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Taylor v. McGlothlin (6/28/96), 919 P 2d 1349
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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
PHILIP EUGENE TAYLOR, )
) Supreme Court No. S-6583/6584
Appellant and )
Cross-Appellee. ) Superior Court No.
) 1KE-91-758 DR
v. )
) O P I N I O N
SUE ANN McGLOTHLIN, )
) [No. 4366 - June 28, 1996]
Appellee and )
Cross-Appellant.)
_______________________________)
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Ketchikan,
Thomas M. Jahnke, Judge.
Appearances: Bryan T. Schulz, Keene &
Currall, Ketchikan, for Appellant and Cross-
Appellee. Michael J. Zelensky, Ketchikan, for
Appellee and Cross-Appellant.
Before: Compton, Chief Justice, Rabinowitz,
Matthews and Eastaugh, Justices, and Shortell,
Justice pro tem.
RABINOWITZ, Justice.
I. INTRODUCTION
This appeal requires this court to consider two issues:
(1) whether a child support agreement entered into in 1976 can be
modified retroactively, and (2) whether the superior court, in
modifying child support prospectively, erred by ordering an amount
less than the Civil Rule 90.3 formula requires.
II. FACTS AND PROCEEDINGS
Sue Ann McGlothlin and Philip Taylor are the parents of
a daughter, Alissa, born September 3, 1976. At the time of
Alissa's birth, McGlothlin was sixteen and Taylor twenty, and they
were not married. On September 9, 1976, six days after Alissa's
birth, the parties entered into an "Agreement"and a "Judgment by
Confession Without Action."(EN1) In addition to establishing
paternity, the documents provided that Taylor would pay all of
Alissa's medical and dental expenses and pay child support in the
amount of $100 per month until Alissa reached nineteen years of
age. Neither the agreement nor the confession of judgment was
filed with a state court, and a judgment was never entered in
accordance with either document.
Approximately fifteen years later, on August 7, 1991,
McGlothlin filed a complaint against Taylor seeking both
retroactive and prospective modification of Taylor's child support
obligation. (EN2) In the fifteen year interim, Taylor consistently
paid $100 in child support in conformity with the parties'
agreement. Also, during that time, McGlothlin married, had two
additional children, and moved to California. Taylor also married
and now has three children.
In her complaint for retroactive modification, McGlothlin
claimed that the expense to raise Alissa far exceeded the $100 per
month which Taylor had paid. Taylor then moved for partial summary
judgment on the issue of retroactive modification. The superior
court denied Taylor's motion and treated McGlothlin's request for
retroactive modification as an action on a debt. To this effect,
the superior court stated:
The court does not read McGlothlin's complaint
as claiming a right to recover the amount of
support Taylor should have been paying less
$100.00 per month . . . . Instead, this
portion of the case involves an action by
McGlothlin suing on her own behalf and not on
behalf of Alissa. (Another claim, for a
prospective increase in support, is a claim on
behalf of Alissa.) It also may be subject to
the statute of limitations defense asserted by
Taylor.
The superior court also stated that "[a]t trial, McGlothlin may
prove the actual amounts she reasonably expended in support of
Alissa and Taylor may address any legal or equitable defenses,
after which the court will equitably allocate the burden between
the two parents."
Following trial, the superior court allocated to Taylor
fifty percent of the expenses McGlothlin incurred in raising
Alissa, less a credit for the $100 per month he had paid. It held,
however, that AS 09.10.050(1), the six-year statute of limitations,
applied and limited McGlothlin's recovery to the period from August
1985 through 1991. The superior court found that the total
reimbursable amount for the six-year period was $14,499.97. The
court further provided that Taylor was to pay the reimbursement
award in three equal annual installments.
Concerning McGlothlin's complaint for prospective
modification, a straightforward application of Civil Rule 90.3(a)
results in a determination that Taylor's support obligation exceeds
$600 per month. However, the superior court found "that unusual
circumstances exist and that a lower child support amount is
mandated to avoid manifest injustice." Accordingly, the superior
court set Taylor's prospective child support amount at $300 per
month, retroactive to August 1991, the date McGlothlin instituted
suit seeking retroactive and prospective modification of Taylor's
support obligation. Finally, the superior court denied
McGlothlin's motion for attorney's fees, holding that since, "Each
party won and lost major aspects of this child support litigation.
Neither should be characterized as the prevailing party for
purposes of Alaska R. Civ. P. 82."
Taylor does not contest the superior court's authority to
prospectively modify the parties' child support agreement and
increase his obligation. He does however contest the superior
court's authority to retroactively modify his child support
obligation. Alternatively, he argues that the equitable defense of
laches should bar McGlothlin's claim for retroactive modification
of his support obligation. McGlothlin cross-appeals, arguing that
the superior court erred in deviating from the criteria of Civil
Rule 90.3 in setting Taylor's prospective child support obligation,
erred in providing for installment payments in its award of
retroactive support, and erred in denying her request for
attorney's fees.
III. DISCUSSION
A. The Superior Court Erred by Retroactively Modifying the
Parties' Child Support Agreement. (EN3)
In disregarding the parties' child support agreement and
judgment of confession, and in holding that McGlothlin could
maintain an action for "reimbursement of a debt,"the superior
court placed dispositive emphasis on the fact that the parties'
agreements had never been subject to judicial oversight or
approval. To this effect, the superior court stated:
Both the rule and the commentary [to Rule
90.3] make clear that a prescribed child
support amount may not be modified
retroactively. . . .
Therefore, McGlothlin could receive no
retroactive modification of a support order
entered pursuant to A.R.Civ.P. 90.3. The
court also believes that Rule 90.3 and its
prohibition on retroactive modification of
support amounts is the controlling rule of
decision when support orders entered by courts
prior to the effective date of Rule 90.3 are
brought before the court for review today.
However, what the parties bring before the
court for review in this case is not a support
order; it is a support agreement. Therefore,
the question of retroactive modification is
controlled not by Rule 90.3 but by other
statutory and common law rules.
As a threshold matter, we note that the weight the
superior court placed on the distinction between an order and an
agreement is misplaced. In 1976, agreements concerning child
support, such as the one between McGlothlin and Taylor, were legal.
Their agreement established paternity, provided for support, and
required Taylor to assume Alissa's health care costs. The
prohibition against parents agreeing privately to a level of child
support below that called for by the provisions of Civil Rule 90.3
is an integral component of Civil Rule 90.3, which was adopted in
1987. See Cox v. Cox, 776 P.2d 1045, 1047 (Alaska 1989). Before
that time, such agreements were legal, though they were retractable
prospectively at the option of the custodial parent. Thus, we
conclude that the fact that the parties' agreement was never
subject to judicial approval is irrelevant to the proper resolution
of this issue.
In reaching its decision, the superior court stated that
it was guided in its deliberations by Matthews v. Matthews, 739
P.2d 1298 (Alaska 1987). Matthews was a pre-Civil Rule 90.3 case
decided shortly after the effective date of Civil Rule 90.3. The
superior court explained Matthews as follows:
The parties were divorced in 1974, and while
there was an intent by the trial court to
impose on the father a child support
obligation of $150.00 per child per month,
such an order was never entered. From 1974
until the action was commenced in 1986, the
father paid little child support. In 1986,
the mother sought to amend the decree to
include a support order and also claimed a
right to reimbursement for past child care
expenses. The supreme court held that the
mother was entitled to claim reimbursement
from the father for his share of reasonable
child care expenses.
From this, the superior court reasoned that McGlothlin is similarly
entitled to reimbursement from Taylor.
Though Matthews and the instant case share a common
feature -- the absence of an underlying support order -- they
differ in a more meaningful way. Here the parties had reached an
agreement on Taylor's support obligation, whereas in Matthews there
was no order of support nor any agreement between the parties
regarding child support. Matthews might have controlling
significance here only if Taylor and McGlothlin had not entered
into an agreement regarding child support and Taylor subsequently
failed to provide child support.
Essentially, in Matthews this court corrected the
superior court's oversight in failing to provide for child support.
In so doing, since there was no underlying agreement or order, the
only basis for calculating past support was fashioned on a
reimbursement model. In contrast, here the parties had reached an
agreement regarding child support and had abided by it for fifteen
years.
Of greater relevance than Matthews is this court's
decision in Malekos v. Yin, 655 P.2d 728 (Alaska 1982). In
Malekos, after the superior court ordered the non-custodial parent
to pay monthly child support, the custodial parent indicated "that
she did not want support from him." Id. at 729. Thirteen years
later, in 1977, the custodial parent filed a complaint seeking both
arrearages and prospective modification. We have interpreted
Malekos to signify that, "[w]ith respect to the question of
support, . . . agreements between divorced parents to waive the
child support obligation of one of the parents were valid and
enforceable, but retractable prospectively at the option of the
custodial parent." Perry v. Newkirk, 871 P.2d 1150, 1155 (Alaska
1994). However, in Cox, 776 P.2d at 1048, we concluded "that the
decision in Malekos has been superceded by Rule 90.3. Parents may
not make a child support agreement which is not subject to the
rule."
If under Malekos parents could agree to entirely waive
the child support obligation of one parent, it follows that in the
absence of a support order, they could agree to a specified amount
of child support, as is the case here. Furthermore, even though
Malekos was superseded by Cox, it still has relevance here, since
this agreement was made before the child support guidelines rule
was promulgated.
Our decision in Perry is of further significance. Doug
Perry and Kelli Newkirk, unwed, had a child, named Amanda, in 1980.
Perry, 871 P.2d at 1151. After living together with their child,
they separated in 1984 and thereafter
signed a stipulation which purported to
terminate Doug's parental rights concerning
Amanda and to relieve Doug prospectively of
his obligation to pay child support. The
custody investigator recommended approval of
this stipulation and [the superior court]
approved it on January 30, 1986.
Five years later, on June 3, 1991, Kelli
filed a motion for child support for Amanda.
Doug opposed the motion on the grounds that
his parental rights and obligations were
terminated in 1986.
Id.
On appeal, we affirmed the superior court's setting aside
of the termination order under Civil Rule 60(b)(4), holding that it
was void for want of subject matter jurisdiction. Id. at 1155.
Having held the parties' 1986 termination agreement void, we
stated, "Thus, the question of child support was properly reopened
by Kelli's motion of June 3, 1991, either under a retraction
theory, following Malekos, or based on the substantial change in
circumstances reflected by the promulgation of the child support
guidelines." Id.
In our response to Kelli's claim on cross-appeal that the
trial court erred in not ordering child support retroactive to at
least August 1, 1987, when Civil Rule 90.3 was promulgated, we
stated:
On the merits of whether [the superior court]
erred in ruling that child support arrearages
would not be awarded, arrearages prior to
Kelli's motion of June 3, 1991, would not have
been appropriate. As noted above, the 1986
order was void as a termination of parental
rights and obligations, but was neither void
nor invalid as an order approving the parties'
agreement that Doug would not have to pay
child support. As so limited, the order was
subject to modification, but only from the
time of the motion. Malekos; see also Civil
Rule 90.3.
Id. at 1156. If the superior court's order approving the parties'
pre-1987 agreement that Doug Perry pay nothing in child support is
immune from retroactive attack, then in the case at bar, McGlothlin
and Taylor's agreement that Taylor pay $100 per month is similarly
immune. Consequently, we hold that the superior court erred when
it held that McGlothlin could maintain an action for
"reimbursement"of child care expenses. (EN4)
B. The Superior Court Did not Err in Setting Taylor's
Prospective Child Support at an Amount Less than the Rule
90.3 Calculation Requires.
Though the superior court erred in modifying the parties'
support agreement retroactively, it possessed the authority to
modify Taylor's obligation prospectively. See Perry, 871 P.2d at
1155. In so doing, the superior court, after noting that under
Civil Rule 90.3 Taylor's support amount would exceed $600, set
Taylor's prospective support obligation at $300 per month. In her
cross appeal, McGlothlin argues that this determination was clearly
erroneous. (EN5)
As we stated in Malekos:
The superior court ordered George to pay
arrearages for the period between when the
waiver was withdrawn and when the superior
court order was entered, October 1977 through
November 1980. In addition, the court ordered
George to continue to pay support in the
amount of $60.00 per month until the child
reaches eighteen. While this award may well
be proper, we believe that the superior
court's determination of George's child
support obligation after the waiver was
withdrawn may have been prejudiced by the
erroneous view that a custodian's waiver of
decretory child support is inoperative as a
matter of law. We therefore think it
advisable to allow the superior court an
opportunity to reconsider these aspects of its
decision.
Malekos, 655 P.2d at 733.
In Malekos, we reasoned that the superior court's award
of a low level of prospective support was influenced by its
erroneous decision to require the obligor parent to pay support
arrearages. Since the trial court may have been compensating for
the imposition of arrearages when setting its prospective support
amount, we afforded the superior court an opportunity to reconsider
its decision in light of the fact that arrearages were
inappropriate. Similarly here, since the superior court's decision
to deviate from Civil Rule 90.3 was perhaps motivated in part by
its decision to award "reimbursement,"it should be allowed the
opportunity to reconsider its Civil Rule 90.3 decision, given that
we have reversed the superior court's decision on the retroactivity
issue.
Turning to the merits, the superior court's authority to
deviate from the prescribed amount of support under Rule 90.3(a) is
limited. Civil Rule 90.3(c)(1) provides in relevant part:
The court may vary the child support award as
calculated under the other provisions of this
rule for good cause upon proof by clear and
convincing evidence that manifest injustice
would result if the support award were not
varied. The court must specify in writing the
reason for the variation, the amount of
support which would have been required but for
the variation, and the estimated value of any
property conveyed instead of support . . . .
Good cause may include a finding:
(A) That unusual circumstances, such as
especially large family size, . . . exist
which require variation of the award in order
to award an amount of support which is just
and proper for the parties to contribute
toward the nurture and education of their
children. The court shall consider the
custodial parent's income in this
determination.
As to what constitutes "unusual circumstances,"the
commentary to Civil Rule 90.3 provides guidance and discusses
specific factual situations. Relevant to this case is the
commentary's discussion of "subsequent children,"a factor which
the superior court relied upon in varying Taylor's support
obligation:
Subsequent Children. A parent with a support
obligation may have other children living with
him or her who were born or adopted after the
support obligation arose. The existence of
such "subsequent"children, even if the
obligor has a legal obligation to support
these children, will not generally constitute
good cause to vary the guidelines. However,
the circumstances of a particular case
involving subsequent children might constitute
unusual circumstances justifying variation of
support. The court should reduce child
support if failure to do so would cause
substantial hardship to the "subsequent"
children.
Civil Rule 90.3 Commentary VI(B)(2).
The superior court was influenced by the factor
highlighted above, substantial hardship to the subsequent children.
In its decision, it stated:
[Taylor] seeks relief from the Rule 90.3(a)
amount based upon unusual circumstances that
justify setting child support at a lower
amount. The court agrees that unusual
circumstances exist and that a lower child
support amount is mandated to avoid manifest
injustice. [Taylor's] main complaint is that
[McGlothlin] brought this suit fifteen years
after they entered into an agreement for the
payment of $100.00 child support per month.
[Taylor] argues persuasively that he has
incurred substantial obligations since Alissa
was born in reliance on the $100.00 child
support agreement with [McGlothlin]. This
claim is bolstered by the fact that their
agreement was entered into years before Rule
90.3 and the supreme court decision in
Matthews. Among the obligations he incurred
were those to support three children born
after Alissa. [Taylor] had a reasonable
expectation concerning what his support
obligations to Alissa would be. It would also
work substantial prejudice on his subsequent
children were support for Alissa set at the
Rule 90.3 amount. The court is also
influenced by the mortgage obligation that was
reasonably incurred by [Taylor] to house his
subsequent children and the need to pay
substantial monthly child care costs for one
of the subsequent children because the job
which he has held for many years requires him
to be away from home for two weeks out of the
month. Finally, the court notes that
[McGlothlin's] family, while challenged by a
very high California cost of living, is better
able to finance the costs of Alissa's care.
(Footnote incorporated into text, citation omitted.)
Initially it should be noted that in choosing to deviate
from the level of support called for by Civil Rule 90.3, the
superior court satisfied the formalities required by the rule.
That is, it (1) stated its reasons in writing, (2) stated what the
award would have been but for the variation, and (3) though not
stated expressly, apparently concluded that its award was based
upon proof by "clear and convincing evidence." Civil Rule
90.3(c)(1). Similarly, in concluding that this was a case of
"unusual circumstances,"the superior court properly considered
McGlothlin's income. Civil Rule 90.3(c)(1)(A).
As for the influence of Taylor's mortgage on the superior
court's decision, the commentary states:
Prior or subsequent debts of the obligor, even
if substantial, normally will not justify a
reduction in support. The obligation to
provide child support is more important than
the obligation to fulfill most other
obligations. However an obligor parent may
attempt to present evidence which shows the
existence of exceptional circumstances in an
individual case.
Civil Rule 90.3 Commentary, VI(B)(5). Though the superior court
found that Taylor's mortgage was "reasonably incurred . . . to
house his subsequent children,"it did not find that the mortgage
rises to the level of an "exceptional circumstance."
Though the superior court's finding that Taylor's
subsequent children would suffer substantial hardship if the Civil
Rule 90.3(a) amount was awarded is not clearly erroneous, its
underlying reasoning is questionable. It found that Taylor's
subsequent children would suffer substantial hardship because
Taylor "had a reasonable expectation concerning what his support
obligations to Alissa would be." However, under Malekos we
recognized that as a matter of law a private child support
agreement can be modified prospectively. Malekos, 655 P.2d at 732.
Thus, in structuring his finances, Taylor could reasonably assume
that he would not be subject to a retroactive modification of the
parties' agreement; however, he similarly should have recognized
that at any time his support obligation could be modified
prospectively.
Even so, the superior court correctly found that if
Taylor's support obligation was set at the Civil Rule 90.3(a)
amount, his subsequent children will suffer "substantial
prejudice." In short, we hold that the superior court's finding
that Taylor's subsequent children will suffer substantially unless
deviation from the Civil Rule 90.3 level of support was authorized
is not clearly erroneous and did not constitute an abuse of
discretion.
Although we have concluded that the superior court's
decision as to the appropriate level of prospective child support
was not clearly erroneous, as noted previously, we remand this
aspect of the case to the superior court. Given the fact that the
superior court's decision to deviate from Civil Rule 90.3 could
have been motivated in part by its decision to award reimbursement
to McGlothlin, it should be afforded the opportunity to reconsider
its Civil Rule 90.3 prospective level of child support decision if
in its discretion it deems it advisable.
IV. CONCLUSION
The superior court's ruling requiring Taylor to reimburse
McGlothlin is REVERSED. The superior court's ruling setting
Taylor's prospective child support obligation is AFFIRMED and this
aspect of the appeal is REMANDED for such further proceedings as
the superior court in its discretion considers advisable. (EN6)
ENDNOTES:
1. McGlothlin was represented by counsel, Taylor was not.
2. McGlothlin also claimed that Taylor had not provided for all
of Alissa's medical and dental needs. This issue is not before us
in this appeal.
3. Trial courts generally have broad discretion concerning child
support modification. See, e.g., Arndt v. Arndt, 777 P.2d 668, 669
(Alaska 1989). At issue is the question of whether the superior
court was authorized to retroactively modify support. This raises
questions of law. We consider questions of law de novo, adopting
the rule that is most persuasive in light of precedent, reason and
policy. Bromley v. Mitchell, 902 P.2d 797, 800 (Alaska 1995).
4. This conclusion renders moot Taylor's alternative argument
that laches bars McGlothlin's claim for reimbursement.
5. Child support determinations are within the broad discretion
of the trial court and will only be reversed when this court is
left with a definite and firm conviction that a mistake has been
made. Zimin v. Zimin, 837 P.2d 118, 124 n.8 (Alaska 1992).
6. Given our disposition of the issues in this appeal, it is
unnecessary to address McGlothlin's claims that the superior court
erred in ordering that Taylor pay off the reimbursement award in
installments, and that the superior court erred in denying her any
award of attorney's fees.
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