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C. Renfro v. V. Renfro (3/26/93), 848 P 2d 830
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Notice: This 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
CHARLES RENFRO, )
) Supreme Court No. S-3491
Appellant, )
) Superior Court No.
v. ) 3AN-88-6189 Civil
)
VIRGINIA D. RENFRO, ) O P I N I O N
)
Appellee. )
_________________________) [No. 3939 - March 26, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Victor D. Carlson, Judge.
Appearances: Charles Renfro, pro se,
Anchorage. Maryann E. Foley, Anchorage, for
Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, and Compton, Justices.
[Burke, Justice, not participating.]
MATTHEWS, Justice.
This case involves a divorce action brought by Virginia
Renfro seeking termination of her marriage to Charles Renfro.
The trial court granted the divorce, awarded Virginia sole
custody of the couple's three children, granted Charles
visitation rights, and granted Virginia's requests for child
support, rehabilitative spousal support, and attorney's fees.
Charles appeals these decisions, arguing that the trial court
abused its discretion on each.
I. FACTS & PROCEEDINGS
Charles and Virginia were married on July 27, 1979.
The couple have three children currently ranging in age from
seven to twelve years old. Charles also has a nineteen-year-old
son from a previous marriage who is living with him.
During the first eighteen months of their marriage,
Charles worked as the sales manager for a lumber yard. In 1980-
81 he purchased the Curtis Plumbing & Heating business which he
has owned and operated since. Virginia occasionally assisted her
husband at the business and otherwise cared for the children and
attended university classes part-time. In July of 1988 Charles
and Virginia separated and their three children resided with
Virginia.
On June 10, 1988, Virginia filed her complaint for
divorce in the Superior Court, Third Judicial District. A trial
was held in March of 1989. In due course the trial court entered
findings of fact and conclusions of law and a decree. Virginia
was granted sole custody of the children and Charles was allowed
liberal visitation; Virginia was awarded $833 a month in child
support, $400 a month in temporary rehabilitative support for
forty-eight months, and reasonable costs and attorney's fees.
Charles appealed. Since filing his appeal, Charles has filed for
and emerged from a chapter 11 bankruptcy.1
II. CHILD CUSTODY & VISITATION
We determine Charles' contentions concerning child
custody summarily. The trial court committed no legal or factual
error in granting sole custody to Virginia with liberal
visitation to Charles.2
III. CHILD SUPPORT
The superior court based its award of child support on
a straightforward application of Alaska Rule of Civil Procedure
90.3(a)(1) and (2). First, the superior court determined
Charles' adjusted annual income to be $30,000. Second, the court
selected the formula in Rule 90.3(a)(2)(C) -- 33% of adjusted
annual income -- as the child support measure for three children.
Third, using this formula, the court determined that Charles was
obligated to pay $10,000 annually in child support -- 33% of
$30,000 -- which roughly divides into $833 per month.
Charles complains that the superior court, in
determining child support, failed to: (1) consider Charles'
custody and support of a child from a previous marriage; (2)
provide for abatement of child support upon the children
attaining the age of majority or otherwise becoming emancipated;
(3) reduce child support to account for Charles' expenses during
the six weeks each summer he has custody of the children; and (4)
reduce child support by the cost of medical insurance Charles is
obligated to provide the children. Additionally, Charles
complains that the superior court incorrectly calculated his
earning capacity which, in turn, resulted in an erroneous award
of child support. We now address these points.
A. Reduction for Summer Visitation Expenses
Charles argues that he is entitled to credit against
child support for expenses incurred during the children's
visitation with him.3 In making this argument, Charles relies
solely upon Alaska Rule of Civil Procedure 90.3(a)(3) which
allows the superior court to "reduce child support payments up to
50% for any period in which that parent has extended visitation
of over 27 consecutive days." The decision whether to credit the
obligor parent's support obligation for these expenses is
committed to the superior court's discretion.
Although affording a credit under Rule 90.3(a)(3) is a
discretionary decision, that fact does not relieve the superior
court of its obligation to consider whether or not to grant a
credit. In a related context, we have required that the superior
court expressly consider and make findings under Rule 90.3. In
Long v. Long, 816 P.2d 145 (Alaska 1991), we concluded that the
superior court might have ignored the applicability of Rule
90.3(b) on facts that potentially triggered a shared physical
custody adjustment of child support payments. Id. at 158. We
remanded for specific findings.
The same concern and respect Long required for Rule
90.3(b) is required for any provision of Rule 90.3 whose applica
tion is urged by a party where a sufficient factual predicate is
established. Cf. Lowdermilk v. Lowdermilk, 825 P.2d 874, 879
(Alaska 1992) (findings are required on all statutory factors
that are at issue and germane to the custody determination).
Because the trial court's findings of fact neither indicate that
a child support adjustment under Rule 90.3(a)(3) was considered
nor, if it was considered, express the court's rationale for
declining to make an adjustment, we vacate the award of child
support and remand for findings under this subsection.
B. Custody and Support of a Child from a Previous Marriage
Charles argues that he is entitled to credit against
child support for the expenses of raising his son from his
previous marriage. Rule 90.3(a) allows the court to reduce a
parent's total income in calculating child support to reflect
"child support and alimony payments arising from prior
relationships . . . ." Id. 90.3(a). The commentary to Rule 90.3
elaborates upon this requirement: "However, no explicit
deduction is allowed when the `prior' children live with the
obligor and thus the obligor furnishes support directly to the
children. In such a situation the court should reduce the
support of the obligor when necessary to avoid substantial
hardship to the `prior' children." Id. Commentary VI (B)(3)
(emphasis added). Thus, Charles is not entitled to a mandatory
credit under Rule 90.3(a).
Rule 90.3(c), however, permits variances from a
scheduled child support award "for good cause upon proof by clear
and convincing evidence that manifest injustice would result"
without a variance; substantial hardship to prior children caused
by a scheduled child support award can be considered as an
instance of good cause under Rule 90.3(c). The trial court did
not consider or make findings under this provision of Rule 90.3.
However, Charles presented no evidence of hardship to his son
from his prior marriage at trial or in his motion for
reconsideration. Thus this point was not genuinely at issue
before the trial court. No remand for further findings on this
point is required.
C. Reduction as Each Child Reaches Age of Majority
Charles complains that the superior court "failed to
provide for reduction of the child support obligation as each
child attained majority or was otherwise emancipated . . . ."
This contention lacks merit as the superior court's decree states
that Charles shall only pay child support "until such time as
each such child reaches the age of 18, dies or is emancipated
. . . ."
D. Credit for Medical Insurance
Charles complains that the superior court did not
credit his child support obligation to account for the cost of
medical insurance he is obligated to provide for the children.4
Virginia agrees that the superior court erred in this regard.
Thus, a remand for this purpose is required.
E. Charles' Earning Capacity
Charles complains that the superior court erred in
determining that he has an earning capacity of $30,000 per year.
Charles notes that he purchased Curtis Plumbing & Heating, his
current business and source of income, in 1980-81. He argues
that the superior court incorrectly based his earning capacity on
the $36,000 per year he earned prior to purchasing the business.
Instead, Charles argues that the court should have based his
earning capacity on his testimony that he "was able to earn
$2,000 or less per month." Indeed, his "total monthly income"as
stated on his sworn financial declaration was $1,907. In
determining earning capacity for Rule 90.3 purposes, the court
has discretion, on the evidence before it, to choose "the best
indicator of . . . future earning capacity." Coghill v. Coghill,
836 P.2d 921, 926 (Alaska 1992).
Charles testified that his annual income had changed
from about $36,000 per year as a sales manager to about $24,000
per year in his current business. In reaching the sum of $30,000
per year, the trial court appears to have averaged Charles' past
and present income figures. This court has approved of an
averaging approach when a parent's future earnings are uncertain,
Pugil v. Cogar, 811 P.2d 1062, 1067 (Alaska 1991), a description
which aptly fits Charles' situation.5
Since the superior court's decision is supported by the
evidence and consistent with our decisions it must be affirmed.6
IV. REHABILITATIVE ALIMONY
This court has "established a preference for meeting
the parties' needs with the division of property, rather than
with alimony . . . ." Schanck v. Schanck, 717 P.2d 1, 5 (Alaska
1986). Yet, this court has also approved of "rehabilitative
alimony [for] job training or other means directly related to the
end of securing for one party a source of earned income." Id.
In awarding spousal support, rehabilitative or otherwise, the
superior court must weigh each spouse's age, earning capacity,
financial position (including assets), health and physical
condition, and conduct during the marriage. Schoning v.
Schoning, 550 P.2d 373, 374 (Alaska 1976).
Virginia currently attends the University of Alaska
where she is pursuing a degree in psychology. Virginia is
seeking the degree in order to begin work as a mental health
counselor. The superior court recognized this job plan and
awarded Virginia $400 a month in "rehabilitative alimony to
increase her skills in order that she may secure a better job to
help raise the level of her children's standard of living." The
court's award is temporary, allowing Virginia forty-eight months
to complete her degree.
The trial court thoroughly considered Virginia's need
for rehabilitative support. Yet, in doing so, the court only
undertook half the needed inquiry. The court should have also
considered Charles' needs and financial status, especially as it
affected his ability to provide rehabilitative support. See
Schoning, 550 P.2d at 374. Thus, the court erred in only
considering Virginia's need for rehabilitative support. On
remand, the superior court must also consider Charles' relative
ability to provide such support.
V. PROPERTY
Charles argues, and Virginia agrees, that the superior
court erred in failing to divide all of the couple's property.
On remand, the superior court should divide Charles' and
Virginia's property in accordance with the three-step analysis
set forth in Wanberg v. Wanberg, 664 P.2d 568, 574 (Alaska 1983).
VI. CONCLUSION
We AFFIRM the superior court's grant of sole custody to
Virginia and the order pertaining to visitation. We VACATE and
REMAND the child support award for the superior court to consider
whether Charles is entitled to a reduction under Rule 90.3(a)(3)
(visitation). On remand, the superior court should also credit
the child support obligation for Charles' expense in providing
the children's medical insurance. We also VACATE and REMAND the
award of rehabilitative support for the superior court to
determine that issue in light of Charles' needs and financial
status as well as those of Virginia. Finally, on remand the
superior court must divide the remainder of Virginia's and
Charles' property.7
_______________________________
1 In an order dated October 26, 1989, this court stayed
Charles' appeal until completion of the bankruptcy proceedings.
2 In reaching his determination, the trial judge drew upon
the report and testimony of Katherine Yeotis, the Custody
Investigator. Ms. Yeotis testified that Virginia should receive
sole custody of the children and offered the basis of her opinion
for the court's consideration. She testified that "communication
is quite lacking"between Charles and Virginia; that both parents
had created difficulties concerning visitation during their
separation; and that Charles sought custody as a means of
controlling Virginia's behavior (i.e., Charles would allow
Virginia to visit the children "as long as she behaves"). Ms.
Yeotis also testified about her concern over Charles' anger
because, in her experience as a custody investigator, "frequently
children are used"as tools when such anger exists.
Additionally, the trial court heard both Charles' and
Virginia's testimony. Virginia testified to her husband's bouts
of anger, attempts to manipulate their children, and
uncooperative behavior in handling child visits during their
separation. Charles' testimony showed that, since their
separation, Virginia had taken the initiative in most areas of
the children's wellbeing.
These facts show a great deal of conflict between the
parents, which supports the trial court's choice of sole custody
over shared custody. See Bell v. Bell, 794 P.2d 97, 99 (Alaska
1990) ("joint custody would be inappropriate"when parents cannot
cooperate). With regard to awarding Virginia sole custody, the
above evidence shows the trial court faced a fairly close
decision in which its determination is justifiable and cannot be
characterized as clearly erroneous.
Charles also complains that the superior court's provision
of visitation was in error. The superior court adopted Ms.
Yeotis' suggestion of "reasonable and liberal visitation" for
Charles. The visitation schedule provided for "every other
weekend from Friday to Sunday, alternate holidays, six (6) weeks
summer visitation, and any other times as can reasonably be
arranged between the parties." Charles presents no
comprehensible arguments why this visitation determination is in
error.
3 He raised this contention in the superior court in a post-
decree motion for reconsideration which was summarily denied.
4 Rule 90.3(d) provides in part: "In calculating a child
support award, credit will be given for medical and dental
insurance, or educational payments for the children which are
required by the court or administrative order and actually paid."
5 Charles testified that his business was improving after
three bad years.
6 Charles is free to petition the superior court for
modification of child support if he can show that he is unable to
earn the income level determined by the superior court and, thus,
cannot meet his support obligation. Kowalski v. Kowalski, 806
P.2d 1368, 1372 (Alaska 1991). Under Rule 90.3(h)(1) a material
change in circumstances for modification purposes is presumed if
support under the rule is "more than 15 percent greater or less
than the outstanding support order."
7 Virginia concedes that the issue of attorney's fees is
moot in light of Charles' recent bankruptcy.
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