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Boone v. Boone (6/12/98), 960 P 2d 579

     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.


LARRY R. BOONE,               )
                              )    Supreme Court No. S-7900
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3HO-94-417 CI
M. REBECCA BOONE,             )    O P I N I O N
             Appellee.        )    [No. 5000 - June 12, 1998]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
                     Jonathan H. Link, Judge.

          Appearances: Terri Spigelmyer, Haas &
Spigelmyer, Homer, for Appellant.  Allan Beiswenger, Robinson,
Beiswenger & Ehrhardt, Soldotna, for Appellee.

          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.  

          EASTAUGH, Justice.

          Larry Boone had sole physical custody of his two children
for approximately ten months while he and Rebecca Boone litigated
changes to their original child custody and support orders.  After
seeking modification of the original child support order, Larry
moved to reduce to judgment the child support arrearages Rebecca
would owe for this ten-month period if his modification motion
succeeded.  The superior court denied his motion for an arrearages
judgment.  Because we hold that the children's change in residences
created a material change in circumstances justifying modification
of the child support order, we reverse and remand for calculation
of the total amount owed by Rebecca under Alaska Civil Rule 90.3.
          Larry and Rebecca Boone married in 1983 and divorced in
1989.  The divorce decree awarded Rebecca sole legal custody of the
parties' two children, Sarah and Levin. [Fn. 1]  Larry and Rebecca
shared physical custody of the children.  The court ordered Larry
to pay Rebecca $700 per month in child support for the two children
under Civil Rule 90.3.
          Larry first moved to modify the custody order in October
1994.  The court denied that motion in January 1995 and denied
Larry's motion for reconsideration without prejudice to refile if
Larry and Rebecca could not work out a visitation schedule by March
31.  The parties extended to May 15 the time to refile the motion
to modify, and stipulated that they would accept the
recommendations of a custody investigator.  The court approved the
stipulation in April.  Before the custody investigator had
completed an investigation or issued any recommendation, Larry
filed and served a motion dated June 28, 1995, to modify child
support, asserting material changes of circumstances.  Larry
asserted, among other things, that Levin had moved into Larry's
home in May 1995 and had refused to return to Rebecca's home.
          No order had been entered prospectively approving that
change of custody.  In anticipation of a final custody
recommendation from the investigator, Larry asked that support be
modified effective the date he served his modification motion on
Rebecca.  Rebecca opposed the motion, arguing in part that Levin's
move was temporary and that any changes in child support should
await resolution of Larry's request to modify custody.
          In August 1995 the parties asked the court to delay
resolving the child support issue until after the court resolved
the custody issue.  At about the same time, Sarah moved into
Larry's home, with Rebecca's permission.  Larry did not file a new
motion to modify child support based on Sarah's move. 
          In September 1995 the guardian ad litem (GAL) issued
custody recommendations, which Larry accepted but Rebecca did not.
The custody issues remained in dispute until May 24, 1996, when the
parties finally settled the custody and prospective child support
issues.  The parties agreed upon child support to be paid after May
24, 1996, but they were unable to agree upon the amount of
arrearages Rebecca owed Larry for the period between July 1, 1995,
when Rebecca was served with Larry's June 28 motion to modify child
support, and May 24, 1996.
          Larry argued in the superior court that a material change
in circumstances justified making the modification of support
effective July 1, 1995.  Larry requested entry of a judgment for
the amount of arrearages Rebecca would owe as a result of that
modification.  Rebecca argued that, because no order had modified
the original custody order, she owed no arrearages for the
contested period.  She alternatively argued that even if she owed
arrearages based on the "actual custody arrangement"(by which both
children lived with Larry with Rebecca's permission), various
"unusual circumstances"excused her from owing any arrearages for
the period before May 1996.
          The superior court denied Larry's request for an
arrearages judgment.  It apparently never ruled on Larry's June 28,
1995, motion to modify child support.  The court issued no findings
of fact.
          Larry appeals.
     A.   The Custodial Change Qualified as a Material Change in
Circumstances for Purposes of Rule 90.3(h)(1). 
          The superior court may modify a child support award upon
a showing of a "material change of circumstances."  Alaska R. Civ.
P. 90.3(h)(1).  Larry argues that the superior court abused its
discretion by failing to modify child support because material
changes in circumstances had occurred when the children moved into
his home. [Fn. 2]  According to Rebecca, the changes in custody
were not material changes because they constituted a "temporary,
and voluntary, physical custody arrangement which was never ordered
by the court."
          Although the children's moves into Larry's home were not
ordered by a court, they qualify as material changes in
circumstances.  See Bunn v. House, 934 P.2d 753, 758 (Alaska 1997)
(stating that a change in custodial or visitation patterns may
constitute a material change in circumstances); Karpuleon v.
Karpuleon, 881 P.2d 318, 320 (Alaska 1994) (stating that a child's
change in residence is a material change of circumstances).  As we
have noted, it is sometimes difficult to ascertain whether a
child's change of residence is sufficiently permanent as to create
a material change in circumstances.  See Karpuleon, 881 P.2d at
321-22.  Nonetheless, the undisputed facts allow us to conclude
that the children's residential changes were sufficiently permanent
as to constitute material changes in circumstances.  Rebecca should
have been ordered to pay child support during these periods. 
          Rebecca maintains that Larry's request for child support
arrearages based on the parties' informal physical custody
arrangement rather than the court-ordered arrangement violates
Turinsky v. Long, 910 P.2d 590, 598 (Alaska 1996).  In Turinsky we
held that the trial court erroneously based child support
arrearages on the amount of visitation actually exercised rather
than the amount of visitation awarded.  Id. at 595.  However, the
obligor parent in Turinsky (who sought to conform child support to
the actual custody rather than the ordered custody) never tried to
modify the child support agreement once visitation changed.  Id. at
592-93, 595.  We noted that if the parties do not follow the
custody order, they "should move to modify the child support
order."  Id. at 595; see also Karpuleon, 881 P.2d at 320 (stating
that the burden is on the parent to move for modification of child
support when there is a material change in circumstances).
          Unlike the obligor parent in Turinsky, Larry moved to
modify the support order soon after Levin's actual custody
arrangement first changed.  Turinsky therefore does not bar Larry
from seeking arrearages.  Rather, his timely efforts to obtain
judicial modification of the child support order, and the superior
court's postponement of the support issue until after the custody
issue was resolved, preserved the support issue.  We have stated
that, "absent extraordinary circumstances, courts should apply the
calculation methodology of Rule 90.3 to determine amounts to be
reimbursed to custodial parents for support of children during
periods not covered by support orders."  Vachon v. Pugliese, 931
P.2d 371, 382 (Alaska 1996).  Because the original support order
should have been modified with respect to the periods of Levin's
and Sarah's residence with Larry from July 1, 1995, through May 24,
1996, those periods were effectively "not covered"by the original
support order, and Larry should be reimbursed in accordance with
Rule 90.3.  See also Crayton v. Crayton, 944 P.2d 487, 489 (Alaska
1997) (holding that parent was entitled to reimbursement for period
during which physical custody arrangement deviated from the custody
arrangement originally entered by the court at the time of the
divorce; interim custody order issued when children changed
residences failed to address child support). 
          We note that Larry did not file a motion that expressly
sought to modify child support based on Sarah's move.  (Sarah moved
into Larry's home in August 1995, after Larry filed his June 28
motion to modify child support.)  Ordinarily, imposing arrearages
for past child support absent a motion expressly seeking such
support would be a retroactive modification of child support
prohibited by Rule 90.3(h)(2).  Given the circumstances in this
case, however, Larry's June motion seeking a modification of child
support can be read to encompass the material changes in
circumstances engendered by both Levin's and Sarah's moves.  On
August 7, 1995, the parties asked the court to delay ruling on
Larry's motion to modify child support until after it resolved the
custody issue.  Six days later, Rebecca permitted Larry to have
sole physical custody of Sarah.  Because Sarah's move nearly
coincided with the parties' agreement to postpone resolving support
until custody of both children was resolved, Larry was not required
to file a new motion to modify child support based on Sarah's move.
Imposing arrearages for Sarah's support effective the day she moved
does not violate Rule 90.3(h)(2).
          Because nothing prevents the children's residential
changes from being material changes in circumstances, Larry is
entitled to recover child support arrearages for the periods during
which he had custody of the children.  We therefore reverse the
superior court's October 24, 1996, order and remand for a
calculation of arrearages.  
          Larry also asserts that an increase in Rebecca's salary
and his impending change of employment were material changes in
circumstances justifying modification of child support under Rule
90.3(h)(1).  Because we hold that the children's moves constituted
material changes of circumstance justifying changes in child
support, we need not reach Larry's other arguments.  To the extent
these other circumstances may bear on the amount of support due,
they may be relevant on remand.  
          On remand, the superior court must calculate the amount
Rebecca owes Larry under Rule 90.3.  In Turinsky we stated that, 
          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.
910 P.2d at 595-96.  The court should look at each period in
isolation to determine the child support arrearages owed to Larry.
          Citing Turinsky, Larry calculates the arrearages by
dividing the time between July 1, 1995, through May 24, 1996, into
two interim periods.  The first period ran from July 1, 1995, until
August 12, 1995, when Sarah came to live with him.  The second
period ran from August 13, 1995, to May 24, 1996, when the parties
reached agreement on issues other than arrearages.  Larry had sole
custody of both children during this second interim period.  For
the first period, Larry calculates the amount Rebecca owed him for
sole custody of Levin under Rule 90.3(a), and the amount Larry owed
Rebecca for shared custody of Sarah under Rule 90.3(b).  For the
second period, when he had sole physical custody of both children,
he calculates the amount Rebecca owes him under Rule 90.3(a).  So
calculated, Rebecca's arrearages are $6,861.89 plus interest. 
Unless the court on remand finds justification for varying from
these calculations, see Part III.B, this is the amount of the
judgment to be entered.
     B.   Rebecca's Financial Circumstances May Justify Departing
from Rule 90.3.

          Rebecca argues that even if child support should have
been modified when the children changed residences, the "unusual
circumstances"of her financial situation should excuse her from
paying arrearages.  Civil Rule 90.3 allows for variations from the
rule for good cause.  Alaska R. Civ. P. 90.3(c); Epperson v.
Epperson, 835 P.2d 451, 452-53 (Alaska 1992).  A court may vary a
child support award if a parent proves by clear and convincing
evidence that manifest injustice would result if the award were not
varied; the rule also requires the court to follow a specified
written procedure if it varies the award.  Alaska R. Civ. P.
90.3(c)(1).  See Berkbigler v. Berkbigler, 921 P.2d 628, 631
(Alaska 1996); Coats v. Finn, 779 P.2d 775, 777 (Alaska 1989).  Had
the court meant to depart from Rule 90.3 based on Rebecca's alleged
"unusual circumstances,"it would have been error to fail to issue
written reasons for deviating from the guidelines.  Absent any such
findings, we conclude that the superior court intended not to
invoke Rule 90.3(c)(1) when it denied Larry's motion for an
arrearages judgment.  
          As noted in Part III.A, we are remanding this case for
calculation of the arrearages Rebecca owes for the periods during
which Larry's June 28 support modification motion was pending.  On
remand, the court may consider whether Rebecca's financial
circumstances during those periods justify a departure from Rule
90.3.  Rebecca has the burden of showing why an award calculated
under Rule 90.3 would result in manifest injustice.  See Epperson,
835 P.2d at 453 (burden of persuasion is on the party objecting to
the application of the rule).  Should the superior court determine
that there is good cause to excuse Rebecca from paying child
support arrearages, the court must explain in writing its reason
for the variation.  See Berkbigler, 921 P.2d at 631. 
          Larry and Rebecca raise questions about what types of
facts may demonstrate "unusual circumstances"justifying variation
from Rule 90.3.  We dispose of one of these issues prior to remand. 
Rebecca argues that she has incurred substantial fees and debt
during this protracted litigation.  Rebecca's debt does not create
an "unusual circumstance"for purposes of Rule 90.3(c)(1)(A). [Fn.
     C.   Absent a Contrary Good Cause Finding. Larry Was Entitled
to a Modification of Child Support Effective the Date He Served His

          Rebecca argues that if child support should have been
modified when the children changed residences, the superior court
had discretion to choose an effective date for the modified support
order.  She implies that the date she was served with Larry's
motion is the earliest date, but not the mandatory date, from which
child support arrearages may be calculated.  Larry argues that the
superior court was obligated to apply Rule 90.3 effective the date
Rebecca was served with his motion to modify child support, and
that any discretion to apply a later date is subject to the
requirements of Rule 90.3(c).  The superior court never reached
this issue because it altogether denied Larry's request for an
arrearages judgment and never decided his June 28, 1995, motion to
modify child support.  We discuss it because the court will have to
reach the issue on remand.
          Rule 90.3(h)(2) prohibits retroactive modification of a
child support arrearage.  But it also provides that a modification
that becomes effective "on or after"the date the modification
motion is served on the opposing party "is not considered a
retroactive modification."[Fn. 4]  We have read Rule 90.3(h)(2) to
prohibit increases or decreases in child support effective before
the date the modification motion was served on the opposing party.
[Fn. 5] We have also read it to allow the court to increase child
support only after that service date. [Fn. 6]  The rule implicitly
permits a court to modify child support effective the date the
opposing party was served.
           The rule's text does not express a preference or
presumption that a modification become effective on the motion
service date, and does not prevent the superior court from
exercising its discretion and selecting a later effective date. 
But we are nonetheless persuaded that the motion service date
should be the preferred effective date, and that the superior court
should exercise its discretion in selecting a different effective
date only if it finds good cause for doing so.  One reason for our
preference of the motion service date as the effective date of a
modified child support order is that child support reflects the
child's current needs.  Another is that child support is both based
on and paid out of the obligor's current income. [Fn. 7]  Ideally,
a claim of changed circumstances would be immediately resolved to
permit immediate relief to the movant.  Delays in resolving such
disputes should not disadvantage parties entitled to relief.  The
rule commentary, noting the prohibition on retroactive
modification, urges prompt applications: "Thus, either the
custodial or the obligor parent should promptly apply for a
modification of child support when a material change in
circumstances occurs."  Alaska R. Civ. P. 90.3 cmt. X.  
          Other jurisdictions have reached the same result:
          We hold that a trial court has discretion to
order a modification of child support effective as of the date the
petition to modify is filed.  Any other result would be
inconsistent with the purposes of the changed circumstances rule. 
The needs of the children, upon which the court focuses in
determining whether a substantial and continuing change of
circumstances has occurred, are examined as of the date the
petition is filed.  If the court finds that a modification of child
support is justified, then the court has discretion to order
payments to be effective from that date.  To grant modification of
support only from the date of the court's order detracts from the
purposes of the changed circumstances rule and serves to encourage
and benefit dilatory tactics.

Kruse v. Kruse, 464 N.E.2d 934, 939 (Ind. App. 1984). [Fn. 8] 
          Further, service of the motion gives the opposing party
both fair warning that support may change and an opportunity to
reassess, even before the court rules, the correct amount of
support.  This gives an opportunity to adjust consumption patterns
in anticipation of modification, and thus minimize prejudice when
relief is granted effective as of the service date.
          This preference does not prevent the superior court from
exercising its discretion to select a later effective date if it
finds good cause for doing so.  But unbounded discretion to choose
a later effective date could sabotage the efficacy of Rule 90.3. 
Logically extended, Rebecca's argument would give the court
discretion to choose any date after the date of service, and would
allow the choice of no date at all. 
          We therefore reject Rebecca's argument.  On remand, the
superior court should calculate her arrearages beginning with the
date Larry served Rebecca with his June 28 motion to modify, unless
Rebecca can establish good cause for selecting some later effective
          For these reasons, we REVERSE the superior court's denial
of Larry's motion for child support arrearages.  We REMAND with
instructions to calculate the amount Larry is owed according to
Rule 90.3 and to enter judgment for arrearages in favor of Larry. 
The superior court may consider whether there is good cause to vary
the support award under Rule 90.3(c).  If it concludes that good
cause exists, it must issue appropriate written findings that
satisfy Rule 90.3(c)(1).  Unless Rebecca can establish good cause
for selecting some other dates, the service date of Larry's motion
will be the effective date of the change of support for the first
interim period, and August 12 (when Sarah moved) will be the
effective date of the support change for the second interim period.


Footnote 1:

     Sarah was born in 1983.  Levin was born in 1985.

Footnote 2:

     A court's modification of a child support award is reviewed
for an abuse of discretion and will not be set aside unless a
review of the record as a whole leaves the appellate court with a
definite and firm conviction that a mistake has been made.  See
Yerrington v. Yerrington, 933 P.2d 555, 557 n.3 (Alaska 1997); Nass
v. Seaton, 904 P.2d 412, 414 (Alaska 1995).

Footnote 3:

     See Alaska R. Civ. P. 90.3 cmt. VI.B.5 ("Prior or subsequent
debts of the obligor, even if substantial, normally will not
justify a reduction in support."); Berkbigler v. Berkbigler, 921
P.2d 628, 631-32 (Alaska 1996) (same).

Footnote 4:

     Rule 90.3(h)(2) provides:

          Child support arrearage may not be modified
retroactively, except as allowed by AS 25.27.166(d).  A
modification which is effective on or after the date that a motion
for modification, or a notice of petition for modification by the
Child Support Enforcement Division, is served on the opposing party
is not considered a retroactive modification.

          In Perry v. Newkirk, 871 P.2d 1150, 1156 (Alaska 1994),
we noted that "[o]n remand, [the Superior Court] should either
enter an order requiring [the obligor's] child support to begin
when [the obligor] was served with the motion, or enter findings
and conclusions as to why such a commencement point should not be
used."  We did not say what "findings and conclusions"would
justify selecting another date.

Footnote 5:

     Yerrington v. Yerrington, 933 P.2d 555, 558 (Alaska 1997).

Footnote 6:

     Boone v. Gipson, 920 P.2d 746, 749 (Alaska 1996).

Footnote 7:

     See Flannery v. Flannery, 950 P.2d 126, 133 (Alaska 1997)
(holding that superior court, in considering obligor's January 1995
motion to modify alleging decline in income, erred because it did
not consider January 1995 onward as the relevant period of changed
circumstances, and instead relied solely on the 1992-94 average of
obligor's income). 

Footnote 8:

     Although Kruse v. Kruse, 464 N.E.2d 934, 939 (Ind. App. 1984),
refers to the date the motion is filed rather than the date it is
served as the effective date, the reasoning is the same.  We hold
that the date the motion is served is preferable, however, because
it is as of that date that the opposing party has notice.