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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,  

                                                                                                                        

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                           

           corrections@akcourts.us.  



                       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,  

                      Judge.  



                                                                                                              

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

                                                                                                            

                      Carolina.           No  appearance  by  Appellee  Colleen  Marie  

                      Coulman.  



                                                                                                           

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

                                           

                      and Carney, Justices.  



                                         

                      CARNEY, Justice.  



I.         INTRODUCTION  



                                                                                                                                      

                      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
  


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                                                                                                                                                                                                                                                                                                                                2  

  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
  


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



                                                                        3  

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
  


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                                                            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
  


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                                                                                                                                                                                                                                                           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                                                                                                                                                                                                                                          



 case.   



                                                     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                                                                                                                                                                                                                                       



                                                                                                 7  

 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  



IV.	       DISCUSSION  



                                                                                                                                         

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

                      Order.  



                                                                                                                               

                      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  



                                 16  

                                                                                                                             

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)).                        



           16  

                                                                                                                                      

                      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  



                                                                                                                                                                                   17  

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  



                  20  

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  

                                                                                                                         

                       state.  



                                                                                                                             

                       (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                                                        

purposes).  



            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                                                              

                              state.  



                              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-----------------------

                                                                                                                  31  

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                                                                                             



           32  

90.3.                                                             

                 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  

                                                                                                                                      [33]  

                                                                                                                          

                            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  

                                                                                                                                                                            

                                                                                                                                                       (continued...)  



                                                                                      -16-                                                                               7357
  


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

V.        CONCLUSION  



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

                                                                                                                     



          37
       (...continued)
  



                                                                                                              

(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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