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W. Adrian v. C. Adrian (10/16/92), 838 P 2d 808
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to permanent
publication.
THE SUPREME COURT OF THE STATE OF ALASKA
WILLIAM E. ADRIAN, )
)
)
Appellant, ) File No. S-4334
)
v. ) 3AN 89 8310 CI
)
CATHERINE M. ADRIAN, ) O P I N I O N
)
Appellee. ) [No. 3892 -- October 16, 1992]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, J. Justin Ripley and John Reese,
Judges.
Appearances: William T. Ford, Anchorage,
for Appellant. Catherine M. Adrian, Pro Per.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
BURKE, Justice.
I. FACTS & PROCEEDINGS
William Adrian and Catherine Adrian were divorced in
April 1990. Catherine was awarded custody of the children, Billy
and Ronette.1 Superior Court Judge J. Justin Ripley did not
calculate child support because the parties had not yet submitted
their child support affidavits. Accordingly, Judge Ripley's
findings of fact contain no concrete information regarding child
support. The only factual finding of any relevance to the support
calculation states merely that Catherine's income is "less" than
William's income.
A short time after entry of the divorce decree,
Catherine accepted Ronette's decision to live with her father.
This left each parent with custody of one child. Despite
repeated requests from Catherine's attorney, William did not
complete his support affidavit so that an award could be
calculated by the parties' attorneys and submitted for court
approval. Catherine eventually filed a motion with the court to
compel William to submit his child support affidavit. At the
same time, she filed her own child support affidavit.2
Ten days after Catherine filed her motion to compel,
William submitted his child support affidavit. The affidavit
listed his gross monthly income at $1,600, his adjusted annual
income at $16,868.16, and calculated his support obligation to be
$281.13. Like Catherine, William failed to include with his
affidavit tax returns or any other independent proof of income.
In later motions, Catherine and William each disputed
the income that the other had reported in their affidavits.
William claimed that Catherine failed to report rental income of
"over $1,500 per month" that she allegedly received from
hairdressers who had rented space in her shop. Catherine,
relying on bank statements and a loan application in which
William claimed a monthly income of $2,800, submitted a proposed
"child support affidavit"on William's behalf which estimated his
gross annual income to be $27,450 and set his monthly child
support obligation at $458.75.
William worked primarily as a manager for Chef's Inn
during the time of this proceeding, but also did part-time
construction work. In response to Catherine's charges that he
had underreported his income, William submitted an affidavit from
an accountant for Chef's Inn, who averred that a "true and
accurate statement of William E. Adrian's wages" had been
attached. The attached payroll sheet, covering a two-week period
in October 1990, listed William's weekly salary at $400. William
also submitted two W-2 statements for 1989. The W-2 from Chef's
Inn listed his total compensation for the year at $14,850.00.
The other W-2 listed his 1989 income from a construction company
he worked for at $4,530.54. William filed no tax returns with the
court.
In November 1990 Superior Court Judge John Reese signed
the child support order prepared by Catherine's attorney without
making further findings of fact.3 The order states that
Catherine's monthly child support obligation for Ronette is
$211.00, and William's support obligation for Billy is $458.75.
William is ordered to pay Catherine the difference, $247.75,
until July 1, 1991, Ronette's expected date of graduation from
high school. See Alaska R. Civ. P. 90.3(b) (authorizing this
procedure when parents awarded "shared physical custody"). After
July 1991, William must pay Catherine $458.75 per month until
Billy turns eighteen or graduates from high school. The order
does not indicate the income figures used to compute child
support, but the support figures correspond to those which
Catherine calculated in the affidavits she filed for herself and
her ex-husband.4 This appeal followed.
II. DISCUSSION
William claims that the trial court erred in using
Catherine's unsubstantiated income affidavits to calculate child
support. William also claims that the trial court failed to
consider the income documentation he submitted to the court. In
making his arguments, he points out two deficiencies in the
support award: the lack of clear factual findings allowing for
reasoned review and the lack of substantial evidence supporting
the "implicit"findings of the parties' incomes.
1. EVIDENCE SUPPORTING THE INCOME DETERMINATION
Under Civil Rule 90.3, the foundation of any child
support award is an accurate determination of each parent's
"adjusted annual income."Alaska R. Civ. P. 90.3(a)(1). To this
end, the rule requires that each parent
file a pleading under oath which states
the parent's adjusted annual income and the
components of this income as provided in
subparagraph (a)(1). This statement must be
accompanied by documentation verifying the
income.
Id. at (e) (emphasis added). Although neither the rule itself
nor the Commentary to the rule require any particular type of
supporting documentation, the Commentary suggests that "paystubs,
employer statements, or copies of federal tax returns" are
appropriate. See Commentary VIII.
In our view, Civil Rule 90.3 does not authorize child
support trials by affidavit. The child support affidavit and
documentation requirement of 90.3(e) is a pleading requirement
not an evidentiary requirement. Of course, affidavits and
supporting documents may be used as evidence by stipulation of
the parties or if they are admissible under our Rules of Evidence
or if they are offered in evidence and no objection is made to
their admission. In Ogard v. Ogard, 808 P.2d 815, 818-19 (Alaska
1991), we discussed the sometimes difficult process of
determining adjusted annual income. The underlying premise of
our discussion in Ogard is that the goal is to arrive at an
income figure reflective of economic reality. Id. at 818-19. As a
necessary corollary, trial courts must take all evidence
necessary to accurately accomplish this task.
Catherine does not claim to have supplied documentation
to support her affidavits and her financial declaration.
Instead, she relies on the consistency of her sworn statements
and her testimony at the divorce trial held before Judge Ripley.
William's failure to designate the trial transcript as part of
the record makes it impossible for us to review this issue as
there is no way to know the quality or quantity of the
testimonial evidence presented at trial.5 In signing the support
award, Judge Reese obviously accepted Catherine's version of
events. This decision is subject to the "clearly erroneous"
standard of review. See Civil Rule 52(a) (A trial court's factual
findings "shall not be set aside unless clearly erroneous."). We
must be left with "a definite and firm conviction on the whole
record that the judge made a mistake."Smith v. Smith, 673 P.2d
282, 283 (Alaska 1983) (emphasis added). Without a complete
record of the proceedings, we are unable to make this
determination.6
2. SUFFICIENCY OF FACTUAL FINDINGS
Civil Rule 52(a) requires the trial court to "find the
facts specially and state separately its conclusions of law." We
have held that:
A trial court's finding's must be
sufficiently detailed and explicit to give an
appellate court a clear understanding of the
ground on which the trial court reached its
decision. If the trial court fails to
provide such findings, this court will remand
the case to the trial court for more specific
findings.
Sloan v. Jefferson, 758 P.2d 81, 86 (Alaska 1988) (citations
omitted). The only finding of fact relevant to the child support
award states:
The testimony of the parties
demonstrates a significant but not overriding
economic disparity in the income [William]
makes as opposed to the income [Catherine]
makes. The only income [Catherine] makes is
from hair styling and her income is less than
that of [William]. The evidence demonstrated
that [William] is the more qualified and able
person in the business world. In aid of
making this finding, the court has considered
and relied in some degree upon the cross-
examination of [William] and his answers in
connection with exhibit number 12.
Judge Reese must have adopted this finding as he made
no new findings of fact. Once again without the trial
transcript, it is impossible to fully interpret this finding.
Nonetheless, we conclude that the finding, on its face, provides
an insufficient basis for the support award. The mere references
to the parties' relative financial positions fail to provide the
raw numbers necessary for a Civil Rule 90.3 calculation. Also,
not only was Judge Reese in a poor position to adopt Judge
Ripley's credibility determinations, these determinations alone
are unhelpful without a statement of what the factfinder believed
the facts to be.
Although the child support award itself indicates that
Judge Reese accepted Catherine's assessment of each parties'
income, the record indicates that the dispute over income
escalated after the April 1990 trial and, more importantly, after
the findings of fact were filed. Despite the apparent dispute
over each parties's income, Judge Reese did not order a new
evidentiary hearing or make specific findings to provide us with
"a clear understanding of the ground on which the court reached
its decision."7 Sloan, 758 P.2d at 86. We therefore remand this
case for further findings and a recalculation of child support.
Given the passage of time and the apparently unresolved factual
issues regarding income, an evidentiary hearing on the matter is
also appropriate.8
The child support award is VACATED, and the case is
REMANDED for further proceedings consistent with this opinion.
_______________________________
1. William "Billy"Adrian III, the couple's only child,
was born in December 1974. William and Catherine also raised
Ronette Adrian, William's daughter from a prior relationship.
Although Catherine never adopted Ronette, born in October 1972,
the parties agreed that Ronette is a child of the marriage under
AS 25.24.150.
2. Catherine works as a hairdresser and, at the time of
these proceedings, was a partner in the Main Event beauty salon.
Catherine's affidavit listed her gross monthly income at $2,000,
her annual adjusted income at $12,660, and her Rule 90.3 monthly
support obligation for Ronette at $211. Although the pre-printed
affidavit form which she filled out states "I have attached a
copy of my most recent federal tax return and pay stubs to verify
this information,"Catherine did not submit documentation of her
income other than the bare affidavit and a similarly undocumented
"financial declaration."
3. One of the many odd features of this case is that the
evidence relevant to the child support determination was
presented at the divorce trial conducted before Judge Ripley but
the child support order was actually signed by Judge Reese.
Civil Rule 63(c) makes provision for the substitution of a
disabled judge after a verdict has been rendered. However, the
record does not indicate that Judge Ripley was actually disabled
or explain why Judge Reese took over the case and signed the
support order. Nonetheless, neither party remarks on this point,
and more importantly, William fails to claim error or challenge
Judge Reese's authority to issue the support order. See Moffitt
v. Moffitt, 749 P.2d 343, 346 (Alaska 1988) ("If a party
acquiesces to the authority of a successor judge by failing to
make a timely objection to that judge's authority, the party has
waived any objection he or she may have to challenge that
authority."). Therefore, for purposes of this appeal, we will
assume that Judge Reese properly referred to the trial transcript
and Judge Ripley's findings of fact before signing the child
support order.
4. Catherine was also awarded $250 in attorney's fees.
William challenges this award in his points on appeal but does
not raise the issue in his brief. Therefore he has waived this
point. See Peterson v. Mutual Life Ins. Co. of New York, 803 P.2d
406, 411 (Alaska 1990) (point will not be considered on appeal if
given only cursory statement in party's brief).
5. William, as the appellant, is responsible for
designating the record and including all materials necessary to
decide the issues presented on appeal. See Appellate Rule 210(d).
6. The record suggests that William was very uncooperative
during these proceedings and hindered the trial court in making
an accurate determination of his income. Therefore it may have
been appropriate for the court to resolve all factual issues
regarding income against him. See Hartland v. Hartland, 777 P.2d
636, 640 (Alaska 1989) ("Alaska law clearly permits a trial court
to resolve a finding of fact against a party whose vexatious,
contemptuous, or obstructive behavior causes the trial court to
have insufficient evidence."). We are also unwilling to
entertain on appeal a challenge to the adequacy of evidence by "a
party who fails to present sufficient evidence at trial." Id.
Nevertheless, if the trial court intends to rely on a party's
obstructive or vexatious conduct in resolving the factual
dispute, it must explicitly state the facts which support its
decision. We will not infer such conduct from the record or
create a rationale to support the trial court's action based on
the suggestion of uncooperativeness in the record.
7. This appears to be a case of over-reliance on attorney
prepared findings of facts and conclusions of law. See Civil
Rule 78(a); Industrial Indem. Co. v. Wick Const. Co., 680 P.2d
1100, 1108 (Alaska 1984) ("Rule 78(a) was not intended to
delegate to counsel the court's duty of finding the facts.")
(citation omitted).
8. During the course of these proceedings, Ronette will
probably have graduated from high school. On December 3, 1992,
Billy will turn eighteen. Therefore, it appears likely that the
passing of time will change the nature of this case from one to
determine on-going support to an accounting for child support
arrears.
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