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Elsberry v. Elsberry (11/27/98), 967 P 2d 1004
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
KEITH KENT ELSBERRY, )
) Supreme Court No. S-8049
) Superior Court No.
v. ) 3AN-91-1171 CI
ERIKA MARIANNA ELSBERRY and ) O P I N I O N
STATE OF ALASKA, CHILD )
SUPPORT ENFORCEMENT DIVISION, ) [No. 5047 - November 27, 1998]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage
Rene J. Gonzalez, Judge.
Appearances: Keith Kent Elsberry, pro se,
Anchorage. Diane L. Wendlandt, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee State of Alaska.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
Keith Elsberry, who was recently released from prison and
supports himself by soliciting autobody repair work via classified
ads, appeals an order imputing to him the average income of an
Alaskan man of his age, $39,131, and calculating therefrom his
child-support obligation under Alaska Civil Rule 90.3. The
superior court granted a request by the Child Support Enforcement
Division (CSED) to impute that income to Elsberry after he had
failed to comply with an order to submit tax returns to document
his affidavit asserting a monthly income of $800. He claimed that
he could not do so because he is self-employed on a cash-only
basis, and his religious beliefs prevent him from paying federal
taxes, so that he has no tax returns. He asserts on appeal that
the superior court abused its discretion by disbelieving his
affidavit and imputing an income to him without first affording him
a hearing on the sincerity of his anti-tax religious beliefs.
Because the court did not find, or in any way base its
order on a presumption, that Elsberry's asserted religious beliefs
are insincere, and because on appeal he asserts no other reason to
find that the court erred, we affirm.
II. FACTS AND PROCEEDINGS
In November 1991 the superior court divorced Keith
Elsberry and Erika Moore, gave her sole custody of their four
children, and ordered him to pay child support pursuant to Alaska
Civil Rule 90.3, albeit without setting an amount.
The State has helped support the children since 1990, and
so in July 1992 CSED sent Elsberry a child-support-guidelines
affidavit and a notice that it was reviewing the support order. He
did not reply. This may have been because he was in prison for
custodial interference. CSED sent another letter and guidelines
affidavit in July 1996; he again did not reply.
In August 1996 CSED turned to the court, moving it to
compel Elsberry to provide financial information. It asked the
court to enter a support order based on an imputed income of
$72,000 -- the income yielding the highest possible support award
under Rule 90.3 -- as a sanction under Alaska Civil Rule 37(b) if
Elsberry failed to submit the returns within thirty days.
Before the court responded to CSED's motion, Elsberry
filed a guidelines affidavit stating gross monthly income of $800.
CSED promptly noted his failure to document or explain "the nature
of his employment or business or the reason for his extremely low
reported income,"and again asked the court to order him to provide
"complete and accurate information."
In October 1996 the court ordered Elsberry to give CSED
his 1991 94 tax returns and either a 1995 return or a guidelines
affidavit for his 1995 income, all with documentation. The court
warned that, if he failed to do so within thirty days, it could
"enter a support order based on an imputed adjusted income of
$72,000." Elsberry did not respond.
In December 1996 CSED moved the court to order support of
$921 per month. CSED noted that Elsberry had provided no tax
returns or other documentation. It appended a child-support-
guidelines worksheet calculating a support obligation of $921 per
month for a parent with four children and the average annual gross
income for an Alaskan man of Elsberry's age: $39,131. CSED
justified its proposed order "as an appropriate sanction for Mr.
Elsberry's failure to comply with the court's order"to document
his income, and as an order "based on the best available
information [about his] ability to pay." CSED noted that, if
Elsberry eventually submits financial information, "the order may
be modified prospectively."
Elsberry opposed the motion, affying that he could not
provide tax returns because he had spent three years between 1991
and 1995 in prison, [Fn. 1] and because his "religious convictions
compel [him] not to pay taxes to the federal government." He
affied that he did autobody repair work and, being "only a student
of the trade,"made roughly $800 per month. He offered to pay $50
per month in support. In his memorandum he described himself as
"an auto body repair student"and asked the court to find "that
[he] has a gross income . . . below the poverty level." He did not
document his income in any way.
CSED responded by offering evidence of Elsberry's earning
capacity and expenses in the form of an affidavit (with
attachments) from CSED Investigator David Tredway and an affidavit
from Harold Michels, who owns Bud's Autobody.
Michels affied that Elsberry had operated an autobody
shop approximately four years earlier (before his imprisonment, we
presume), and that Michels had since mid-1996 leased space in his
own shop on an occasional basis to Elsberry, d/b/a Shining Light
Autobody. Elsberry paid a lease rate based on the value of the
autobody work he did on each day that he used the space; it
averaged $50 per day. Michels kept no records of their
transactions, which were in cash, but did "recall that[,] during
December 1996, Mr. Elsberry leased work space five or six days,"
and that he had not done so in the first two weeks of January 1997.
Michels specified that he was neither employing nor training
Elsberry. He estimated that, if Elsberry obtained full-time
employment, he would earn roughly $20 per hour.
Tredway affied that Elsberry's landlady reported that he
had paid his monthly rent of $640 in cash and on time since
January 1996, when he moved in. Anchorage Daily News billing
records attached to Tredway's affidavit documented his claim that
Elsberry had paid an average of almost $140 per month in 1996 for
classified ads to solicit autobody work. Elsberry's monthly
probation reports for October 1995-December 1996, which Tredway's
affidavit also explained, consistently listed "Bud's Autobody"as
his employer and, after a few months of low income, reported
monthly net incomes in March July 1996 of $500 $1,600. In August
Elsberry switched to a "minimum supervision"probation, which
required him to report gross rather than net monthly income. In
August December 1996 he listed monthly gross incomes of
$800 $2,000, averaging $1,080. Tredway affied that supervisors of
four Anchorage autobody-repair shops told him that autobody
repairpersons earn $16 $18 per hour on average, with "additional
income . . . on labor commissions." He affied that a 1995 Alaska
Labor Department publication, which he did not append, reports a
mean hourly income of $16.17 for autobody repair.
CSED argued in its memorandum that Elsberry "has made it
extremely difficult to verify . . . his income with any certainty."
It noted that "Mr. Elsberry claims to have no tax returns because
he refuses to file tax returns for religious reasons." That was
CSED's only reference to his religious beliefs. The memorandum
compared Elsberry's claims with Michels's affidavit, summarized the
rest of CSED's evidence, and observed that "all of [Elsberry's]
business can be handled under the table, leaving no paper trail by
which CSED (or the IRS) could trace these funds." Noting that
"[h]is monthly rent and advertising expenses alone are almost equal
to his alleged monthly income,"CSED concluded that, "[u]nder the
circumstances, [his] alleged income of $800 per month is simply not
believable." It argued in the alternative that, even if he is
"only earning $800 per month, there is no doubt that he could earn
more if he wanted to,"citing his experience and autobody
repairers' average earnings, and noted that courts can base support
orders on the potential income of voluntarily underemployed
The superior court entered an order imputing annual
income of $39,181 to Elsberry, "based on the Alaska Average
Age/Wage data"for a 42 to 44-year-old man. The court ordered him
to pay $921 per month in support. [Fn. 2] The court said in a
brief narrative order that, upon reviewing Elsberry's and CSED's
submissions, it had "conclude[d] that Mr. Elsberry is not a
credible person when he alleges that his income is limited to $800
per month as a 'student.'" The court said nothing about his
Elsberry moved the court to reconsider, arguing that his
monthly probation reports corroborated his claimed income, and that
autobody work fluctuates. He claimed that CSED "has i[n]sinuated
that [he] has failed to report taxes . . . only to 'beat the
system' and get out from under his financial obligation to his
children. This court has obviously taken these mis[s]tatements of
fact [into account] in [its] consideration in this case." He
asserted his sincerity and argued that the court must "make factual
findings regarding [his] religious convictions before making a
judgment which was based primarily upon [his] credibility . . . ."
Noting that the court had "stated that [his] credibility was an
issue,"he argued that it "should have held a hearing to probe
these issues deeper before coming to a conclusion regarding [his]
credibility as well as his ability to pay child support." He thus
asked the court to hold a hearing on his "religious claims, as well
as his sincerity, and to further probe [his] claims regarding his
financial status." The court declined without comment. Elsberry
Elsberry argued below and made a point on appeal, but has
not discussed at all in his brief, the issue of whether the
superior court's support award is clearly mistaken. He has thus
waived the issue. [Fn. 3] The sole issue that Elsberry has briefed
is whether the First Amendment required the superior court to hold
a hearing on the sincerity of his religious beliefs before choosing
to disbelieve his affidavit and impute an income to him. We review
that issue de novo, as it involves constitutional law. [Fn. 4]
The superior court never said or suggested that it based
its holding on a finding or suspicion that Elsberry does not
sincerely hold the religious beliefs that he asserted. It simply
observed that Elsberry had failed to submit any documentation of
his asserted income, and that it found CSED's substantial evidence
regarding his income and earning capacity much more credible than
his naked affidavit. It relied on those facts to find him
incredible on the issue of his income. The court did not impute an
income of $72,000 to Elsberry as a sanction for failure to produce
tax returns, as CSED had originally suggested before the religion
issue arose. It imputed an income level chosen as a measure of
Elsberry's earning capacity, given the limited evidence before it.
The court likely could have chosen a lower estimate. Its choice,
however, raises no reasonable inference that its tacit intent was
to punish Elsberry unconstitutionally because it saw him as
sincerely exercising unacceptable religious beliefs, or insincerely
claiming to be exercising religious beliefs in order to avoid a
Contrary to Elsberry's claims, CSED never said or implied
that he did not sincerely hold his asserted beliefs. It only
stressed the undeniable fact that those beliefs, and his business
practices, made it very hard to divine his income. Had Elsberry
given the court any reason to accept his asserted income level, and
to accept that it approximated his earning capacity, one could
arguably infer that the superior court had based its ruling in part
on disapproving of or disbelieving his asserted religious
convictions. But he never offered any support for his claims
beyond his brief affidavits, and never in any way addressed or
disputed any of CSED's substantial contradictory evidence.
Part of the reason for Elsberry's suspicion of the
superior court's motive is apparently that he misreads part of its
order: "Mr. Elsberry is not a credible person when he alleges that
his income is limited to $800.00 per month as a 'student'"
(emphasis added). Elsberry stresses those words in opening his
argument. He seems to think that the court determined that he "is
not a credible person"in general, and he further presumes that it
did so because of CSED's alleged insinuations that his asserted
religious beliefs are a sham to enable him to avoid his child-
support (and tax) obligations. But the superior court said that
Elsberry "is not a credible person when he alleges that his income
is limited to $800.00 per month as a 'student'"(emphasis added).
We view that statement to mean that Elsberry's assertion about his
income and "student"status was not, in and of itself, credible.
That assertion was incredible not in light of his religious
beliefs, but in light of his failure to support it, and CSED's
significant evidence undermining it.
The sole relief that Elsberry seeks is a hearing on the
issue of the sincerity of his religious beliefs. The State is
plainly correct that the order did not explicitly rest on a finding
that those beliefs were insincere. The record as a whole,
moreover, permits no reasonable inference that the order rested,
even implicitly, on a tacit finding or suspicion to that effect.
The sincerity of Elsberry's beliefs was not legally relevant, and
so there was no need to hold a hearing on the issue. [Fn. 5]
We AFFIRM the superior court's refusal to hold a hearing
on the sincerity of Elsberry's religious beliefs.
Elsberry affied that he was in prison for "at least three
years,"but the record does not show when; his probation reports,
which the State certified as "a complete . . . copy of all records
[it] held,"begin in October 1995.
The court did not address CSED's request that it make the
order setting support at $921/month effective nunc pro tunc to the
December 1991 date of the original support order.
See, e.g., Zok v. State, 903 P.2d 574, 576 n.2 (Alaska 1995)
(holding that pro se appellant waived issue, despite stating it as
point on appeal, by failing to argue it in opening brief, though he
developed it in reply brief); Gates v. Tenakee Springs, 822 P.2d
455, 460 (Alaska 1991) (holding that pro se appellant waived issues
raised below but "addressed only cursorily or not addressed at all
. . . in her brief to this court").
See, e.g., Wright v. Black, 856 P.2d 477, 479 (Alaska 1993).
See, e.g., In re J.B., 922 P.2d 878, 881 (Alaska 1996) ("In
the absence of . . . relevant disputed facts no hearing was