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Rowen v. Rowen (7/31/98), 963 P 2d 249
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 JAY ROWEN, )
) Supreme Court No. S-7311
Appellant, )
) Superior Court No.
v. ) 3AN 83-4407 CI
)
SANDRA KALER ROWEN, ) O P I N I O N
)
Appellee. ) [No. 5014 - July 31, 1998]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: Robert Jay Rowen, pro se,
Anchorage. John B. Patterson, Kelly & Patterson, Anchorage, for
Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
BRYNER, Justice.
Robert Jay Rowen appeals from superior court orders
modifying his child support, refusing to exercise jurisdiction over
a daughter residing in California, and awarding partial attorney's
fees incurred by his former wife, Sandra Kaler Rowen, in enforcing
the parties' custody agreement. We affirm all of the disputed
orders except one requiring Robert to pay all transportation costs
for visitation.I. FACTS AND PROCEEDINGS
A. The Original Child Custody and Support Agreement
Robert Jay Rowen (Robert) and Sandra Kaler Rowen (Sandra)
were married in 1976 and divorced in 1984. Their divorce decree
incorporated a child custody and support agreement, executed in
December 1983, that provided for the care of their three children,
Ian Gabriel (born November 10, 1979) and twins Jamie Rebecca and
Tami Serene (born November 4, 1981).
Under the custody agreement, Robert and Sandra exercised
"shared or joint"custody of the children. Sandra, who had moved
to Los Angeles, was to be the "principal or 'school' custodian,"
having physical custody during the school year; Robert was to have
two months of visitation each summer, two weeks over Christmas, and
spring visitation as school schedules permitted.
According to the custody agreement, this arrangement was
to remain intact until each child reached fourteen years of age.
After that, the child's preference would determine the school-year
parent. Robert undertook to pay all transportation costs
incidental to visitation unless a child, after turning fourteen,
elected to live with him. Travel costs for that child would then
shift to Sandra.
Robert further agreed to pay Sandra $1500 per month in
child support except during summer visitation. The custody
agreement contained no express provision for adjustment of the
child support payment in the event that one or more children
elected to change school-year custody after turning fourteen.
B. Modification of Child Support Resulting from Ian's
Election to Change School-Year Custody
In the summer of 1994, fourteen-year-old Ian elected to
live in Alaska with Robert during the school year. Robert moved to
modify child support, requesting an "adjustment for divided custody
and/or visitation credit"pursuant to Alaska Civil Rule 90.3(b) and
(a)(3). Although Robert's motion asked that Sandra be ordered to
file a child support affidavit disclosing her annual income, Robert
declined to submit any information concerning his own income.
Claiming that he could not be compelled to reveal his financial
circumstances because of an ongoing IRS investigation, Robert
offered instead to have his child support calculated on the basis
of the $60,000 annual income cap specified in the then-existing
version of Rule 90.3(c)(2).
On May 23, 1995, after receiving a child support
affidavit and supporting documentation from Sandra, the superior
court entered an order reducing Robert's monthly support payment
from $1500 to $1391.61. To arrive at this figure, the court
employed the formula for shared physical custody set out in Rule
90.3(b), taking Robert's annual income to be $60,000, as Robert had
requested. However, in light of Robert's failure to disclose his
actual income, the court declined to reallocate any visitation
costs to Sandra. The court directed Robert to continue paying "the
full transportation costs for visitation between [all of] the
children and both parents."
Robert moved for reconsideration, challenging several
aspects of the methodology used by the court in calculating the
modified support obligation. Robert also argued that the court's
failure to make Sandra pay the transportation costs for her
visitation with Ian violated the terms of the original custody
agreement, which called for an automatic shift in visitation costs
upon any child's election to change school-year custody. Except
for the correction of a computational error, which resulted in a
modified monthly child support payment of $1275.64, the superior
court denied reconsideration in June 1995. Robert filed notice of
appeal.
C. Proceedings for Enforcement of Agreement to Direct Tami's
Return to Los Angeles
In July 1995, while twins Tami and Jamie were with Robert
for summer visitation, Robert informed Sandra that Tami wished to
remain in Alaska for the upcoming school year. Tami was still
thirteen years old and thus was not yet entitled to choose her own
school-year residence. Because Sandra did not think the proposed
change would be in Tami's best interests, Sandra refused to agree
to a change in Tami's school-year custody.
The twins arrived in Los Angeles at the end of the summer
on schedule. Before Tami left for California, however, she and
Robert evidently made plans for her to return to Anchorage for the
school year. Not long after arriving in Los Angeles, Tami flew
back to Anchorage without telling her mother, using a ticket
purchased for her by Robert. She began school in Anchorage on
September 5, 1995.
On September 6, Sandra filed a motion with the superior
court in Anchorage to enforce the original custody agreement. The
motion implicitly sought Tami's immediate return to California. In
response to Sandra's motion, Robert claimed that he was in
compliance with the custody agreement and that Tami's decision to
live in Alaska was consistent with her best interests. The
superior court granted Sandra's motion, ordering Robert to return
Tami to Sandra's custody in California within seventy-two hours.
The court declined Robert's request for a hearing to inquire into
Tami's best interests, noting that, if Robert wished to modify
custody, he should attempt to do so in California.
Sandra later moved for an award of $4240 in attorney's
fees that she had incurred in securing Tami's return to Los
Angeles. After considering the parties' relative financial
resources and expressly finding that Robert had acted in bad faith,
the superior court awarded Sandra $2500 in partial attorney's fees.
Robert appealed the court's orders returning Tami to Los
Angeles and awarding Sandra attorney's fees. His new appeal was
consolidated with his earlier appeal challenging the modified child
support order.
II. DISCUSSION
A. Did the Court Err in Its Order Modifying Child Support?
Robert challenges the modified child support order on
numerous grounds.
1. Was there a material change in circumstances
warranting modification?
Robert argues that the superior court could not modify
the 1983 custody agreement without first making findings of fact
and conclusions of law setting out "the exceptional circumstances
relied upon by the court to change the existing order."
A showing of changed circumstances is necessary to
justify modification of a child support order. See Alaska R. Civ.
P. 90.3(h)(1). In the present case, the parties entered into their
custody agreement well before this court adopted Alaska Civil
Rule 90.3. See Alaska Supreme Court Order No. 833 (April 30,
1987). Since adopting Rule 90.3, we have held that the rule itself
constitutes a material change in circumstances warranting
modification of child support obligations established prior to its
effective date. See Charlesworth v. State, Child Support
Enforcement Div., 779 P.2d 792, 793-94 (Alaska 1989).
Moreover, it was Robert himself who moved to modify the
original child support agreement. As a result of Ian's decision to
change school-year custody, Robert expressly requested the court to
recalculate support, pursuant to Rule 90.3. The terms of Robert
and Sandra's custody agreement did not specify any other method for
recalculating support in the event of a change in school-year
custody.
Given these facts, an adequate showing of changed
circumstances obviously supported the trial court's decision to
modify child support in accordance with Rule 90.3. See id.; see
also Perry v. Newkirk, 871 P.2d 1150, 1155 (Alaska 1994); Richmond
v. Richmond, 779 P.2d 1211, 1217 (Alaska 1989); Arndt v. Arndt, 777
P.2d 668, 670 (Alaska 1989).
2. Did the court err in determining the parties'
incomes?
Robert contends that Sandra submitted insufficient
evidence of her financial status and miscalculated her income and
expenses. He also claims that Sandra improperly deducted expenses
from her income without documentation.
In calculating the modified support obligation, however,
the superior court appears to have relied on Robert's own estimate
of Sandra's net income. The basis for the superior court's
determination of net income is adequately explained in the record.
See Wright v. Gregorio, 855 P.2d 772, 773 (Alaska 1993). We thus
find no abuse of discretion in the determination of Sandra's net
income. See Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992).
3. Did the court err in calculating Robert's modified
child support payment?
Robert claims that the trial court made three errors in
calculating his modified child support: it improperly estimated the
amount of time the children would actually spend with each parent;
improperly used the 1.5 multiplier found in Rule 90.3(b)(3); and
failed to afford him a visitation credit due under Rule 90.3(a)(3).
These claims are meritless.
a. Percentage of time spent with each parent
The trial court estimated that Sandra's combined
percentage of time with all children will total 67% annually, while
Robert's will total 33%. Robert claims that this estimate is
inaccurate, in part because of an alleged "factual dispute as to
the exact amount of time Ian Rowen will be spending with his
mother,"and in part because Robert predicts that the children will
spend a combined total of at least 40% of their time each year with
him.
This argument assumes that Robert's child support
payments must be based on predictions of actual time the children
will spend with each parent. Robert's assumption is mistaken, as
this court has held that the percentage of time each parent has
custody must be determined by reference to the child custody order,
not the parties' actual conduct. See Turinsky v. Long, 910 P.2d
590, 595 (Alaska 1996).
Here, the custody agreement contains identical custody
and visitation provisions for all of the children and makes these
provisions subject to modification by mutual agreement. Absent
evidence of a mutual accord to modify the original visitation
provisions, the ratio of school-year custody to visitation remained
fixed by the custody agreement, despite Ian's election to change
school-year custody to Robert. The trial court thus correctly
relied on the original agreement in concluding that Ian's recent
move to Alaska would result in Sandra having physical custody of
all three children for 67% of each year. The court did not err in
adopting this ratio in its child support computation.
b. Use of the 1.5 multiplier
The superior court calculated Robert's modified child
support payments by the method prescribed in Rule 90.3(b) for
situations involving shared physical custody. In accordance with
Rule 90.3(b)(3), the court used a 1.5 multiplier to arrive at the
final support amount. [Fn. 1] Robert challenges the use of the 1.5
multiplier, claiming that its use requires him to pay child support
"in excess of the cap provided in rule 90.3, and in excess of what
[he] would have to pay for two children under sole custody
calculations." He argues that divided custody presents "special
circumstances"that require a variance from the provisions of the
shared physical custody rule.
Robert is correct in observing that this case presents a
situation of divided custody rather than shared physical custody.
See Alaska R. Civ. P. 90.3(f)(1), (3); Bunn v. House, 934 P.2d 753,
755-56 (Alaska 1997). In divided custody cases, Rule 90.3(b)'s
shared physical custody formula is a permissible method for
determining support. But this formula is applied flexibly and is
not the only permissible method of calculation. [Fn. 2] See Bunn,
934 P.2d at 755-56; cf. Turinsky, 910 P.2d at 596-97; Coats v.
Finn, 779 P.2d 775, 776 (Alaska 1989). The conclusory claims of
unfairness that Robert advances on appeal do not persuade us that
the superior court abused its discretion in establishing the child
support award according to Rule 90.3(b). [Fn. 3] See Coghill, 836
P.2d at 924-25; Smith v. Smith, 673 P.2d 282, 283 (Alaska 1983).
c. Visitation credit
Robert claims that the court erred in failing to consider
whether to grant him a visitation credit under Rule 90.3(a)(3).
[Fn. 4] However, his conclusory discussion of this point fails to
recognize that the visitation credit applies to child support
awards under Rule 90.3(a), which deals with sole or primary custody
situations. Awards in shared physical custody or divided custody
situations are addressed in Rule 90.3(b) and in Part VI.B.3 of the
commentary to Rule 90.3, respectively. Because formulas for
calculating support in shared and divided custody situations
already factor in the percentage of time each parent will have
physical custody of the children, see, e.g., Alaska R. Civ. P.
90.3(b)(2), it is not at all clear that Rule 90.3(a)(3)'s
visitation credit should extend to such cases.
Moreover, at the trial court level, Robert referred to
the visitation credit only once, in his motion to modify child
support; there, he gave it only passing mention, asserting his
general willingness to pay appropriate support "for the two
children still residing with [Sandra], with an adjustment for
divided custody and/or visitation credit, made pursuant to 90.3(b)
and 90.3(a)(3)." He did not mention the credit in his memorandum
in support of his modification motion, in his response to Sandra's
financial information, in his memorandum regarding calculation of
child support, in his suggested support calculation, or in his
motion for reconsideration of the child support order.
"It is well established that matters not raised at trial
will not be considered on appeal." Doyle v. Doyle, 815 P.2d 366,
372 (Alaska 1991) (quoting Brooks v. Brooks, 733 P.2d 1044, 1053
(Alaska 1987)). To the extent that the visitation credit might
conceivably apply in a divided custody case, Robert has failed to
preserve the issue.
4. Did the court improperly impose on Robert the
entire cost of transportation for visitation?
The original custody and support agreement provided that
Robert would pay all transportation costs for visitation "unless
the children after age 14 reside with Father, in which case Mother
will pay transportation costs." Despite this provision, when the
superior court modified the child support award to account for
Ian's decision to live with Robert, the court left Robert with the
costs of transportation for all of the children. The court
explained that it "decline[d] to reallocate the visitation costs
without full disclosure of [Robert's] income. [Robert] will not be
rewarded by his refusal to divulge his income information."
Robert challenges the superior court's imposition of full
transportation costs for visitation. He contends that transporta-
tion costs "should not be used by the court as a sanction against
a non-custodial parent,"and characterizes the order as "clear and
convincing evidence"that the court sought to punish him for its
own misunderstanding of Rule 90.3(c)(2). Robert contends that,
because he agreed to have his support obligation calculated using
an annual income of $60,000 -- the maximum annual income then
provided for under Rule 90.3(c)(2) -- his actual financial
information was "largely irrelevant to the decision in this case."
Robert's objection has merit. In a case like the present
one, where a custody agreement specifies how visitation costs
should be allocated, the parties should ordinarily be held to their
original agreement. See Karpuleon v. Karpuleon, 881 P.2d 318, 321
(Alaska 1994). Here, the custody and support agreement specified
that if a child elected to live with Robert after reaching age
fourteen, Sandra would pay that child's transportation costs.
Because transportation costs were expressly covered in the
agreement, Robert's failure to disclose financial information and
his insistence that the court rely on the Rule 90.3(c)(2) income
cap were not relevant to this issue. We conclude that the court
abused its discretion in altering a provision of the parties'
custody agreement that was unrelated to and unaffected by Robert's
noncompliant conduct.
5. Did the court improperly make the support order
retroactive?
The trial court's final order establishing Robert's
modified support obligation was issued on June 7, 1995, and made
the modified child support award "effective commencing January 1,
1995." Robert challenges the June 7 order as an impermissible
retroactive modification.
Rule 90.3(h)(2) prohibits the retroactive modification of
child support. [Fn. 5] However, an order made effective as of the
date that a motion for modification was served is not retroactive.
See id.; Epperson, 835 P.2d at 453. Robert filed his motion for
modification of child support on August 23, 1994. The trial court
evidently concluded that Sandra actually received notice by mail in
December 1994. Robert does not dispute this conclusion. Because
it is undisputed that Sandra was served before January 1, 1995, the
court's order making the modified award effective on that date did
not constitute a retroactive modification of support. See id.
B. Did the Court Err in Ordering Tami's Return to California
Without Determining Whether a Move to Alaska Would Be in Her Best
Interests?
On September 6, 1995, Sandra, seeking to secure Tami's
return to California, moved for an order enforcing the original
custody agreement. In opposing the order, Robert claimed that a
move to Alaska would be in Tami's best interests. The superior
court granted Sandra's motion and ordered Tami's immediate return
to California. In so doing, the court stated that it would decline
to exercise continuing jurisdiction over Tami's custody and
visitation. Robert appeals this order. [Fn. 6]
Robert first contends that the court erred in failing to
inquire into and make findings regarding Tami's best interests. In
advancing this argument, however, Robert mischaracterizes the trial
court's ruling as one deciding a motion by Robert "to modify a
custody decree." Robert filed no such motion. Rather, after
Robert violated the original custody agreement, Sandra moved for
enforcement of its terms. Robert's resistance to Sandra's
enforcement efforts did not take the form of a motion to modify
custody and thus provided no occasion to relitigate the issue of
Tami's best interests.
Robert next contends that the trial court erred in
indicating that it would "decline[] to exercise custody and
visitation jurisdiction of his daughters"and in finding "that
California is the home state of these children and the state in
which such litigation should take place." This point is now moot.
Sandra's motion for enforcement of the original custody agreement
was the only controversy properly before the court when the court
issued its order requiring Tami's return to Los Angeles. The court
correctly found that Robert had violated the terms of the
agreement, and it properly ordered Tami's immediate return to
California. This ruling left the court with nothing more to
decide.
Any view that the court expressed as to its jurisdiction
over future controversies must be regarded as advisory in nature.
Robert's attempt to test the court's jurisdictional stance must
await the emergence of an actual dispute calling for an exercise of
the superior court's jurisdiction to modify custody. If and when
the parties bring such a dispute before an Alaska court, that court
can decide the issue of jurisdiction on the facts then existing.
At this juncture, we need not anticipate and resolve potential
jurisdictional disputes.
C. Did the Court Err in Awarding Sandra $2500 in Attorney's
Fees?
Robert directs his final challenge against the superior
court's decision to award $2500 as partial attorney's fees incurred
by Sandra in enforcing the court's "existing custody order . . .
and in resisting [Robert's] attempt to circumvent the Order of this
Court requiring compliance with the Custody Order."
In awarding Sandra attorney's fees, the superior court
was required to "consider the relative financial resources of the
parties and whether the parties . . . acted in good faith."
AS 25.20.115; see also S.L. v. J.H., 883 P.2d 984, 985 (Alaska
1994). The superior court's factual findings on the issues of good
faith and relative finances are subject to reversal if clearly
erroneous; its ultimate decision on an attorney's fee award is
reviewed for abuse of discretion. See Nelson v. Jones, 781 P.2d
964, 971 (Alaska 1989). The superior court found that Robert had
acted in bad faith "in unilaterally abrogating the existing custody
order; in deceiving the custodial parent . . . ; and in making the
child, Tami, an unknowing participant in his scheme to abrogate the
existing custody order."[Fn. 7] In its order addressing Robert's
motion for reconsideration, the court also compared Robert's and
Sandra's financial resources and found that Robert's income was at
least three times Sandra's. [Fn. 8] It appears that Robert filed
no opposition to Sandra's motion for fees in the superior court.
Considering these circumstances, we find no clear error in the
court's findings and no abuse of discretion in its award of fees.
III. CONCLUSION
The superior court's allocation of all transportation
costs to Robert is REVERSED. The superior court's orders modifying
child support, requiring Robert to return Tami to California, and
awarding attorney's fees to Sandra are AFFIRMED.
FOOTNOTES
Footnote 1:
Under Rule 90.3(b), the calculation of child support in a
shared custody situation entails a multi-step process. The court
begins by calculating the amount each parent would pay under Rule
90.3(a) "assuming the other parent had primary custody." Alaska R.
Civ. P. 90.3(b)(1). The court then "[m]ultipl[ies] this amount for
each parent by the percentage of time the other parent will have
physical custody of the children"in the shared custody
arrangement. Id. R. 90.3(b)(2). Next, the court makes discretion-
ary adjustments to the amount for each parent as necessary to
reflect "the ratio of funds each parent will directly spend on
supporting the children." Id. The parent with the larger amount
becomes the obligor. See id. R. 90.3(b)(3). To compute the actual
amount of the obligor's payment, the court subtracts the smaller
amount from the larger and multiplies the difference by 1.5. See
id. The resulting figure represents the annual support award
unless it exceeds the amount the obligor would pay under Rule
90.3(a) if the other parent had sole or primary custody of the
children; in that event, support is calculated under the formula
for sole or primary custody. See id. The annual support award is
then divided into "equal installments [to be paid] over those
months in which the obligor parent does not have physical custody"
for periods of 30 consecutive days or more. Id. R. 90.3(b)(4).
Footnote 2:
The commentary to Rule 90.3 notes that the shared physical
custody formula set out in Rule 90.3(b) "was developed primarily
for the situations in which the parents share custody of their only
child, or . . . of several children, but the children stay
together." Alaska R. Civ. P. 90.3, Commentary VI.B.3. According
to the commentary, divided custody situations, where each parent
has custody of one or more of the children, "may require greater
expenditures . . . because it is somewhat less expensive to support
children living together than in two households at the same time."
Id. Thus, the commentary recommends that the shared custody
formula of Rule 90.3(b) be used as a "first step in determining
support,"the second step being careful consideration of whether a
variation under Rule 90.3(c)(1)(A) "is 'just and proper[.]'" Id.
Footnote 3:
Robert claims that Ian's relocation forced him to move from a
small apartment into a larger home and that the cost of providing
for a child in Anchorage is dramatically higher than in Los
Angeles. Neither the record nor Robert's briefing supports these
assertions. Moreover, the added expense to Robert is at least
partially taken into account in the reduction of his support
payment from $1500 to $1275 per month. While the new payment is
only marginally lower than the payment Robert would make if he
received no support for Ian and paid support for the twins under
the primary custody formula of Rule 90.3(a), it does not
necessarily follow that the new support award is unfair to Robert.
Although Ian's move to Anchorage has undoubtedly increased Robert's
expenses, it is not clear that Sandra will experience a
corresponding decrease in her own financial burden. See Alaska R.
Civ. P. 90.3, Commentary VI.B.3 ("[A divided custody] arrangement,
depending on the circumstances, may require greater expenditures
[than even a shared custody arrangement] to support the children
because it is somewhat less expensive to support children living
together than in two households at the same time."). Robert's
argument simply assumes that he should be made whole for taking on
school-year custody of Ian, with Sandra bearing the full burden of
any financial inefficiency inherent in the divided custody
arrangement.
Footnote 4:
Under this provision, a court may allow the noncustodial
parent in a sole or primary custodial situation to reduce support
payments up to 50% "for any period in which that parent has
extended visitation of over 27 consecutive days."
Footnote 5:
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 . . . is served on the opposing
party is not considered a retroactive modification." This
provision applies to both increases and decreases in child support.
See Boone v. Gipson, 920 P.2d 746, 749 (Alaska 1996).
Footnote 6:
This court will overturn a trial court's custody determination
only when there is a showing that the court's findings of fact were
clearly erroneous, or that the court abused its discretion. See
Howlett v. Howlett, 890 P.2d 1125, 1126 (Alaska 1995) (citing Holl
v. Holl, 815 P.2d 379, 380 (Alaska 1991)).
Footnote 7:
On reconsideration, the court further explained:
[Robert] apparently formulated the idea that
he wanted his daughter to reside with him early in the summer.
Rather than bringing an action early, however, he waited until a
few days before the child was scheduled to return under the 1983
court order, and then informed [Sandra] that he would not return
the child, forcing her to hire an attorney in Alaska to file a
motion to enforce the court order. His disobedience of the court
order, without first seeking a modification, is not good faith.
[Robert], then, having been ordered to obey the court's order,
filed an appeal and again refused the court orders. These actions
were not done in good faith.
Footnote 8:
The court assumed that Robert's income was approximately
$60,000 -- the income cap then specified in Rule 90.3(c)(2). The
court accepted Sandra's claim that her income was $21,570 even
though it had earlier based its calculation of Robert's support
payments on an income for Sandra of $28,107. The court's choice of
the lower income for purposes of the attorney's fee award is
inconsequential, however, because either income for Sandra is less
than half the income attributed to Robert; both figures are small
in comparison to Robert's income.
