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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Guy Alan Berry, Jr. v Colleen Marie Coulman (4/26/2019) sp-7357

Guy Alan Berry, Jr. v Colleen Marie Coulman (4/26/2019) sp-7357

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  


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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

GUY  ALAN  BERRY  JR.,                                               )  

                                                                     )      Supreme  Court  No.  S-16868  

                                Appellant,                           )  


                                                                     )      Superior Court No. 4FA-14-02571 CI  

           v.                                                        )  


                                                                     )     O P I N I O N  


COLLEEN MARIE COULMAN,                                               )  


                                                                     )     No. 7357 - April 26, 2019  

                                Appellee.                            )  



                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                      Fourth  Judicial  District,  Fairbanks,  Douglas  Blankenship,  



                      Appearances:  Guy Alan Berry, Jr., pro se, Lillington, North  


                      Carolina.           No  appearance  by  Appellee  Colleen  Marie  



                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                      and Carney, Justices.  


                      CARNEY, Justice.  



                      A father appeals an order modifying his child support obligation.  He first  


argues that the superior court lacked subject matter jurisdiction to modify the order.  He  


alternatively argues that the court abused its discretion by modifying the support order  


without sufficient proof of a material change in circumstances. Lastly, the father argues  


that the court impermissibly retroactively modified the support order.  

----------------------- Page 2-----------------------

                                                     We   hold   that   the   superior   court   properly   exercised  its  jurisdiction   in  

modifying the support order, that it did not abuse its discretion in modifying the order                                                                                                                                                                               

because there was sufficient proof of material change of circumstances, and that the one-                                                                                                                                                                                                                                            

day retroactive modification is a                                                                                            de minimis                                        error that does not require correction.                                                                                                                We  

therefore affirm the superior court's order modifying child support.                                                                                                                                                                                                          

II.                        FACTS AND PROCEEDINGS                                     

                                                     Guy Berry and Colleen Coulman have a daughter who was born in May                                                                                                                                                                                                              

2010.   Berry and Coulman never married.                                                                                                                                 Berry is a soldier; he was stationed at Fort                                             

Wainwright until shortly before their daughter was born, when he was transferred to Fort                                                                                                                                                                                                                                               

Bragg, North Carolina. Berry and Coulman did not have a custody agreement. Coulman                                                                                                                                                                                                                                

had sole physical custody                                                                                    of their                          daughter   from her                                                            birth.     After  Berry's  transfer  

Coulman contacted Alaska's Child Support Services Division (CSSD) for assistance in                                                                                                                                                                                                                                                            

obtaining child support from Berry.                                                                                                                  In May 2011 CSSD entered an order requiring                                                                                                                 

Berry to pay Coulman $773 per month in child support.                                                                                                                                                                             

                                                     In   September  2014   Berry,   representing   himself,   filed   a   complaint   in  

Fairbanks superior court requesting sole legal and physical custody.                                                                                                                                                                                                          When he filed the                                            

                                                                                                                                                                                                    1  and asserted that Coulman and their  

custody complaint, Berry lived in North Carolina                                                                                                                                                                                                                                                                                    

daughter lived in Alaska.  Coulman retained counsel and answered Berry's complaint.  


 She stated that she and her daughter were living in Germany, not Alaska.  


                                                     In  October  2015  the  superior  court  held  a  status  hearing  to  address  


questions about its subject matter jurisdiction over the custody dispute.   The court  


concluded it had jurisdiction to determine child custody pursuant to the Uniform Child  


                           1                         Berry stated at the October 2015 hearing on the jurisdictional motion that                                                                                                                                                                                                         

he maintained Alaska as his residence.                                                                                                                   Throughout the pendency of this custody action                                                                                                                        

Berry was either stationed in North Carolina or deployed overseas.                                                                                                                                                                                                          

                                                                                                                                                                      -2-                                                                                                                                                           7357

----------------------- Page 3-----------------------


  Custody Jurisdiction and Enforcement Act (UCCJEA).                                                                                                                                                                                                                                                                                  The court entered a temporary                                                                                 

  custody order granting Coulman primary physical custody and shared legal custody with                                                                                                                                                                                                                                                                                                                                                                                                       

 Berry.   The temporary custody order did not address child support.                                                                                                                                                                                                                                                                                                                                     

                                                                               In March 2016 Coulman filed a motion to modify child support, arguing                                                                                                                                                                                                                                                                                                                     

 that the child support guidelines affidavit Berry had filed in September 2014 was "stale."                                                                                                                                                                                                                                                                                                                                                                                                                                  

  Coulman asked the court to order Berry to file a current child support affidavit with                                                                                                                                                                                                                                                                                                                                                                                                     

  supporting income tax returns and military leave and earnings statements.                                                                                                                                                                                                                                                                                                                                                                         At a status      

 hearing on the motion, Berry asked for more time to respond, but ultimately agreed to                                                                                                                                                                                                                               

 provide updated financial disclosures.                                                                                                                                                                                         

                                                                               In April Berry filed an updated affidavit and accompanying documents.                                                                                                                                                                                                                                                                                                                                                                         

  Shortly   thereafter   Coulman  sent  discovery   requests   to   Berry   seeking   additional  

  information and documents about his income, specifically showing how his pay was                                                                                                                                                                                                                                                                                                                                                                                                             

  affected   by   his   deployments.     Berry   filed   objections   and   responses   to  Coulman's  

  discovery requests with the superior court.  Over the next nine months they continued   

 to litigate issues relating to Berry's financial disclosures. They did not revisit the court's                                                                                                                                                                                                                                                                                                                                                                                

 ruling with regard to its jurisdiction.                                                                                                                                                                              

                                                                               In January 2017 Coulman filed a "Motion For Modification Of Interim                                                                                                                                                                                                                                                                                                                        

  Child Support To Maximum Levels."                                                                                                                                                                                          She accused Berry of bad faith during discovery                                                                                                                                                                                  

  and argued that his incomplete financial disclosures showed that he was "hiding his                                                                                                                                                                                                                                                                                                                                                                                                               

  income" and "making it impossible to accurately calculate child support."                                                                                                                                                                                                                                                                                                                                                                      She argued   

                                        2                                      Alaska has codified the UCCJEA at AS 25.30.300-.910. AS 25.30.300(a)                                                                                                                                                                                                                                                                                         

  states:   "Except   as   otherwise   provided   in   AS   25.30.330,   a   court   of   this   state   has  

jurisdiction to make an initial child custody determination only if . . . no court of another                                                                                                                                                                                                                                                                                                                                                                              

  state would have jurisdiction under the criteria specified in (1) - (4) of this subsection."                                                                                                                                                                                                                                                                                                                                                                                                                               

  The court concluded that "state" referred to the states of the United States, and since the                                                                                                                                                                                                                                                                                                                                                                                                        

  only   viable   location   for   the   custody   case   besides  Alaska   was   Germany,   the   court  

  "provisionally assume[d] subject matter jurisdiction."                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                     -3-                                                                                                                                                                                                                                    7357

----------------------- Page 4-----------------------

that a "suitable remedy" would be to set child support at the maximum level unless Berry                                                                     


complied with Alaska Civil Rule 90.3                                                                                                                          

                                                                           and the orders of the court. In response the court  


ordered that child support would be based upon the maximum income for child support  


calculations ($120,000) unless Berry filed and served a complete Rule 90.3 income  


affidavit with an unredacted income tax return and his last three military leave and  


earnings statements.  


                          Berry retained counsel and opposed Coulman's motion later that month,  


apparently filing his opposition the same day that the court distributed its order.  For the  


first time Berry argued that CSSD was the only Alaskan tribunal that had continuing,  


exclusive jurisdiction to modify the order.  A week later Berry filed an updated child  


support affidavit.  


                          The  court  denied  Coulman's  motion  to  set  the  child  support  at  the  


maximum level in April and ordered Coulman to lodge an interim child support order  


setting the amount at $791.72 per month, effective October 1, 2014, based on Berry's  


recently filed child support affidavit.  


                          Later that monthBerry movedforreconsiderationofthemodification order.  


Berry reiterated his argument that only CSSD, the tribunal that established the original  


child support obligation, had continuing, exclusive jurisdiction to modify it.  He also  


argued that the court had impermissibly modified the support order retroactively by  


making it effective on October 1, 2014, when Coulman had not filed her modification  


motion until March 2, 2016.  Lastly Berry argued that there was insufficient proof of a  


"material change of circumstances" to warrant a modification under Rule 90.3.  

             3            See   Alaska   R.   Civ.   P.  90.3(e)   (requiring   each   parent   in   a   proceeding  

involving child support to "file a statement under oath which states the parent's adjusted                                                              

annual income" along with a breakdown of that income and verification documents).                                                                                     

                                                                                 -4-                                                                          7357

----------------------- Page 5-----------------------

                                                            The superior court addressed Berry's motion for reconsideration                                                                                                                                                                                                                      before the   

 start of the scheduled custody trial in May 2017.                                                                                                                                                                         The court (and Coulman's counsel)                                                                                          

 agreed that the effective date should be the date the motion to modify was filed and                                                                                                                                                                                                                                                                                      

 served.   The court explained that it had not realized there was an existing order when it                                                                                                                                                                                                                                                                                            

 set the effective date as October 1, 2014.                                                                                                                                            

                                                            Berry  testified at trial that he lived in North Carolina but was a legal                                                                                                                                                                                                                                 

 resident of Alaska, and that he maintained his Alaska residency because he and his wife                                                                                                                                                                                                                                                                                  

 intended to move back to the state upon his separation from the military.                                                                                                                                                                                                                                                          Berry stated  

 that he was able to maintain his Alaska residency through the Servicemembers Civil                                                                                                                                                                                                                                                                                   

                                                                                       4   He testified that he did not have an Alaska driver's license, but did  

 Relief Act (SCRA).                                                                                                                                                                                                                                                                                                                                                            

 not pay state income tax in North Carolina because of his Alaska residency.  Berry also  


 testified  he intended  to  claim an  Alaska Permanent Fund  Dividend (PFD)  in 2017  


 because he was physically present in Alaska for the custody trial.5  


                                                            At  the  close  of  trial  the  superior  court  briefly  addressed  the  issue  of  


jurisdiction, referring to its November 2015 order and asserting that it had subject matter  


                              4                             50 U.S.C.  4001(a)(1) ("A servicemember shall neither lose nor acquire                                                    

 a residence or domicile for purposes of taxation with respect to the person, personal                                                                                                                                                                                                                                                                

 property, or income of the servicemember by reason of being absent or present in any tax                                                                                                                                                                                                                                                                                       

jurisdiction of the United States solely in compliance with military orders."); 50 U.S.C.                                                                                                                                                                                                                                                                      

   4001(b) ("Compensation of a servicemember for military service shall not be deemed                                                                                                                                                                                                                                                                     

 to be income for services performed or from sources within a tax jurisdiction of the                                                                                                                                                                                                                                                                                         

 United States if the servicemember is not a resident or domiciliary of the jurisdiction in                                                                                                                                                                                                                                                                                         

 which the servicemember is serving in compliance with military orders.").                                                                                                                                                                                                                    

                              5                             AS 43.23.005(a)(4) allows active-duty members of the military who are  


 otherwise eligible for a PFD to maintain their eligibility while stationed out of state as  


 long as they have "been physically present in the state for at least 72 consecutive hours  


 at some time during the prior two years before the current dividend year."  


                                                                                                                                                                                         -5-                                                                                                                                                                            7357

----------------------- Page 6-----------------------


jurisdiction to modify the support order pursuant to the UCCJEA.                                                                                                                                                                                               The court noted that                                             

 Berry had not raised the issue and that it would therefore proceed to the merits of the                                                                                                                                                                                                                                          


                                                     Shortly after trial Coulman lodged a proposed order modifying CSSD's                                                                                                                                                                                     

 2011 support order.                                                           Her proposed order required Berry to pay three different support                                                                                                                                                                 

 amounts:   $795.00 per month from March 1, 2016, until June 30, 2016; $1,018.29 from                                                                                                                                                                                                                                      

 July 1, 2016, until January 31, 2017; and $819.55 beginning February 1, 2017. The three                                                                                                                                                                                                                                   

 different   amounts   were   based   upon   the   formula   in   Rule   90.3   and   accounted   for  

 differences in Berry's income during his deployment from July 2016 to January 2017                                                                                                                                                                                                                                       


 and then upon his return.                                                                             

                                                    Berry objected to Coulman's proposed order.  He again argued that only  


 CSSD could  modify the 2011 support order.                                                                                                                                                  Berry  also  argued that there was no  


 material and substantial change in circumstances to warrant modification of the support  


 order. Berry addressed the different support obligations in the proposed order separately  


 and argued that the proposed amounts for March through June 2016 and from February  


 2017 onward were modifications of less than 3% and less than 6% respectively - far  


                           6                        See  AS 25.30.300(a), (a)(5) (providing for "jurisdiction to make an initial                                                                                                                                                                                        

 child custody determination" if "no court of another state would have jurisdiction" to do                                                                                                                                                                                                                                          

 so under the criteria set out by the statute).                                                                                                                         We note that the UCCJEA and the court's   

 November 2015 order dealt with its jurisdiction to determine child custody, not its                                                                                                                                                                                                                                               

jurisdiction  to  modify  support.    But  Rule 90.3                                                                                                                                         contemplates support awards in                                                                                                     the  

 context of custody determinations. Alaska R. Civ. P. 90.3(a). And as we discuss below,                                                                                                                                                                                                                             

 because Berry affirmatively claimed Alaska residency at trial, the court's jurisdictional                                                                                                                                                                                                 

 determination was proper.                                                                              See  AS 25.25.205(a)(1).   

                           7                        See Alaska R. Civ. P. 90.3(a), (d), (f).  


                                                                                                                                                                  -6-                                                                                                                                                      7357

----------------------- Page 7-----------------------

below the 15% threshold for a presumed change in circumstances.                                                                                  8  Berry also argued  

that his deployment from July 2016 to January 2017 was temporary and not a permanent                                                                                 

change in income, so it should not be used as the basis for modification.                                                                                             Finally he   

argued for the first time that Alaska no longer had jurisdiction to modify the order                                                                                             

                                                       9 and the federal Full Faith and Credit for Child Support Orders  

pursuant to AS 25.25.205                                                                                                                                                       

Act (FFCCSOA).10  


                             Coulmanreplied,arguing that pursuanttoAS09.05.010Berry hadputchild  


support at issue when he filed his custody complaint.   In response to Berry's newly  


raisedjurisdictional argument,Coulman emphasized that support ispart ofcustody under  


Rule 90.3.  


                             The superior court issued its final custody order in September 2017.  It  


ordered  shared  legal  custody  between  the  parents  and  awarded  Coulman  primary  


physical custody.  The order's only reference to child support states:  


               8             Alaska R. Civ. P. 90.3(h)(1) provides for modification of a final child                                                                              

support   award   "upon   a   showing   of   a   material   change   of   circumstances,"   which   is  

presumed if the support amount calculated under the rule differs by more than 15% from                                                                                             

the existing support order.                                 

               9             AS 25.25.205(a)(1) establishes jurisdiction for Alaska courts to modify a  


child support order issued by a tribunal of this state if Alaska "is the residence of the  


obligor, the individual obligee, or the child" at the time a motion to modify is filed.  


Berry argued that "[n]either parent nor the child in this case live[d] in Alaska" and that  


AS 25.25.205 could not therefore support jurisdiction.  


               10            28 U.S.C.  1738B.  The FFCCSOA provides that a state court that issues  


a child support order "no longer has continuing, exclusive jurisdiction of the . . . order"  


if that state "no longer is the child's [s]tate or the residence of any individual contestant"  


and the parties have not consented to the jurisdiction of courts of that state.  28 U.S.C.  


 1738B(e)(2)(A). Berry argued that this meant his transfer to North Carolina had ended  


the Alaska court's jurisdiction to modify the order and that "[a]ny modification . . . must  


be accomplished through the North Carolina court."  


                                                                                           -7-                                                                                    7357

----------------------- Page 8-----------------------

                                              Child support shall be ordered pursuant to Rule 90.3 of the                                                                                                                                       

                                              Alaska Rules of Civil Procedure. A child support order shall                                                                                                                                 

                                              enter separately. It is recognized that a judicial child support                                                                                                                   

                                              order   is   being   entered   over   [Berry's]   objections.     Such  

                                              objections were previously raised on the record in this matter.                                                                                                                                                

On the same day the court signed Coulman's proposed order modifying child support.                                                                                                                                                                                                                         

Thecourt                         did not otherwiseaddressBerry's objections or expressly                                                                                                                                         stateitsjurisdictional     

basis for modifying the order.                                                                          

                                              Berry appeals the superior court's order modifying child support.                                                                                                                                                                He has   

not appealed any aspect of the court's custody order.                                                                                                            

III.                   STANDARD OF REVIEW                                              

                                              Whether a court has jurisdiction to modify a child support order presents                                                                                                                                 

                                                                                                                                          11  which is a question of law that we review de  

a question of subject matter jurisdiction,                                                                                                                                                                                                                                                       

novo.12  "We reverse child support awards only if the superior court abused its discretion,  


applied an incorrect legal standard, or clearly erred in its factual findings."13                                                                                                                                                                                              Upon a  


showing of a material change of circumstances as provided by state law, the superior  


court may modify a final child support award.14   "[W]e review a decision by the superior  


                       11                     See Teseniar v. Spicer                                                          , 74 P.3d 910, 913-14 (Alaska 2003) (analyzing                                                                                       

whether Alaska court had subject matter jurisdiction under AS25.25.205 to modify child                                                                                                                                                                                                  

support order).                                      

                       12                     Sherrill v. Sherrill, 373 P.3d 486, 489 (Alaska 2016) (citing Vanvelzor v.  


 Vanvelzor, 219 P.3d 184, 187 (Alaska 2009)).  


                       13                     Holmes v. Holmes, 414 P.3d 662, 666 (Alaska 2018) (citing O'Neal v.  


 Campbell, 300 P.3d 15, 16 (Alaska 2013)).  


                       14                    Id. at 667 (quoting Alaska R. Civ. P. 90.3(h)(1)).  


                                                                                                                                                -8-                                                                                                                                     7357

----------------------- Page 9-----------------------

court to modify child support for an abuse of discretion."                                     15  



           A.	        The Superior Court Had Subject Matter Jurisdiction To Modify The  



                      Berry  argues  that  the  superior  court  lacked  continuing  and  exclusive  


jurisdiction to modify the 2011 child support order. He argues that Alaska does not have  


jurisdiction because neither the child nor the parties lived in Alaska when the motion to  


modify  was  filed.               He  also  argues  that  only  CSSD  and  not  the  superior  court  has  


authority to modify the order that CSSD issued.  He relies on the FFCCSOA and the  


Uniform Interstate Family Support Act (UIFSA), which was adopted and codified at  



AS 25.25.101-.903.                  Alaska Statute 25.25.205 outlines the superior court's jurisdiction  


to modify an existing support order.  It provides:  


                      (a) A tribunal of this state that has issued a child support  


                      order  consistent  with  the  law  of  this  state  has  and  shall  


                      exercise continuing, exclusive jurisdiction to modify its child  


                      support order if the order is the controlling order and,  


                                 (1)   at   the   time   of   the   filing   of   a   request   for  


                      modification, this state is the residence of the obligor, the  


                      individual obligee, or the child for whose benefit the support  


                      order is issued; or  


                                 (2) even if this state is not the residence of the obligor,  


                      the individual obligee,  or  the child for  whose benefit  the  


                      support order is issued, the parties consent in a record or in  

           15	        Id.  (quoting  Richardson v. Kohlin                     , 175 P.3d 43, 46 (Alaska 2008)).                        



                      Ch. 57,  1-28, SLA 1995 (adopting UIFSA); see also Bartlett v. State,  


Dep't of Revenue ex rel. Bartlett, 125 P.3d 328, 330-31 (Alaska 2005) ("A complex  


 statutory scheme of federal legislation exists to promote efficiency and enforcement of  


interstate child support judgments. . . . UIFSA[] and the . . . FFCCSOA[] require states  


to enforce other states' child support judgments in order to create uniformity in interstate  


judgments. . . . Alaska ha[s] adopted UIFSA.").  

                                                                     -9-	                                                              7357

----------------------- Page 10-----------------------

                              open court that the tribunal of this state may continue to                                                                    

                              exercise jurisdiction to modify its order.                                                 

                              To   address   Berry's   arguments   we   must   determine   whether   the   statute  

provides the support he claims.                                             When we engage in statutory interpretation "[w]e                                                     

interpret the statute 'according to reason, practicality, and common sense, considering  


the meaning of the statute's language, its legislative history, and its purpose' ";                                                                                                    we  

apply "a sliding scale approach, where '[t]he plainer the statutory language is, the more  


convincing the evidence of contrary legislative purpose or intent must be.' "18                                                                                                         To  


determine  whether  the  statute  supports  Berry's  argument,  we  must  identify  the  


controllingorder,determineBerry's residence,and decidewhether thesuperior court can  


modify an order issued by CSSD.  We address each question below.  


                              1.            The 2011 support order is the controlling order.  


                              There is no dispute that the 2011 support order entered by CSSD is the  


controlling order at issue - Berry has not asserted, nor is there any evidence, that any  


other existing support order would control.  


                             2.             We define "residence of the obligor" to mean "domicile."  


                             We must next consider whether Alaska was Berry's "residence" when  


Coulman filed the motion to modify.19  


                                                                                      Berry argues that even though he is "allowed to  


maintain Alaska as his state of residence for federal tax purposes because he is in the  


military that does not mean that [he] is a resident or is residing in Alaska."   Berry  

               17            Reasner v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.                                                                                     ,  

394 P.3d 610, 617 (Alaska 2017) (quoting                                                        Parson v. State, Dep't of Revenue, Alaska                                      

Hous. Fin. Corp.                      , 189 P.3d 1032, 1036 (Alaska 2008)).                                                 

               18            Id.  at 617 (alteration in original) (quoting State, Commercial Fisheries  


Entry, Comm'n v. Carlson, 270 P.3d 755, 762 (Alaska 2012)).  


               19            AS 25.25.205(a)(1).  


                                                                                           -10-                                                                                    7357

----------------------- Page 11-----------------------

testified that he  maintains  Alaska as his state of residence for  tax  purposes  pursuant to  


the  SCRA   and  that  he  intends  to  return  to  Alaska  after  he  retires  from  the  army.   

                       We  have  not  previously  had  occasion  to  define  the  meaning  of  the  term  

"residence"  in  UIFSA.   The  term  is  not  defined  elsewhere  in  the  child  support  statutes.  


A   separate  definitional   statute,  AS  01.10.055,21  

                                                                                    defines  "residency"  by  focusing  on  a  

person's  intent:   

                        a)  A  person  establishes  residency  in  the  state  by  being  


                       physically present in the state with the intent to remain in the  


                       state indefinitely and to make a home in the state.  


                       (b) A person demonstrates the intent required under (a) of  


                       this section  


                                  (1) by maintaining a principal place of abode in the  


                       state for at least 30 days or for a longer period if a longer  


                       period is required by law or regulation; and  


                                  (2)  by  providing  other  proof  of  intent  as  may  be  


                       required by law or regulation, which may include proof that  


                       the  person  is  not  claiming  residency  outside  the  state  or  


                       obtaining benefits  under  a claim of  residency outside the  




                       (c) A person who establishes residency in the state remains a  


                       resident during an absence from the state unless during the  


                       absence the person establishes or claims residency in another  


                       state, territory, or country, or performs other acts or is absent  


                       under  circumstances  that  are  inconsistent  with  the  intent  

            20         See  50 U.S.C.  4001(a)(1) (providing that presence in jurisdiction solely                                         

pursuant to military orders does not alter servicemember's domicile or residence for tax                                                        


            21         AS 01.10.055 is part of a series of general definitions and rules of statutory  


construction to "be observed in the construction of the laws of the state unless the  


construction  would  be  inconsistent  with  the  manifest  intent  of  the  legislature."  


AS 01.10.020.  


                                                                       -11-                                                                 7357

----------------------- Page 12-----------------------

                             required under (a) of this section to remain a resident of this                                                              


                              Courts in other states have recognized that "residence" can have both a                                                                                       

                                                                                                                                                              22   A California  

broad general meaning and a narrower legal meaning akin to "domicile."                                                                                                   

court of appeals explained:  


                              Courts and legal writers usually distinguish "domicile" and  


                              "residence," so that "domicile" is the one location with which  


                              for legal purposes a person is considered to have the most  


                              settled and permanent connection, the place where he intends  


                             to remain and to which, whenever he is absent, he has the  


                              intention of returning, but which the law may also assign to  


                             himconstructively; whereas"residence"connotesanyfactual  


                             place  of  abode  of  some  permanency,  more  than  a  mere  


                             temporary  sojourn.                                "Domicile"  normally  is  the  more  


                              comprehensive  term,  in  that  it  includes  both  the  act  of  


                             residence and an intention to remain; a person may have only  


                              one domicile at a given time, but he may have more than one  


                             physical  residence  separate  from his  domicile,  and  at  the  


                              same time.[23]  


                              Given  that  UIFSA  was  intended  to  ensure  uniform treatment  of  child  


support orders in different states and provides for "exclusive" jurisdiction based on  


residence, the California court determined that "residence" must be defined narrowly:  


"[U]nder the UIFSA, it is assumed that a person cannot have more than one residence.  


This, however, does not comport with the more general definition of residence noted  


above . . . .  Instead, 'residence,' for the purpose of the UIFSA, must mean 'domicile,'  


               22            See In re Marriage of Amezquita                                           , 124 Cal. Rptr. 2d 887, 889 (Cal. App.                                      

2002);  Kean v. Marshall                              , 669 S.E.2d 463, 465 (Ga. App. 2008) ("The terms 'residence'                                                    

and 'domicile' . . . are not synonymous and convertible terms . . . ; questions of domicile                                                                                 

and residence are mixed questions of law and fact.").                                                  

               23            Amezquita , 124 Cal. Rptr. 2d at 889 (emphasis in original).  


                                                                                           -12-                                                                                     7357

----------------------- Page 13-----------------------

 of which there can be only one."                             24  


                         The Utah court of appeals in Lilly v. Lilly reached the same conclusion for  

                             25  It noted that UIFSA was intended to ensure that only one child support  



 similar reasons. 

                                                                       26    It recognized that interpreting "residence" to  

 order would be valid at a given time.                                                                                                                         


mean "physical residence would potentially vest more than one state at a time with  


jurisdiction to modify a single child support order" which "could lead to competing  


modifications of child support orders - a troublesome result that clearly contravenes  


UIFSA's purpose."27  


                         Other  states  have  reached  a  different  conclusion  and  given  the  term  


 "residence" a broader meaning.28                                   But after considering Alaska's general residency  


 statute, which focuses on an individual's intent to remain in the state, and the purposes  


 of UIFSA,  we find  that it would  be inconsistent with  these aims  to adopt a broad  


 definition of "residence."  We therefore conclude that the "residence of the obligor" in  


             24          Id.  at 890 (construing California's then-current codification of UIFSA's                                                

provision for continuing, exclusive jurisdiction to modify child support).                                                                 

             25          250 P.3d 994, 1000-01 (Utah App. 2011).  


             26          Id. at 1001 (quoting Case v. Case, 103 P.3d 171, 174 (Utah App. 2004));  


accord Amezquita, 124 Cal. Rptr. 2d at 890.  


             27          Id.  

             28          See, e.g., State ex rel. SRS v. Ketzel, 275 P.3d 923, 927-28 (Kansas App.  


2012) (noting that "residence" is not synonymous with "domicile");  see also  Unif.  


Interstate Family Support Act  205 cmt. (amended 2015) ("[R]esidence is a fact for the  


trial court, keeping in mind that the question is residence, not domicile.").  


                                                                              -13-                                                                       7357

----------------------- Page 14-----------------------

AS 25.25.205 means the obligor's "domicile."                                                                           That is the place where the obligor                                    

intends to remain or the place that is the obligor's legal residence.                                                                 

                                3.	             Berry's residence is Alaska.                                             

                                Berry testified at the custody trial that he maintains Alaska as his state of                                                                         

residence for tax purposes pursuant to the SCRA.                                                                           He also testified that he intends to                                            

return to Alaska upon his retirement from the military.                                                                            Under AS 01.10.055 Berry is an                                         

Alaska resident: he enjoys legal benefits from his continued legal residency in the state,                                                                                                          

                                                                                                                                  29     Because Alaska was Berry's  

and he intends to return and make Alaska his home.                                                                                                                                           

residence when he filed his motion to modify custody, Alaska had jurisdiction to modify  


the 2011 support order.30  


                                4.	             Alaska  Statute  25.25.205  empowers  the  superior  court  to  


                                                exercise jurisdiction to modify a support order issued by CSSD.  


                                Berry reiterates his argument that, even if the State of Alaska has the  


authority to modify the order, the only tribunal in the state that could modify the order  


is CSSD.  Alaska Statute 25.25.101(29) defines a tribunal as "a court, administrative  


agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders  


or to determine parentage of a child." Alaska Statute 25.25.102(a) states that "[t]he  


superior court and the child support services agency are the tribunals of this state."  


                                We have never before been asked to determine whether the language in  


AS 25.25.205 was intended to limit not just which state exercises jurisdiction over a  


support order but also the specific tribunal that can exercise jurisdiction. But it does not  


appear that such a restrictive reading of AS 25.25.205 would serve UIFSA's aim of  


                29              AS 01.10.055.   

                30              AS 25.25.205(a)(1).                               While Berry's complaint for custody stated he was a                                                                        


"resident of Harnett County, North Carolina," his trial testimony provided sufficient  


evidence to confirm his Alaska residency as defined by AS 01.10.055.  

                                                                                                   -14-	                                                                                            7357

----------------------- Page 15-----------------------


preventing   multiple   support   orders   being   entered.                                                              Consequently,   we   construe  

"tribunal" to refer to both of the listed tribunals - the superior court and CSSD - as                                

long as the tribunal's modification of an order otherwise complies with Alaska law. The                                                                                          

superior   court   appropriately   exercised   subject   matter   jurisdiction   when   it   modified  

CSSD's 2011 support order.                       

              B.             There Was A Material Change Of Circumstances.                                  

                            Berry   argues   that   Coulman   failed   to   show by                                                 a   preponderance   of   the  

evidence that a material change of circumstances occurred as contemplated by Rule                                                                                             



                 Rule 90.3(h)(1) states:  


                            A final child support award may be modified upon a showing  


                             of a material change of circumstances as provided by state  


                            law. A material change of circumstances will be presumed if  


                             support as calculated under this rule is more than 15 percent  



                            greater or less than the outstanding support order. 

                            The aggregate changes in Berry's income over the time periods specified  


in  Coulman's  motion  to  modify  exceeded  the  15%  presumptive  threshold.                                                                                              Berry  


              31            See Bartlett v.               State, Dep't ofRevenueexrel. Bartlett                                          , 125 P.3d 328, 330-31           

(Alaska 2005) (noting that UIFSA and the FFCCSOA are aimed at creating uniformity                                                                                 

among interstate judgments).                                    

              32            Berry also passingly argues that his due process rights were denied.  This  


argument has been waived:  "[W]here a point is given only a cursory statement in the  


argument portion of a brief, [it] will not be considered on appeal."  Windel v. Carnahan,  


379 P.3d 971, 980 (Alaska 2016) (quoting Adamson v. Univ. of Alaska , 819 P.2d 886,  


889 n.3 (Alaska 1991)).  


              33            We  note  that  there  is  a  potential  inconsistency  in  the  court  rules  


commentary about whether a material change in circumstances showing is required in  


a case where there has not been a modification in over three years and ask the court rules  


committee to examine the issue.  Compare Alaska R. Civ. P. 90.3 editors' note to Alaska  


R. Civ. P. 90.3(h)(1), with Alaska R. Civ. P. 90.3 cmt. X.A.  


                                                                                        -15-                                                                                 7357

----------------------- Page 16-----------------------

 contends that it was error for the superior court to include the income from his six-month                                                                    

 deployment between July 2016 and January 2017 in its calculations, since this change                                                                                

 in income was temporary; if his deployment income is excluded, his change in income                                                                                

                                                                    34    While short-term income changes generally do not  

 falls short of the 15% threshold.                                                                                                                                           

justify modifications of ongoing support awards, we stated in Swaney v. Granger that "a  


 child support award that is applicable to a past period should be based on a parent's  


 actual income for that period."35   And the commentary to Rule 90.3 states that a military  


member's specialty pay is included as income.36   The superior court had evidence before  


 it establishing three relevant time periods based on Berry's actual pay and showing that,  


taken together, his income had changed by more than 15% during the time periods at  


 issue.   Given our pronouncement in Swaney, this both met the 15% threshold for a  


material change in circumstances and was an appropriate method for calculating support  


 covering past periods.37  


              34            See Curley v. Curley                        , 588 P.2d 289, 291 (Alaska 1979) (stating that in                                           

 general   a   change   in   circumstances   must   be   "more   or   less   permanent   rather   than  

temporary" to warrant modifying support).                                                  

              35            297 P.3d 132, 139 (Alaska 2013). In Mitchell v. Mitchell we distinguished  


Swaney, seemingly identifying the cited passage as dicta.   370 P.3d 1070, 1078-79  


 (Alaska  2016).                    But  the Mitchell  opinion  implicates  a  different  issue  than  the  one  


 addressed in Swaney:  whether awards for prospective support must always be based  


upon expected future income.  Id. at 1079.  In Mitchell we determined that the superior  


 court could appropriately capture a past one-time withdrawal from a retirement account  


 in a prospective award.  Id. at 1079-80.  


              36            Alaska R. Civ. P. 90.3 cmt. III.A.28.  


              37            Berry argues that the superior court impermissibly retroactively modified  


the 2011 support order by entering an order with an effective date of modification of  


March 1, 2016, rather than March 2, 2016.  The superior court did err in impermissibly  


retroactively modifying the order by one day. See Millette v. Millette, 177 P.3d 258, 266  



                                                                                      -16-                                                                               7357

----------------------- Page 17-----------------------

V.        CONCLUSION  

                    We AFFIRM the superior court's order modifying child support.  




(Alaska 2008) (considering a retroactive child support modification to be prohibited),


overruled on other grounds by Geldermann v. Geldermann, 428 P.3d 477, 487 n.52


(Alaska 2018); Alaska R. Civ. P. 90.3(h)(2).  We find this seeming clerical error was de


minimis and therefore remand is not required.  Cf. Fernau v. Rowdon, 42 P.3d 1047,


1055  (Alaska  2002)  (concluding  that  alleged  error  in  trial  court's  spousal  support


calculation was "negligible" and did not require remand).

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