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G. Epperson v. T. Epperson (7/31/92), 835 P 2d 451
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Notice: This 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
GLEN EPPERSON, ) Supreme Court File No. S-4627
) Superior Court File No.
Appellant, ) 3KN-85-1212 Civil
)
v. ) O P I N I O N
)
TAMMY EPPERSON, )
)
Appellee. )
______________________________) [No. 3873 - July 31, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Kenai, Charles K. Cranston, Judge.
Appearances: Ernest Z. Rehbock and Jody
Brion, Rehbock & Rehbock, Anchorage, for
Appellant. Allan Beiswenger, Robinson,
Beiswenger & Ehrhardt, Soldotna, for
Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
MOORE, Justice.
I. FACTS AND PROCEEDINGS
Glen Epperson and Tammy Epperson were divorced in 1985.
The court awarded Tammy custody of the parties' minor child, Lacy
Lee Epperson, and ordered Glen to pay $300 per month in child
support. At the time of the divorce, Glen earned approximately
$2,600 per month after taxes.
On March 1, 1991, Tammy moved to modify Glen's child
support obligation to conform to Civil Rule 90.3 guidelines. She
also alleged that Glen's earnings had increased since the
divorce. In response, Glen maintained that he would owe no
support at all under the Rule 90.3 guidelines. He argued that
his voluntary financial contributions to Tammy since the divorce,1
coupled with Tammy's low living expenses, constituted good cause
for deviating from the Rule 90.3 formula. He also claimed a
number of credits under the rule.2
Both parties filed financial declarations with the
court. Glen's affidavit indicated that he was currently earning
$3,017 per month after taxes. Tammy's financial statement showed
monthly earnings of $1,703.24. She estimated her monthly
expenses at $1,686.
Judge Cranston denied Glen's request for an evidentiary
hearing and ordered Glen to pay $813.14 per month in child
support. Judge Cranston found that good cause did not exist for
deviating from the Rule 90.3 formula. He also denied Glen's
request for credits. The order, however, did not specify the
effective date of Glen's increased support obligation.
Tammy then sought clarification of the support order
under Civil Rule 60(a). She also requested $1,419.15 in
attorney's fees pursuant to Civil Rule 82. Glen opposed both
requests.
The court awarded Tammy $750 in attorney's fees and
clarified its order, making Glen's increased support obligation
retroactive to March 1, 1991, the date Tammy's original motion
was filed. This appeal followed.
II. CHILD SUPPORT
Civil Rule 90.3 provides a standard formula for
determining a non-custodial parent's child support obligation.
The rule recognizes that this formula sometimes leads to unfair
results and therefore provides for variations from the rule where
_good cause_ exists. Alaska R. Civ. P. 90.3(c). In Coats v.
Finn, 779 P.2d 775, 777 (Alaska 1989), we concluded that the good
cause exception was not limited to the specific exceptions
enumerated in the rule. We held that good cause exists to
deviate from the formula when the formula produces an award which
substantially exceeds or falls short of the amount needed to
provide for the child's reasonable needs. Id. We further
observed that the burden of persuasion is on the party objecting
to the application of the rule. "When a party objects to the
application of the formula, a departure therefrom must be based
on clear and convincing evidence that manifest injustice would
result if the formula were applied." Id.
Glen's past voluntary contributions in excess of his
support obligation do not constitute good cause for reducing his
future child support obligation.3 We have previously recognized
that an obligor parent may offset such past contributions against
past due child support. See Arnt v. Arnt, 777 P.2d 668, 671
(Alaska 1989); Young v. Williams, 583 P.2d 201, 203 (Alaska
1978). However, it is contrary to the purpose of Civil Rule 90.3
to offset such contributions against future child support
payments except in exceptional circumstances. See Raczynski v.
Raczynski, 558 P.2d 425 (Okla. Ct. App. 1976) (holding that a
father's overpayments of support in the past justified an
equitable adjustment of his future support obligation where the
parents had specifically agreed that these overpayments were to
constitute prepayment of child support and honoring this
agreement would not affect the well-being of the minor child).
On the record presented, it is clear that the court did
not abuse its discretion in ruling that the _gifts_ Glen made to
Tammy could not be credited against his child support obligation.
Glen does not claim that he and Tammy agreed that his
contributions were to constitute prepayment of future child
support.
Because Glen failed to establish that there was any
genuine issue of material fact before the court,4 the trial court
properly determined Glen's child support obligation under Civil
Rule 90.3 without an evidentiary hearing. See Estate of Miner v.
Commercial Fisheries Entry Comm'n, 635 P.2d 827, 834 (Alaska
1981), cert. denied, 389 U.S. 917 (1967) (quoting NLRB v. Bata
Shoe Co., 377 F.2d 821, 826 (4th Cir. 1967)) (holding that "there
is no requirement, constitutional or otherwise, that there be a
hearing in the absence of substantial and material issues crucial
to [the] determination"); see also Deivert v. Oseira, 628 P.2d
575, 578 (Alaska 1981) (holding that in a modification of custody
proceeding, a hearing is only warranted when there is a prima
facie showing of a change in circumstances).
III. EFFECTIVE DATE
The trial court did not specify an effective date for
Glen's increased child support obligation in its first order.
Glen objects to the court's order clarifying this omission,
claiming that such an order constitutes a retroactive
modification of support. Glen's argument is without merit. Civil
Rule 90.3(h)(2) clearly provides that a modification order made
effective on the date the original motion was served is not
retroactive.
IV. ATTORNEY'S FEES
Finally, the trial court properly awarded Tammy
attorney's fees pursuant to Civil Rule 82. See Patch v. Patch,
760 P.2d 526, 530 (Alaska 1988) (holding that attorney's fees in
modification of child support proceedings are properly determined
under Civil Rule 82). The trial court's determination that Tammy
was the prevailing party for purposes of its Rule 82 attorney's
fee ruling was not erroneous.
AFFIRMED.5
_______________________________
1. Glen claimed that he contributed over $40,000 in cash,
property and services above his total support
obligation between 1986 and 1990.
2. These credits included: (1) credit for health insurance;
(2) credit for child care; (3) credit for visitation travel
expenses; and (4) credit for extended visitation. See Alaska R.
Civ. P. 90.3 (b), (d) & (g).
3. Glen does not appeal the court's calculation of his
annual adjusted income.
4. The only disputed claim of legal significance is Glen's
claim that Tammy has unusually low living expenses. A custodial
parent's low living expenses may in some cases justify deviating
from the Rule 90.3 formula. Alaska R. Civ. P. 90.3(c)(1)(A).
However, Glen failed to set forth specific facts substantiating
his bare claim that Tammy's expenses are extremely low. Glen
based his claim on his belief that Tammy is living rent free and
has no child care expenses. Tammy filed a financial declaration
and a Child Support Guidelines Affidavit with the court, claiming
a net monthly income of $1,703.24 and monthly expenses of $1,686.
Glen did not specifically dispute any of her listed expenses. In
the summary judgment context, we have held that generalized
allegations of factual issues do not create an issue of material
fact. O'Neill Investigations v. Illinois Employers Ins. of
Wausau, 636 P.2d 1170, 1173 (Alaska 1981). Therefore, the trial
court properly determined that Glen was not entitled to a
hearing.
5. We have reviewed Glen's other assertions of error and
conclude that they lack merit.
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