1105 (Alaska
2002) (applying the voluntary and unreasonable standard in the
context of determining child support obligation).
30 Susan argues that having earlier stipulated to a fifty-
fifty split of the marital portion of his military retirement,
Clifton may not now contest it. But Clifton is not disputing
that Susan is entitled to the fifty-percent share; he is
asserting that there is more than one method of calculating that
share relative to the whole and that the method used by the trial
court is unfair.
31 See 10 U.S.C. 1401 (2006).
32 This is often referred to as the coverture fraction
method and has been used by Alaska courts for the division of
marital portions of defined benefit plans for some time. See
Faulkner v. Goldfuss, 46 P.3d 993, 1003 (Alaska 2002).
33 The USFSPA guidelines further note:
A proposed regulation was issued in 1995 that
allowed the use of formula and hypothetical
awards to divide military retired pay when
the parties were divorced prior to the
members becoming eligible to receive retired
pay. [60 Fed. Reg. 17507 (1995) (as yet to
be codified).] Although this proposed
regulation has never been finalized, it still
provides the basis for our review of these
types of awards.
34 See Veselsky, 113 P.3d at 637.
35 While Clifton is correct that Susans proposed method of
division allows her share of his retirement to increase in value
as a result of later promotions and pay raises, the marital share
of the retirement will continue to decrease as a percentage of
the entire retirement as he extends the duration of his service
in the military. Clifton did not attempt to show that using the
QDRO instead of the QMO would materially affect the sixty-forty
division of the marital estate.
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