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Crayton v. Crayton (9/12/97), 944 P 2d 487
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
WAYNE MICHAEL CRAYTON, )
) Supreme Court No. S-7458
) Superior Court No.
v. ) 3AN-93-4312 CI
SHANNON SUE CRAYTON, ) O P I N I O N
Appellee. ) [No. 4885 - September 12, 1997]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge.
Appearances: Elizabeth Page Kennedy,
Anchorage, for Appellant. Martha C. Shaddy, Anchorage, for
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
EASTAUGH, Justice, concurring.
Wayne Crayton appeals the superior court's denial of his
motion for reimbursement of child support. Crayton argues that
Shannon Riordan (formerly Crayton) owes support for approximately
a one-year period when no support order for their two children was
in effect. We reverse and remand for calculation of the amount
owed by Riordan pursuant to Alaska Civil Rule 90.3.
II. FACTS AND PROCEEDINGS
Crayton and Riordan married in 1981 and had two children.
Crayton filed for divorce in May 1993. Pursuant to a stipulation
by the parties, the court appointed a guardian ad litem (GAL) for
Crayton and Riordan reached a settlement on property
division, child custody, visitation, and support, and the court
approved the settlement on January 6, 1994. Under its order, the
children were to remain in Anchorage until the middle of July 1994
and then move to Kansas City, Kansas. The order specified that
Crayton would pay child support after the children moved to Kansas
City "pursuant to Civil Rule 90.3 with a 50 percent reduction for
summer visitation." The January 1994 order also stated:
[Riordan] will keep the children's 1993
permanent funds, and in addition [Crayton] will pay her $1000 in
ten monthly installments, beginning in March 1994, to settle the
disparity in the equity in the automobiles. [Riordan] is also
relieved of the necessity to pay child support for the six months
the children will reside in Alaska with [Crayton]. [Crayton] will
keep the 1985 Suburban Sierra Classic, and [Riordan] will keep the
1983 Subaru station wagon.
The order left open the possibility that the GAL could make further
recommendations regarding custody and visitation.
The children moved to Kansas City on July 19, 1994. On
August 5 the GAL, after an investigation of conditions in Kansas
City in July, filed a report and recommendation, moving that the
children be returned to Alaska. After a hearing, the court issued
an interim custody order on August 19. The court ordered that the
children live in Anchorage "until the [c]ourt has further
opportunity to take additional evidence." The children returned to
Alaska on August 24 to attend school. The August 1994 order did
not address child support.
After a hearing in December 1994, a master filed a report
recommending that the parties continue to share legal custody, but
that primary physical custody be transferred to Riordan on August
1, 1995. The master's report also recommended that Crayton have
nine consecutive weeks of extended visitation each summer and some
holiday visitation. The superior court issued an order based on
the master's recommendations in March 1995, but again did not
address the issue of child support.
Soon after the children moved to Kansas City, Crayton
moved for reimbursement for the expenditures he made supporting the
children during the thirteen months between July 1, 1994 and August
1, 1995. He requested that the court offset the reimbursement
against the child support payments he was to begin making to
Riordan. Crayton also argued that the court should include gifts
made to Riordan by her father in calculating the amount of support
she owes. Riordan opposed the motion, and the superior court
denied it. Crayton appeals.
III. DISCUSSION [Fn. 1]
Crayton contends that Riordan had a statutory and common
law duty to reimburse him for her share of support while he had
custody of their children. Riordan responds that Crayton's motion
for reimbursement amounts to an attempt to modify the January 1994
order, which relieved her of any obligation to support her children
before they came to live with her in Kansas City. She argues that
the superior court properly denied Crayton's motion as untimely or,
in the alternative, as an attempt to retroactively modify her child
The January 1994 order contradicts Riordan's contention
that the court relieved her of all support obligation as the non-
custodial parent. Rather, the order reflects that the trial court
offset Riordan's child support obligations for six months against
disparities in the property settlement, assuming that after this
six-month period Riordan would become the custodial parent. [Fn. 2]
When the children did not move to Kansas City as anticipated, a gap
arose in the order's provision for child support; the trial court,
in responding to the concerns and recommendations of the GAL,
failed to adjust the support obligation to match the shifting child
custody arrangement. Thus, as Crayton argues, no support order was
in effect after the children moved back to Alaska and before they
returned to live in Kansas City.
In light of the absence of any provision for child
support during this period, we conclude that the superior court
erred in denying Crayton's motion for reimbursement. Whether a
support order exists or not, "[a] parent is obligated both by
statute and at common law to support his or her children."
Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987). This
obligation includes the duty "to reimburse other persons who
provide the support the parent owes." Id. In this case, Riordan,
as the non-custodial parent, had an obligation to help provide for
her children, notwithstanding the flaws in the support order.
The amount of Riordan's obligation must be calculated by
the superior court on remand under Rule 90.3. Vachon v. Pugliese,
931 P.2d 371, 382 (Alaska 1996) (holding that "absent extraordinary
circumstances, courts should apply the calculation methodology of
Rule 90.3 to determine amounts to be reimbursed to custodial
parents for support of children during periods not covered by
support orders"). Contrary to Riordan's argument, this use of Rule
90.3 does not violate the prohibition against retroactive
modification of arrearages. As in Vachon, because there was no
child support order in place for the relevant period, "applying
Rule 90.3 under these circumstances does not modify any existing
arrearage." Id. Nor, for the same reason, is Riordan correct in
characterizing Crayton's motion as an untimely attempt to modify an
existing support order.
On remand, the superior court must also determine the
precise dates when the children lived with Crayton. While
Crayton's motion sought reimbursement for "the thirteen months from
July 1, 1994, to August 1, 1995,"the parties do not dispute that
the children lived with Riordan from July 19, 1994, to August 24,
1994. The children's move to Kansas City "after the middle of
July"was specifically contemplated by the January 1994 order, and
the assessment against Riordan should accordingly be offset against
any child support owed by Crayton.
Finally, we address whether the superior court should
include money given to Riordan by her father in calculating her
income under Rule 90.3. In Nass v. Seaton, 904 P.2d 412 (Alaska
1995), we concluded that the trial court should not consider gifts
when "determining the level of the obligor's adjusted gross income
for purposes of calculating a child support obligation." Id. at
416. Crayton argues that this rule does not apply to calculations
of Riordan's income under Rule 90.3 for the purpose of reimbursing
him. In cases such as Nass, where the court must establish a child
support obligation for the future, the inclusion as income of a
one-time gift or an inheritance would unfairly inflate that
obligation beyond the obligor's reliable future resources. See id.
at 415-16 & n.5. However, in this case, Riordan's future payments
are not at issue and no question exists as to whether she will
continue to receive the gifts. Cf. Yerrington v. Yerrington, 933
P.2d 555, 557 (Alaska 1997) (holding that court may average
variable income to determine child support when variation likely to
continue in future). Because the superior court will determine
Riordan's income only in retrospect for the period in 1994 and 1995
when the children lived with Crayton, it is fair for the court to
base the amount of reimbursement on the actual resources available
to Riordan during that period. Therefore, on remand, the superior
court should consider the money given to Riordan by her father in
calculating her income under Rule 90.3.
Therefore, we REVERSE the superior court's denial of
Crayton's motion and REMAND for further proceedings consistent with
this opinion.EASTAUGH, Justice, concurring.
Despite my agreement with the result the court reaches,
I have reservations about the court's rationale for permitting the
superior court, when it calculates on remand the support
reimbursement Crayton is to receive, to treat as income money given
to Shannon Riordan by her father.
In permitting the gifts to be taken into account as
income, the court focuses on the retrospective nature of the
reimbursement calculation. Opinion at 7. Because the calculation
is retrospective, the court reasons there is no danger a one-time
gift or inheritance would unfairly inflate a future support
obligation. Opinion at 6.
No uncertainty is involved when retrospective calculation
takes into account a gift previously received, as the court
correctly notes. But the same can be said if the calculation of
future support is based in part on a recently received one-time
gift or inheritance. The problem with that calculation is not
uncertainty, but the income inflation that results when the gift or
inheritance is treated as income rather than as a capital asset.
I am not convinced that the unreliability of trying to
predict future income based in part on a gift or an inheritance is
the only reason courts normally should decline to treat such
receipts as income. I would suggest that most one-time gifts and
inheritances should be considered to be capital assets. Such
receipts may represent the ability to earn income, an ability that
should be taken into account, but the gifts themselves are often
treated as capital assets by the donor and the recipient.
The Civil Rule 90.3 commentary draws the appropriate
distinction. Rule 90.3(a)(1) defines adjusted annual income to
mean "total income from all sources . . . ." The rule does not
provide any meaningful definition for the term "income."
Commentary III.A lists income sources. The list distinguishes
between earnings and the principal assets from which the earnings
derive. Commentary III.A closes with the following sentence: "The
principal amount of one-time gifts and inheritances should not be
considered as income, but interest from the principal amount should
be considered as income and the principal amount may be considered
as to whether unusual circumstances exist as provided by [Rule]
90.3(c)." I would take this clear assertion at face value: the
principal amount of gifts and inheritances is not considered to be
"income." This assertion appears to have been based on a
considered choice, because the commentary distinguishes between
one-time gifts and inheritances, and other receipts which are
equally unlikely to repeat. Thus, it treats as income such one-
time receipts as lottery or gambling winnings, prizes, and awards.
Alaska R. Civ. P. 90.3 commentary III.A. See Eagley v. Eagley, 849
P.2d 777, 779 (Alaska 1993) ("while this court has not officially
adopted or approved the [Rule 90.3] commentary, we have relied on
it for guidance in determining adjusted annual income . . . .").
If the principal amount of gifts and inheritances is not
income for purposes of calculating future support payments,
conceptually there is no reason why it should be considered income
for purposes of calculating payments due in the past, either.
The court reaches the right result in this case because
the evidence supports a finding that Riordan's father intended the
gifts to be the equivalent of income, to be used to support his
daughter and the children. Nonetheless, I think the rationale
announced by the court on this issue will require elaboration or
retrenchment following briefing which squarely addresses this
Although we "generally review decisions on motions to modify
child support for abuse of discretion,"the superior court's denial
of Crayton's motion turns on the interpretation of the January 1994
order and we therefore review it de novo. Karpuleon v. Karpuleon,
881 P.2d 318, 320 n.3 (Alaska 1994).
The superior court failed to specify in the January 1994
order, as required by Rule 90.3(c)(1), the amount of child support
Riordan would have paid but for the offset against the property
settlement. Riordan's argument that the order relieved her of all
obligations, aside from finding no support in the order itself,
contradicts the requirement under Rule 90.3(c)(1)(B) that the court
assess the non-custodial parent at least $50 a month in child