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J. Coghill v. D. Coghill (7/10/92), 836 P 2d 921
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NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
JERALD F. COGHILL, SR., )
) Supreme Court No. S-4071
Appellant, )
)
v. ) Superior Court No.
) 4FA-85-266
DARLA J. COGHILL, )
) O P I N I O N
Appellee. )
______________________________) [No. 3865 - July 10, 1992]
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Niesje J. Steinkruger, Judge.
Appearances: Robert A. Sparks and
William R. Satterberg, Jr., Law Offices of
William R. Satterberg, Jr., Fairbanks, for
Appellant. R. Poke Haffner, Assistant
Attorney General, Fairbanks, Charles E. Cole,
Attorney General, Juneau, for Child Support
Enforcement Division, Department of Revenue,
State of Alaska.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
RABINOWITZ, Chief Justice.
BURKE, Justice, dissenting.
FACTS AND PROCEEDINGS
Darla and Jerald Coghill were married in November 1972
in Nenana. They had four children. On March 22, 1985, the
Coghills obtained a decree of dissolution of marriage. Attached
to this decree, was the parties' agreement regarding child
custody. Under the terms of the agreement Jerald had physical
custody of the older children; Darla was given custody of the
younger children, and both parents were accorded visitation
rights. The agreement made no provision for child support.
Approximately four and one-half years later Darla filed
a motion for child support pursuant to Civil Rule 90.3. In
support of the motion, Darla informed the superior court that she
has had sole custody of the four children since the end of the
school year in 1985 and that her adjusted annual income from her
full time job with the Yukon-Koyakuk School District was
$18,659.48. She estimated her monthly income at $1500.00 and her
monthly expenses at $1223.00. She stated that Jerald had
voluntarily paid $400.00 per month in child support until his
remarriage in March 1989. Darla estimated Jerald's income at
$81,063.16. Therefore, she requested child support of $1800.00
per month, pursuant to Civil Rule 90.3, based on the support
allowable for four children on an income greater than $60,000.
At the time of Darla's motion for child support, Jerald
was self employed. He owned Jerry & Sons Repair & Service, a
sole proprietorship trucking business. In a pretrial memorandum,
Jerald stated that his adjusted annual income for 1989, for Civil
Rule 90.3 purposes, was $23,556.00. However, Jerald further
asserted that his 1989 income overstated his earning capacity.
He noted that his trucking business had lost a major contract and
that it had accrued expenses which had not been paid in 1989.
Therefore, he requested the superior court to calculate his
earning capacity based on the first quarter of 1990. On this
basis, he estimated his 1990 annual adjusted income to be
$12,796.00. Additionally, Jerald argued that Civil Rule 90.3 was
invalid because its promulgation by this court was unauthorized
and because its support guidelines were arbitrary and capricious.
The superior court found that our adoption of Civil
Rule 90.3 was a change in circumstances "allowing modification of
the pre-existing terms of the decree of dissolution in this
matter according to Alaska Statute 25.24.170." The superior
court also held that Civil Rule 90.3 was legally adopted and that
it was applicable to this case. The court concluded that
Jerald's 1989 income provided the best estimate of his future
income. The court computed Jerald's "available, annual adjusted
income" for Civil Rule 90.3 purposes to be $43,262.00 after
accepting several deductions to Jerald's gross income and
disallowing others.
The superior court stated that it "specifically fails
to find clear and convincing evidence that manifest [injustice]
would result if the support award [under the Civil Rule 90.3
guidelines and formula] were not varied." Accordingly, the
superior court ordered that Jerald pay Darla $1297.86 per month
for child support beginning June 1, 1990, subject to a "50%
visitation credit, when and if exercised." The court also
determined that Jerald was responsible for child support
arrearages in the amount of $7,710.63, and found that any future
"collections of support shall be ordered paid through the Child
Support Enforcement Agency; all future modifications shall be by
administrative review by such agency."
Jerald appeals, alleging that the superior court erred
in its calculation of his income and its failure to consider
Darla's actual costs of supporting the children. Additionally,
he argues that Civil Rule 90.3 is unconstitutional, both on its
face and as applied. Pursuant to AS 25.27.045, the Attorney
General entered an appearance as counsel of record on behalf of
the Child Support Enforcement Division, and filed an appellee's
brief.
I. DID THE SUPERIOR COURT ERR IN ITS CALCULATIONS OF THE
PARTIES' INCOME AND COSTS?1
A. Was the superior court's award of child
support unreasonable because it was not based on
Darla's actual costs?
Jerald points to evidence in the record that Darla's
household costs for one year amounted to $14,540.00. He then
argues that the child support award of $1,297.86 per month is
excessive in that it is "sufficient . . . to practically support
[Darla's] entire household." Therefore, Jerald considers the
$1,297.86 per month award "unreasonable."
In Smith v. Smith, 673 P.2d 282, 283 (Alaska 1983), we
held that the superior court abused its discretion when it
awarded child support in an amount greater than that which the
custodial parent had requested. Jerald is raising a similar
argument in that he claims that the superior court abused its
discretion in awarding child support that exceeded actual need.
The superior court has "broad equitable powers" to
fashion a child support award. Smith, 673 P.2d at 283. The
superior court presumptively does not abuse its discretion when
it awards child support based on Civil Rule 90.3. See Alaska R.
Civ. P. 90.3, Commentary VI ("the rule presumes that support
calculated under 90.3(a) or (b) does not result in manifest
injustice . . . ."); Alaska R. Civ. P. 90.3(c)(1) ("The court may
vary the child support award as calculated under the other
provisions of this rule for good cause upon proof by clear and
convincing evidence that manifest injustice would result if the
support award were not varied."). Therefore, in order for Jerald
to succeed in his claim that the award was unreasonable, he must
demonstrate that the superior court abused its discretion by
failing to find "good cause"for departing from the formula of
Civil Rule 90.3.
B. Does the low level of Darla's actual costs
constitute good cause for variance from the child
support formula of Civil Rule 90.3?
Civil Rule 90.3(c)(1) provides that "[t]he court may
vary the child support award as calculated under the other
provisions of this rule for good cause upon proof by clear and
convincing evidence that manifest injustice would result if the
support award were not varied." Alaska R. Civ. P. 903(c)(1).
The rule also enumerates certain circumstances which might
possibly constitute good cause for varying from its formula.
This enumeration includes a finding of "unusually low expenses."2
On appeal, Jerald argues for a variance from Civil Rule
90.3(a)(2) on the basis that Darla's actual costs, before he
began paying full and regular child support, were unusually low.
The commentary to Civil Rule 90.3 explains that economic analyses
have shown that "the proportion of income parents devote to
children in intact families is relatively constant across income
levels." Alaska R. Civ. P. 90.3, Commentary II; Coats v. Finn,
779 P.2d 775, 776 n.5 (Alaska 1989) (quoting Report of the Child
Support Enforcement Commission to Governor William J. Sheffield,
October 1, 1985 (Sheffield Commission Report)). Therefore, the
mere fact that Darla's household expenses were low prior to
receiving full and regular child support does not, standing
alone, establish good cause for varying from the support
guidelines of Civil Rule 90.3. In order to make a showing of
manifest injustice Jerald would have to prove that expenses of
his children would have no relationship to the level of income
available to be spent on them.
On the basis of our review of the record we are
persuaded that Jerald did not sustain his burden of proving by
clear and convincing evidence that a child support award in
accordance with Civil Rule 90.3 would result in manifest
injustice. Therefore we conclude that the superior court did not
abuse its discretion in deciding to adhere to the rule's support
formula.3
C. Was the superior court's failure to find that
Jerald's 1989 income was not representative of his
earning capacity clearly erroneous?
Jerald argues that he proved at trial that his earning
capacity had decreased because of substantial changes in his
business. Specifically, Jerald testified that before 1989 his
trucking business had an oral agreement to provide services to
Mapco. However, as a result of the fact that he hadn't had a
dispatch from Mapco in six months, Jerald apparently expected a
decrease in income. Jerald argues that "[t]he trial court's
finding regarding estimating Mr. Coghill's income is clearly
erroneous, because it fails to account for the substantial
changes in Mr. Coghill's business."
The superior court calculated Jerald's income from the
evidence it had before it. As the court stated, "the best
evidence for the projection of Mr. Coghill's 1990 income is the
1989 calendar year as the base period. The court adopts this as
the only twelve month period for which the court has complete
information." The only other data the superior court had before
it was data from the first quarter of 1990. Given the
speculative nature of the 1990 evidence, the court did not abuse
its discretion in adopting the 1989 figures. See Pugil v. Cogar,
811 P.2d 1062, 1067, (Alaska 1991) (upholding a determination of
income based on an average of the non-custodial parent's past
income when the non-custodial parent worked in an industry where
employment and income were erratic); Hartland v. Hartland, 777
P.2d 636, 640 (Alaska 1989) (holding that a party who fails to
provide sufficient evidence at trial for a valuation cannot
object to the resulting valuation on the basis of inadequate
evidence).
That the superior court used the data from 1989 does
not indicate that it made a finding of fact that no change in
Jerald's earning capacity had occurred, or that it rejected the
testimony of Jerald's expert.4 Rather, the superior court
properly exercised its discretion and, on the basis of the most
complete evidence before it, chose the best indicator of Jerald's
future earning capacity. See Pugil, 811 P.2d at 1067. Hence, we
reject Jerald's contention that the superior court's finding of
fact in regard to Jerald's 1989 income was clearly erroneous.
D. Did the superior court abuse its discretion
by disallowing various deductions in its
calculation of Jerald's income?
As discussed above the superior court determined
Jerald's income based on the evidence of his income in 1989 which
showed a gross income of $182,021. From gross sales receipts,
Jerald subtracted various business expenses to yield his actual
income. The superior court stated that it accepted the majority
of Jerald's deductions as "ordinary and reasonable business
expenses for the purposes of Alaska Civil Rule 90.3." However,
the court disallowed deductions for certain expenses relating to
use of an automobile, work clothing, meals, a home office, and
imputed taxes. Further, the court allowed only a deduction for
straight line depreciation.
On appeal, Jerald contends that the superior court
erred when it denied these disputed deductions.
Civil Rule 90.3(a)(1) reads in part that "[a]djusted
annual income as used in this rule means the parent's total
income from all sources." We have previously held that "[g]iven
this broad definition, we believe that the superior court has
broad discretion"in deciding whether certain funds should be
included in income for Civil Rule 90.3 purposes. Bergstrom v.
Lindback, 779 P.2d 1235, 1237 (Alaska 1989).5
In our view Jerald misunderstands the superior court's
denial of his various deductions. The court was not implying
that his expenses for meals, clothing, etc., were not legitimate
business expenses. Rather, the court recognized that such
expenses reduced Jerald's living expenses. Here, where the meals
were consumed by Jerald and where the type of clothing purchased
by Jerald was not significantly different from the clothing
purchased by most Alaskans, the superior court properly
disallowed deductions for these and other expenses for the
purpose of computing Civil Rule 90.3 income.6
Additionally, we hold that the superior court properly
disallowed a deduction for imputed taxes based on the income
available to Jerald as a result of adding back the deduction for
accelerated depreciation.7 The commentary to Civil Rule 90.3
explicitly states that accelerated depreciation is not a
deductible business expense for Rule 90.3 purposes. Alaska R.
Civ. P. 90.3, Commentary III.B. We therefore hold that the
superior court did not abuse its discretion in disallowing this
claimed deduction.
II. IS CIVIL RULE 90.3 CONSTITUTIONAL?
A. Does Civil Rule 90.3 violate the Separation
of Powers Doctrine?
Civil Rule 90.3 was promulgated by this court in 1987.
In adopting this Rule we noted that:
This Rule is adopted under the supreme
court's interpretive authority pursuant to
Article IV, Section 1 of the Alaska
Constitution. Thus, it may be superseded by
legislation even if the legislation does not
meet the procedural requirements for changing
rules promulgated under Article IV, Section
15.
As is apparent from the earlier sections of this opinion, the
Rule establishes guidelines to enable courts to determine child
support awards and institutes a formula for child support awards
based on the income of the noncustodial parent. It also allows
for variance from the formula in special circumstances. Prior to
the promulgation of this rule, there was no set formula to
determine child support.
Jerald argues that Civil Rule 90.3 constitutes a sub
stantive change in the law. Accordingly, he contends that this
court has violated the doctrine of separation of powers by
usurping the law making power granted to the legislature.8
Citizens' Coalition v. McAlpine, 810 P.2d 162 (Alaska
1991), speaks to the difference between court rules adopted
pursuant to article IV, section 15, of Alaska's Constitution, and
those adopted pursuant to article IV, section 1. Article IV,
section 15 grants this court the power to promulgate rules
"governing administration of all courts"and "practice and pro
cedure . . . in all courts." It also provides that such rules
may be changed by a two-thirds vote of the legislature. Id. at
165 (quoting Alaska Const., art. IV, 15). Article IV, section
1, on the other hand, vests the judicial power in a supreme
court, a superior court and other courts established by the
legislature. "The court's rule-making authority under this
section is inherent in the judicial power vested in it, as the
supreme court of the state." Id. (citing Alaska Const., art. IV,
1).
Citizens' Coalition also noted that rules of
"substance" rather than "procedure"might not be allowed under
article IV, section 15. 810 P.2d at 167. However, under section
1, "the distinction between procedural and substantive rules,
while still important, is not dispositive, because our judicial
power includes the authority to regulate with greater substantive
effect inside the limited ambit of the judicial system, than we
could under our article IV, section 15 powers." Id. at 167 n.10
(citations omitted).
Contrary to Jerald's assertion, Civil Rule 90.3 does
not modify or amend AS 25.24.160. Alaska Statute 25.24.160
allows courts to set child support awards "as may be just and
proper for the parties to contribute toward the nurture and
education of their children." AS 25.24.160(a)(1). Civil Rule
90.3 interprets this statute and establishes guidelines to enable
courts to determine what is a "just and proper" contribution.
Alaska R. Civ. P. 90.3, Commentary I.B. Establishing such
guidelines recognizes the need for uniformity across income
levels; however, the guidelines also recognize that unique
circumstances might require variance from the guidelines. As
such, the guidelines do not conflict with the statute. Finally,
as was explained in Coats v. Finn, Civil Rule 90.3 did not
overrule prior case law. 779 P.2d 775, 778 (Alaska 1989). In
Coats this court harmonized Civil Rule 90.3 with prior case law
by explaining that even under the rule, the non-custodial parent
must contribute a fair share to satisfy the child's reasonable
needs. Id. (citing Hunt v. Hunt, 698 P.2d 1168, 1173 (Alaska
1985)). Thus we conclude that promulgation of Civil Rule 90.3
did not violate the separation of powers doctrine.
B. Is Civil Rule 90.3 unconstitutional on its
face because it violates the due process and equal
protection clauses?
Jerald states that "by placing the onus on the non-
custodial parent to 'prove' to the trial court that there is some
reason to deviate from the standard as set forth in Civil Rule
90.3 effectively constitutes a [sic] irrebuttable presumption of
liability without recourse in the law." He believes that "[i]n
the instant case, this can be illustrated by the Judge's refusal
to examine the Appellee's expenses vis-a-vis the amount of money
90.3 would require the Appellant to pay." Jerald contends that
this violates his right to due process. He then concludes, "by
failing to require both the custodial and non-custodial parents
[sic] income be examined before making a child support
determination, Rule 90.3 unconstitutionally deprives the non-
custodial parent of equal protection under the law."
The state responds by first citing the evidentiary
basis for Civil Rule 90.3 to refute any contention that the rule
is arbitrary and capricious. Second, the state denies that the
rule creates an irrebuttable presumption. Finally, the state
argues that equal protection does not require computation of the
non-custodial parent's income, because the custodial parent and
the non-custodial parent are not similarly situated.
1. Is Civil Rule 90.3 arbitrary
and capricious?
To answer Jerald's claim that Civil Rule 90.3 has no
rational basis, the state cites to Coats v. Finn, where the basis
for Civil Rule 90.3 is discussed. 779 P.2d at 776 n.5, 777 n.7.
In Coats, this court quoted extensively from the Sheffield
Commission Report. This report contains "strong evidence" that
the "'cost' of raising a child depends on the level of household
income." Id. at 777 n.5 (quoting Sheffield Commission Report).
Additionally, Coats explained that Civil Rule 90.3 did not
abrogate the prior case law. Id. at 776. Finally, Coats again
cited to the Sheffield Commission Report to explain the rationale
for requiring a heightened burden to prove the need for a
variance from the formula: "The formula approach is intended to
provide information to the parties and attorneys so that child
support may be predictable, reasonable, simple to calculate,
without prejudice, and reflect the duty of both parents to
support their children commensurate with their abilities." Id.
at 777 n.7.
The record indicates that Jerald failed to introduce
any evidence showing that the there was no relationship between
income and consumption. We therefore conclude that Coats is
dispositive of Jerald's claim that Civil Rule 90.3 is arbitrary
and capricious.
2. Does Civil Rule 90.3 violate
due process by creating an irrebuttable
presumption?
Jerald argues that blind application of the Civil Rule
90.3 formula denies noncustodial parents the right to a fair
hearing. He believes that this is illustrated in this case by
the superior court's denying him the opportunity to question
Darla concerning her expenses. As the state points out, however,
Civil Rule 90.3(c)(1) specifically allows for exceptions to the
formula. Other courts have found that child support guidelines
do not offend due process so long as they provide for discretion
in their application. Schenek v. Schenek, 780 P.2d 413 (Ariz.
App. 1989); see also In re guidelines for Child Support
Enforcement, 784 S.W.2d 589, 590-91 (Ark. 1990) (holding that
Guidelines create a rebuttable presumption); Dalton v. Clanton,
559 A.2d 1197, 1212 (Del. 1989) (holding that child support
formula creates a rebuttable presumption and an inequitable
result rebuts the presumption).
Jerald also argues that the vagueness of the terms
"good cause" and "manifest injustice" render the exception
meaningless. He charges that without guidance and explanation,
superior courts will apply the rigid Rule 90.3 formula by rote,
thus depriving a party opposing the use of the formula of his or
her due process right to a fair hearing. In support of this
argument, Jerald cites Fitzgerald v. Fitzgerald, 566 A.2d 719
(D.C. App. 1989).
It is true that Fitzgerald was concerned with the
presumptive nature of the child support guidelines promulgated by
the superior court of the District of Columbia. Id. at 731
("Adhering to a presumption in the face of facts to the contrary
may constitute an abuse of discretion.") Additionally, the
Fitzgerald court was troubled by the vagueness of the exceptions
to the guidelines. Id. ("the party trying to argue against
application of the Guidelines faces a monumental obstacle in
attempting to demonstrate a case is 'exceptional' without knowing
what 'unexceptional' is.") However, Fitzgerald did not hold that
the child support guidelines were unconstitutionally vague.
Rather, the Fitzgerald court held that such guidelines would be
constitutional "so long as judges and hearing commissioners
continue to exercise their discretion to achieve equitable
results consistent with existing case law."9 Id. at 732. In
light of the holdings in Coats that Civil Rule 90.3 does not
change the existing case law and that child support awards still
must be fair and equitable, we hold that Jerald's argument has
no merit. 779 P.2d at 776.10
3. Does Civil Rule 90.3 violate
equal protection?
Turning to Jerald's equal protection argument, the
state correctly notes that "[e]qual protection has never required
that differently situated persons be treated the same way."
Here, Jerald is asking that "the trial court judge examine both
the custodial and non-custodial parents [sic] income." Yet, the
custodial and noncustodial parents are clearly not similarly
situated for the purposes of child support.
Moreover, applying standard equal protection analysis,
the interest that Jerald raises is an economic interest. This
interest is not of a high order.11 Given that the rule has a
rational basis, see discussion supra at 15-16, under our sliding
scale analysis of asserted equal protection violations, the state
need only demonstrate a fair and substantial relationship between
the distinctions drawn by the rule and the purpose of the rule.
Anthony, 810 P.2d at 159.
As the commentary to Civil Rule 90.3 states,
Rule 90.3 employs the percentage of
income approach. This approach is based on
economic analyses which show the proportion
of income parents devote to their children in
intact families is relatively constant across
income levels up to a certain upper limit.
Applications of the rule should result in a
non-custodial parent paying approximately
what the parent would have spent on the
children if the family was intact.
Integral to the rule is the
expectation that the custodial parent will
contribute at least the same percentage of
income to support the children. The rule
operates on the principle that as the income
available to both parents increases, the
amount available to support the children also
will increase. Thus, at least in the sole or
primary custodial situation, the contribution
of one parent does not affect the obligation
of the other parent.
Alaska R. Civ. P. 90.3, Commentary II.
The commentary also states that
[t]he primary purpose of Rule 90.3
is to ensure that child support orders are
adequate to meet the needs of children,
subject to the ability of parents to pay
. . . .
The second purpose of 90.3 is to
promote consistent child support awards among
families with similar circumstances. Third,
the rule is intended to simplify and make
more predictable the process of determining
child support . . . .
The final purpose of 90.3 is to
ensure that Alaska courts comply with state
and federal law.
Id. at I.B. Thus, we conclude that the percentage of income
approach has a fair and substantial relationship to the goals of
Civil Rule 90.3
The superior court's judgment is AFFIRMED.
BURKE, Justice, dissenting in part.
I dissent from the holding that the support formula
imposed by Civil Rule 90.3 is constitutionally valid. The
enactment of such a provision requires, in my judgment, the
exercise of legislative power, which the court does not possess.
The legislative power of the state is vested in the legislature.
Alaska Const. art. II, 1.
_______________________________
1. A child support award will not be overturned unless the
trial court has abused its discretion. Richmond v. Richmond, 779
P.2d 1211, 1216 (Alaska 1989). We will examine the entire record
to determine whether the superior court has abused its
discretion, and will only find such an abuse when we are left
with a definite and firm conviction that a mistake has been made.
Id. (citing Hunt v. Hunt, 698 P.2d 1168, 1172 (Alaska 1985)).
Civil Rule 90.3 provides the superior court discretion in
determining what constitutes income. Bergstrom v. Lindback, 779
P.2d 1235, 1237 (Alaska 1989) (citing Civil Rule 90.3(a)(1)).
The superior court's findings of fact regarding a party's income
will be reversed only if clearly erroneous. Id. (citing Smith v.
Smith, 673 P.2d 282, 283 (Alaska 1983)). Questions of statutory
interpretation and constitutionality are reviewed de novo.
Zsupnik v. State, 789 P.2d 357, 359 (Alaska 1990) (statutory
interpretation); State v. Anthony, 810 P.2d 155, 156-57 (Alaska
1991) (constitutional questions).
2. Alaska R. Civ. P. 90.3(c)(1)(A). See also Coats v.
Finn, 779 P.2d 775, 776 (Alaska 1989) ("Rule 90.3 does not
abrogate the general rule that a non-custodial parent is
obligated to contribute only a fair share of the amount required
to meet the reasonable needs of the parties' minor children.").
3. At trial, Jerald sought to question Darla about her
household expenses, in an attempt to prove that Darla had
unusually low household costs. While the superior court
initially allowed some questions in this regard, the court
eventually barred Jerald from pursuing this line of questioning
when it became apparent that Jerald was on a "fishing
expedition." At the time that the superior court disallowed
questioning it stated: "If you can provide me with an offer of
proof that this would be manifestly unjust and would be a
windfall to this woman, then I'll let you continue." Jerald made
no such offer of proof. The superior court did not abuse its
discretion by disallowing questions on this theory.
Significantly, at trial Darla testified that "there's a
lot of times they need things and I don't have the money to buy
it." She also testified that her grocery bill, even before she
received regular child support, was approximately $600-700 per
month. Additionally, Darla testified that she had to purchase
clothing for the children and that her clothing expenses were not
unusually low. While Darla's monthly rent was only $94, there
was no showing that she was able to avoid the normal costs of
living assumed by Civil Rule 90.3.
4. The court allowed Rick Schikora, a CPA, to testify as an
expert on the transportation industry. However, the court
assured Darla that it would consider her objections to his
qualifications as going to the weight of his testimony. More
importantly, Schikora's testimony was not conclusive. He stated,
"I would say that the trucking industry is not -- is not in real
good shape at the moment." When asked about Jerald's company in
particular, Schikora only noted that Jerald's company now had to
compete for dispatches and that, in his opinion, Jerald's company
was low priority in the trucking business. None of the testimony
presented by Schikora or Jerald was specific and definite enough
to enable the superior court to positively conclude that a change
in Jerald's earning capacity had occurred, or to estimate what
Jerald's earning capacity was if it had changed.
5. The Commentary to Civil Rule 90.3 recognizes the
difficulty in defining income when the noncustodial parent is
self employed. In this regard, the commentary states,
[i]ncome from self employment . . .
includes the gross receipts minus the
ordinary and necessary expenses required to
produce the income. Ordinary and necessary
expenses do not include amounts allowable by
the IRS for the accelerated component of
depreciation expenses, depreciation of real
estate, investment tax credits, or any other
business expenses determined by the court to
be inappropriate. Expense reimbursements and
in-kind payments such as use of company car,
free housing or reimbursed meals should be
included as income if the amount is
significant and reduces living expenses.
Alaska R. Civ. P. 90.3, Commentary III.B.
6. The superior court found "the Suburban to be for
personal use and not solely for business anymore [sic] than a
wage earner drives his personal vehicle to work." Jocelyn
Coghill, Jerald's current wife, testified that she used the
Suburban to run business errands between home and town, and that
Jerald used the pickup truck for transportation between home and
work. She also testified that the family used the Suburban for
personal use. The court disallowed the entire deduction for the
Suburban, but allowed the deduction for the pickup. On this
record, we believe the superior court did not abuse its
discretion in disallowing some, but not all, of the claimed
automobile deductions. See Alaska R. Civ. P. 90.3, Commentary
III.B.
7. Jerald does not argue that he should be allowed to
deduct accelerated depreciation; he seeks only to receive the
benefit of imputed taxation on the accelerated portion of
depreciation which is determined to be income for Rule 90.3
purposes.
8. See Alaska Const., art. IV, 15; Bradner v. Hammond,
553 P.2d 1, 5 (Alaska 1976) (recognizing separation of powers doc
trine).
9. Fitzgerald held the Guidelines in question invalid as an
unauthorized change by the superior court in the substantive case
law promulgated by the court of appeals. 566 A.2d at 726, 732.
Civil Rule 90.3 was promulgated by the highest court of Alaska.
Accordingly, this holding of Fitzgerald is inapplicable here.
10. Additionally we note that the record does not support
Jerald's claim that an irrebuttable presumption was applied
against him when the superior court precluded further cross-
examination of Darla in regard to the subject of her
expenditures. The superior court allowed Jerald to initiate
questioning in this area and would have allowed questioning to
continue had Jerald made an offer of proof regarding Darla's
unusually low living expenses. Under Civil Rule 90.3 and Coats,
a noncustodial parent may rebut the presumption that expenditures
are related to income; such a showing would constitute good cause
for varying from the schedule provided for in Civil Rule 90.3.
The record indicates that if Jerald had evidence that there was
no relationship between income and consumption in this particular
case, he would have been allowed to prove that a child support
award based on 90.3(a)(2) would be manifestly unjust. Jerald
failed to offer evidence to rebut the presumption that the
relationship between income and consumption exists for his own
children while they are under Darla's care.
11. State v. Anthony, 810 P.2d 155, 158 (Alaska 1991); State
v. Ostrosky, 667 P.2d 1184, 1193 (Alaska 1983) appeal dismissed,
467 U.S. 1201 (1984).
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