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Saltz v. Saltz (10/13/95), 903 P 2d 1070
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
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Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
FLOYD J. SALTZ, )
) Supreme Court No. S-6318
) Superior Court No.
v. ) 3KN-89-505 DR
DEANA SALTZ, ) O P I N I O N
Appellee. ) [No. 4272 - October 13,1995]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Charles K. Cranston,
Appearances: Phil N. Nash, Kenai, for
Appellant. Paul E. Olson, Anchorage, for
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
When Floyd and Deana Saltz decided to end their
marriage, Floyd agreed to pay Deana $150 per month in spousal
support for eighteen months. The superior court signed a decree
of dissolution of marriage which incorporated this spousal
Alleging that she was never paid the spousal support,
Deana filed a motion to reduce her spousal support claim to
judgment. Floyd defended on the grounds that he gave Deana
various checks which were used for Deana's benefit, and that
those checks should be treated as payment of the spousal support
due. Deana countered that the checks given to her were not used
for her benefit and were mainly used to pay Floyd's bills.
The superior court refused to credit any checks except
one $100 check against the spousal support obligation. The court
ruled that Floyd owed Deana $2600 in spousal support and awarded
Deana $2500 in attorney's fees, which was more than seventy
percent of the total judgment of $3545.72.
On appeal, Floyd first makes several arguments
concerning how the burden of proof should have been allocated.
These arguments are waived because they were not made before the
Floyd also argues that several of the superior court's
findings of fact are clearly erroneous. The record supports all
of the superior court's findings with the exception of the
finding dealing with check 629, a $231.21 check made out to J.C.
Penney. The superior court found that check 629 was used to pay
a debt to J.C. Penney which predated the couple's divorce and
that this debt was jointly owed by the couple. However, the
record shows that Deana assumed the J.C. Penney's debt. We
therefore conclude that the superior court should have credited
check 629 toward the spousal support obligation.
Finally, Floyd challenges the superior court's award of
attorney's fees. The superior court did not give an explanation
for awarding Deana attorney's fees in an amount greater than
seventy percent of her judgment. Alaska Civil Rule 82(b)
provides that the superior court shall award attorney's fees to a
prevailing party according to a fixed schedule. The superior
court may vary from the schedule for a number of reasons, but if
it does so "the court shall explain the reasons for the
variation." Alaska R. Civ. P. 82(b)(3) (final clause). In this
case, the superior court did not follow the schedule and did not
explain its reasons for doing so.
Deana argues that Rule 82 should not apply to a spousal
support enforcement action. This argument has been rejected by
our prior decisions. We have held that while Rule 82 generally
does not apply to divorce cases, it does apply to post-judgment
enforcement and modification motions. Lowe v. Lowe, 817 P.2d
453, 460 (Alaska 1991); Hartland v. Hartland, 777 P.2d 636, 644
(Alaska 1989); L.L.M v. P.M., 754 P.2d 262, 264 (Alaska 1988).
Deana relies on Cameron v. Hughes, 825 P.2d 882 (Alaska
1992). In Cameron, we ruled that legal costs reasonably and
necessarily incurred in collecting a judgment for past-due child
support should be treated as "costs of the action" and awarded to
the collecting party. Id. at 887. However, Cameron applies only
to post-judgment fees incurred after a support obligation has
been reduced to a unitary, fixed-sum judgment and only in child
support cases. See Torrey v. Hamilton, 872 P.2d 186, 188 n.1
(Alaska 1994). It does not apply in an action to reduce a
spousal support obligation to judgment.
Therefore, Rule 82 governs this case. Since the
superior court did not state its reasons for deviating from the
Rule 82 schedule, we VACATE the attorney's fees award and REMAND.
If the superior court does not follow the schedule on remand, it
must explain its reasons for doing so. The superior court should
also amend the judgment to reflect our conclusion that check 629
should have been credited towards Floyd's spousal support