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Turinsky v. Long (2/2/96), 910 P 2d 590
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, telephone (907) 264-0607, fax (907) 276-
THE SUPREME COURT OF THE STATE OF ALASKA
REGINA A. TURINSKY, )
) Supreme Court No. S-5784
) Superior Court No.
v. ) 3AN-87-2263 Civil
DENNIS A. LONG, )
) O P I N I O N
______________________________) [No. 4319 - February 2, 1996]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
John Reese, Judge.
Appearances: Regina A. Turinsky, pro se,
Anchorage. No appearance by Appellee.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
We deal here with another round in a long battle over
child custody, visitation, and support. The disputes have been
continuous since Regina Turinsky and Dennis Long were divorced in
1987. They have been before this court once before. Long v.
Long, 816 P.2d 145 (Alaska 1991). Regina Turinsky argues in the
present appeal that the trial court failed to issue a precise
visitation order, improperly calculated child support, and may
have improperly considered ex parte communications supporting
We vacate the child support order entered June 7, 1993,
and remand for further proceedings.
II. FACTS AND PROCEEDINGS
Dennis Long and Regina Turinsky1 were granted a partial
divorce in July 1987; child custody and property disputes were to
be settled at a later time. During their marriage they had four
children: Virginia, born October 7, 1973; Rebecca, born June 4,
1976; Gregory, born April 18, 1980; and Jonathan, born January
18, 1983. Long, 816 P.2d at 149. Turinsky and Long have waged a
bitter battle over custody since their divorce.
The trial court originally gave Long custody of the
oldest daughter, Virginia, and Turinsky custody of the three
younger children, Rebecca, Gregory, and Jonathan. In August 1989
the trial court awarded Long custody of all four children and
gave Turinsky liberal visitation rights with the three younger
children and "optional" visitation rights with Virginia.2 Id. at
150. Turinsky appealed the custody and visitation order. In
1991 this court affirmed the change of custody, but found the
visitation order to be "unacceptably ambiguous." Id. at 158.
The trial court had ignored the shared custody provision of Civil
Rule 90.3(b) and "improperly coordinated, or failed to
coordinate, the visitation and support awards in this case." Id.
We consequently reversed the child support and
visitation awards and remanded the case for redetermination of
those issues. In a footnote, we emphasized the importance of a
precise visitation decree. We stated:
The visitation decree in this case is of
primary importance. . . . Upon remand, the
court should very carefully and precisely fix
the terms of visitation to facilitate the
chances that the custody and visitation
schemes will work in the best interests of
Id. at 158 n.12.3
The acrimony between the parties continued after we
decided the first appeal. Long and Turinsky refused to cooperate
over visitation, requiring the court and a guardian ad litem to
referee disputes over proper visitation. The parties also fought
bitterly over the financial arrangements for their children's
The trial court conducted a hearing in July 1992 "to
resolve all pending financial issues between the parties,
including the visitation/support issue remanded by the supreme
court." The parties argued at that hearing about financial
disputes, but did not reach the visitation and child support
issues. The hearing continued on October 1 for the purpose of
resolving all pending visitation and child support issues, as
required by our remand.
There was a lengthy discussion of visitation for
Gregory and Jonathan at the October 1 hearing. The court decided
that weekend visitation would start Friday after school and end
Monday when Turinsky dropped the boys at school. Weekend
visitation was to take place every other weekend. The non-school
year and holidays were also discussed. Thanksgiving was to be
split equally. The parent with weekend custody would have the
boys Saturday and Sunday; the other parent would have the boys
Thursday and Friday. The parties also worked out Christmas 1992.4
They divided Spring Break 1993 equally and divided summer into
two three-week periods of visitation with alternate weekend
visitation. No written order ever set out this relatively
specific visitation schedule.
As the October 1 hearing ended, the trial court stated
that it did not have time to address child support and asked the
parties to submit the necessary information for a child support
order. The parties then filed income statements and memoranda.
Child support arrearages were not addressed at the hearing. A
written child support order was not issued until June 7, 1993.
On that day, the court issued its "Ruling on Child Support
Issues." It applied Civil Rule 90.3(a), which determines child
support in a primary custody situation, and held that Turinsky
was to pay Long $284 per month for the support of Rebecca,
Gregory, and Jonathan. The order was entered nunc pro tunc to
September 1, 1989.
Turinsky filed her notice of appeal on July 7, 1993.5
Although given notice that he could file a brief, Long has not
participated in this appeal.
Turinsky appeals the June 7, 1993 child support order.
She argues that the trial court failed to issue a detailed
visitation order, as required by our decision in Long v. Long,
816 P.2d 145 (Alaska 1991), that it erroneously calculated child
support under Civil Rule 90.3,6 and that it may have
inappropriately considered ex parte communications favoring Long.
A. Visitation Order7
The October 1, 1992 hearing set visitation for the two
boys. While the trial court has never issued a written order
memorializing the visitation schedule established at that
hearing, the oral order is sufficiently detailed to satisfy our
instructions on remand.8
The court did not address Rebecca's visitation at the
October hearing. Her visitation was then governed by a June 12,
1992 order that stated that visitation between Turinsky and
Rebecca would be "at least one Sunday per month and at the
counselling sessions . . . . Rebecca may visit with her mother at
additional reasonable times as she and her mother may agree from
time to time."
Rebecca's visitation order does not specify the exact
number of days Rebecca was to visit with her mother. We
recognize that there will be times, particularly in situations in
which there is an older child who is more independent and may be
estranged from the non-custodial parent, when an order providing
for "reasonable visitation" is appropriate. Cf. Charlesworth v.
State, Child Support Enforcement Div., 779 P.2d 792, 794-95
(Alaska 1989) (affirming support award where dissolution
agreement provided for "reasonable visitation"). Although it
would have been preferable to address Rebecca's visitation at the
October 1992 hearing, the June 12, 1992 order exactly specified
Turinsky's minimum visitation rights ("at least one Sunday per
month and at the counseling sessions"). The court did not abuse
its discretion in permitting Rebecca and her mother to agree on
additional visitation at reasonable times.
Trial courts should recognize that the exercise of
additional visitation in accordance with such an order
potentially affects the total amount of custody and therefore
child support. Such an order may encourage collateral disputes
about the exercise of visitation and child support. The parties
must be free to seek amended prospective support orders based on
realistic estimates of the total amount of custody the parents
will each exercise. Flexible custody orders potentially burden
the parties and the trial court with otherwise avoidable motions
to modify support orders. In the circumstances of this case,
however, the trial court did not abuse its discretion in entering
the visitation order for Rebecca.9
B. The Child Support Award
1. Child support hearing
Turinsky argues that the court erred by failing to
conduct a hearing on child support issues. She cites this
court's opinion in Adrian v. Adrian, 838 P.2d 808, 811 (Alaska
1992), for the proposition that Rule 90.3 does not authorize
"child support trials by affidavit."
A hearing is not required for all child support
disputes. In Epperson v. Epperson, 835 P.2d 451, 453 (Alaska
1992), we held that a hearing is not necessary if there is no
genuine issue of material fact before the court. The parties do
not argue that the adjusted income levels used by the court are
inaccurate. This factor distinguishes Adrian, where one party
contested the other's income statement and we held that an
evidentiary hearing would be appropriate. 838 P.2d at 812.
Adrian did not go so far as to require a hearing in all child
support cases. As there is no material factual dispute regarding
child support in this case, the court did not err in deciding
child support without a hearing.
2. Calculation of child support
Turinsky argues that the trial court committed two
errors in calculating child support.10 First, it erroneously
based child support on the amount of visitation actually
exercised, rather than the amount of visitation awarded. Second,
it erroneously used Civil Rule 90.3(a) rather than Civil Rule
90.3(b) to calculate child support.
The June 7, 1993 child support order states:
Since 1989 the minor children, as a
group, have spent on average less than 30% of
the time with their mother. Part of the
missed time was due to improper failure of
Mr. Long to insist that the children visit,
part was due to improper conduct by
Ms. Turinsky and her husband. The current
order places the two minor boys with their
mother about 32% of the time, and the minor
daughter with the mother a much smaller
portion of the time.
Considering the placement history and
the current order, it is fair to say that
support should be calculated under part (a)
of the rule, i.e. 33% of adjusted income to
be paid by the noncustodial parent, Ms.
The order thus finds that the children as a group spent less than
30% of their time with Turinsky due partly to Long's "improper
failure" to insist that the children visit, and partly to
"improper conduct" by Ms. Turinsky and her husband. From that,
the trial court appears to have decided that the parents did not
share custody during the entire period in dispute and that
support should be calculated under Rule 90.3(a).
By relying on the amount of visitation actually
exercised to determine that Rule 90.3(a) applied, the trial court
potentially rewarded Long for interfering with Turinsky's
According to the commentary to Rule 90.3, "A denial of
visitation may not be countered with a reduction in support."
Alaska R. Civ. P. 90.3 commentary VI B (8). This comment appears
to be directed primarily at reductions in payments by the obligor
parent in retaliation for visitation denied by the custodial
parent. Nonetheless, the same rationale prevents the court from
awarding child support on the basis of a denial of visitation
rights. Child support awards should be based on a custody and
visitation order. If the parties do not follow the custody
order, they should ask the court to enforce the custody order or
should move to modify the child support order.11 Cf. Karpuleon v.
Karpuleon, 881 P.2d 318, 320 (Alaska 1994) (burden is on parents
to apply promptly for modification when a child changes
We hold that the trial court erred to the extent it
based its calculation of support arrearages on the visitation
exercised, rather than the visitation ordered. (We also note
that the record does not support the court's finding that part of
the missed visitation was attributable to improper conduct of
Turinsky. Long, however, was cited several times for his failure
to allow the children to visit Turinsky.)
Turinsky next argues that the trial court erred in
applying Rule 90.3(a) rather than Rule 90.3(b) to determine child
support because it erroneously found Long to have "sole custody"
of the minor children in its June 7, 1993 order.
Child support is calculated under Civil Rule 90.3(a)
when one parent is awarded "sole or primary physical custody."
Child support is calculated under Civil Rule 90.3(b) when parents
are awarded "shared physical custody." Civil Rule 90.3(c)
recognizes exceptions to these methods of calculation.
To determine whether the trial court applied the
correct rule and correctly calculated child support, it is
necessary to determine the terms of the orders governing custody
and visitation at relevant times. (The period between entry of
the order effective August 25, 1989, and commencement of
Turinsky's appeal from the June 7, 1993 order is pertinent here.)
The circumstances potentially complicate this determination.
Interim orders affected visitation. Even before we issued our
1991 decision remanding the case, the trial court entered an
order on June 25, 1990. That order arguably altered visitation
for Rebecca, and possibly for Virginia as well. It increased
Turinsky's visitation rights for the boys, but we cannot tell
whether it gave Turinsky shared custody of the boys when Long had
primary custody of Rebecca and Virginia. Likewise, the trial
court's oral October 1, 1992 order affected Turinsky's visitation
rights with the boys; she claims it gave her visitation 32% of
the year, and thus gave her shared custody of the boys.
Moreover, we previously found the custody order which was
effective August 25, 1989, to be "unacceptably ambiguous," Long,
816 P.2d at 158. Although that ambiguity probably has no bearing
because it relates only to Virginia's visitation rights, the
parties may disagree. Finally, Virginia was apparently
emancipated in May 1991, and in any event became eighteen October
7, 1991. Thus, the custody status of each child subject to
custody may have changed between August 25, 1989, and June 7,
Using Rule 90.3(a) to calculate support for this entire
period would be appropriate only if Long had sole or primary
custody of all children subject to custody during the entire
period. (The rate under that rule should have changed
nonetheless once Virginia was no longer subject to a custody
order.) If the custody status of any or all of the children
changed for an interim period, the analysis for that period also
should have changed. The most accurate way to calculate support
in such situations is to calculate it for each interim period,
looking at each interim period in isolation. It is possible that
Rule 90.3(a) will apply to one period, that Rule 90.3(b) will
apply to another, and that some other analysis may apply to yet
Turinsky argues that she was awarded visitation
exceeding 30% for all four children during this period. We
cannot say with any assurance precisely what custody was awarded
for each child during all relevant times, including the interim
periods. This is so in part because the order effective August
25, 1989 did not set out a comprehensive visitation schedule and
because no subsequent order clarified that order. It is also
unclear whether the record contains all orders affecting custody.
We are also unsure of the intended duration of Christmas and
spring vacation visitation and cannot determine the effect of
alternating these vacations. Long, 816 P.2d at 157-58 n.11.
Furthermore, we cannot say whether the increase in Turinsky's
visitation rights for the two boys resulting from the June 25,
1990 and October 1, 1992 orders was sufficient to give Turinsky
custody of the boys for at least 30% of the year, and thus shared
physical custody. The appellate record seems to suggest strongly
that, notwithstanding the ambiguity in the August 25, 1989 order,
Long had primary custody of both girls. The record is less clear
regarding custody of the boys at all times. We cannot say what
percentage of the boys' custody was awarded to each parent. We
consequently cannot determine whether the orders gave the parties
shared custody of the boys, and if so, for what period.
The June 25, 1990 order or subsequent orders may have
given Turinsky "shared physical custody," as that term was
defined by Civil Rule 90.3(f), of some of the children for
interim periods. If so, it was inappropriate to rely exclusively
on Rule 90.3(a) to calculate the child support due during those
periods. Any error in this regard potentially affects the
present dispute over child support arrearages.
It is necessary to remand so that the trial court can
determine precisely what custody was awarded for each child from
August 25, 1989, until the June 7, 1993 decision which resulted
in Turinsky's notice of appeal filed July 7, 1993.12
Once those facts have been found, the trial court
should apply the appropriate method for calculating child support
for each interim period. Subject to Civil Rule 90.3(c), the
court should calculate child support under Civil Rule 90.3(a) for
any period when one parent was awarded sole or primary physical
custody of all children subject to a custody order. (Although
Rule 90.3(b) would apply to any period when the parents shared
physical custody of all the children, it does not appear that
condition existed at any time pertinent.)
It is possible that for some interim period the court's
orders (1) did not give either Long or Turinsky sole or primary
physical custody of all unemancipated children, and (2) did not
give Long and Turinsky "shared physical custody" of all
unemancipated children. Thus, it is possible that for some
interim period which we cannot determine from the record Long had
sole or primary custody of Rebecca (and Virginia before she
reached majority) and Turinsky and Long shared physical custody
of the two boys. If so, this would be a hybrid situation, and
neither Civil Rule 90.3(a) nor Civil Rule 90.3(b) would
exclusively determine the support required for all the children.
In such a situation, a trial court should, subject to Rule
90.3(c), rely on both Rule 90.3(a) and Rule 90.3(b) to calculate
child support. The court should apply Rule 90.3(a) for children
in one parent's sole or primary custody and Rule 90.3(b) for
children whose custody is shared, and then offset or add the
results to determine the net obligation for that period.13
The trial court may have followed the "divided
custody" model described in Civil Rule 90.3 commentary V C. That
commentary states that divided custody exists when "at any one
time one parent may have physical custody of one child and the
other may have physical custody of the other children." Alaska
R. Civ. P. 90.3 commentary V C. The commentary explains that
these situations require a different analysis:
The first step in determining support in
such a divided custody arrangement is to
apply the usual shared custody formula by
averaging the time all children will spend
with each parent. For example, if one child
will live with the father all of the time and
two with the mother, support is calculated as
if all the children spent one-third of the
time with the father. The appropriate
percentage figure for all the children (in
the example, 3 or 33%) then is applied.
The second step in determining divided
custody support is for the court to carefully
consider whether the support amount should be
varied under paragraph (c)(1)(A). A divided
custody case should be treated as an unusual
circumstance under which support will be
varied if such a variation is "just and
proper . . . ."
Alaska R. Civ. P. 90.3 commentary V C (emphasis added). The
trial court appeared to have calculated support by averaging the
custody of Rebecca and the two boys for the entire period in
The commentary indicates that the "divided custody"
situation was intended to address the inefficiencies which result
when the children live in different households. "Such an
arrangement, depending on the circumstances, may require greater
expenditures to support the children because it is somewhat less
expensive to support children living together than in two
households at the same time." Commentary V C.
There was no "divided custody" as that term was used in
the commentary, because the record does not suggest and Turinsky
does not argue that one parent had sole or physical custody of
fewer than all the children at a time the other parent had sole
or physical custody of the other children. The custody
situations which may have existed did not involve the degree of
inherently uneconomic arrangements contemplated by the
This reading of the commentary is confirmed by the
definition of "divided custody" recently added to Rule 90.3(f).
See Rule 90.3(f)(3) (effective July 15, 1995).14 That definition
contemplates situations in which the parents split the sole or
primary custody of the children. It does not state or imply that
it applies if any children are subject to shared physical
custody. The commentary quoted above predated the definition.
The commentary was renumbered but did not change substantively
when the definition was added to the rule.
The trial court may have averaged the custody for all
the children to calculate child support in reliance on the method
suggested for divided custody situations. That method has no
bearing in this case, where there is neither split physical
custody, nor the same degree of economic inefficiency typified by
split custody. Moreover, the averaging method is inconsistent
with the method which we have discussed above as the preferred
way to calculate support in situations like the one presented
In this case, the court erred if it applied only Rule
90.3(a) to calculate support for any interim period when the
parents shared physical custody of any of the children.15 Rule
90.3(a) covers "the usual custodial situation in which one parent
will have physical custody of the child . . . for over seventy
percent of the year." Alaska R. Civ. P. 90.3 commentary IV A.
Only if the three minor children properly could be considered as
one group would it have been correct to conclude in the June 7,
1993 order that Turinsky had custody of the minor children for
less than 30% of the time. The children could not be considered
to be one group if Long had primary custody of Rebecca and
Turinsky shared custody of the boys. To consider the three
children as a single unit in that situation would ignore the
increased costs associated with the shared custody of the two
boys.16 Long had primary custody of Rebecca, but he and Turinsky
may have shared custody of the two boys at various times.17 If
so, it would have been error to treat the three children as a
single group and to apply Rule 90.3(a). Likewise, the court
could not average the children's custody for the entire period in
dispute if interim custody orders affected visitation and altered
the status of a particular child.
On remand, the trial court has the discretion to create
a child support order that considers the special circumstances of
this case. That order should be made nunc pro tunc to August 25,
1989, the date the original child support order was entered. The
calculation must be based on the custody actually ordered, not
exercised, must be calculated for each period during which
interim orders affected custody, and must take into account all
children subject to custody orders.
C. The Ex Parte Communications
Turinsky argues that the trial court erred in
considering ex parte communications made to the court in Long's
behalf. These communications were letters from Long and his
wife, an affidavit from Long's former attorney, and unsigned
letters allegedly written by the parties' son, Gregory. These
letters were addressed to the judge as "an inquiry and of an
informative nature." Copies were not sent to Turinsky. Although
the record does not suggest that the trial court gave substantive
consideration to these improper communications, neither does the
record affirmatively reflect that the court informed Turinsky of
them, or that it informed the parties the court would not
consider such communications in deciding issues before it.
Likewise, the record does not reflect that the court advised Long
that such communications are improper.
The parties have filed volumes of paper in this
litigation and we recognize the difficulty trial courts have in
monitoring service on opposing parties. Nevertheless, ex parte
communications raise the possible appearance of impropriety that
the justice system must avoid.18 Therefore, on remand, the trial
court should follow the requirements set out in Bowlin v. State,
643 P.2d 1 (Alaska App. 1982). In that case, the court of
appeals required judges to disclose ex parte communications
before rendering any decision that could have been affected by
the communication. Id. at 2. Alternatively, the court may
clearly state in the record that the communications were not
considered in its decision. Id. at 5. On remand, the trial
court should give Turinsky an opportunity to respond to the
documents or it should state that it has not relied on them in
For the above reasons, we VACATE the June 7, 1993 child
support order. We REMAND for entry of a precise child support
order, for determination of the custody status of each child at
each pertinent time between August 25, 1989, and June 7, 1993,
for entry of an order calculating any child support arrearages,
and for further proceedings consistent with our discussion of the
ex parte communications. We retain jurisdiction of this case.
1 Regina Turinsky was formerly Mrs. Long. She has since
remarried and taken the last name of her present husband.
2 The original visitation order is not in the record.
Additional information concerning the early chapters of this
dispute can be found in Long v. Long, 816 P.2d 145 (Alaska 1991).
3 Superior Court Judge Victor Carlson entered the August
25, 1989 order and several later orders affecting custody. The
case was reassigned to Superior Court Judge John Reese at some
date not apparent from the appellate record.
4 It is unclear whether the arrangement for Christmas
1992 was limited to that year or was to be permanent.
5 Disputes between Turinsky and Long have continued in
the trial court since Turinsky commenced this appeal. Most of
the continuing disputes are not before us and are not reflected
in the record. However, one event is significant. On August 30,
1993, the court entered an interim child custody order changing
Rebecca's custody from Long to Turinsky. The court issued an
interim child support order on October 26, 1993. Unlike the
child support order of June 7, 1993, this interim support order
calculated child support under Rule 90.3(b) and required Long to
pay $580 per month. The trial court made this custody and
support arrangement permanent on November 12, 1993.
6 Alaska Civil Rule 90.3 was amended by Supreme Court
Order 1192, effective July 15, 1995. These amendments do not
apply to this appeal. Our citations to Rule 90.3 and the
commentary to Rule 90.3 are to the Alaska Rules of Court 1994-95
Main Edition (Book Publishing Co.).
7 The trial court has broad discretion in child custody
decisions. Evans v. Evans, 869 P.2d 478, 479 (Alaska 1994). Its
determination will not be disturbed unless the record
demonstrates that the controlling findings of fact are clearly
erroneous or that the trial court abused its discretion. Id.
8 In a July 27, 1993 order the trial court told the
parties that it would "enter its own order reducing its October
1, 1992 visitation order to writing." The record does not reveal
why no written visitation order for the boys was ever entered.
We strongly encourage the trial court to execute this intention
and issue a precise written order that comprehensively addresses
visitation for the boys. A written order might help the parties
adhere to the trial court's intentions when it orally specified
the visitation schedule on October 1, 1992.
9 The dispute about Rebecca's visitation potentially
affects only child support issues; the dispute is otherwise moot
because Rebecca reached majority in June 1994 (and is thus no
longer subject to court-ordered visitation), and because the
court awarded Turinsky custody of Rebecca beginning August 30,
10 Whether the trial court used the correct method of
calculating child support is a matter of law, therefore we give
no deference to the trial court's decision. Charlesworth v.
State, Child Support Enforcement Div., 779 P.2d 792, 793 (Alaska
11 It appears that the parties' disputes about the precise
amount of custody and visitation actually exercised may have been
motivated by a desire to alter the amount of child support.
Denying visitation will not decrease the child support payments.
The parties should recognize that because the financial payments
are fixed, the parties can be flexible in scheduling visitation
around their children's and their own varying schedules without
affecting the amount of child support they will receive or pay.
12 In the case of the August 25, 1989 order this task
requires added explanation. We reversed the visitation order of
August 25, 1989, as "unacceptably ambiguous." Long, 816 P.2d at
158. The question of how to calculate child support based on an
invalid visitation order is a difficult one. We suggest that the
visitation order must be modified retroactively in a manner which
both complies with the prior mandate of this court and deviates
from the 1989 order in the least possible way. Under the
circumstances of this case, this could be accomplished by
striking the reference to visitation for seventy-two hours out of
any ten-day period in case Turinsky moves from Anchorage, id. at
157, assuming that Turinsky did not move.
13 Applying this method, the court would use Rule 90.3(a)
to calculate the support Turinsky was obliged to pay Long because
Long had primary physical custody of Rebecca (and Virginia when
appropriate). The court would then use Civil Rule 90.3(b) to
determine which parent was obliged to pay support for the two
boys during any period when they were subject to an order
awarding shared physical custody to the parents. The results of
those two calculations would then be merged to determine what
support was payable and by whom. If, for example, Turinsky's
support obligation for Rebecca under Civil Rule 90.3(a) exceeded
the amount of any net monthly support Long was to pay under Rule
90.3(b) for the two boys, Turinsky would have a net obligation to
Long. The calculations under Civil Rule 90.3(b) must, of course,
employ the 1.5 multiplier per Civil Rule 90.3(b)(3).
For this hybrid situation, the court should prorate the
per child support percentages specified in Rule 90.3(a)(2).
Thus, assuming that four children are subject to custody orders,
and that Long has primary custody of the two girls, and that Long
and Turinsky share custody of the two boys, the court would first
calculate under Rule 90.3(a) what Turinsky owed Long for support
for the girls. That calculation would multiply Turinsky's income
by 9% per child in Long's sole or primary custody. The 9% figure
is derived from the 36% total for four children, prorated among
the four. The court would then apply Rule 90.3(b) for the
children in shared custody, again using the same prorated support
figure per child.
14 Civil Rule 90.3(f)(3) (effective July 15, 1995)
(3) Divided Custody. Parents have divided
custody under this rule if one parent has
sole or primary physical custody of one or
more children of the relationship and the
other parent has sole or primary custody of
one or more other children of the
15 We note that the trial court in the subsequent child
support order of October 26, 1993, did not apply Rule 90.3(a).
In fact, much of Turinsky's argument is based on a comparison of
the June 7, 1993 order and the order issued on October 26, 1993.
The October 1993 order calculated child support under Rule
90.3(b). It concluded,
The court has not ordered a change in custody
of the 3 children since Judge Reese's order
of June 7, 1993. The order affirmed custody
of the two boys with the mother 32% of the
time. The court held that Mrs. Turinsky held
custody of Rebecca for a smaller portion of
the time. Mr. Long therefore has custody of
the children for a 166/300 share of time
(68+68+30), and Ms. Turinsky retains custody
for a 134/300 share (32+32+70).
Although the October 26, 1993 order is not before us,
we note that the trial court's application of Rule 90.3(b) is not
entirely correct. As of August 30, 1993, when the trial court
gave sole legal and physical custody of Rebecca to Turinsky, Long
received "reasonable visitation." Nevertheless, the trial court
credited him with custody for 30% of the year when it calculated
child support. Because the custody order contained both specific
and indefinite elements, where the specific element did not give
Long custody of Rebecca for 30% of the year, the court could not
properly rely on the indefinite element to arrive at that figure.
See Charlesworth v. State, Child Support Enforcement Div., 779
P.2d 792, 794-95 (Alaska 1989). In addition, it does not appear
that the court employed the 1.5 multiplier as required by Rule
90.3(b)(3). Since the October 26, 1993 order has not been
appealed we do not express an opinion about its validity. We do
note, however, that pursuant to Rule 90.3(c), the court might
permissibly enter such an order if it were supported by
16 The commentary to Rule 90.3 explains that a shared
custody situation is more costly than a primary custody situation
because some common living expenses are duplicated. Alaska R.
Civ. P. 90.3 commentary V B.
17 Per the June 12, 1992 order Turinsky had visitation
with Rebecca for at least one Sunday per month and additional
reasonable times. This "reasonable visitation" order does not
specify in writing an amount of visitation; therefore Long had
"primary" custody of Rebecca. Charlesworth, 779 P.2d at 794-95.
The oral October 1992 order may have given Turinsky shared
custody of the two boys because they resided with her for more
than 30% of the year. Alaska R. Civ. P. 90.3(f).
18 We note that the attorney or former attorney for a
party could not ethically provide an affidavit with the knowledge
or expectation it would be used as part of an ex parte
communication with the trial court. Alaska R. Prof. Conduct