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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. or subject indices. Willis v. State, Dept. of Revenue, CSED (11/26/99) sp-5208

Willis v. State, Dept. of Revenue, CSED (11/26/99) sp-5208

     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.


TOM M. WILLIS,                )
                              )    Supreme Court No. S-8367
               Appellant,     )
                              )    Superior Court No.
          v.                  )    1JU-96-1724 CI
               Appellee.      )    [No. 5208 - November 26, 1999]

          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
                      Larry R. Weeks, Judge.

          Appearances:   James J. Davis, Jr., and Mark
Regan, Alaska Legal Services Corporation, Juneau, and Robert K.
Hickerson, Alaska Legal Services Corporation, Anchorage, for
Appellant.  Douglas D. Gardner and Daniel N. Branch, Assistant
Attorneys General, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.

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

          BRYNER, Justice.
          CARPENETI, Justice, concurring.

          Tom M. Willis appeals an administrative decision
requiring him to pay the state more than $13,000 in child support
arrears and $157 in ongoing monthly payments to reimburse the Child
Support Enforcement Division for public assistance it paid on
behalf of Willis's two young daughters.  Although CSED reduced
Willis's ongoing child support obligation by applying Alaska Civil
Rule 90.3(c)'s "good cause"exception, Willis challenges the
reduction as insufficient.  He also challenges CSED's unexplained
failure to reduce his arrears under the same exception.  Because we
conclude that CSED's decision requires clarification, we remand for
further consideration and findings. 
          In 1988 the State of Alaska began providing public
assistance to Pauline Bobby on behalf of her two daughters,
Arlettie, born in 1975, and Alice, born in 1979.  CSED subsequently
petitioned for an order establishing Willis's paternity of the two
girls.  On May 9, 1994, the superior court granted the petition and
issued an order declaring Willis their father.  The following year,
CSED issued a Notice and Finding of Financial Responsibility
directing Willis to pay ongoing support of $606 per month from
April 1, 1995, and to pay $38,797 to reimburse the state for its
public assistance payments, and for past-due support, accrued from
May 1, 1988, to March 31, 1995.  In calculating Willis's arrears
and ongoing support obligation, CSED relied on average Alaskan wage
statistics provided by the state's Department of Labor.
          Willis, who lived in the village of Stony River with his
wife of eight years and their four children, requested a formal
hearing to challenge CSED's finding.  CSED hearing officer Kay
Howard conducted a telephonic hearing on December 4, 1995.  Before
the hearing CSED reduced Willis's ongoing support obligation to
$462 per month effective November 1, 1995, and adjusted his arrears
to $48,653 through October 31, 1995.  These changes reflected
Arlettie's emancipation upon her eighteenth birthday on August 31,
          At the hearing, Willis requested a further reduction.  He
based this request in part on the contention Alice had spent
periods of time in his custody and that Arlettie had actually
become emancipated before her eighteenth birthday.  But he also
based this request on a claim of financial hardship resulting from
his low earnings, unusually high family expenses, and limited job
          To support his financial hardship claim, Willis relied on
income tax returns from the years 1988 through 1994, which
reflected less than $2,000 per year of adjusted income in 1988 and
1989, $14,587 and $12,095 per year of adjusted income in 1990 and
1991, and less than $11,000 per year of adjusted income from 1992
through 1994.  Willis also testified at the hearing that he had
recently lost a $300-per-month job at MarkAir, which had gone out
of business.  Willis explained that at the time of the hearing he
was earning $860 per month working for the Post Office and for
Arctic Circle Air.  According to Willis, his wife earned an
additional $300 per month.  Willis contended that he had no
immediate prospects for further employment, since jobs in Stony
River are scarce.  Willis further testified that his monthly bills
and debts presently exceeded his salary.  Specifically, he claimed
that on a monthly basis he paid $90 for housing, $400 for food,
$150 for gas, $200 for fuel to heat the house, $221 for a
four-wheeler, $140 for a snow machine, $120-$140 for electricity,
$212 for a boat motor, $25 for local phone charges, and $62 in
credit card debt.  
          David Peltier, the Child Support Enforcement Officer who
represented CSED at the hearing, did not dispute Willis's
testimony.  After hearing Willis testify, Peltier acknowledged that
he understood Willis's "argument for poverty."  But because Peltier
had not yet received all of Willis's tax records and also wanted to
see documentation corroborating Alice and Arlettie's custodial
status, he told the hearing officer, Howard, that CSED would
"relook"its figures after he received and reviewed this
information.  Howard asked Willis's counsel, James Davis, if Willis
would provide the additional information.  Davis replied that
Willis would supply the information and that he had no objection to
Peltier's further review of Willis's tax records.  Davis
nevertheless expressed concern that CSED might confine its further
review to the written records, ignoring the testimony Willis had
given to support his request for a hardship exemption: 
          [I]t seems to me that the CSED's practice up
until today in every case that I have ever dealt with it about,
they don't -- that hardship determination, whether or not somebody
is indigent, I haven't seen how they calculate that.  They look at
the W-2s and the data the W-2s reflect, and I will get that all to
the CSED, I guess all I am saying is that I hope they look at the
testimony that [indiscernible] which is that Mr. Willis and his
wife have four kids, are making a little under -- it seems to me
ten thousand dollars a year, and taking care of them in an
expensive area to live.

          Peltier replied that although he had no authority to
determine whether a noncustodial parent qualifies for a hardship
exemption, he could give the hearing officer a recommendation.  In
fact, Peltier offered to do so for Willis: "[A]t your request, Mr.
Davis, I would be happy to make a recommendation also to Ms. Howard
as to whether after reviewing this and reviewing his testimony as
to whether he does or does not meet the criteria."  Davis responded
to this offer affirmatively, "I appreciate that."  Davis also asked
if Willis could provide anything else "that you think might be
helpful to find out."  Indicating uncertainty about "all the
factors you look at,"Davis emphasized that "Willis is more than
happy to answer any questions you might have, because we would hate
for you to think that he . . . has been better off than he really
          Peltier answered that he thought no further testimony
would be necessary: "[A]ctually, you took -- Mr. Willis has
provided pretty good answers to the questions you asked."  But
Howard intervened, saying that she needed some additional
information about Willis's expenses.  Upon questioning Willis
further,  Howard asked Peltier if he needed any other information. 
Peltier said, "I think we have got it all."  After noting
preliminarily that Willis's monthly expenses appeared to exceed his
monthly income, Peltier said that he would review Willis's tax
records, "and then I believe I can make a recommendation to the
hearing examiner." 
          At this point, Davis repeated that he would submit the
remaining records and, expressing renewed concern over the adequacy
of the testimony Willis had already given, Davis offered additional
testimony to establish Willis's past financial circumstances more
          I just have one question for Mr. Peltier and
for the hearing officer.  Do we need to walk Mr. Willis back
through time insofar as our position for Mr. Willis is going to be
that he has been indigent all the years in question.  The testimony
that he has given is to his present financial status, but it
doesn't roll back, or he hasn't testified, and I don't know if he
could.  But it doesn't roll back to '88 unless -- how do we deal
with that problem? 

But Howard saw no need for further testimony, indicating that she
would make the hardship determination based on the evidence already
presented and on Peltier's forthcoming recommendation: "Well, I --
Mr. Peltier is going to make the -- the final calculations of what
CSED's position is regarding Mr. Willis's support obligation.  Then
I will make the hardship determination in the decision itself."
Howard went on to assure Davis that, depending on Peltier's
recommendation, she might apply a hardship finding retrospectively: 
          I may or may not apply the hardship criteria
back in time.  It just all depends on what the final calculations
look like for Mr. Peltier.  And to answer your question real
honestly, Mr. Davis, on at least one instance in the past, I
applied -- I did grant a hardship [exception] and went back in time
about three years with that, so I do have the authority to do that,
and if I see that it is necessary, I will enter that for the
Howard then took the case under advisement, leaving the record open
for supplementation.  
          On December 26, 1995, Peltier filed a supplemental
statement confirming his receipt and review of Willis's tax records
and other information; Peltier indicated that, based on this
review, CSED had recalculated Willis's support obligation "to
reflect all changes made to the determinations and custody."
Peltier attached as exhibits to this statement a series of revised
child support guidelines worksheets and a revised "Summary of
Support Obligation"schedule, which recalculated Willis's past and
future support under Rule 90.3(a)'s child support guidelines.  This
recalculation yielded ongoing child support of $173 per month
effective from January 1, 1996, and arrears of $15,085 from May 1,
1988, through December 31, 1995.  Making no mention of Willis's
request for a hardship exemption, Peltier went on to request
issuance of an order in accordance with these revised calculations. 
          Approximately two weeks after Peltier's supplemental
statement, on January 9, 1996, Davis wrote hearing officer Howard
a letter complaining that CSED had ordered Willis's wages seized
despite the still pending decision on his hardship request.  Davis
asserted that he had repeatedly attempted to call Peltier but had
received no response; he urged Howard to enter an order forbidding
CSED to make any further collections pending a final decision.  On
January 10 Howard's supervisor, Senior Revenue Hearing Examiner
Diane Colvin, responded by letter, informing Davis that CSED
hearing officers have no authority to suspend collection.  But
Colvin reassured Davis that under AS 25.27.180 the decision in
Willis's case was due by January 16.  While noting that "Ms. Howard
has a huge caseload,"Colvin stated that "she assures me that the
decision will be issued by or shortly after January 16, 1996." 
          But for reasons unexplained in the record, CSED
reassigned the case to another hearing officer, Pat Kennedy, who
failed to issue a decision until July 18, 1996.  In the decision,
Kennedy expressly found that Willis qualified for a hardship
exemption under Alaska Civil Rule 90.3(c)(1)(A): "Given the current
state of jobs in the village with MarkAir having left, a hardship
finding is justified, given the size of the Obligor's family and
his necessary expenses."  Kennedy thus reduced Willis's ongoing
support obligation by a monthly total of $16 -- lowering it from
$173 per month (the figure CSED had calculated by applying Alaska
Civil Rule 90.3(a)'s formula to Willis's current adjusted annual
income) to $157 (a figure that Kennedy arrived at by imputing to
Willis full-time employment at the prevailing minimum wage).  But
Kennedy made no comparable hardship adjustment to Willis's past
child support obligation.  Without even mentioning Willis's request
for a hardship exemption covering his past child support
obligation, Kennedy ordered him to pay arrears of $15,085 through
the end of 1995 -- the amount Peltier had most recently calculated
using Willis's tax records and the child support guidelines. [Fn.
          After the Department of Revenue formally approved
Kennedy's decision, Willis appealed to the superior court.  The
superior court affirmed.  Rejecting Willis's claims that CSED erred
in refusing to make a hardship adjustment to his past child support
debt and in failing to make an adequate adjustment to his ongoing
obligation, the court found that CSED's decision was supported by
substantial evidence and did not amount to an abuse of discretion. 
          Willis appeals.  
     A.   Standard of Review
          We give no deference to the superior court's decision
when it acts as an intermediate court of appeal. [Fn. 2]  We apply
our independent judgment in reviewing CSED's rulings on issues of
law that do not implicate agency expertise. [Fn. 3]  We review
factual determinations under the "substantial evidence"test,
affirming CSED unless its findings are unsupported in the record.
[Fn. 4]  In addition, when CSED fails to consider an important
issue in exercising its discretion, we may reverse its action as
arbitrary. [Fn. 5] 
     B.   CSED's Decision Does Not Adequately Explain Its Ruling on
Willis's Claim of Financial Hardship.

          Willis contends that CSED erred in failing to reduce his
child support arrears and in failing to meaningfully reduce his
ongoing support obligation on account of financial hardship.  He
also complains that CSED made inadequate findings on these issues,
leaving this court in the dark as to how and why CSED arrived at
its decision.  We find the latter argument persuasive.  
          Child support payments are presumptively governed by the
guidelines set forth in Alaska Civil Rule 90.3(a). [Fn. 6]  But in
exceptional cases Rule 90.3(c)(1) allows courts to depart from
these guidelines upon clear and convincing proof of "good cause"to
believe that the guidelines would cause financial hardship: 
               The court may vary the child support
award as calculated under the other provisions of this rule for
good cause upon proof by clear and convincing evidence that
manifest injustice would result if the support award were not
varied.  The court must specify in writing the reason for the
variation [and] the amount of support which would have been
required but for the variation . . . .
          Subsection (c)(1)(A) specifies the kinds of circumstances
that courts may consider to support a variation for good cause: 
          [Good cause may include a finding that]
unusual circumstances, such as especially large family size,
significant income of a child, divided custody . . . , health or
other extraordinary expenses, or unusually low expenses, exist
which require variation of the award in order to award an amount of
support which is just and proper for the parties to contribute
toward the nurture and education of their children.  The court
shall consider the custodial parent's income in this

          At his hearing before CSED, Willis asserted good cause
for a financial hardship exemption as to both his child support
debt and his ongoing support obligation.  On appeal, he argues that
CSED acted arbitrarily because its decision "did not mention,
discuss, or distinguish any of the evidence showing good cause or
'unusual circumstances' before rigidly applying [Rule] 90.3's
guidelines in setting [Willis's] obligations for the years
1990-1994."  Willis asserts that "[f]undamental and basic
administrative law requires that administrative agencies explain
their reasoning, so as to allow intelligent and non-speculative
judicial review."
          As Willis correctly points out, we have often held that
an agency's decision must clearly set forth the key factors upon
which it is based. [Fn. 7]  But we have never held that CSED must
routinely explain its reasons for denying a hardship exemption. 
And no rule or regulation expressly requires such an explanation. 
Rule 90.3(c)(1) does require express findings on the issue of
financial hardship, but only when a court finds good cause to
depart from the guidelines prescribed under subsection 90.3(a): 
"The court must specify in writing the reason for the variation
. . . the amount of support which would have been required but for
the variation . . . ."[Fn. 8]  By requiring courts to fully
explain only those decisions finding good cause to depart from Rule
90.3(a)'s child support guidelines, subsection (c)(1) implicitly
recognizes that the guidelines are presumptively appropriate and
that decisions applying them ordinarily need no justification. [Fn.
          We thus conclude that CSED ordinarily need not explain a
decision that rejects a hardship claim under subsection (c)(1) and
that instead bases child support on the guidelines prescribed in
subsection (a).  But we further conclude that the unique procedural
facts of this case require CSED to explain its decision.
          Here, Willis asked the original hearing officer, Howard,
for a "substantial hardship"determination with respect to his
past, as well as ongoing support obligation.  After listening to
Willis's testimony, CSED's representative, Peltier, stated that he
would submit a recommendation to Howard concerning Willis's
hardship request.  Although Howard indicated that, depending on
Peltier's final calculations, she "may or may not apply the
hardship criteria back in time,"she assured Willis that she would
"make the hardship determination in the decision itself." 
          Thereafter, Peltier submitted his recalculation of
Willis's support using Rule 90.3(a)'s guideline but inexplicably
failed to submit his promised recommendation concerning Willis's
request for a hardship exemption.  Howard, who by her own
supervisor's account was handling "a huge caseload,"failed to
issue a timely ruling.  Instead, she was replaced for unspecified
reasons by a new examiner, Kennedy, who issued a decision more than
seven months after the statutory deadline.
          Kennedy's decision recognized that Willis had requested
an exemption from Rule 90.3(a)'s guidelines on account of financial
hardship and on this basis granted him a modest reduction of his
ongoing child support payment.  But the decision failed to
specifically recognize the scope of Willis's request and nowhere
acknowledged, addressed, or mentioned that Willis had asked for
relief extending back in time to reduce his existing child support
debt.  Nor did Kennedy discuss or mention Peltier's failure to
submit a recommendation on Willis's hardship request.  And whereas
Howard had declared that she believed that the law allowed her to
grant a hardship exemption covering Willis's arrears, Kennedy never
adopted this position -- a position that CSED now disputes on
          This procedural history is rife with ambiguity.  The
record suggests that Kennedy might have relied on any of three
grounds in failing to extend her finding of hardship to Willis's
child support arrears: (1) Kennedy might have concluded as a matter
of fact that Willis failed to present clear and convincing evidence
that reducing his arrears was necessary to prevent manifest
injustice; (2) Kennedy might have adopted as a matter of law the
position that CSED now advocates -- that is, she might have decided
that she had no authority to extend Rule 90.3(c)'s hardship
exemption back in time to cover Willis's already accrued debt; or
(3) not having participated in the original proceeding, and having
failed to receive a recommendation from Peltier, Kennedy simply
might have overlooked the fact that Willis had asked for -- and
that Howard had promised to rule upon -- a hardship exemption
covering both current payments and total arrears.  
          Considering this case's confused procedural history, we
are unable to determine with any degree of confidence which of
these potential grounds motivated Kennedy's ruling.  Accordingly,
we lack any meaningful basis to assume, as we normally would, that
the absence of express findings reflects an informed decision by
Kennedy based on a correct legal standard.
          CSED nonetheless argues that Kennedy's decision should be
upheld for two reasons.  First, CSED contends, Rule 90.3(c)(1)'s
hardship exemption applies only to ongoing support and does not
allow courts to enter retrospective exemptions covering arrears. 
But in our view this contention is meritless.  Although CSED
insists that applying Rule 90.3(c)(1) to past support "would inject
great uncertainty into the child support issue"and would undermine
the "simplicity and consistency"of Rule 90.3's application, it
advances no cogent reason why inherent uncertainty in subsection
(c)(1) would be greater when the court fixes past support than when
the court establishes support payments for the future.  
          In Vachon v. Pugliese, we made it clear that courts
should ordinarily rely on Rule 90.3 to calculate the accrued child
support debt of a non-custodial parent whose monthly support
payments have not yet been set by order: 
          [A]bsent 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.[ [Fn. 10]] 

Vachon's broad reference to Rule 90.3 in its entirety directly
undermines CSED's theory that arrears are governed by only
subsection (a). 
          More recently, in Boone v. Boone, we remanded a case to
the superior court to determine the amount of past support owed by
a non-custodial parent whose support obligation had not previously
been determined. [Fn. 11]  In so doing, we expressly authorized the
court to consider on remand whether the parent's financial
circumstances justified a departure from Rule 90.3's guidelines.
[Fn. 12]  Thus Boone, like Vachon, militates against CSED's claim
that subsection (c)(1)'s financial hardship provision extends only
to future support. [Fn. 13]
          CSED alternatively urges us to hold that Kennedy's
failure to mention Willis's request to reduce his arrears is
excused by the lack of evidence supporting the request: "Even if
the hearing officer had the authority to vary Mr. Willis's past
child support debt using Civil Rule 90.3(c)(1),"CSED argues, "Mr.
Willis failed to present clear and convincing evidence to justify
a variance under the rule."  While CSED acknowledges that Willis
"did present evidence of his current financial situation"it faults
him because "he did not present any specific evidence concerning
how his economic situation in the past would justify a hardship
variation under Civil Rule 90.3(c)."
          Yet in our view the record is not obviously deficient on
the issue of past hardship.  It contains at least minimally
sufficient evidence to warrant consideration by a hearing officer. 
Moreover, in claiming insufficient evidence, CSED ignores the fact
that during the hearing Willis's counsel repeatedly asked Peltier
and Howard if they needed more testimony about Willis's past
financial situation.  Davis represented that Willis would be "more
than happy to answer any questions you might have because we would
hate for you to think he is better off than he really is or has
been better off than he really is."  And Davis specifically asked,
"Do we need to walk Mr. Willis back through time insofar as our
position for Mr. Willis is going to be that he has been indigent
all the years in question[?]"  In response to these offers, Peltier
and Howard both assured Davis that they would be able to address
Willis's request for a hardship exemption based on his financial
records and his testimony describing his current situation.  Hence,
to the extent that the current hearing record omits specific
details of Willis's past financial circumstances, this deficiency
must be attributed to Howard and Peltier.
          We conclude that CSED's decision fails to adequately
address and explain its denial of Willis's request to reduce his
child support debt by applying Rule 90.3(c)(1)'s financial hardship
     C.   Willis's Other Arguments Are Without Merit.
          Willis also argues that CSED cannot apply subsection
(c)(1)'s hardship exemption without first formally adopting
standards to elaborate the manner in which the exemption will be
applied. [Fn. 14]  But the hardship exemption itself already exists
as an integral part of a larger procedural rule, Civil Rule 90.3. 
That rule gives parties a uniform, simple, and reliable basis for
predicting child support payments. [Fn. 15]  As a narrow exception
within a broader rule, subsection (c)(1) applies only to unusual
cases, and its application is determined through an individualized
process of formal adjudication that involves discretion at both the
agency and judicial levels.  The exception must therefore be
sufficiently flexible to serve the individualized context in which
it is used.  Moreover, the exception is explained in a thorough
commentary. [Fn. 16]  Finally, we note that while CSED has adopted
Rule 90.3 for use in its own administrative hearings, the rule
itself is a rule of court that this court adopted for use in
judicial proceedings.  Given that judges routinely apply this rule
in its present form in the courtroom, to demand additional
interpretative regulations before CSED can use the rule in the
administrative setting would obviously be nonsensical.  And because
this court reviews decisions applying Rule 90.3 and retains the
power to construe and modify the rule, any attempt to define it
through a CSED regulation would only invite conflict between
judicial and administrative interpretations.  Accordingly, we find
no merit to Willis's claim that the exception is incapable of being
enforced without an additional regulatory layer.
          Willis separately argues that the unexplained reduction
that CSED granted as to his ongoing support obligation is
arbitrary, capricious, and obviously insufficient.  While we
decline to hold that the reduction is insufficient as a matter of
law, we note that the hearing officer will now have the opportunity
to consider this issue further and to explain the decision it makes
on remand.          
          Accordingly, we REMAND this case for reconsideration and
additional findings.CARPENETI, Justice, concurring.
          I concur in the outcome of this case, but write
separately to emphasize the unique factual circumstances in which
it arises and the resulting limited nature of our holding.
          Both Peltier, the CSED representative, and Howard, the
hearing examiner, made express representations that they would take
specific steps in response to Willis's requests.  Peltier promised
to submit a recommendation to Howard concerning Willis's hardship
request; Howard promised to make the hardship determination in the
decision itself. 
          Neither Peltier nor Howard did what they promised. 
Peltier made no recommendation concerning Willis's request for a
hardship exemption.  Howard was replaced by a new hearing examiner,
whose decision made no mention of, much less a ruling on, the
request for relief concerning arrears.  
          For these reasons, the normal rule that CSED need not
explain a rejection of a hardship claim under Rule 90.3(c)(1) does
not apply here.  Having promised an explanation of its decision,
CSED must provide one.


Footnote 1:

     Kennedy treated Willis's post-hearing arrears -- payments
accruing from January 1, 1996, through June 30, 1996 -- as current
support, charging it at the reduced $157 monthly rate that she
adopted for his ongoing support obligation.

Footnote 2:

     See Williams v. State, Dep't of Revenue, 938 P.2d 1065, 1069
(Alaska 1997).

Footnote 3:

     See Dunn v. Dunn, 952 P.2d 268, 272 (Alaska 1998).

Footnote 4:

     See Bostic v. State, Dep't of Revenue, Child Support
Enforcement Div., 968 P.2d 564, 567 (Alaska 1998).

Footnote 5:

     See Ninilchik Traditional Council v. Noah, 928 P.2d 1206, 1217
(Alaska 1996).

Footnote 6:

     Alaska Civil Rule 90.3(a) presumptively sets a noncustodial
parent's yearly child support obligation at 20% of adjusted annual
income for one child and 27% for two children.  The rule defines
adjusted annual income as annual gross income less allowable
deductions.  See Alaska R. Civ. P. 90.3(a)(1).

          CSED has expressly adopted Rule 90.3 for purposes of its
own administrative child support determinations.  See 15 AAC

          Civil Rule 90.3 Commentary VI(A) provides:

          Child support in the great majority of cases
should be awarded under 90.3(a) or (b) in order to promote
consistency and to avoid a tendency to underestimate the needs of
the children. . . .
          . . . .
          . . . [T]he rule presumes that support
calculated under 90.3(a) or (b) does not result in manifest

Footnote 7:

     See, e.g., Ninilchik Traditional Council, 928 P.2d at 1217.

Footnote 8:

     Alaska R. Civ. P. 90.3(c)(1); see also Coats v. Finn, 779 P.2d
775, 778 (Alaska 1989).

Footnote 9:

     See Alaska R. Civ. P. 90.3 Commentary VI(A), supra note 6; see
also Coghill v. Coghill, 836 P.2d 921, 924 (Alaska 1992).  Cf. 
Byars v. Byars, 945 P.2d 792, 795 (Alaska 1997) ("Attorney's fees
awards made pursuant to the schedule in Civil Rule 82(b)(1) are
presumptively correct.  The prevailing party bears no burden to
justify such awards, and no findings by the court are necessary.");
accord Babinec v. Yabuki, 799 P.2d 1325, 1337 (Alaska 1990).

Footnote 10:

     931 P.2d 371, 382-83 (Alaska 1996).

Footnote 11:

     960 P.2d 579, 581-82, 584 (Alaska 1998).

Footnote 12:

     Id. at 584.

Footnote 13:

     By the same token Boone directly answers CSED's claim that
applying the "good cause exception would amount to an impermissible
'retroactive variance.'"See supra notes 11-12 and accompanying

Footnote 14:

     Compare, e.g., American Jewish Congress v. City of Beverly
Hills, 90 F.3d 379, 386 (9th Cir. 1996) (noting that formal
standards discourage "post hoc rationalizations . . . and the use
of shifting or illegitimate criteria"and enable appellate review)
with Amerada Hess Pipeline Corp. v. Alaska Pub. Utils. Comm'n, 711
P.2d 1170, 1178 (Alaska 1986) ("As a general rule . . .
administrative agencies have the discretion to set policy by
adjudication instead of rulemaking. . . .  While we endorse the
judicial bridling of excessive administrative discretion by
requiring guiding regulations, we will only do so to the extent
necessary to assure a fair administrative process."). 

Footnote 15:

        See Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska 1996);
Coats v. Finn, 779 P.2d 775, 777 & n.7 (Alaska 1989).

Footnote 16:

     See Alaska R. Civ. P. 90.3 Commentary, Part VI.