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Berkbigler v. Berkbigler (8/2/96), 921 P 2d 628
Notice: This opinion is subject to formal 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)
THE SUPREME COURT OF THE STATE OF ALASKA
JUDY A. BERKBIGLER, )
) Supreme Court No. S-7222
) Superior Court No.
v. ) 3AN-88-05433 Civil
RANDALL BERKBIGLER, ) O P I N I O N
Appellee. ) [No. 4377 - August 2, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: Mary-Ellen Zalewski, Anchorage,
for Appellant. Jennifer L. Holland and Max F.
Gruenberg, Jr., Gruenberg and Clover,
Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh and Fabe, Justices.
COMPTON, Chief Justice.
Judy Berkbigler appeals the superior court's denial of
her motion to modify a child support award. We reverse.
II. FACTS AND PROCEEDINGS
Judy Berkbigler and Randall Berkbigler were divorced in
December 1988. Judy was awarded sole custody of the parties' two
children, and Randall was ordered to pay child support of $545 per
month. Randall, who is in the Air Force and was stationed in
Hawaii at the time of the divorce, was also made responsible for
the costs of transporting his children for visitation. In 1991
Randall was transferred to Abilene, Texas. The support award was
thereafter increased to $676.
In 1994 Randall was transferred from Texas to Mildenhall,
England. After Randall moved to England, Judy asked the Child
Support Enforcement Division (CSED) to review the support award.
CSED found that Randall's adjusted annual income was $38,282.
Applying Alaska Civil Rule 90.3 guidelines, CSED calculated
Randall's monthly support obligation to be $861 per month.
Judy filed a motion to modify the support award; Randall
opposed. Although Randall calculated his child support obligations
under Rule 90.3 to be $928 per month, he argued against any
increase in the support award. Randall asserted that the cost of
living in England was so much higher than the cost of living in the
States that his income had not really increased.
The superior court denied Judy's motion:
Defendant's costs seem to have remained the
same as Alaska, but the costs of transporting
his children for visitation have gone up.
Since Defendant is required to pay the entire
visitation costs, it would be manifestly
unjust for the children to miss visitation,
simply because Mr. Berkbigler has a temporary
increase in COLA due to being in England.
Therefore, Mr. Berkbigler shall continue to
pay 100% of his children's transportation
costs for visitation, and his child support
will remain at $676.00 per month. If
Defendant fails to exercise his visitation the
court will reconsider raising his obligation
upon a motion being filed.
On reconsideration, the superior court affirmed its
The children have no greater cost, but Mr.
Berkbigler is recognized as having greater
costs of living by his . . . employer. The
court's previous ruling shall stand. Mr.
Berkbigler's income increased primarily
because of his overseas housing allowance and
the cost of living allowance, which was given
to him due solely to his assignment.
A child support award may be modified upon a showing of
a material change in circumstances. Alaska R. Civ. P. 90.3(h)(1).
"A material change of circumstances will be presumed if support as
calculated under this rule is more than 15 percent greater or less
than the outstanding support order." Id. To calculate support in
a sole custody case, the superior court must first determine the
adjusted annual income of the non-custodial parent. See Alaska R.
Civ. P. 90.3(a)(1). (EN1) This figure is then multiplied by a
fixed percentage, depending on the number of children involved.
Alaska R. Civ. P. 90.3(a)(2). (EN2)
The superior court may vary a support award calculated
under Rule 90.3 only "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. 90.3(c)(1); see
also Alaska R. Civ. P. 90.3 Commentary I.C. ("The support
guidelines in the rule may be varied only as provided by paragraph
(c) of the rule."). Good cause includes, inter alia,
"extraordinary expenses . . . which require variation of the award
in order to award an amount of support which is just and proper for
the parties to contribute toward the nurture and education of their
children." Alaska R. Civ. P. 90.3(c)(1)(A). If the court varies
the award, it must explain in writing "the reason for the
variation, [and] the amount of support which would have been
required but for the variation. . . ." Alaska R. Civ. P.
The superior court in the present case failed to make
explicit findings as to Randall's adjusted annual income and failed
to specify the amount of support required under Rule 90.3(a).
Further, the court failed to make specific findings in support of
the reasons found to constitute good cause--increased airfare for
visitation and/or increased living costs. Specific findings are
needed so that these reasons can be reviewed on appeal. We
therefore remand for additional factual findings. See Gallant v.
Gallant, 882 P.2d 1252, 1255 (Alaska 1994) ("A trial court is
required to make specific findings to support a determination of
adjusted income under Civil Rule 90.3."); Wright v. Gregorio, 855
P.2d 772, 773 (Alaska 1993) ("Adequate findings of fact [under Rule
90.3] are essential, so that a reviewing court may clearly
understand the grounds on which the lower court reached its
decision."); accord Waggoner v. Foster, 904 P.2d 1234, 1235 (Alaska
1995); see also Adrian v. Adrian, 838 P.2d 808, 812 (Alaska 1992)
("[M]ere references to the parties' relative financial positions
fail to provide the raw numbers necessary for a Civil Rule 90.3
Randall makes several arguments in this appeal which can
be disposed of prior to remand. First, he argues that his Cost of
Living Allowance (COLA) and Overseas Housing Allowance (OHA) should
not be included in his adjusted annual income because they are only
"temporary"increases in income. This argument is without merit.
See Alaska R. Civ. P. 90.3(a)(1) ("Adjusted annual income as used
in this rule means the parent's total income from all sources.");
Alaska R. Civ. P. 90.3 Commentary III.A.29 (Income includes "Armed
Service Members base pay plus the obligor's allowances for
quarters, rations, COLA and specialty pay.").
Randall also argues that an increase in the support award
is not warranted because the children's needs are being met at the
current level of support. This argument runs counter to the
premise of Rule 90.3, which "operates on the principle that as the
income available to both parents increases, the amount available to
support the children also will increase." Alaska R. Civ. P. 90.3
Commentary II; see Coats v. Finn, 779 P.2d 775, 776-77 n.5 (Alaska
1989) (quoting with approval Report of the Child Support
Enforcement Commission to Governor William J. Sheffield, October 1,
1985) ("'[A]s income increases additional expenditures are made for
the benefit of all family members, including children as well as
adults.'"). An obligor parent who experiences an increase in
income cannot avoid paying additional support merely by showing
that the children's needs are being met by an existing support
Randall details his and Judy's expenses to support his
argument that he is already paying his "fair share." However,
simply because Randall has significant debts does not, by itself,
mean that the award amount should be reduced. See Alaska R. Civ.
P. 90.3 Commentary VI.B.5 ("Prior or subsequent debts of the
obligor, even if substantial, normally will not justify a reduction
in support."). It is true, as Randall notes, that we have held
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." Coats v. Finn, 779 P.2d at 776. But what Randall fails
to appreciate is that Rule 90.3 presumes the non-custodial parent's
"fair share"is the amount fixed by its guidelines. See Alaska R.
Civ. P. 90.3 Commentary II ("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."). For
Randall to rebut this presumption, he must show that his expenses
are "extraordinary." See Alaska R. Civ. P. 90.3(c)(1)(A).
Finally, we note that any adjustment in support based on
travel expenses should be based only on an increase in travel
expenses over what Randall was already obligated to pay under the
earlier decree. Randall cannot be credited with the entire cost of
travel to England, since he was already obligated to pay for
visitation within the United States, most recently in Abilene,
Texas. Given the fluctuations in airfares and the expressed
concern that Randall may not exercise overseas visitation, the most
efficient approach, if an adjustment is to be made, would be to
permit a direct child support credit for the difference between the
fares to England and to Texas, once the tickets have been
Alaska Civil Rule 90.3 establishes a method for
determining child support awards. The superior court did not
follow this method. We REVERSE and REMAND the superior court's
decision for calculation of a support award in accordance with the
guidelines of Rule 90.3. We retain jurisdiction. The parties have
until fifteen days after the superior court enters its findings on
remand to move for an order permitting supplemental briefing before
1. Alaska Civil Rule 90.3(a)(1) provides:
(a) Guidelines--Sole or Primary Physical
Custody. A child support award in a case in
which one parent is awarded sole or primary
physical custody . . . will be calculated as
an amount equal to the adjusted annual income
of the non-custodial parent multiplied by a
percentage specified in subparagraph (a)(2).
(1) Adjusted annual income as used in
this rule means the parent's total income from
all sources minus:
(A) mandatory deductions such as federal
income tax, social security tax, mandatory
retirement deductions and mandatory union
(B) child support and alimony payments
arising from prior relationships which are
required by other court or administrative
proceedings and actually paid;
(C) child support for children from
prior relationships living with the parent,
calculated by using the formula provided by
this rule; and
(D) work related child care expenses for
the children who are the subject of the child
2. Alaska Civil Rule 90.3(a)(2) provides:
(2) The percentage by which the non-custodial
parent's adjusted income must be multiplied in
order to calculate the child support award is:
(A) 20% (.20) for one child;
(B) 27% (.27) for two children;
(C) 33% (.33) for three children; and
(D) an extra 3% (.03) for each
3. Different considerations apply if the obligor parent has an
adjusted annual income in excess of $72,000. See Alaska R. Civ. P.
90.3(c)(2) ("Paragraphs (a) and (b) [of Rule 90.3] do not apply to
the extent that the parent has an adjusted annual income of over
$72,000. In such a case, 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."); see, e.g., Moore v. Moore, 893 P.2d 1268, 1270