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Moore v. Moore (4/28/95), 893 P 2d 1268
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
THOMAS M. MOORE, )
) Supreme Court No. S-5175
) Superior Court No.
v. ) 3AN-91-2940 CI
PATRICIA M. MOORE, ) O P I N I O N
Appellee. ) [No. 4190 - April 28, 1995]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
John Reese, Judge.
Appearances: William T. Ford,
Anchorage, for Appellant. Karla F.
Huntington, Mendel & Huntington, Anchorage,
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Thomas Moore appeals a child support award to Patricia
Moore, his ex-wife. Patricia and Thomas were married in August
1977. They have two children, Thomas, Jr., born in February
1980, and Rachel, born in February 1984. Patricia sued for
divorce in April 1991. The parties settled all property division
issues prior to trial.
Thomas is a businessman. Between 1987 and 1990, his
adjusted gross income fluctuated between $177,000 and $423,000
per year. Patricia did not work during the last ten years of the
marriage, but was attending college at the time of trial, and
expected to earn $22,000 per year once she graduated.
Patricia requested $2150 in child support. Under
Alaska Civil Rule 90.3, a non-custodial parent with two children
should pay twenty-seven percent of his adjusted gross income up
to $60,000 as child support. Twenty-seven percent of $60,000 is
$1350. However, "to the extent that the parent has an adjusted
annual income of over $60,000 . . . the court may make an
additional award only if it is just and proper, taking into
account the needs of the children, the standard of living of the
children and the extent to which that standard should be
reflective of the supporting parent's ability to pay." Alaska R.
Civ. P. 90.3(c)(2).
The superior court admitted into evidence a financial
statement showing Patricia's monthly expenses for herself and the
two children to be $3849. The superior court awarded $1750 in
child support. The superior court judge stated:
As far as income and child support,
Mr. Moore's income is substantial and has
every indication of continuing to be so. Ms.
Moore will be making 20 to $25,000 a year,
her capital could probably earn her an equal
amount. So we have fairly substantial assets
available, income available, for the
maintenance of these children. People do
spend their income on their children. 'Til
you get up to about 50 or $60,000 people
spend 27% if they've got two kids, that's
where those numbers came from. When you get
above $60,000 people don't spend such a high
percentage, but of course you do spend more
money. People in your position in life have
your kids in gymnastics and have your kids in
soccer and have -- have tutors for your kids
and you do take trips and you do this and you
do that and you go skiing. There are a lot
of families that don't have that. It does
cost more than what it costs families who
have less resources than you do.
The evidence as to the needs of the
children, or the excess needs, or the unusual
needs is fairly scant, it was really Exhibit
B -- B -- 8, indicating about $160 a month
for sports and camps and then there's some
child care and large mortgage and utility
expenses, which are also a reflection of
standard of living. I don't have evidence
that will support an $800 a month addition to
the 1350; however, it's pretty clear that
there is quite a bit of money beyond that
that would seem to be an appropriate part of
the additional care for the children that
should be borne by Mr. Moore. So I'll make
the finding that the children's needs exceed
$1350 by $400 per month, so it'll be 17 --
1750 per month would be the child support
amount, that Mr. Moore does have the ability
to pay that amount, and that that would be in
the best interests of the children for the
children's expenses to be divided between
them in that manner.
Thomas appealed the child support award to this court.
We noted that "[c]hild support awards are reviewed for an abuse
of discretion and will not be set aside by this court unless a
review of the record as a whole leaves us with a definite and
firm conviction that a mistake has been made." Moore v. Moore,
Mem. Op. & J. No. 0678 at 4 (Alaska, September 8, 1993) (citing
Farrell v. Farrell, 819 P.2d 896, 900-01 (Alaska 1991)). We
found that the trial court's findings were so cursory that we
could not "determine if a mistake ha[d] been made." Id. We
remanded the case for "specific findings detailing those
additional needs of the children which justify the waiver." Id.
On remand, the trial judge made detailed written
findings of fact and conclusions of law. The trial judge's
findings can be summarized as follows:
Testimony by the children's parents and guardian ad
litem shows that the children enjoyed a somewhat affluent
standard of living when their parents were married. Patricia
expects to earn an annual salary of $22,000 after graduating from
college. Patricia's 1992 income tax return shows that Patricia
earned $5,662 in interest in 1992.1 Patricia's total expected
annual income is $27,662. The average monthly expenses for
Patricia and the children are $3,849, including a monthly
mortgage payment of $1,802. Dividing these expenses per capita,
the average monthly expenses for support of the children are
$2,540.39.2 In accordance with the principles of Rule 90.3,
Patricia should use twenty-seven percent of her expected income,
or $622.39 per month, to support her children. The difference
between $2540.39 and $622.39 is $1918. It is just and proper for
Thomas to make up this difference; therefore, an award of $1750
Thomas again appeals to this court. He argues that the
superior court erred by including Patricia's mortgage payments
within the family expenses used to calculate child support.
Thomas relies on Money v. Money, 852 P.2d 1158 (Alaska 1993). In
Money, we rejected the ex-wife's argument that her child support
award was too low. Id. at 1165. We noted that the ex-wife
included monthly mortgage payments on her residence in the
monthly budget she submitted in support of a higher award, even
though the property division provided that the ex-husband was
required to make the payments. Id. at 1164. Since the property
division in this case does not require Thomas to make Patricia's
mortgage payments, Money is inapposite.
A recent Missouri decision is much more on point. In
In re Marriage of Cohen, 884 S.W.2d 35, 37 (Mo. App. 1994), the
father challenged the trial court's child support award. The
appellate court held that the trial court could properly
calculate child support by allocating two-thirds of the mother's
monthly mortgage expenses to her two children, id. at 40, a
procedure identical to that used by the superior court in this
case. The appellate court's ruling allowed the trial court to
consider the mortgage payments in its determination of the
children's needs and of the amount needed to maintain their
previous standard of living. Id.
In this case, the superior court specifically found
that "[r]emaining in [Patricia's current] home is beneficial to
the children and consistent with their lifestyle." Thomas does
not argue that this finding is clearly erroneous, and there is no
evidence in the record contradicting the finding. Thus, the
superior court properly treated Patricia's monthly mortgage
expenses as a constituent part of "the standard of living of the
children"under Rule 90.3(c)(2).
The superior court's findings as a whole cogently take
into account the three Rule 90.3(c)(2) factors -- "the needs of
the children, the standard of living of the children and the
extent to which that standard should be reflective of the
supporting parent's ability to pay." The findings are
sufficiently specific. They justify the additional award of
child support under Rule 90.3(c)(2). The decision of the
superior court is AFFIRMED.
1 Thomas does not contend that this is an inappropriate
determination of Patricia's reasonable investment income, even
though it is inconsistent with the court's statement before
remand that Patricia's capital probably could earn approximately
$20,000 to $25,000 a year.
2 Two-thirds of $3,849 is actually $2,566, which is a
little more than $2,540.39.