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Acevedo v. Burley (9/5/97), 944 P 2d 473
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 of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
GUSTAVO ACEVEDO, )
) Supreme Court No. S-7479
) Superior Court No.
v. ) 4BE-90-139 CI
DENISE BURLEY, ) O P I N I O N
Appellee. ) [No. 4878 - September 5, 1997]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Bethel,
Dale O. Curda, Judge.
Appearances: Gustavo Acevedo, pro se, Bethel,
Appellant. Christopher R. Cooke, Hedland, Brennan, Heideman &
Cooke, Bethel, for Appellee.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
Gustavo Acevedo seeks a modification of his child support
obligation. He appeals the trial court's decision to deny his
motion to modify, arguing that the trial court erroneously
concluded that he failed to show a material change in his financial
circumstances. We affirm.
II. FACTS AND PROCEEDINGS
Gustavo Acevedo and Denise Burley were married in October
1989 and divorced in 1991. The trial court awarded custody of the
parties' child to Burley and ordered Acevedo to pay $300 per month
in child support.
Acevedo did not file a Child Support Guidelines
Affidavit, which would have calculated his child support obligation
based upon his income and expenses. [Fn. 1] Instead, the parties
filed a stipulation regarding child support, which the trial court
approved in March 1991.
The stipulation provided in part:
The parties acknowledge that since [Acevedo]
is self-employed as a taxi driver in Bethel, his income is subject
to some fluctuation. It is therefore difficult to precisely
calculate the amount of child support that is appropriate under
The stipulation also stated that "[f]or the past three years
[Acevedo's] net income for purposes of Rule 90.3 has ranged between
$10,000 and $20,000." Based upon this information, the parties
agreed that "a present child support award of $300 per month is
appropriate under Rule 90.3." However, the stipulation also noted
that "[t]his child support award is subject to future modification
if there is a change in circumstances."
The trial court ordered Acevedo to make child support
payments according to the stipulation. After the divorce, Acevedo
failed to make regular child support payments, and Burley twice
sought judicial assistance. In June 1993 the trial court reduced
to judgment Acevedo's $4,830.46 child support arrearage. Despite
this action, Acevedo continued to fall behind in his child support
payments, and by March 1994 his arrearage exceeded $7,000. As a
result, Burley moved the trial court for an order requiring Acevedo
"to appear and show cause why he should not be held in contempt of
court for his failure to pay child support." The trial court
granted Burley's motion and ordered Acevedo to appear in court to
attend a "show cause"hearing.
In April 1994, shortly before the hearing, Acevedo filed
a motion to modify his child support obligation. In his memorandum
supporting that motion, Acevedo asserted that he had experienced a
"significant and material change in circumstances as required by
[Rule] 90.3"because his net income had fallen more than fifteen
percent to a level "below the Federal Poverty Level Guidelines."
In light of this change in income, he argued that his child support
obligation should be fifty dollars per month.
In May 1994 the trial court rejected Acevedo's motion,
and Acevedo moved for reconsideration. The trial court denied
In October 1995 Acevedo filed a second motion to modify
his child support payments. As in the first motion, Acevedo argued
that his child support obligation should be fifty dollars per month
because (1) his income from his job as a self-employed taxi cab
driver had fallen more than fifteen percent from the time when his
child support obligation was initially set and (2) his income was
below "the Federal Poverty Level Guidelines."
The trial court concluded that "this motion is
substantially similar to a motion filed by Mr. Acevedo in April,
1994 which was denied, and Mr. Acevedo ha[s] failed to show a
material change in circumstances." Therefore, the court denied
Acevedo appeals the trial court's decision to deny his
October 1995 motion to modify his child support payments. He
asserts that the trial court erred because "the weight of the
evidence"demonstrates that he is entitled to a modification.
Acevedo claims that his income has fallen to such an
extent that he is entitled to a modification of his child support
obligation. Burley responds by focusing on the stipulation and
asserting that "the facts and circumstances which were the basis of
the $300.00 per month child support stipulation have not changed."
(Emphasis in original.) Burley also argues that even if "Acevedo's
self-employment income could be verified and . . . a lower amount
of child support would be provided under the Rule 90.3 formula,"
Acevedo should nevertheless be bound by his agreement to pay $300
per month. We conclude that the trial court did not err in denying
Acevedo's motion to modify his child support obligation.
A trial court must consider all motions for a
modification of child support. Cf. Deivert v. Oseira, 628 P.2d
575, 578 (Alaska 1981) ("[A] trial court must consider all motions
for a change in custody . . . ."). However, the court may reject
a motion to modify without an evidentiary hearing if it is plain
that the facts alleged in the moving papers do not establish a
prima facie case for a modification. Cf. id. (stating that in a
modification of custody proceeding, an evidentiary hearing is
warranted only where there is a prima facie showing of a changed
circumstance). Furthermore, even if the facts alleged in the
moving papers might demonstrate a material change of circumstances
if they were established, the superior court need not conduct a
hearing where the moving party advances only "generalized
allegations of factual issues"that other record evidence
convincingly refutes. See Epperson v. Epperson, 835 P.2d 451, 453
& n.4 (Alaska 1992) (affirming a trial court's decision to
determine a party's child support obligation without an evidentiary
hearing because the party's "bare claim"that the custodial parent
had low living expenses did not create a genuine issue of material
"For the trial court to modify a support order, the
movant must show by a preponderance of the evidence that,
subsequent to the original order, there has been a material and
substantial change in circumstances affecting the movant's ability
to pay." Patch v. Patch, 760 P.2d 526, 529 (Alaska 1988). "A
material change of circumstances will be presumed if support as
calculated under [Rule 90.3] is more than 15 percent greater or
less than the outstanding support order." Alaska R. Civ. P.
90.3(h)(1). [Fn. 2]
In this case, Acevedo's income does not appear to have
changed since he signed the stipulation. The record contains
Internal Revenue Service tax forms for Acevedo for 1987-89 and
1993-94. During those years, his reported pretax total income was:
1988 $ 4,772
1989 $ 6,239
1993 $ 9,641
1994 $ 7,836 [Fn. 3]
As these figures demonstrate, prior to the March 1991 stipulation,
Acevedo's income was not substantially different from his income in
1993 and 1994. Indeed, his income was higher in 1993 and 1994 than
it was in 1988 and 1989.
We note that Acevedo's adjusted income would have to be
$18,000 per year before his support payments as calculated under
Rule 90.3 would be $300 per month. However, our analysis is
unaffected by the fact that the record contains no evidence that
Acevedo ever earned more than $13,000 per year before taxes.
Acevedo is a self-employed cab driver whose income appears to be
almost entirely self-reported. He has the best information about
his income, and based upon that information, he stipulated that
$300 was the appropriate amount of child support for him to pay.
Moreover, he does not argue that the stipulation was based upon an
erroneous assessment of his income. He may not successfully seek
to modify his child support obligation without reasonably
explaining why he is entitled to a modification based upon his
1993-94 financial information when he stipulated, based upon
similar financial information for the years 1987-89, that $300 per
month was appropriate.
Under these circumstances, Acevedo does not appear to
have experienced a significant post-stipulation change that would
entitle him to a modification. The evidence refuting Acevedo's
allegation of a change in circumstances is so compelling that it
was appropriate to conclude that there were no genuine issues of
material fact. Therefore, the superior court did not err in
denying his motion without an evidentiary hearing.
We AFFIRM the trial court's conclusion that Acevedo
failed to demonstrate that he had experienced a material change in
Alaska Civil Rule 90.3(e) requires "[e]ach parent in a court
proceeding at which child support is involved"to file an affidavit
stating that parent's annual adjusted income. Burley filed such an
For purposes of determining the standard of review applicable
to deciding whether the superior court erred in denying Acevedo's
motion without an evidentiary hearing, we draw analogy to review of
summary judgment decisions. As discussed above, the question in
this case is whether there is a genuine issue of material fact
that, if established, would entitle Acevedo to the relief sought.
This is similar to our focus in reviewing summary judgment cases.
See Taranto v. North Slope Borough, 909 P.2d 354, 355 (Alaska
1996). Therefore, as with summary judgment decisions, we review
the superior court's decision using our independent judgment. Seeid.
Between 1987 and 1989, Acevedo's pretax total income was equal
to his adjusted gross income. In 1993 his adjusted gross income
was $8,960, and in 1994 it was $7,225.