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Brown v. Brown (7/30/99) sp-5147
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
DAVID C. BROWN, )
) Supreme Court No. S-8503
) Superior Court No.
v. ) 3AN-86-10007 CI
PATRICIA WOODS BROWN, ) O P I N I O N
Appellee. ) [No. 5147 - July 30, 1999]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: James H. Brown, Accokeek,
Maryland, and Pamela D. Scott, Law Offices of Pamela D. Scott,
Anchorage, for Appellant. Jody A. Reausaw, Josephson & Associates,
Anchorage, for Appellee.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
David C. Brown appeals the superior court's order that he
pay child support to his ex-wife Patricia Woods Brown on behalf of
his son Christopher. The superior court rejected David's arguments
that Patricia waived child support by allowing David to pay agreed-
upon sums into a trust fund, that he should receive credits for
certain expenses, and that the statutes governing interest on child
support arrears do not apply to him. Because we find no error, we
II. FACTS AND PROCEEDINGS
David C. Brown and Patricia Woods Brown divorced in 1987.
Their son Christopher was born August 20, 1985. As part of the
divorce proceedings, David and Patricia executed a comprehensive
settlement and property division agreement that was incorporated
into the divorce decree. Pursuant to their agreement, Patricia and
David shared joint legal custody of Christopher, but Patricia had
sole physical custody.
Rather than having one parent pay child support directly
to the other, David and Patricia agreed to set up a trust fund for
[S]ince both parties are financially able to
provide for the care and support of the minor child, the
noncustodial parent will make monthly child support payments of
$300.00 per month into a trust fund for the benefit of the minor
. . . .
. . . Husband shall pay child support into an
interest bearing account for the benefit of the minor child.
. . . .
The Husband shall be named as Trustee of the
account and shall provide the Wife with quarterly statements of
amounts in the fund.
The agreement set out three categories of expenses the fund monies
would cover: visitation expenses, extraordinary medical expenses,
and educational costs. Both parents agreed to use any funds
remaining in the trust when Christopher turned eighteen for his
post-secondary education. As part of this arrangement, Patricia
consented "to waive all past and present child support payments
which she may have been entitled to receive on behalf of the minor
David failed to establish and maintain a trust fund for
Christopher. He did open an account with $1,000 in 1988 or 1989,
but within a year he closed the account and withdrew the money to
pay his personal bills. He opened another account sometime before
1991 but again withdrew all the funds in the trust to help pay the
closing costs on his home. David testified that he paid for any
and all of Christopher's expenses that should have come out of the
trust fund, such as travel expenses. But David did not provide
Patricia with more than one or two of the quarterly reports
required by the agreement.
In March 1993 David and Patricia executed a "Proposed
Plan of Action,"which set out changes in Christopher's custody and
child support while Patricia went back to school. The parties
agreed that Christopher would temporarily live with David and
attend third and perhaps fourth grade in Anchorage and that David
would "assum[e] full financial responsibility for Christopher's
care during this period." But they stated that Patricia would
remain Christopher's "custodial parent as set forth in the divorce
decree." Christopher lived with Patricia until May 1993.
Christopher lived with his father in Anchorage beginning in June
1993; his paternal grandmother, Josephine Brown, moved in with
David to help care for Christopher while David worked.
In November 1994 David petitioned for modification of the
child custody agreement and was granted interim custody of
Christopher. In March 1996 the superior court issued a final
custody order that maintained shared legal custody between the
parents and established that Christopher would live with his father
until the end of the eighth grade and then live with his mother
during high school. The court ordered that Alaska Civil Rule 90.3
would govern future child support except for visitation expenses.
In June 1996 the superior court ruled that David owed
child support arrears (funds that he should have paid into the
trust) dating from the divorce in 1987 until May 1993, with
deduction for credits outlined in the dissolution agreement. The
court ruled that Patricia owed no child support for the period from
December 1994 through March 1996, during which time Christopher
lived with his father. David sought reconsideration and
clarification of that order. Both parents requested the services
of the Child Support Enforcement Division (CSED), which filed an
amicus brief arguing that child support distribution should proceed
without any trust fund mechanism and that David was entitled only
to limited credits.
Testimony at the hearing to address the motion for
reconsideration focused on the agreement in the divorce decree, the
trust fund, and David's request that various credits offset his
child support arrears. The superior court disestablished the trust
fund and ordered that David pay any unpaid child support to
Patricia through CSED. The court reconsidered its earlier order
and held that Patricia was required to pay child support from
December 1994 to March 1996 but that David's child support
obligation could fully offset Patricia's smaller obligation. The
court also refused to allow David to claim credits for a variety of
CSED moved for reconsideration of the 10.5% interest rate
on David's child support arrears. The superior court granted
CSED's request and modified its judgment to reflect the statutory
rate of interest -- 12% before October 1, 1996 and 6% thereafter --
on David's accumulated arrears.
David filed for bankruptcy in April 1997. CSED filed a
request that David pay the owed child support out of exempt
property. David did not oppose this motion, and the trial court
granted it. In October 1998 CSED paid to Patricia $15,600 in child
support it recovered from David. David appeals.
III. STANDARD OF REVIEW
We exercise our independent judgment when reviewing the
legal interpretation of property settlements and child custody
agreements that are incorporated into divorce decrees. [Fn. 1] But
when the trial court looks to extrinsic evidence to interpret an
agreement, we review its factual determinations under the clearly
erroneous standard and will reverse only if the facts do not
support the trial court's interpretation. [Fn. 2]
In general, we will reverse factual findings of the
superior court only if they are clearly erroneous, that is, if we
are left with a definite and firm conviction that the trial court
erred. [Fn. 3] We review de novo interpretations of statutes or
rules; we will adopt the rule of law most consistent with
precedent, reason, and policy. [Fn. 4]
A. The Superior Court Did Not Err by Disestablishing the
Trust Fund and Ordering David to Pay Child Support to Patricia.
David first argues that Patricia waived her rights to
child support by signing the settlement agreement. Patricia
responds that both the language of the agreement and extrinsic
evidence support the superior court's conclusion that Patricia did
not waive her right to receive child support on Christopher's
behalf. We agree.
When interpreting contracts, courts aim to give effect to
the reasonable expectations of the parties as expressed through the
text of the contract and extrinsic evidence of intent. [Fn. 5]
David and Patricia signed the settlement agreement prior to the
enactment of Rule 90.3; at that time, parents could waive the right
to receive child support on behalf of their children if the waiver
was not detrimental to the child. Here, the language of the
agreement does not specify whether the parties intended the
settlement agreement to operate as a waiver of child support. [Fn.
6] But the provisions regarding the trust fund money consistently
refer to those funds as "child support." The agreement also
mentions the trust fund money in the same paragraph as traditional
child support funds without indicating that the two are separate
and distinct in character. Patricia testified that, by signing the
agreement, she only intended to set up a mechanism to reserve those
funds for limited uses, not to waive all child support. Relying on
this testimony and the ambiguities of the agreement's text, the
superior court found that "[t]here is no indication that child
support was waived by Ms. Brown agreeing to have a trust agreement
for the benefit of Christopher." Because the facts support this
interpretation, the superior court's conclusion was not clearly
Alaska law supports the superior court's decision to
interpret the trust fund payments as child support. In In re
Adoption of K.M.M. and B.M.M., [Fn. 7] we held proper maintenance
of a trust fund fulfilled, rather than replaced, the child support
obligation. In K.M.M., a father who paid his child support
payments into a trust fund rather than directly to his ex-wife
fulfilled his child support obligations because, like traditional
child support, "the trust fund, probably to be used for the
children's needs in the future, was a permissible way to discharge
his obligation to provide for their support, which obligation was
a continuing one until the children reach the age of majority."
David further argues that because he owed money only to
the trust fund, the superior court could not force him to pay any
money directly to Patricia. We disagree. As Patricia notes, a
superior court has the "inherent power, and also the duty, to
enforce its decrees."[Fn. 9] In Johnson v. Johnson, [Fn. 10] the
parties' divorce decree included a provision that the family
homestead be sold and the proceeds be deposited in a trust to be
used for the education of the Johnsons' minor children. [Fn. 11]
When the parents made no efforts to establish the trust for seven
years, the superior court ordered that the land be partitioned and
each child be given one-quarter of the property. Mrs. Johnson
argued on appeal that the court had no power to modify the contents
of the trust. We disagreed, noting that the superior court "made
alterations necessary to obtain a result altogether consistent with
the original decree"given that the parents had not in fact
established the trust fund. [Fn. 12] We also emphasized the need
"to preserve the rights of children who are not represented in the
Similarly, David's complete failure to establish and
maintain the trust gave the superior court the power and duty to
alter its original decree to ensure that Christopher receive the
funds the parties intended by establishment of the trust. David
twice opened accounts intending to establish the trust fund, but
both times withdrew the money to use it for his own purposes. He
did not make regular payments into the account, nor did he provide
Patricia with the quarterly reports mandated by the agreement. He
testified at the hearing that no money existed in any account for
Christopher. Through these actions, David materially breached the
agreement and his fiduciary duties to the trust. [Fn. 14] Under
these circumstances, the superior court correctly altered its
original decree to ensure that David pay child support to benefit
Christopher. [Fn. 15]
B. The Superior Court Did Not Err by Refusing to Grant David
Credit for a Variety of Incurred Expenses.
David contends that the settlement agreement entitles him
to offset a number of expenses from his child support arrears. He
contests two general categories of expenses: various expenses he
incurred during Christopher's stay with him from June 1993 to
November 1994, including child care, clothing, food, and out-of-
pocket expenses incurred while Christopher's grandmother was caring
for Christopher in Anchorage. [Fn. 16]
The agreement authorized credits for visitation expenses
where "agreed to be necessary by the parties." David characterizes
his expenses during Christopher's extended visit with him -- for
such goods as books, clothing, cable television, sporting goods,
and personal computers -- as "visitation expenses." In contrast to
David's extremely broad definition of allowable expenses under the
agreement, Patricia testified to her understanding that "airline
travel expenses were all that was to be deducted from the account"
as "necessary"visitation expenses. Based on the agreement's
language and this testimony, the superior court concluded that
"expenses for food, clothing, child care, recreation, vacation,
telephone, etc. cannot be used as credits toward the amount of
child support due and owing under the agreement"because the text
of the agreement or the understanding of the parties did not
authorize these offsets. This conclusion is not clearly erroneous.
David also seeks an offset for the costs of Josephine's
assistance in Christopher's care. He contends that Patricia agreed
to offset these expenses from the trust fund. But David and
Patricia's "Proposed Plan of Action,"in which the parties agreed
that Josephine would assist in child care while Christopher lived
with David, expressly stated that David would pay for Josephine's
travel expenses and would "assume full financial responsibility for
Christopher's care." Based on this information, the superior court
concluded that "[t]he parties never agreed that expenses for . . .
Ms. Josephine Brown's care of the child would be a deductible
expense." We agree.
C. The Superior Court Did Not Err by Granting CSED's Motion
for Reconsideration as to Interest.
After the superior court issued its order adjudicating
the child support obligations of the parties, CSED filed for
reconsideration as to the interest to be charged on David's
arrears. CSED argued that under Alaska statutory law, the proper
rate of interest was 12% per year prior to October 1, 1996 and 6%
per year thereafter, rather than the 10.5% specified in the court's
order. The superior court granted CSED's motion and modified its
final order to reflect the statutory interest rate. We agree with
the court's decision.
Three different statutes guide the interest rate
applicable to David's child support arrears: AS 25.27.020, AS
25.27.025, and AS 43.05.225. Alaska Statute 25.27.020(a)(2)(B)
requires that CSED promulgate regulations establishing "a uniform
rate of interest on arrearages of support that shall be charged the
obligor upon notice if child support payments are 10 or more days
overdue." Former AS 43.05.225(2)(B) set the statutory interest
rate at 12% for claims accrued before October 1, 1996. [Fn. 17]
Alaska Statute 25.27.025 sets the interest rate at "six percent a
year or a lesser rate that is the maximum rate of interest
permitted to be imposed under federal law"for claims accruing
after October 1, 1996.
David advances three arguments why these statutes should
not apply. First, David restates his argument that the payments to
the trust fund were not "child support"and therefore the statutes
do not apply. For the reasons explained above, we reject this
Second, David claims his payments are not subject to the
statutory interest rate because CSED can only charge interest on
payments "required to be made by the obligor to CSED." Since his
payments were originally due to Patricia, David argues that CSED
cannot charge him interest on those payments. This claim is
meritless. Alaska Statute 25.27.020(b) specifies that "[i]n
determining the amount of money an obligor must pay to satisfy the
obligor's immediate duty of support, [CSED] shall consider all
payments made by the obligor directly to the obligee . . . before
the time the obligor is ordered to make payments through the
agency." This statutory provision clearly indicates that the
legislature did not intend for CSED to turn a blind eye to overdue
payments simply because the agency was not yet directly involved in
their collection. David has been under a continuing obligation to
make monthly child support payments since 1987, and those payments
Finally, David argues that he was without notice of his
child support obligations because he did not receive a computerized
billing statement from CSED in the mail. But the superior court's
order notified David of his obligations. We have dismissed claims
of lack of notice in similar situations, implicitly adopting CSED's
reasonable definition of the phrase "upon notice"in
25.27.020(a)(2)(B) to mean "on notice of the obligation to pay
child support itself."[Fn. 18]
Because the superior court correctly determined that
David should pay child support to Patricia, that the agreement
allowed for only limited visitation credits, and that the overdue
child support arrears should bear the statutory interest rate, we
See Cedergreen v. Cedergreen, 811 P.2d 784, 786 n.2 (Alaska
See Vokacek v. Vokacek, 933 P.2d 544, 547 (Alaska 1997).
See Linstad v. Sitka School Dist., 963 P.2d 246, 248 (Alaska
See Boone v. Gipson, 920 P.2d 746, 748 (Alaska 1996).
See Fairbanks North Star Borough v. Tundra Tours, Inc., 719
P.2d 1020, 1024-25 (Alaska 1986).
See Malekos v. Yin, 655 P.2d 728, 730 (Alaska 1982),
superseded by rule as stated in Cox v. Cox, 776 P.2d 1045, 1048
611 P.2d 84 (Alaska 1980).
Id. at 87.
Wahl v. Wahl, 945 P.2d 1229, 1232 (Alaska 1997).
544 P.2d 65 (Alaska 1975).
See id. at 67.
Id. at 72.
David asserts that he fulfilled his duties under the agreement
because "money to fund the trust has always been available":
"[T]he fact that there was no official trust fund didn't make any
difference"because "if something came up, travel came up, whatever
came up that was a part of the agreement, I had to make sure that
I could pa[y] for it and meet that obligation, and I always did."
But even if David paid all the medical, visitation, and travel
expenses that should have come out of the trust fund, he did not
regularly make payments into the trust. He also testified that as
of the time of trial he had not set aside any money in any account
for Christopher's benefit and future college expenses.
Because we hold that the superior court correctly
disestablished the trust, we need not consider Patricia's arguments
that the doctrine of unclean hands bars David's suit and that
David's actions have mooted this appeal.
The "Proposed Plan of Action"executed in March 1993
specifically stated that it was only "a temporary working
arrangement while [Patricia] is in school"and that it "does not
abrogate the divorce decree." Although David was obligated to make
payments into the trust fund, he also received the child tax
deduction on his 1993 and 1994 tax returns. Thus, David concedes
that under the "Proposed Plan of Action"he was legally obligated
to make payments into the trust fund even though he had physical
custody of Christopher beginning in June 1993.
This section was repealed effective October 1, 1996. See ch.
107, sec. 46, SLA 1996.
See Vokacek v. Vokacek, 933 P.2d 544, 550-51 (Alaska 1997)
(stating that delinquent obligor's assertion that he had no notice
of his arrearages was "without merit").