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B. Karpuleon v. D. Karpuleon (9/30/94), 881 P 2d 318
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Notice: This opinion is subject to formal 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.
THE SUPREME COURT OF THE STATE OF ALASKA
BILLY S. KARPULEON, )
) Supreme Court No. S-5433
Appellant, )
) Superior Court No.
v. ) 3AN-89-7310 Civil
)
DEBORAH K. KARPULEON, ) O P I N I O N
)
Appellee. ) [No. 4123 - September 30,
1994]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Elaine M. Andrews,
Judge.
Appearances: William T. Ford,
Anchorage, for Appellant. Kenneth C. Kirk,
Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice, pro tem.*
MOORE, Chief Justice.
I. INTRODUCTION
The single issue presented in this appeal is whether a
self-executing agreement for future shifting of child support
payments, incorporated by reference into the decree of
dissolution, should be given legal effect, despite the
prohibition in Alaska Civil Rule 90.3(h)(2) on retroactive
modifications of child support arrearages. We hold that the
parties' agreement is effective.
II. FACTS AND PROCEEDINGS
Billy and Deborah Karpuleon filed for dissolution on
August 29, 1989. The parties had two children: Cari, who turned
18 in December 1990; and Aaron Scott (Scott), who turned 18 in
July 1992. The parties had originally intended to split custody
of the children, with Cari living with her mother and Scott with
his father. The parties included in their Petition for
Dissolution a child support calculation providing that Billy
would pay $470 per month in child support.
Before the granting of the dissolution, both children
went to live with Billy. The parties filed an Amendment of
Agreement on October 16, 1989. The Amendment included the
following provisions: (1) The parties would have joint legal
custody of the children; (2) The children would reside primarily
with Billy; (3) Deborah would have liberal visitation rights; (4)
The court would waive child support from Deborah due to financial
considerations; (5) Billy would pay Deborah $200 per month in
spousal support until the end of 1990 or until she remarried; (6)
While the children were primarily residing with Billy, he would
claim them on his income taxes; (7) If the children moved back
with Deborah at a later date, Billy would pay child support to
Deborah; (8) The parent paying the majority of support for the
children would claim them on his or her income taxes; (9) If one
child resided with Billy and one with Deborah, each would claim
one child on their income taxes.
Superior Court Master Lucinda McBurney responded to the
proposed amendment in a letter dated November 6, 1989. She
informed the parties that she would only recommend waiving
Deborah's current child support obligations upon the condition
that Deborah pay child support pursuant to Civil Rule 90.3 once
spousal support terminated. After Deborah unsuccessfully
attempted to have Judge Reese overrule this determination, the
parties filed a second Amendment of Agreement which provided that
Deborah would begin child support payments on January 1, 1991,
when spousal support payments terminated.
On February 21, 1990, the superior court issued its
decree of dissolution of marriage. The decree awarded physical
and legal custody of the minor children to Billy Karpuleon and
ordered that "Deborah Karpuleon is to pay child support pursuant
to Civil Rule 90.3 when spousal support payments cease."
Unbeknownst to the court at that time, the parties had entered
into a side agreement on January 22, 1990 in which Billy waived
any entitlement to child support from Deborah.
In September 1991, after Cari had become emancipated,
the parties' younger child Scott moved in with his mother. On
March 2, 1992, Deborah filed a motion to modify child custody and
support. Billy did not respond, so Judge Andrews ordered him to
provide a Child Support Guidelines Affidavit. Billy complied;
however, he did not oppose the motion. Judge Andrews ordered him
to pay child support of $868.50 per month from April to July of
1992, at which time Scott would reach the age of majority.
Billy then filed a motion for the child support which
Deborah had not paid from January 1991 (when spousal maintenance
ceased) until September 1991 (when Scott stopped living with
Billy). He asked to have this amount, which he claims totals
$3,322.08,1 set off against his obligation of $3,474. Deborah
opposed, submitting the waiver of child support which Billy had
signed. A hearing was held on August 13, 1992 before Master
McBurney, who issued a master's report which Judge Andrews
approved on October 1, 1992.
The master made the following recommendations: (1)
Billy's waiver of any entitlement to child support from Deborah
was invalid, so that Deborah owed Billy child support from
January 1991 to September 1991, totalling $2,848; (2) For the
period of September 1991 through March 1992 the first Amendment
of Agreement--which specifically addressed the issue of child
support should the children change residences--governed, so that
Billy owed Deborah child support for that seven-month period; (3)
Billy still owed Deborah for support from April 1992 until the
emancipation of Scott in July 1992; (4) Billy therefore owed
Deborah for eleven months of support, totalling $9,553; and (5)
Adding all of the arrearages together, Billy owed Deborah a net
of $6,705.
Billy filed a motion for reconsideration, which was
denied. Billy appeals the requirement that he pay support from
September 1991 through March 1992.2
III. DISCUSSION3
A. Retroactive Modification of Child Support
Billy argues that the master and the superior court
erred in assessing child support against him for the period of
September 1991 through March 1992. He contends that under the
court order in effect during that period, Deborah owed him child
support. Billy argues that the assessment of child support
against him is therefore an impermissible retroactive
modification of child support, and that he owes no support for
the period preceding Deborah's motion to modify.
Alaska Civil Rule 90.3(h)(2)4 prohibits retroactive
modification of child support arrearages. The Commentary to
Civil Rule 90.3 provides in pertinent part:
X. MODIFICATION
. . . .
The Omnibus Budget Reconciliation
Act of 1986, P.L. 99-509, Section 9103(a)
(the Bradley Amendment),5 prohibits
retroactive modification of child support
arrearages. Rule 90.3(g)(2) [sic] is
intended to restate this prohibition,
including the exception allowed by federal
law for modification during the pendency of a
modification motion.
The prohibition against retroactive
modification limits both requested decreases
and increases in child support. See
Prohibition of Retroactive Modification of
Child Support Arrearages, 54 Fed. Reg. 15,763
(1989). Thus, either the custodial or the
obligor parent should promptly apply for a
modification of child support when a material
change in circumstances occurs.
(Emphasis added). Since a supported child's change in residency
constitutes a "material change in circumstances,"the Commentary
language suggests that the burden is on the parents to promptly
apply for modification in this case.
Deborah argues that the requirement to apply for a
modification of support should be waived in her case because of
the self-executing modification agreement incorporated into the
decree of dissolution. She argues that this court should simply
give effect to the parties' prior agreement that "if the children
move back with Deborah at a later date, Bill will pay child
support to Deborah." This was the position taken by the master
below and approved by the judge.
Deborah points out that this case does not involve a
retroactive modification of a parent's child support obligation,
but rather a shifting of the support obligation when custody
shifts. She states that "[i]n many cases it is not feasible for
the parents to run back into court each time the child changes
custody." While Civil Rule 90.3(h)(2) may prohibit a parent from
receiving a retroactive modification of his or her arrears in
such a situation, it does not prohibit a prior order shifting the
child support obligation.6
We must determine whether the policy reasons for giving
effect to an agreement between divorcing spouses over future
shifting of child support obligations outweigh the policy reasons
behind prohibiting retroactive child support modifications. The
commentators to the Department of Health and Human Services'
implementation of the Bradley Amendment expressed dissatisfaction
with laws allowing a retroactive reduction of child support
"without placing any diligence requirement on the absent parent
to petition in a timely manner to reduce the order." Prohibition
of Retroactive Modification of Child Support Arrearages, 54 Fed.
Reg. 15,757, 15,758 (1989) (to be codified at 45 C.F.R. pts. 302,
303 and 305). They also expressed concern that "[s]uch laws
further permitted arguments to be made about changed
circumstances in prior periods at a time when evidence may not
have been easily attained or available." Id. Such evidentiary
issues may arise not only in cases where the changed
circumstances are relevant to arrearages but also in cases such
as this where changed circumstances may warrant a shifting in the
support obligation.
Billy cites a New Jersey case which discussed the
special evidentiary considerations involved when a teenage child
changes residences, believing that he or she will be happier
living with the other parent. Ohlhoff v. Ohlhoff, 586 A.2d 839,
842 (N.J. Super. Ct. App. Div. 1991). Ohlhoff pointed out the
difficulties inherent in determining whether such changes in the
child's residence will be permanent. Id. In the instant case,
Billy stated in an affidavit that the change in Scott's residence
was considered temporary at the time:
SCOTT said he wanted to live with his
mother for awhile and we all agreed that a
cooling off period might be in order. SCOTT
went back to his mother's house, but took no
other clothes with him. His dresser is full
and he still has all of his things in his
closet in my house. He also still receives
his mail at my house and I make arrangements
to get it to him.
Thus, the precise problem with which Ohlhoff was concerned is
raised in the Karpuleons' case.
Deborah agrees that teenage children may require
different treatment by the court; in fact, she asks this court to
take judicial notice that older children often change custody on
a temporary basis. However, she argues that in many cases it is
impractical for the parents to run back into court each time the
child changes custody, and that therefore allowing shifting child
support orders would be good public policy.
The responses to public comments contained in the
federal regulations discuss the effect of prospective
modifications:
Federal law and regulations do not
preclude the States from having laws that
permit automatic prospective suspension or
prospective termination upon the development
of specific circumstances such as the
emancipation or death of a child. Such
"modifications by operation of law"upon the
occurrence of an event known to both parties,
if applicable generally to all child support
orders in the State, would not appear to
contradict the intent of the law.
54 Fed. Reg. at 15,761. A possible temporary change of the
child's residence lacks the same legal significance or permanence
as death or emancipation of the child. The shifting of the
support obligation in this case occurs upon the children
"mov[ing] back with Deborah,"the occurrence of which is a
somewhat subjective determination. Yet, to the extent our
decision becomes binding precedent, it will meet the contemplated
requirement of being applicable to "all child support orders in
the State"where similar circumstances exist.
We conclude that Deborah has shown with sufficient
certainty that Scott moved in with her in September 1991. We
find that the details of when the prospective automatic
termination and shifting of the obligation would occur were
sufficiently clear that the parties should be held to their
agreement in this case. Policy considerations may have dictated
a different result if the agreement had not been in writing, or
had the timing of the child's change in residence been more
nebulous. However, in reaching our decision, we are merely
upholding the written agreement between the parties, as
incorporated into the decree of dissolution. We also note that
our decision will not cause a retroactive modification of the
support obligation, but will merely enforce the shifted
obligation, as contemplated in the written agreement.7
B. Equitable Estoppel Argument
Deborah argues that the doctrine of equitable estoppel
should apply to prevent a parent who has not actually had custody
of the child from asserting a claim for child support arrearages.
Deborah acknowledges that such an approach would violate the
rigid rule against child support modifications, but she cites a
line of Illinois cases which she claims have continued to apply
equitable estoppel even after adopting the strict federal
prohibition on retroactive modifications.
Regardless of the merits of the argument, the entire
equitable estoppel discussion is moot in this appeal. Deborah
acknowledges that the application of equitable estoppel would not
entitle her to an award of child support for the period in
question (October 1991 to March 1992). She merely claims that
the doctrine should prevent Billy from asserting a claim for
child support for this same period. This argument is moot
because Billy has asserted both to the superior court and this
court that he is not attempting to collect child support for this
period, but merely for January 1991 to September 1991.
IV. CONCLUSION
For the reasons stated above, the order of the superior
court is AFFIRMED.
_______________________________
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 Billy's supporting memorandum claimed that Deborah owed
him arrearages of approximately $3,501. He now admits that this
amount was calculated incorrectly and should have been $3,322.08.
Master McBurney calculated this amount to be $2,848, based on a
monthly obligation of $356 per month and not including the
September 1991 payment in Deborah's obligation.
2 Deborah does not appeal the superior court's finding
that Billy's waiver of entitlement to child support was void.
3 We generally review decisions on motions to modify
child support for abuse of discretion. See, e.g., Patch v.
Patch, 760 P.2d 526, 529 (Alaska 1988). However, we review this
decision de novo, since the relevant facts are undisputed and
purely legal issues are involved. See, e.g., Guin v. Ha, 591
P.2d 1281, 1284 n.6 (Alaska 1979).
4 Civil Rule 90.3(h)(2) provides:
Child support arrearages may not be
modified retroactively. A modification which
is effective on or after the date that a
motion for modification is served on the
opposing party is not considered a
retroactive modification.
5 The Bradley Amendment is codified at 42 U.S.C.
666(a)(9) (1988).
6 The Bradley Amendment itself is not directly applicable
to this case as it merely specifies what laws a state must have
in order to receive federal funds; the Bradley Amendment is not
itself a substitute for state law.
7 Billy also disagrees with the master's failure to
include the September 1991 payment in Deborah's past due
obligation, and with her finding that Billy's obligation of
$868.50 began in September and not October of 1991, even though
Scott did not move out of his father's residence until sometime
late in September. Billy did not raise this issue in his
Statement of Points on Appeal, and therefore we consider it
waived. See Welcome v. Jennings, 780 P.2d 1039, 1042 n.4 (Alaska
1989).
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