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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brotherton v. State, Dept. of Revenue, Child Support Services Division ex rel. Brotherton (03/06/2009) sp-6342
Notice: This opinion is subject to correction before pub
lication 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, e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| DOUGLAS WAYNE | ) |
| BROTHERTON, | ) Supreme Court No. S- 12588 |
| ) | |
| Appellant, | ) Superior Court No. 3AN-94-01210 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) No. 6342 March 6, 2009 |
| DEPARTMENT OF REVENUE, | ) |
| CHILD SUPPORT SERVICES | ) |
| DIVISION ex rel. TAHNI | ) |
| BROTHERTON, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Douglas Brotherton, pro se,
Anchorage, Appellant. Leroy K. Latta, Jr.,
Assistant Attorney General, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
FABE, Chief Justice.
WINFREE, Justice, dissenting in part.
I. INTRODUCTION
Douglas Brotherton appeals the superior courts November
2006 modification of Tahni Brothertons child support obligation.
He argues that the superior court erred in excluding from its
calculation of Tahnis income her share of the divided marital
real property. He also contends that Tahnis income did not
justify the reduction in child support, that she was capable of
earning more than she reported, and that the reduction represents
an improper variance from Alaska Civil Rule 90.3. We conclude
that the superior court properly excluded from its calculation of
Tahnis income the value of Tahnis share of the divided marital
real property. But the trial courts calculation of income should
have included the portion of post-judgment interest attributable
on a pro rata basis to 2006. We remand the case to the superior
court for additional findings on Tahnis 2006 income.
II. FACTS AND PROCEEDINGS
Douglas and Tahni Brotherton married in 1981 and have
two sons, born in 1988 and 1990. Tahni was initially awarded
primary physical custody of the boys after the couples 1995
divorce, but Douglas gained full custody in November 2004. After
this shift, Tahni requested a variance from her Rule 90.3 child
support obligation, claiming that her gross income was below the
poverty line and that her obligation should be set at the $50 per
month minimum or manifest injustice would result. She also
requested that the court average her income over several years to
determine her child support obligation. The superior court was
unpersuaded by Tahnis arguments, and in March 2005 it set Tahnis
child support obligation at $426.67 per month for both boys.
Douglass relationship with the children became strained
and on October 16, 2005, Douglas sent them to stay with their
maternal uncle and his wife, Douglas Warner and Pamela Neiswanger
(the Warners), to cool off for a couple of months. Tahnis child
support obligation to Douglas, paid through the Child Support
Services Division (CSSD), continued, but Douglas paid the Warners
$500 per month for boarding the boys. Tahni also made a one-time
$500 payment to the Warners in October 2005. In December 2005
Tahni paid off her child support arrears to Douglas through CSSD.
The Warners then sent a letter to Douglas requesting that he
forward them the $426.67 per month he was receiving in child
support from Tahni through CSSD, retroactive to November 2005, in
addition to his $500 per month direct payments. Douglas refused
and retrieved the boys from the Warner household on March 18,
2006.
The return to Douglass household had a particularly
deleterious effect on the younger son, whose emotional health
suffered over the years of his parents protracted custody and
child support battles. Dr. David Sperbeck, a psychiatrist who
evaluated both boys, noted that the younger boy had contemplated
suicide several times and that he stated that he would rather die
than continue to experience the conflict between his parents. In
accordance with the childs wishes, the Warners moved to intervene
and take custody of the younger son in April 2006.1 In a June
2006 stipulated order the parties agreed that custody of the
child would be transferred to the Warners until further order of
the court, and that Douglas and the Warners would engage in
mediation to consider long-term custody.
After a settlement conference, the parties stipulated
to an award of custody of the younger boy to the Warners. The
stipulation, which was entered as an order by the superior court
on September 11, 2006, provided that Douglas would continue to
pay the Warners $500 per month and that Douglas would instruct
CSSD to direct half of Tahnis monthly child support payment to
the Warners. Although the stipulated order varied from the
standard child support procedures directed by Civil Rule 90.3 for
third-party custody of fewer than all the children, it was deemed
necessary due to the unusual circumstances of the case.
Several months earlier, in June 2006, Tahni had
contacted CSSD and requested that the March 2005 order be
modified to decrease her child support obligation. She included
her 2006 child support guidelines affidavit, a schedule detailing
her 2006 income estimate, her 2005 tax return, and pay stubs from
her three 2006 employers. Her June estimate of gross income for
2006 was $20,000. In September she supplemented her affidavit,
decreasing her 2006 gross income estimate to $16,000 based on the
loss of her job. CSSD reviewed the information provided by
Tahni, and in October it calculated her obligation to be $294 per
month for both children, retroactive to July 1, 2006, and filed a
motion to decrease Tahnis child support obligation to that
amount.
Also in October 2006 Tahni filed with the superior
court a notice that Douglas had paid her in full for her share of
the marital real property divided in their 1995 divorce (the
Wasilla property), after resolution of all litigation on appeal
and remand.2 Douglas had been ordered to pay $15,600 plus
interest at 10.5 percent per annum, effective from the date of
the divorce decree, April 18, 1995, until the date of payment, to
compensate Tahni for her share. On October 16, 2006, he paid
$34,417.50, which included $18,817.50 in post-judgment interest.3
The court granted CSSDs motion to decrease Tahnis
obligation to $294 per month. But due to mailing irregularities,
Douglas did not receive CSSDs motion to modify and reduce Tahnis
child support obligation until after the court had granted it.
On November 14, 2006, the day after the superior courts order
modifying support, Douglas requested an extension of time to file
an opposition to the modification motion. The court granted that
request on November 17, but after Douglas informed the court of
the service problem with the original motion and requested
clarification in light of the fact that the modification had
already been granted, the court ruled that Douglass responsive
filing would actually be considered as a motion for
reconsideration.
In his motion for reconsideration, Douglas agreed that
Tahnis child support obligation should be modified but contended
that it should be increased, not reduced. He proposed that she
pay $847 per month, a figure that reflected his belief that Tahni
was capable of earning a gross income of $28,862.40 per year and
his view that his payment for her share of the Wasilla property
should be included in the calculation of Tahnis 2006 income.
Douglas did not request a hearing on this motion.
In its response to Douglass motion for reconsideration,
CSSD emphasized that it had no financial interest in the matter
and did not represent either party. CSSD maintained that its
calculation of Tahnis child support obligation was correct, while
acknowledging that the figure was based on information provided
by Tahni, including her sworn child support guidelines affidavit.
CSSD noted in particular Tahnis poor employment history, which
was marked by frequent discharges for unsatisfactory performance.
Addressing Douglass argument that the payment compensating Tahni
for her share of the Wasilla property should be included in her
Rule 90.3 income, CSSD stated that such an interpretation of Rule
90.3s definition of income may be too broad. Tahni also opposed
reconsideration. Douglas replied, contending that CSSDs reliance
on information provided by Tahni was improper because she had not
included the payment for her share of the divided marital real
property in her income and claiming that she had not accurately
reported her wages.
On January 4, 2007, the superior court denied Douglass
motion for reconsideration without comment. Douglas then moved
again for reconsideration, expanding on his earlier arguments
that Tahni was capable of earning more than she had reported and
that she had improperly excluded the payment for her share of the
Wasilla property from her income. The superior court again
denied reconsideration, without comment, on January 31.
Douglas appeals the November 13, 2006 order reducing
Tahnis child support obligation.4 Douglas argues that (1) Tahni
was capable of maintaining a higher income than she had reported
in her request for a modification and her income did not justify
the reduction in support; (2) the court failed to make specific
findings to support its decision to reduce Tahnis child support
obligation; (3) the payment for Tahnis share of the divided
marital real property, including the post-judgment interest,
should have been included in Tahnis income; and (4) the reduction
was an improper variance from Rule 90.3.
III. STANDARD OF REVIEW
Modifications of child support orders are reviewed for
abuse of discretion.5 We will find an abuse of discretion only
when we are left with a definite and firm
conviction that a mistake has been made based on the record
as a whole.6 Factual findings will not be set aside unless they
are clearly erroneous.7
Whether a financial benefit qualifies as income for the
purposes of Rule 90.3 is a question of law requiring de novo
review.8 Under such review we adopt the rule that is most
persuasive in light of precedent, reason, and policy.9
IV. DISCUSSION
A. Further Factual Findings Are Required To Ascertain
Whether Tahnis 2006 Income Supported a Reduction in Her
Child Support Obligation.
Douglas argues that Tahni was capable of maintaining an
income to support the pre-modification level of child support and
that her income level did not warrant a reduction in her child
support obligation. CSSD responds that the superior court had
broad discretion to evaluate Tahnis financial situation and that
the superior courts finding that a modification was warranted was
not clearly erroneous.
The superior court based its reduction of Tahnis child
support obligation on a projected gross income estimate of
$16,000 for 2006.10 In her child support guidelines affidavit,
Tahni explained that this figure was based on the approximately
$12,000 that she made between January 2006 and July 2006, plus a
liberal estimate of $4,000 for July through December. But the
validity of this second, estimated figure is not apparent from
the record. In 2005 Tahni had a gross income of $24,801.55.
Deducting the $3,604 of unemployment benefits she collected that
year, she still generated approximately $21,200 through her
employment in 2005. In 2006 she made approximately $12,000 in
seven months, which over the course of a year would have totaled
approximately $20,570 about the same amount she made through
work in 2005. Tahnis estimate of $4,000 in earnings for the last
five months of 2006 is problematic, even in light of the loss of
her position as a medical coding auditor, since a job paying the
minimum wage would generate more than $4,000 of income in five
months. In light of these issues, and because the superior court
did not make precise findings regarding Tahnis 2006 income,11 we
cannot determine whether the superior court erred in reducing
Tahnis child support obligation. We remand for further factual
findings to ascertain whether Tahnis 2006 income warranted the
reduction.12
B. Although the Superior Court Did Not Err in Excluding
the Payment for Tahnis Share of the Divided Marital
Real Property from Her Income for Rule 90.3 Child
Support Calculation Purposes, It Should Have Included
the Portion of Post-Judgment Interest Attributable to
2006.
When the superior court adopted CSSDs calculation of
Tahnis child support obligation, it excluded from its calculation
the $34,417.50 payment that Tahni received from Douglas in
October 2006 for her share of the Wasilla property, divided under
the terms of their 1995 divorce. Douglas argues that both the
property value itself and the post-judgment interest paid should
have been included in Tahnis income for purposes of calculating
her Rule 90.3 child support obligation.
1. Tahnis share of the divided marital real property
Tahnis share of the marital real property divided under
the 1995 divorce decree amounted to $15,600. Douglas contends
that the payment she received for this property should count as
income under Rule 90.3. CSSD disagrees.
Douglas recognizes that Part III of the Commentary to
Civil Rule 90.3 does not specifically list property settlement
payments as income and that we have concluded in the past that
property settlements do not represent income for child support
purposes. In Kiel v. Alexander, we held that a $10,000 payment
from an ex-husband to his former wife for her interest in a piece
of real property [c]learly . . . represent[ed] a property
settlement and [was] therefore not income for Rule 90.3 purposes.13
Other courts have adopted this principle as well. For instance,
in Kyle v. Kyle14 an Indiana appellate court considered an
argument similar to the one Douglas makes. There, the ex-husband
was ordered to pay his ex-wife $100 per month for her share of
the equity in the marital home.15 The ex-husband contended that
the lower court erred in excluding this payment from his ex-wifes
income for child support calculation purposes.16 The Kyle court
affirmed the exclusion, concluding that marital property
distributions do not count as income in that regard:
The $100.00 per month is a property
settlement payment. It is not maintenance
and is not properly included in the
definition of gross income for the purposes
of calculating child support. . . . The
trial court could have required Richard to
pay the [total equity amount] immediately
after the divorce . . . . We do not believe
the terms of the property distribution should
impact an order of child support.[17]
Although Douglas recognizes that there have been
previous court opinions exempting property settlements from
income, he contends that this concept should be evaluated on a
case-by-case basis. He argues that because Rule 90.3s definition
of income coincides (with very few exceptions) with the IRSs
definition of income and because there may be circumstances which
disqualify the $15,600 payment from being excluded from income
under Internal Revenue Code rules, we should follow the Internal
Revenue Code and count the settlement as income under Rule 90.3
as well.18
But Douglas fails to cite any authority to support his
dubious position. There is no dispute that the payment for
Tahnis share of the marital real property was made pursuant to
the 1995 divorce order. Even if Douglas could find authority to
support his position, we have recognized in the past that the
Rule 90.3 definition of income may differ from the Internal
Revenue Codes definition of income.19 The superior court properly
excluded the payment representing Tahnis share of the marital
property from her income in calculating her child support
obligation under Rule 90.3.
2. Post-judgment interest on Tahnis share of the
divided marital real property
Douglas also argues that the $18,817.50 in post-
judgment interest on Tahnis share of the divided marital real
property should have been included in Tahnis Rule 90.3 income.
As Douglas points out, the commentary to Rule 90.3 does include
interest and dividends as income.20 But to include in Tahnis 2006
income the entire amount of interest she received which
represented interest accrued not just in 2006 but over
approximately eleven years21 would paint a distorted picture of
Tahnis 2006 income. We have in the past employed income
averaging to ensure a fair assessment when an obligors income has
fluctuated.22 Thus, the trial court should only deem the portion
of the total post-judgment interest payment by Douglas to Tahni
attributable to 2006 as income earned in 2006.23
This approach is consistent with the goals of post-
judgment interest. Had Tahni been timely paid her judgment, she
could have invested the money and generated interest on it.24
That interest would have counted as Rule 90.3 income. But
importantly, only the interest accruing in 2006 would have
counted as income to her in that year. Therefore, only the
portion of interest attributable to 2006 should be counted as
income to Tahni in 2006. The superior court erred in not
including this fraction of the total interest in its calculation
of Tahnis 2006 income and the corresponding child support
obligation for that year.
On remand, the court should include the proportionate
share of interest attributable to 2006 as income to Tahni for
calculation of her 2006 child support obligation. Because this
interest is non-recurring, it should not be counted for support
after 2006.25 We also note that the portion of the post-judgment
interest that is included in Tahnis 2006 income should be reduced
by Tahnis federal income tax liability for that portion.26
V. CONCLUSION
The superior court properly excluded from Tahnis Rule
90.3 income her share of the divided marital real property. But
the portion of post-judgment interest that accrued on it in 2006
must be included in Tahnis 2006 Rule 90.3 income, and we REMAND
for calculation of that amount. Because the $16,000 income
estimate for 2006 used to calculate Tahnis child support
obligation has not been explained, we REMAND for additional
factual findings to determine whether Tahnis 2006 income
warranted a reduction in her child support obligation.
WINFREE, Justice, dissenting in part.
I respectfully disagree with the courts ultimate
resolution of Tahnis October 16, 2006, receipt of $18,817.50 in
post-judgment interest. The court acknowledges Douglass argument
that the interest is income that should be included in the Rule
90.3(a) calculation of Tahnis 2006 income, and further
acknowledges that the receipt of interest generally is income for
Rule 90.3 purposes. The court appropriately expresses a
legitimate concern that including the entire amount of the
interest would paint a distorted picture of Tahnis 2006 income.
But in attempting to allay its concern, the court goes astray by
creating a new rule of law that abridges the trial courts
discretion to calculate an appropriate child support award.1
Although true that the question of whether an item
qualifies as income for the purposes of Rule 90.3 is a question
of law,2 calculating income for future child support payments is
a matter within the trial courts discretion. The commentary to
Rule 90.3 observes:
Child support is calculated as a certain
percentage of the income which will be earned when
the support is to be paid. This determination
will necessarily be somewhat speculative because
the relevant income figure is expected future
income. The court must examine all available
evidence to make the best possible calculation.[3]
In my view the court should allow the superior court the
opportunity on remand to consider all evidence of Tahnis 2006 and
future income, including but not limited to Douglass one-time
payment of long-accrued interest, and to exercise its discretion
in fashioning an appropriate child support award for 2006 onward.
Tahni has asked the superior court to lower her child
support obligation, and a modification of a child support
obligation is within the discretion of the superior court. The
superior court certainly is capable of: (1) recognizing the
income distortion created by Douglass one-time payment of the
entire eleven and one-half years of post-judgment interest;
(2) exercising its authority and discretion to apply income-
averaging to this non-recurring source of income in its
calculations, if appropriate;4 and (3) recognizing and exercising
its discretion to vary the child support award under the Rule
90.3(a) formula to avoid manifest injustice, if good cause to do
so exists.5 After examining all evidence of Tahnis income for
2006 and beyond, the superior court may determine that some, all,
or none of the interest payment should be taken into account in
the Rule 90.3(a) calculations or that a variation from those
calculations is warranted under Rule 90.3(c).
Instead the court fashions a new rule on what
constitutes income for purposes of Rule 90.3. The court holds as
a matter of law that when a non-recurring payment of accrued
interest is received in a given year, only the amount of interest
that actually accrued in that year is income for Rule 90.3(a)
calculations. The rule is inappropriate because it cannot
reasonably fit all facts and circumstances and may encourage
manipulation of the timing for receipts of income. If Douglas
had paid Tahni on January 1, 2006, as a matter of law only one
days interest would be income for Rule 90.3(a). In other
situations the party receiving interest income might cause it to
be received January 1 to ensure that virtually all of it is not
treated as Rule 90.3 income, which may not be fair to either the
custodial parent or the affected children. The rule is also
unnecessary because, at least until today, the superior court had
the authority to evaluate unusual receipts of income and take
them into account along with all other relevant facts and
circumstances, and then had broad discretion to determine an
appropriate child support award.6
If the court is concerned that Douglas unfairly
attempted to skew Tahnis income in his favor after she moved for
modification of her support obligation, the proper response is
not to tie the lower courts hands in all cases with a new rule of
law fashioned for this particular case. Instead, it is to allow
the superior court to exercise its sound discretion by making the
best possible calculation of Tahnis income going forward in light
of all available evidence.
_______________________________
1 At that point, the older son was two months away from
turning eighteen.
2 The parties appeared before us three times on appeal
regarding their marital property division. See Brotherton v.
Brotherton, 142 P.3d 1187 (Alaska 2006); Brotherton v.
Brotherton, Mem. Op. & J. No. 957, 2000 WL 34545647 (Alaska,
March 1, 2000); Brotherton v. Brotherton, 941 P.2d 1241 (Alaska
1997).
3 Although judgment was not entered until August 7, 2006,
we use the term post-judgment interest to describe all interest
accruing on the principal from the date of the divorce decree,
April 18, 1995.
4 Douglas does not appeal the September 2006 stipulated
order granting custody of the younger son to the Warners and the
child support arrangements detailed therein.
5 Robinson v. Robinson, 961 P.2d 1000, 1002 (Alaska
1998).
6 Id.
7 Olmstead v. Ziegler, 42 P.3d 1102, 1104 (Alaska 2002).
8 Robinson, 961 P.2d at 1002.
9 Id.
10 Although the superior court did not make explicit
findings about Tahnis 2006 income, it implicitly accepted the
$16,000 figure by adopting CSSDs recommendation of $294 per month
for two children, which was based on a projected gross income of
$16,000 for 2006.
11 CSSD argues that the superior courts factual findings
were adequate and cites Mattfield v. Mattfield, 133 P.3d 667, 675
(Alaska 2006), a case in which we held that a standard DR-301
order for modification of child support form, as was used by the
superior court in this case, provided sufficiently detailed
findings to support the superior courts child support order. But
Mattfield is inapposite because there the appellant neither
challenge[d] the accuracy of the information used by the court
nor allege[d] that the courts order contain[ed] errors in
calculation. Id. Here, Douglas has consistently argued that the
superior court overlooked or misconceived the material facts
regarding [Tahnis] income in granting the reduction.
12 The superior court stated in its order modifying child
support that application of the Rule 90.3 formula would be unjust
because this is a divided custody case with a third-party
custodian that is a variance from the requirements of Civil Rule
90.3(i) as specified in [the] order dated September 11, 2006.
If, on remand, the superior courts ordered child support
represents a variance from the Rule 90.3 formula, specific
findings explaining that variance will also be necessary. See
Alaska R. Civ. P. 90.3(c)(1).
13 Mem. Op. & J. No. 1144, 2003 WL 22320611, at *7
(Alaska, October 8, 2003).
14 582 N.E.2d 842 (Ind. App. 1991).
15 Id. at 844.
16 Id. at 846.
17 Id. at 847.
18 Douglas implicitly relies on Internal Revenue Code
1041, which governs transfers of property incident to divorce.
See 26 U.S.C. 1041 (2000). That code section provides the
general rule that transfers of property between spouses incident
to divorce are treated for tax purposes as gifts rather than
income, and that no gain or loss will be recognized on the
transfer. Id. 1041(a)-(b). The Treasury regulation
implementing this code section, however, provides that if a
transfer is not made within one year after the date the marriage
ceases, it must be made within six years of the date the marriage
ceases and be pursuant to a divorce order or the general rule is
not applicable. See 26 C.F.R. 1.1041-1T(b), Q&A (6)-(7) (2008).
This regulation provides that transfers made even after the six-
year period may still qualify for the general tax treatment upon
a specific showing that the transfer was made in connection with
a divorce-related property division and that sufficient
justification exists for the delayed transfer. See id. at Q&A
(7). Douglas claims that because he did not actually pay Tahni
for her 1995 property transfer to him until 2006, well after six
years of the date the marriage ceased, the general rule does not
apply and we should recognize the payment as income.
19 See, e.g., Osmar v. Mahan, 53 P.3d 149, 151 n.11
(Alaska 2002) (Although the Internal Revenue Codes definition of
income differs from Rule 90.3s definition in other respects, it
is noteworthy that federal income tax law also excludes child
support from income. (emphasis added)).
20 Alaska R. Civ. P. 90.3 cmt. III.A (Income includes, but
is not limited to . . . interest and dividends[.]).
21 Douglas was ordered to pay $15,600 plus interest from
the date of the divorce decree, April 18, 1995, until the date of
payment. He actually paid that amount on October 16, 2006.
22 Keturi v. Keturi, 84 P.3d 408, 413 (Alaska 2004) ([W]e
have held in a number of cases that income-averaging may be used
to calculate a non-custodial parents income where it has been
erratic in the past.); see also Alaska R. Civ. P. 90.3 cmt III.E.
23 Douglass post-judgment obligation accrued for 138
months before payment, nine and one-half of which were in 2006.
24 In fact, this scenario demonstrates the rationale
behind awarding pre- and post-judgment interest. See, e.g.,
Ogard v. Ogard, 808 P.2d 815, 817-18 (Alaska 1991) (recognizing
that such awards are meant to compensate the successful party for
lost use of the money and [to] prevent unjust enrichment of the
unsuccessful party who had the money). A related purpose is to
eliminate the incentives to litigate a case or prolong a
judgment. Morris v. Morris, 724 P.2d 527, 529 (Alaska 1986). We
note that this purpose is also served in the case at bar. See
Brotherton v. Brotherton, 142 P.3d 1187, 1191 (Alaska 2006) ([I]t
is undisputed that Douglas vigorously appealed the award of one-
half of the equity in the Wasilla property until all avenues of
appeal were exhausted.). To treat all of the interest as though
it was earned in 2006 would allow the payor to manipulate the
child support calculation.
25 In defining income, Rule 90.3 generally contemplates an
income stream rather than non-recurring payments. For instance,
it excludes one-time gifts and inheritances, but includes
recurring payments such as salary, royalties, and dividends.
Alaska R. Civ. P. 90.3 & cmt III.A.
26 See Shepherd v. Haralovich, 170 P.3d 643, 650 (Alaska
2007) ([F]ederal income tax is to be deducted from a parents
gross income in order to determine the parents adjusted annual
income [under Rule 90.3.]).
1 See Keturi v. Keturi, 84 P.3d 408, 412 (Alaska 2004)
(We will not overturn a child support award unless the trial
court abused its discretion in calculating the award.).
2 Robinson v. Robinson, 961 P.2d 1000, 1002 (Alaska
1998).
3 Alaska R. Civ. P. 90.3, Commentary III.E, 232 (2008).
The commentary to Civil Rule 90.3 has not been officially
adopted, but it can provide useful guidance in applying the rule.
Miller v. Clough, 165 P.3d 594, 600 n.10 (Alaska 2007) (citing
Caldwell v. State, 105 P.3d 570, 573 n.6 (Alaska 2005)).
4 See Keturi 84 P.3d at 413 (noting our holdings that
income-averaging may be used to deal with erratic income).
5 See Alaska R. Civ. P. 90.3(c)(1).
6 Keturi, 84 P.3d at 812.
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