You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Bunn v. House (4/11/97), 934 P 2d 753
<![CDATA[
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) 264-0608, fax (907)
264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
ROBERT E. BUNN, )
) Supreme Court No. S-7249
Appellant, )
) Superior Court No.
v. ) 1JU-94-151 DR
)
M. KAY HOUSE, f.k.a. BUNN, ) O P I N I O N
)
Appellee. ) [No. 4804 - April 11, 1997]
______________________________)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Juneau,
Walter L. Carpeneti, Judge.
Appearances: Robert E. Bunn, pro se, Salt Lake City, Utah.
Patrick W. Conheady, Olmstead & Conheady, Juneau, for
Appellee.
Before: Compton, Chief Justice, Rabinowitz, Matthews,
Eastaugh, and Fabe, Justices.
MATTHEWS, Justice.
In this divided custody case the trial judge awarded
child support using a formula that required the father to pay
approximately $154 monthly. No appeal was taken. Four years later
the parties' incomes had not significantly changed but a different
judge modified the award to $399 per month based on a different
formula. The threshold question is whether the modification was
appropriate. Because Alaska Rule of Civil Procedure 90.3(h)(1)
requires a material change of circumstances before a child support
order may be modified and there was no such change, we answer in
the negative.
I. FACTS AND PROCEEDINGS
Robert E. Bunn and M. Kay House were married in 1980 and
divorced in 1990. They have three children. On March 1, 1991,
Judge Cranston of the superior court in Kenai entered findings of
fact and conclusions of law and an order pertaining to child
support and custody. The court awarded House custody of the two
younger children and placed the older child in the custody of Bunn.
Bunn was required to pay child support in the sum of $675.90 a
month. Bunn timely moved for reconsideration of the child support
award. Over opposition, the court on October 29, 1991, modified
the award. (EN1) Based on a formula derived from Civil Rule
90.3(a)(2), Bunn was ordered to pay 27% of his adjusted income to
House for child support, and House was ordered to pay 20% of her
adjusted income to Bunn. "[T]he difference in the two amounts of
child support shall be paid by the party with the greater
obligation to the party with the lesser obligation." The result
was a net payment of approximately $154 per month from Bunn to
House. No appeal was taken.
Venue was then changed to Juneau. In 1995, House filed
a motion to modify the child support award, proposing a new method
for calculating Bunn's child support obligation. Under this method
Bunn owed $387 per month in child support. The motion pointed out
that the increase was "151% greater than the current order."
Bunn, appearing without counsel, opposed the motion on a
number of grounds. He argued, among other things, that the order
of October 29, 1991, should control. (EN2)
On June 8, 1995, Judge Carpeneti of the superior court in
Juneau granted House's motion. Using the method of calculation
proposed by House, he found that Bunn owed $399 per month in child
support. (EN3) Because the increase over the amount owed under the
method used by Judge Cranston in the October 29, 1991 order
"exceeds the 15 percent threshold requirement for the court to
presume a material change of circumstances"under Civil Rule
90.3(h)(1), a material change of circumstances was found to have
occurred.
Judge Carpeneti imputed an annual adjusted income to Bunn
of $28,438.46. (EN4) House's annual adjusted income was
$28,423.46. Judge Cranston in the order of October 29, 1991, found
Bunn's annual adjusted income to be $25,032. House's income was
found to be "comparable or equal." She filed a financial
declaration dated May 17, 1991, showing an adjusted annual income
of $24,482.28.
Bunn appeals. He again argues that the court should have
adhered to the prior child support award: "[T]he court erred by
ignoring the prior orders . . . . The current court used the same
facts and the same rules as had the prior court but reached a
conclusion that is completely different from that of the prior
court."
House argues that the difference between the amounts of
child support calculated by Judge Carpeneti and Judge Cranston is
in itself a material change of circumstances which authorizes the
modification. She contends that the difference came about because
of "the error of the Kenai Court's order of October 29, 1991 which
misapplied the correct formula for calculating support in this type
of case." She does not argue that the incomes of the parties or
the custodial arrangements for the children had significantly
changed in the interim.
II. DISCUSSION
Alaska Rule of Civil Procedure 90.3 provides mathematical
guidelines for child support awards (1) in cases where one parent
has sole or primary physical custody of the parties' children and
(2) where the parties share physical custody. (EN5) The assumption
of the formulas for sole or primary custody and shared custody is
that children stay together. Sometimes this is not the case. Both
parents may have sole or primary physical custody of different
children. (EN6) Or, custody of one or more children may be shared
while other children are subject to primary or sole custody. In
such cases Rule 90.3 does not provide a governing formula.
The commentary to Civil Rule 90.3 suggests a method for
divided custody cases which applies, in the first instance, a
formula similar to that set forth in Civil Rule 90.3(b) pertaining
to shared custody. (EN7) The commentary formula is as follows:
The first step in determining support in
such a divided custody arrangement is to apply
the usual shared custody formula in 90.3(b) 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. (EN8)
Civil Rule 90.3 commentary, sec. VI.B.3.
In this case Judge Carpeneti used the commentary formula.
We set forth his calculations in the footnote. (EN9) As detailed
above, Judge Cranston used a method offsetting the parties'
obligations, calculated under the formula expressed in Civil Rule
90.3(a)(2). Had Judge Carpeneti applied Judge Cranston's formula
to the adjusted annual income of the parties found to exist in
1995, the monthly child support owed by Bunn would be approximately
$166. (EN10) This is an increase of about $12 per month, or
slightly less than 8%. If Judge Cranston, in 1991, had applied the
commentary formula, Bunn's obligation would have been approximately
$359 per month. (EN11) If this had occurred, the increase in child
support in 1995 would have been $40 per month, or 11.1%.
Civil Rule 90.3(h)(1) states:
A final child support award may be
modified upon a showing of a material change
of circumstances as provided by state law. 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. . . .
The 15% threshold is not satisfied when either the formula used by
Judge Cranston or that used by Judge Carpeneti is consistently
applied to the parties' 1991 and 1995 incomes. Only by changing
formulas is the threshold exceeded, and that result occurs even if
the parties' incomes remain constant.
Civil Rule 90.3(h)(1), recognizing that courts have a
special duty with regard to the support of children whose parents
have divorced, provides an exception to the general principle that
final judgments should not be disturbed. Some courts enunciate
this exception in terms of res judicata. That is, they hold that
a child support decree is res judicata unless and until there is a
material change of circumstances which opens the door to
modification. McKenna v. McKenna, 928 S.W.2d 910, 913-14 (Mo. App.
1996); O'Callaghan v. O'Callaghan, 515 N.W.2d 821, 823 (N.D. App.
1994); Smith v. Smith, 793 P.2d 407, 410 (Utah App. 1990). While
we believe that motions to modify child support, under Alaska law,
do not technically raise res judicata concerns, (EN12) the
principle of finality is a sound one. As Professor Clark wrote:
[The requirement of a change in circumstances
places] greater emphasis on the need for
finality in the tension which necessarily
arises between modification and the policies
underlying res judicata. It also reflects the
need to achieve some reduction in the level of
divorce litigation which now raises serious
problems of judicial administration in nearly
all states.
2 Homer H. Clark, Jr., The Law of Domestic Relations in the United
States sec. 18.2, at 370-71 (2d ed. 1987). A party should not be
allowed to relitigate the same facts in the hope of gaining a more
favorable result. There must be a material change of circumstances
before a support order can be modified.
Our opinions recognize that certain fact changes
occurring after the entry of a judgment may constitute a material
change in circumstances. Such changes often take the form of
shifts in the needs of the children or a change in one or both
parents' level of income. Patch v. Patch, 760 P.2d 526, 529
(Alaska 1988); Curley v. Curley, 588 P.2d 289, 292 (Alaska 1979).
A change in custodial or visitation patterns may also constitute a
material change in circumstances. E.g., Arndt v. Arndt, 777 P.2d
668, 670 (Alaska 1989).
In addition to factual changes, certain changes in the
law can constitute material changes of circumstances permitting the
modification of child support orders. "For the purposes of a
motion to modify or terminate child support, the adoption or
enactment of guidelines or a significant amendment to guidelines
for determining support is a material change in circumstances, if
the guidelines are relevant to the motion." AS 25.24.170(b). It
was for this reason that we held the adoption of Civil Rule 90.3,
itself, to be a material change in circumstances allowing the
recalculation of child support obligations embodied in orders
entered before Rule 90.3 came into existence. Charlesworth v.
State, Child Support Enforcement Div. ex rel. Charlesworth, 779
P.2d 792, 793-94 (Alaska 1989).
Further, we have recognized an exception to the
requirement that there be a change of circumstances before a
support order can be modified if the moving party can show that,
although there has been no change in the facts or law, the needs of
the children are not being met by the original order. Headlough v.
Headlough, 639 P.2d 1010, 1012-13 (Alaska 1982). This exception is
predicated on the idea that the court's primary duty is to see to
the well being of the children of a broken marriage. Id.; see also
Neil v. Neil, 648 N.Y.S.2d 740, 741 (N.Y. App. Div. 1996)
(recognizing same exception).
Based on this review of prior case law, it is evident
that a change in a party's legal theory is not a change of
circumstances which warrants the modification of a child support
order. House's new method for determining the proper level of
child support was not based on any change in the facts or the law.
It was merely a different theory, one which could have been
presented in the 1991 adjudication.
House's position on appeal -- that the new method of
calculation yields an amount of support sufficient to trigger the
15% "per se"material change of circumstances embodied in Civil
Rule 90.3(h)(1) -- lacks merit. The "15% rule"is a rule of
materiality, not a definition of what constitutes a change of
circumstances. There must be a change of circumstances, either
factual or legal. If such exists, whether the change is material
can be gauged by asking if it would result in a 15% change in the
level of support. Where the change is factual, the same method of
calculating support must be applied to the old and new facts.
(EN13) Otherwise, the materiality of the factual change cannot be
measured.
If House believed that the superior court erred in
entering its October 1991 order, she was free to appeal that order
to this court. Absent an appeal, she might have made a motion for
reconsideration resting on one of the grounds enumerated in Civil
Rule 60(b). Dewey v. Dewey, 886 P.2d 623, 626-27 (Alaska 1994);
Propst v. Propst, 776 P.2d 780, 783 (Alaska 1989). However, the
motion in this case was made pursuant to Civil Rule 90.3 and "the
change in circumstances test relates to changes in external facts,
not to mistakes." Larson v. Larson, 661 P.2d 626, 628 (Alaska
1983).
III. CONCLUSION
The fact that one method of child support calculation
yields a result more than 15% different from another method used in
an extant order is not a material change of circumstances. To so
hold would mean the end of the principle of finality in this area
of law. Because the record does not show a change in circumstances
which would allow the superior court to modify the 1991 order, we
hold that the superior court abused its discretion in modifying the
order.
The modified order entered on June 8, 1995, is VACATED
and this case is REMANDED for proceedings consistent with this
opinion.
ENDNOTES:
1. House asserts in her brief that the motion for reconsideration
was not opposed, but the record shows that it was.
2. Bunn argued:
CSED [The Child Support Enforcement Division,
which represented House with respect to the
motion to modify] has made a mistake not
basing their calculations on the most current
order and amended decree, both dated October
29, 1991, as they pertain to child
support. . . .
. . . . CSED has completely ignored the order
dated October 29, 1991 where it is order [sic]
that the plaintiff pay 20% of her adjusted
gross income to defendant, and defendant pays
27% of his adjusted gross income to plaintiff.
. . . .
. . . . The court used Rule 90.3(a) when it
issued its order dated October 29, 1991 and
there has not been any changes in the amount
of visitation or custody since then.
Bunn concluded:
The defendant moves this court to deny
the plaintiff's Motion to Modify Child
Support. The defendant moves this court to
order Child Support Enforcement Division to
continue to enforce the current order. If and
when a modification is requested, the
modification should be based on Civil Rule
90.3(a) using current and accurate information
supplied by both parties involved without any
zealous and erroneous interpretations of the
facts by CSED. Until that time the current
order should be enforced.
3. The difference between the amount asked for by House and that
awarded by the superior court is explained by different rounding
methods.
4. Bunn had been attending school, and thus his actual income was
lower. The court used Bunn's 1991 income, stating that "Bunn does
not have the unilateral right to further his career ambitions at
the expense of his obligation to support his children."
5. Civil Rule 90.3(a)(2), relating to sole or primary physical
custody, 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 as defined by paragraph (f)
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).
. . . .
(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 additional
child.
Civil Rule 90.3(b) provides the formula for shared physical
custody. It provides in relevant part:
(b) Shared Physical Custody. A child
support award in a case in which the parents
are awarded shared physical custody as defined
by paragraph (f) will be calculated by:
(1) Calculating the annual amount each
parent would pay to the other parent under
paragraph (a) assuming the other parent had
primary custody.
(2) Multiplying this amount for each
parent by the percentage of time the other
parent will have physical custody of the
children. However, if the court finds that
the percentage of time each parent will have
physical custody will not accurately reflect
the ratio of funds each parent will directly
spend on supporting the children, the court
shall vary this percentage to reflect its
findings.
(3) The parent with the larger figure
calculated in the preceding subparagraph is
the obligor parent and the annual award is
equal to the difference between the two
figures multiplied by 1.5. However, if this
figure is higher than the amount of support
which would be calculated under paragraph (a)
assuming sole or primary custody, the annual
support is the amount calculated under
paragraph (a).
6. Civil Rule 90.3(f)(3) defines this as "divided custody":
(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
relationship.
7. The commentary was prepared by the Child Support Guidelines
Committee appointed by this court. It has not been adopted or
approved by this court. Eagley v. Eagley, 849 P.2d 777, 779
(Alaska 1993). Nonetheless, this court often relies upon the
commentary for guidance in child support matters. See Coghill v.
Coghill, 836 P.2d 921, 926 (Alaska 1992); Ogard v. Ogard, 808 P.2d
815, 819 (Alaska 1991). We have not followed it in every instance,
however. See Eagley, 849 P.2d at 781 (rejecting commentary
treatment of real estate depreciation).
8. We have neither approved nor disapproved the use of this
formula. However, the formula could also apply to cases where some
children of a marriage are in shared custody and some are in
primary custodial arrangements. We have had occasion to adjudicate
two such cases. In Coats v. Finn, 779 P.2d 775, 776 (Alaska 1989),
we approved a child support award which appeared to have been based
on either of two alternative methods, neither of which was the
commentary formula. More recently in Turinsky v. Long, 910 P.2d
590, 596-7 (Alaska 1996), we indicated that a third method, also
different than the commentary formula, should have been used.
9. $28,438.46 (Bunn's income)
.33 (Civil Rule 90.3(a) multiplier for 3 children)
$9,384.69 (Amount Bunn would owe House if she had all 3
children 100% of the time)
.67 (Civil Rule 90.3(b) multiplier, used because
House has custody of 2 children 100% of the
time)
$6,287.74
$28,423.46 (House's income)
.33 (Civil Rule 90.3(a) multiplier for 3 children)
$9,379.74 (Amount House would owe Bunn if he had all 3
children 100% of the time)
.33 (Civil Rule 90.3(b) multiplier, used because
Bunn has custody of 1 child 100% of the time)
$3,095.31
The amounts are offset:
$6,287.74 (Bunn's obligation)
$3,095.31 (House's obligation)
$3,192.43 (The difference)
1.5 (Civil Rule 90.3(b)(3) multiplier)
$4,788.65 (Amount Bunn to pay House per year)
ö 12 (Months)
$399.05 Monthly obligation of Bunn to House
10. Using Judge Cranston's formula, the calculations are as
follows:
$28,438.46 (Bunn's income)
.27 (Civil Rule 90.3(a) multiplier, used because
House has sole custody of 2 children)
$7,678.38 (Total yearly child support Bunn owes House)
$28,423.46 (House's income)
.20 (Civil Rule 90.3(a) multiplier, used because
Bunn has sole custody of one child)
$5,684.69 (Total yearly child support House owes Bunn)
The amounts are then offset:
$7,678.38 (Bunn's obligation)
$5,684.69 (House's obligation)
$1,993.69 (Amount Bunn to pay house per year)
ö 12 (Months)
$166.14 Monthly obligation of Bunn to House
11. The commentary formula is applied to the parties' 1991 incomes
as follows:
$25,032.00 (Bunn's income)
.33 (Civil Rule 90.3(a) multiplier for 3 children)
$8,260.56 (Amount Bunn would owe House if she had all 3
children 100% of the time)
.67 (Civil Rule 90.3(b) multiplier, used because
House has custody of 2 children 100% of the
time)
$5,534.58
$24,482.28 (House's income)
.33 (Civil Rule 90.3(a) multiplier for 3 children)
$8,079.15 (Amount House would owe Bunn if he had all 3
children 100% of the time)
.33 (Civil Rule 90.3(b) multiplier, used because
Bunn has custody of 1 child 100% of the time)
$2,666.12
The amounts are offset:
$5,534.58 (Bunn's obligation)
$2,666.12 (House's obligation)
$2,868.46 (The difference)
1.5 (Civil Rule 90.3(b)(3) multiplier)
$4,302.69 (Amount Bunn to pay House per year)
ö 12 (Months)
$358.56 Monthly obligation of Bunn to House
12. This is so because a motion to modify is not a new action.
It, rather, asks the court to re-open the final judgment in the
same action.
13. We need not decide in this case whether the doctrine of the
law of the case requires that the method on which the extant order
is based be used. See Rooney v. Rooney, 914 P.2d 212 (Alaska
1996). As shown above, neither Judge Cranston's nor Judge
Carpeneti's formula produces a 15% change when applied consistently
to the parties' 1991 and 1995 incomes.
]]>
