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Fernau v. Rowdon (03/01/2002) sp-5540
Fernau v. Rowdon (03/01/2002) sp-5540
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
WALTER A. FERNAU, )
) Supreme Court No. S-9142
Appellant, )
) Superior Court No.
v. ) 1PE-97-17 DR
)
ELIZABETH A. F. ROWDON, ) O P I N I O N
)
Appellee. ) [No. 5540 - March 1, 2002]
______________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Petersburg,
Michael A. Thompson, Judge.
Appearances: Kenneth C. Kirk, Anchorage, for
Appellant. Chrystal Sommers Brand, Baxter
Bruce Brand P.C., Juneau for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Elizabeth Rowdon and Walter Fernau had three children.
After Elizabeth filed for divorce, the parties agreed to a hybrid
divided custody situation, but disputed child support and
rehabilitative alimony. Because Walter worked in a well-paying
career in medicine while Elizabeth stayed home to care for the
children, the trial court awarded Elizabeth increased child
support under Alaska Rule of Civil Procedure 90.3(c),
rehabilitative alimony, and partial attorney's fees. Walter
appeals these awards. Because they are justified by the
circumstances of this case, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
A. Elizabeth Rowdon (formerly Fernau) and Walter Fernau married
in 1985. They had three children together: Erin was born in
1982; Sarah was born in 1987; and Theodore was born in 1990.
When the parties began living together in 1982, Elizabeth was
attending nursing school and working as a surgery technician.
Walter was a doctor finishing up his residency. Elizabeth did
not finish her education. Instead, during the marriage,
Elizabeth stayed home to care for the children, working part-time
at most. She followed Walter in his medical career, traveling
with him from Wisconsin to Germany in 1983, then to Fairbanks in
1990. The parties purchased a house in Fairbanks. From 1992 to
1995, Walter worked as a locum tenens1 in Petersburg, flying
there every two weeks for work with the Petersburg Hospital while
the family remained in Fairbanks. In 1995 the family moved to
Petersburg, where Walter's position with the Petersburg Hospital
had changed to full-time contract employment. Rather than sell
the Fairbanks house they rented it out, although the rental
income was often sporadic.
Walter was able to command a substantial yearly income
as a physician. In the years prior to the divorce, Walter earned
$130,020 in 1997, $137,588 in 1996, $135,387 in 1995, $95,312 in
1994,2 and $125,820 in 1993.
Elizabeth, on the other hand, earned only minimal wages
in her part-time endeavors during the marriage. For example, she
earned $6,398 in 1997, $2,706 in 1996, $4,132 in 1995, $220 in
1994, and $1,124 in 1993.3
In June 1997 Elizabeth filed for divorce. In August,
Walter began discussing the possibility of changing his work
schedule at Petersburg Hospital to accommodate the child custody
schedule. Walter offered either to have his on-call time
scheduled during the two-week period in which he did not have the
children, or to cut back to a three-quarter or even half-time
schedule. Ultimately his schedule was cut back to three-quarter
time with a corresponding salary reduction from $150,000 to
$112,000, effective from September 1, 1997 through September 1,
1998.4 Walter's contract with the Petersburg Hospital expired at
the end of August 1998. By that time his annual earnings for
1998 had already exceeded $72,000.
Walter also considered the possibility of starting his
own practice or doing locum tenens work on a two-week-on, two-
week-off basis. He estimated that he could earn approximately
$60,000 to $70,000 in either of these positions, although
starting his own practice would entail incurring debt for startup
costs. He preferred to stay in Petersburg, and ultimately
decided to open his own practice. After August 1998 Walter
apparently began setting up his own practice.
Walter suggested that another job option he was
considering was changing professions. In a pre-trial brief,
filed pro se, he stated: "Let[']s be honest. If I had been
anything other than a physician, we wouldn't be at this stage."
Elizabeth, in turn, had decided that the best way for
her to remain in Petersburg5 and become economically self-
sufficient was to return to school and get her teaching
certificate. Towards that goal, she took positions in the
Petersburg schools as a part-time teacher's aide and substitute
teacher. Through tele-conference classes and summer school in
Juneau at the University of Alaska Southeast, Elizabeth estimated
that she could graduate in August 2003, while maintaining a part-
time work schedule. The estimated cost of this education was
$31,868. At the time of trial, Elizabeth was earning
approximately $415 a month.
B. Proceedings
Custody was resolved after a settlement conference with
Senior Justice Jay A. Rabinowitz. A trial on property division,
child support, and alimony was held July 29 and 30, 1998 before
Superior Court Judge Michael A. Thompson.
1. Child custody
Walter and Elizabeth agreed to, and were awarded, joint
legal custody. The parties elected a hybrid physical custody
situation. Based in part on her preferences, the eldest child,
Erin, was to spend seventy-five percent of the time with her
mother. The other two children would divide their time equally
between their parents, spending two weeks at a time with each
parent. However, the children also were to spend after-school
hours with Elizabeth during Walter's custody period. During the
summer, when Elizabeth would need to be in Juneau for six weeks
for summer school, the parties agreed that the base plan would be
adjusted to allow Erin to be with Elizabeth for four of the six
weeks and the other two children to spend their two weeks (of the
six) with Elizabeth. The custody arrangement is not disputed.
2. Property division
1. The trial court found that "the marriage . . . straddled the
primary career building years for [Elizabeth]. [Elizabeth] has
yet to complete her education, and thus has only poverty level
job market skills." The trial court then divided the marital
property unequally in order to help provide for Elizabeth during
the four to five year period it would take for her to get her
teaching credential. Notably, despite Walter's high wages, the
parties had a modest estate: the Fairbanks residence, estimated
to be worth approximately $91,000, generating monthly rent of
$800; the marital portion of Walter's unvested PERS account
valued at $28,854.86; Walter's Federal Thrift Savings Plan (TSP)
account valued at $7,676.80; Walter's Civil Service retirement
valued at $29,872.62; Elizabeth's retirement account valued at
$369; savings bonds valued at $153,200.22 for the children's
education;6 and other personal property.
The court awarded Walter approximately thirty-seven
percent of the property, with the remaining sixty-three percent
awarded to Elizabeth, as follows: the court awarded Walter the
Civil Service retirement account and his PERS account (totaling
$58,727.48) as well as specific items of personal property;
Elizabeth was awarded the Fairbanks residence and any proceeds
from that property, the TSP account, and her own retirement
account (totaling $99,045.80), as well as specific personal
property; and the parties were each granted the authority to
control the "investment placement of one-half of the children's
present funds."
The unequal property division is not disputed.7
3. Child support
At trial, Elizabeth presented expert testimony about
the economic impact of the divorce on her. She submitted
evidence that she would need approximately $45,000 per year to
cover expenses and her education.
Based on the determination that Walter's occupation as
a doctor afforded him the ability to "earn substantial sums,"
Judge Thompson concluded that Walter's earning capacity was "in
the highest category for purposes of [Civil Rule] 90.3." The
court then calculated Walters child support obligation on the
then-existing cap of $72,000 under former Civil Rule 90.3 for a
total of $1,980 per month for the three children.
On reconsideration in October 1998, the court clarified
this award. In response to Walter's request that child support
be lowered, the court first noted that Walter "ignore[d] the fact
that his gross income for tax purposes for 1998 exceeded $72,000
by the end of August," and that he "rarely netted less than
$6,000 per month" with the exception of the last four months of
1998, during which time Walter was taking steps to set up his own
practice. The court then adhered to its view that Walter was "in
the very highest category under [Civil Rule] 90.3."
The court calculated child support based on the
Turinsky v. Long8 hybrid support method, but included the
rehabilitative alimony of $500 paid from Walter to Elizabeth in
the calculation of Elizabeth's child support obligation. Under
this method of calculation, Walter owed $1,477.85 per month.9
The court concluded that this reduction in child support from the
$1,980 previously ordered resulted from including the alimony
payment in Elizabeth's income, bringing her above the federal
poverty level. The court did not include income from the
Fairbanks property in Elizabeth's income because it was too
uncertain. The court stated that "[r]ather than engaging in some
tempting legal fiction to avoid this anomaly, it seems most
straightforward to simply hold that there was and is good cause
to vary the child support award" under Rule 90.3(c), and that it
would be manifestly unjust to do otherwise. The award was left
at $1,980, as originally ordered.
4. Rehabilitative alimony
1. Judge Thompson noted that Walter had "largely accepted" that
there was a need for spousal support. Concluding that
Elizabeth's request for $1,000 per month from August 1998 through
July 2000 and then $1,500 per month until she completes her
teaching certificate was excessive and that "joint belt
tightening" was required, the court ordered $500 per month in
rehabilitative alimony until July 2000 and then $1,000 per month
until graduation in 2003. This award was conditioned on
Elizabeth being "enrolled as a student on the career track
described at trial" and the increase was to be effective at the
same time child support would be reduced when Erin turned
eighteen.
5. Attorney's fees
Walter incurred attorney's fees of approximately
$20,000 while Elizabeth's fees were approximately $22,000. The
court awarded Elizabeth interim attorney's fees of $10,000.
After trial, the court reaffirmed the award of $10,000 and
increased it by $2,000 for a total award of attorney's fees to
Elizabeth of $12,000. Walter had also previously agreed to and
had paid $3,000 in Elizabeth's attorney's fees for the parties'
mediation.
Walter appeals the award of child support,
rehabilitative alimony, and attorney's fees.
III. STANDARDS OF REVIEW
I. Awards of child support are reviewed for abuse of
discretion.10 Whether the proper method of calculating child
support was applied is a question of law we review de novo.11 "In
reviewing questions of law, we will 'adopt the rule of law that
is most persuasive in light of precedent, reason, and policy.'"12
"The superior court's factual findings regarding . . . net income
are subject to the clearly erroneous standard of review."13
A trial court's decision regarding rehabilitative
alimony is reviewed for abuse of discretion.14
"The award of attorney's fees in divorce actions is
within the broad discretion of the trial court. An award of
attorney fees will not be reversed unless it is arbitrary,
capricious, or manifestly unreasonable."15
IV. DISCUSSION
A. The Award of Child Support Was Not Erroneous.
A. Child support in Alaska is awarded pursuant to the
calculations provided in Civil Rule 90.3. When the case involves
a hybrid custody situation, we apply the formula set forth in
Turinsky v. Long.16 The parties do not dispute the applicability
of Turinsky to this case. However, Walter contends that the
trial court erred in calculating child support because it
incorrectly calculated the parties' annual incomes and it
improperly applied Rule 90.3(c).
1. The trial court's findings as to the parties' income were
not clearly erroneous.
a. Walter's income
Walter argues that the trial court's conclusion that he
is in "the very highest category" for child support is clearly
erroneous. He contends that the only evidence presented as to
his earning capability was $60,000 as a locum tenens or $70,000
in private practice. Although Walter concedes that child support
calculations can be based on historical earnings, he argues that
it was error to do so here because there was no finding that he
was voluntarily underemployed and no evidence to suggest that he
"was actually making more than the income cap."
Elizabeth argues that the court's recognition of "the
speculative nature of Walter's prospective income" was
appropriate, as was its use of Walter's historical earnings. We
agree.
With respect to modification of child support, we have
held that "a trial court should be reluctant to modify child
support obligations when the obligor's loss of income appears
only temporary."17 Walter's historical ability to earn well over
$100,000 annually, together with the fact that he had earned more
than $72,000 at the time the court considered his motion for
reconsideration in 1998, belie his testimony that he could only
earn $60,000 or $70,000. While he may have had extra expenses
and less income in the first months of setting up his practice at
the end of 1998, that appeared to be only a temporary condition.18
The evidence supports the trial court's conclusion that Walter
was in the very highest category for purposes of child support
calculations.
b. Elizabeth's income
Walter argues that the court erred in calculating
Elizabeth's income for several reasons: her potential income as a
full-time worker should have been used rather than her alimony
payment; Elizabeth has other skills that would allow her to earn
more than the combined alimony and part-time income of $915; and
the rental income from the Fairbanks property should have been
included.
Civil Rule 90.3(a)(1) defines adjusted annual income
for purposes of calculating child support. It includes "total
income from all sources . . . ." A number of deductions are
permitted including "child support and alimony payments arising
from prior relationships" that the parent whose income is being
calculated must pay.19 By implication, then, alimony payments
ordered in the case before the court are not deductible. The
rule is silent as to whether alimony payments received by the
parent whose income is being calculated should be included within
the concept of total income from all sources. Since alimony for
federal income tax purposes is regarded as income to the
recipient and income for Rule 90.3 purposes is generally at least
as broad as income for tax purposes, it is understandable that
the superior court included within Elizabeth's income the alimony
she is to receive. But we believe that alimony received from a
person who is a party to the order should not be counted as
income. It would be inconsistent to prohibit the party who is
paying such alimony from deducting the same as income, as the
rule by implication does, while at the same time requiring the
recipient to add the alimony to her income. This would conflict
with the "percentage of income approach" on which our child
support rule is based. This approach relies on the total income
of both parents as the measure of the amount that the parents
should pay for the support of their children.20 By disallowing a
deduction for alimony by the payor while requiring that alimony
received be added to the income of the payee, total parental
income would be overstated. Our conclusion in this respect is
supported by implication in the commentary to Civil Rule 90.3
which includes as income "spousal support received from a person
not a party to the order."21 Because spousal support received
from a person who is a party to the order is not expressly
included, it is impliedly excluded.
Thus, it was error to include rehabilitative alimony
paid by Walter in calculating Elizabeth's income for purposes of
calculating child support. However, we conclude that this error
was harmless for two reasons: (1) as discussed below, income from
the Fairbanks property should have been included in the
calculation, and the Fairbanks income (not counted) almost
exactly cancelled out the alimony (counted); (2) the court
ultimately based its award on Civil Rule 90.3(c), which allows
the court to "vary the child support award as calculated under
the other provisions of [Rule 90.3] for good cause upon proof by
clear and convincing evidence that manifest injustice would
result if the support award were not varied."22
Walter's contention that the court should have
calculated Elizabeth's income as if she were working full-time
because otherwise he is "subsidizing" her "career change" is
unsupported. On appeal, he argues that "while it may not be
unwise for the wife to go back to school to pursue a nursing
degree, it is unfair that the husband should have to subsidize
that decision through child support," citing to Pattee v. Pattee.23
He contends that the trial court should have concluded, based on
an estimation of her earning capability (and assuming that she
was voluntarily underemployed), that she could have earned more
than $915 per month ($500 alimony and $415 part-time earnings).
But he did not make this argument to the trial court.24 Walter's
position in his pre-trial brief and at trial was that he
supported Elizabeth completing her education. He said that he
"should help out" with her education, even though he did not want
to be responsible for all of it.
Walter's reliance on Pattee v. Pattee for the
proposition that "this court has generally not forced one parent
to subsidize the other parent's career change through child
support" is misplaced. In Pattee, the husband (the noncustodial
parent) had a job that he quit in order to return to school.25 We
stated that we did "not believe that an obligor-parent should be
'locked in' to a particular job or field" but that we would not
require the custodial parent "to finance the noncustodial
parent's career change."26 Pattee is inapposite. It did not
involve a situation where the noncustodial spouse had given up
his career-building years to be a homemaker and care-giver to
three children. In this case, it is the custodial parent and
former homemaker, Elizabeth, who seeks job training to become
self-sufficient. She previously did not have the chance to
pursue a career due to the parties' choice that she take care of
the family while Walter furthered his career.
Walter also argues that because Elizabeth has other
skills, the court should have attributed more income earning
potential to her. Again, Walter did not argue this below. What
he did argue was that the trial court should have considered both
of their incomes at $50,000 per year for purposes of child
support. This argument is unsupported. He had already earned
more than $72,000 by September 1998 and he improperly asked the
court to include child support in Elizabeth's income to calculate
her support obligation. It was not clearly erroneous for the
trial court to calculate a part-time income for Elizabeth based
on her historical earnings.
Walter takes issue with the trial court's failure to
include income from the Fairbanks property in Elizabeth's income.
The trial court concluded that any income from that property was
uncertain at best given that the property was to be sold;
moreover, Elizabeth had testified that receipt of rent was
sporadic. The court also concluded that the Fairbanks property
was distributed as part of the property division and as such was,
in part, "the means to [Elizabeth's] reentry into the work-a-day
world." Because Elizabeth suggested to the trial court that she
might have some income from this property, whether from sale
proceeds or rent, it was error not to include proceeds from this
property in her income. However, because the difference in the
support calculation under Turinsky -- with the Fairbanks property
included but not the rehabilitative alimony -- is negligible,27 we
conclude that any error was harmless.
Because the trial court ultimately based the child
support award on Civil Rule 90.3(c), we turn now to the question
of whether the award under Rule 90.3(c) was proper.
2. The trial court did not err by varying the child support
award under Civil Rule 90.3(c).
Walter does not argue that the court improperly applied
the hybrid custody formula or that the child support obligation
calculated under that formula ($1,477.85) was incorrect. He
argues that the court's adjustment of that figure under Civil
Rule 90.3(c) to $1,980 was "uncalled for" because neither party
asked for the Rule 90.3(c) variance, he had no opportunity to
contest the application of that variance, Elizabeth had waived
the argument, and "the variation was initially based on
circumstances which were not likely true." Walter argues that
because Rule 90.3(c)(1) allows variance only "upon proof by clear
and convincing evidence that manifest injustice would result if
the support award were not varied," this matter should be
reversed for application of a "straight hybrid custody
determination, without adjustment under 90.3(c)."
Elizabeth argues that good cause to vary the award was
shown and applied as required by Turinsky. We agree with
Elizabeth.
a. The parties had the opportunity to contest a Civil Rule
90.3(c) variance.
Walter's contention that there was no opportunity to
oppose the variance under Civil Rule 90.3(c) is without merit.
After the court issued its initial order in this case Walter
filed a motion for reconsideration of the child support award,
arguing that his annual income was only $50,000 and that child
support should be calculated on his having custody of the
children for an average of forty-two percent of the time.
Elizabeth opposed the motion, presenting an extensive argument as
to the applicability of the Turinsky formula and the basis for
good cause to vary the award under Turinsky and Rule 90.3(c).
Walter filed an equally extensive reply, in which he too applied
the Turinsky formula for divided custody and argued why his
support obligation should not be varied upward.28
b. The trial court properly relied on the terms
of the custody agreement when it determined
child support.
In varying the support award, the trial court relied on
the provision in the parties' custody agreement that the children
were to spend after-school hours with Elizabeth even during their
custody weeks with Walter. Walter argues that this provision in
the custody agreement was not sufficient evidence to support the
variance because there was no evidence that the parties would
follow the agreement "now that the father was no longer working
at the Petersburg hospital." He contends that the higher child
support award for Erin (at a 75/25 split) should have more than
offset any cost to Elizabeth. But this argument is also without
merit, for Walter misperceives who carries the burden of showing
that the custody order is not being followed. Child support
orders should follow custody orders.29 There was no evidence that
the agreement into which the parties voluntarily entered was not
being followed at the time the court made its decision. And the
child support for Erin was not an "offset" for the increased time
the other two children spent with their mother.
c. Application of the Civil Rule 90.3(c) variance was not
error.
Walter contends that this matter should be remanded for
a straight hybrid custody determination. We disagree. Civil
Rule 90.3(c)(1) allows the trial court to vary a child support
award "for good cause upon proof by clear and convincing evidence
that manifest injustice would result if the support award were
not varied."30 The commentary to Rule 90.3 states that there is a
second step in divided custody support in which "the court [is]
to carefully consider whether the support amount should be varied
under paragraph (c)(1)(A). A divided custody case should be
treated as an unusual circumstance under which support will be
varied if such a variation is just and proper."31
We have stated that the "good cause" required for a
Civil Rule 90.3(c) variance "is to be determined by the context
in which it is used. That context, for Civil Rule 90.3 purposes,
must focus first and foremost on the needs of the children."32
The record supports the conclusion that the superior
court did not err in applying the Civil Rule 90.3(c) variance.
The trial court expressly relied on the inexact nature of the
actual percentages of custody (due to the extra time the children
were to spend with Elizabeth as provided for in the custody
agreement) when it concluded that "there is reason to vary the
percentages in such a way that a complete shared custody child
support calculation under [Rule] 90.3(b)(1)-(3) should be avoided
as not reflective of the parties['] means, needs, or
responsibilities."
The nature of this hybrid custody situation, including
the additional time the children were to spend with their mother,
as well as the disparity in earning potential, and Elizabeth's
need to pursue a career opportunity while caring for three
children, make this an unusual case in which variance is just and
proper. We therefore affirm the Civil Rule 90.3(c) variance of
the child support award.
C. The Trial Court's Award of Rehabilitative Alimony Was Not
Erroneous.
Walter challenges the award of rehabilitative alimony
and argues that the estimates made by Elizabeth's expert as to
her financial needs are highly suspect. Walter insists that her
income is much higher than the court recognized. Walter contends
that the alimony increase is based on their eldest child reaching
eighteen. He then distinguishes Hammer v. Hammer33 and argues
that a $500 per month increase is excessive given that child
support would be reduced by only $360.
Elizabeth argues that Walter waived this issue by not
including it in his statement of points on appeal. But she
contends that if the question is reached, the award was proper
because Walter's position at trial was that she should receive
rehabilitative alimony. Because of the conditional nature of the
alimony and the lesser amount awarded than was requested,
Elizabeth argues that the award was appropriate based on the
evidence before the court.
We conclude that Walter has not waived this issue and
that the award of rehabilitative alimony was appropriate in these
circumstances.
The preference in Alaska is to resolve the financial
concerns arising from a divorce by means of the property
division,34 but spousal maintenance may be awarded if it is just
and necessary.35 We will set aside the award only if "the trial
court abused its discretion when determining whether [it] is just
and necessary."36 We "leniently review [] awards of limited
duration, such as the one here."37 And an increase in alimony
that is timed with a decrease in child support may be
appropriate,38 depending on the facts and circumstances of the
case.
Rehabilitative alimony is appropriate "when the
recipient spouse intends to apply the alimony toward job training
designed to lead to employment."39 Its purpose "is to allow a
recipient spouse who exits a marriage with few job skills and
little earning capacity to secure a means of earned income."40 We
recently reiterated the circumstances in which rehabilitative
alimony may be awarded:
[A] separate form of temporary support,
rehabilitative alimony, may be appropriate in
some cases for a specific purpose and a short
duration even with an adequate property
division. While an award of rehabilitative
alimony need not be predicated on a finding
that the parties' needs cannot be met through
the division of marital property, this form
of alimony is narrowly restricted to job
training or other means directly related to
entry or advancement within the work force,
and the party seeking rehabilitative alimony
must intend to use it for such purposes.[41]
"[A] spouse's educational plan is sufficient for the purpose of
supporting a rehabilitative alimony award if the spouse
identifies a career goal, a degree program aimed at realizing
that goal, and a time frame during which the degree may be earned
through reasonable diligence."42
Elizabeth met the requirements for rehabilitative
alimony. She had identified her choice to become a teacher, the
costs, and the time required for her education (while still
fulfilling her obligations as a mother). And the trial court
found that "[t]he need for spousal support was largely accepted
by [Walter], at least for some or all of the proposed educational
course for [Elizabeth's] teaching credential." However, the
court noted that if it awarded her the alimony she requested
($1,000 per month from August 1998 to July 2000 and $1,500 per
month thereafter until August 2003 when she would graduate), her
income could exceed Walter's income, at least in the short term.
The court therefore reduced the amount of rehabilitative alimony,
to reflect the need for "joint belt tightening," awarding $500
per month until July 2000 and $1,000 per month thereafter,
contingent on Elizabeth's enrollment in the teacher certificate
program.
1. The unequal property division alone did not provide for the
parties' needs.
The record supports the unequal division of property in
this case. The parties had a modest marital estate and a gross
disparity in earning potential. The unequal division of property
was only the first step in allowing Elizabeth the opportunity to
get back on her feet after spending the majority of her adult
life as a homemaker.
2. The trial court did not abuse its discretion in determining
the alimony award was just and necessary.
Elizabeth estimated her educational costs at $31,868
(or approximately $6,300 per year for five years). She also
estimated her living expenses at approximately $38,000 per year,
exclusive of educational costs. Thus, her average yearly
financial requirement, through graduation, totals just under
$45,000.
The court had awarded Elizabeth $1,980 in monthly child
support, and attributed to her part-time earnings of $415 per
month and $128.33 per month for her permanent fund dividend.
This equals $30,280 per year. The court did not include any
income from the Fairbanks property because of the uncertainty
involved and the fact that it was awarded as part of the property
settlement to help Elizabeth get back on her feet. Even if
rental income from the Fairbanks property is included,
Elizabeth's yearly income would be approximately $39,000.
The award of $500 per month, increasing to $1,000 per
month after July 2000, was not an abuse of discretion. It served
to increase her income to enable her to complete her education
while meeting her other financial obligations. In Hammer v.
Hammer, we upheld an increase of alimony upon child support
decreasing because of the need to maintain a fixed income.43 In
Hammer, the mother's alimony was set to increase from $1,400 per
month to $1,600 per month upon the child's eighteenth birthday
when child support in the amount of $1,200 per month would end.
Because the mother would be able to return to work full-time when
the parties' only child reached the age of majority, the moderate
increase in alimony of $200 per month was intended to supplement
her expected ability to earn $1,000 per month.44
In this case, when Erin turned eighteen, Elizabeth
would still have two young children to care for, while she
attended school and continued to work part-time. She would not
be able to work full-time. The award of rehabilitative alimony
is predicated on specific, time-limited educational or career
goals. Walter has a clearly established ability to earn a
substantial income and the court recognized the need for "belt
tightening" when it awarded substantially less in rehabilitative
alimony than was requested. The increase in rehabilitative
alimony of $500 per month was intended in part to maintain a
fixed income for Elizabeth and the children as child support
dropped when Erin reached eighteen while Elizabeth was in school
-- a finite period of time. Because the child support award
decreases by over $50045 per month upon Erin's eighteenth
birthday, an increase in alimony of $500 per month was not error.
D. The Trial Court Did Not Abuse Its Discretion in Awarding
Attorney's Fees.
Walter argues that the unequal division of the marital
estate provided Elizabeth with adequate resources to pay for her
own attorney. Elizabeth argues that requiring Walter to pay
fifty-three percent46 of her attorney's fees was not an abuse of
discretion.
"Attorney's fees in divorce cases are 'based on the
relative economic situations and earning powers of the parties,'
rather than prevailing party status. This rule ensures that
'both spouses have the proper means to litigate the divorce
action on a fairly equal plane.'"47 "Generally, a court will
award costs and fees only to the economically disadvantaged
divorce litigant."48
We have held that where resources from a property
division "are sufficient for the superior court to reasonably
expect [a former spouse] to pay [his or] her own fees, it is not
an abuse of discretion to require [him or] her to do so."49 But
we have also concluded that where the parties are not in
comparable economic situations, it is not an abuse of discretion
to award partial attorney's fees.50
In this case, Elizabeth has only poverty level job
prospects while Walter has substantial earning capabilities. The
parties were not placed on an equal economic plane through the
property division. Furthermore, Walter incurred over $20,000 in
attorney's fees for his own attorney. Given the explicit
reliance on relative economic situations for awards of attorney's
fees in divorce cases, the vast disparity in the economic
situations of Walter and Elizabeth, and a marital estate with few
assets, we find no abuse of discretion in the trial court's award
of partial attorney's fees to Elizabeth.
V. CONCLUSION
Elizabeth gave up her career-building years to take
care of the parties' three children while Walter furthered his
medical career. The division of the parties' modest estate was
not sufficient to place the parties on equal financial footing
given the vast disparity in their earning abilities. Because
unusual circumstances exist to justify varying the child support
award under Civil Rule 90.3(c), because the requirements for
rehabilitative alimony were satisfied in this case, and because a
partial award of attorney's fees to Elizabeth was warranted by
the parties' relative economic situations, we AFFIRM the trial
court's decision in all respects.
_______________________________
1 A locum tenens is "a person who undertakes the
professional duties of someone else in his or her absence, esp. a
physician or member of the clergy who stands in for another, a
person who holds office temporarily." New Shorter Oxford English
Dictionary at 1616 (1993).
2 Elizabeth states that Walter's tax returns indicate
that he earned $93,157 based on income as a locum tenens of
$44,505 and staff physician wages of $48,652. However, his pre-
tax income as a locum tenens was actually $46,440 and his staff
physician wages were actually $48,872, for a total of $95,312.
3 Elizabeth indicates she earned $1,021, but again, that
is post-tax. The pre-tax amount is $1,124.
4 While Walter's full-time schedule required him to work
31.5 hours per week, the three-quarter time work schedule
resulted in the same per-week work hour requirement -- thus
Walter's salary was reduced without a corresponding reduction in
scheduled working hours. However, his new contract provided that
he would not be on call during alternating two-week blocks.
5 Elizabeth testified that she would have moved to
Juneau, but that Walter had opposed a move away from Petersburg.
6 No one disputes that this money is reserved for the
children's education.
7 Elizabeth points out that Walter had included an issue
about the property division in his statement of points on appeal
but that he did not brief that issue in his opening brief. She
contends that because Walter actually "concurs that the trial
court's decision on property division was 'undeniably
appropriate' the issue should be deemed waived. Walter only
argues in his reply that the "property division still matters" to
the award of attorney's fees. Because Walter has not briefed the
question whether the unequal property division is appropriate, we
deem the issue to be waived. See Adamson v. Univ. of Alaska, 819
P.2d 886, 889 n.3 (Alaska 1991).
8 910 P.2d 590, 596-98 (Alaska 1996).
9 This support obligation was based on Walter's annual
income of $72,000, Elizabeth's annual income of $12,520
(calculated from monthly income of $500 alimony, $415 part-time
work, and $128.33 Permanent Fund dividend income), Erin's custody
at seventy-five percent with Elizabeth, and Sarah and Teddy's
custody shared equally.
10 See Spott v. Spott, 17 P.3d 52, 55 (Alaska 2001).
11 See id.
12 Id. (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979)).
13 Routh v. Andreassen, 19 P.3d 593, 595 (Alaska 2001).
14 See Nicholson v. Wolfe, 974 P.2d 417, 426 (Alaska
1999).
15 Sloane v. Sloane, 18 P.3d 60, 64 (Alaska 2001)
(internal citation omitted).
16 Turinsky v. Long, 910 P.2d 590, 596-98 (Alaska 1996)
(concluding that in "a hybrid situation . . . neither Civil Rule
90.3(a) nor Civil Rule 90.3(b) would exclusively determine the
support required for all the children. In such a situation, a
trial court should, subject to Rule 90.3(c), rely on both Rule
90.3(a) and Rule 90.3(b) to calculate child support. . . . The
second step in determining divided custody support is for the
court to carefully consider whether the support amount should be
varied under paragraph (c)(1)(A).").
17 Patch v. Patch, 760 P.2d 526, 530 (Alaska 1988); see
also Curley v. Curley, 588 P.2d 289, 291 (Alaska 1979) (stating
that the "change ordinarily must be more or less permanent rather
than temporary.").
18 In his reply brief on his motion for reconsideration,
Walter asked the court to "set his adjusted gross income to
$50,000 for the three months of [October, November, and December]
1998 . . . [then] adjust[] this to the maximum of $72,000 in
three months." This request supports the trial court's
conclusion that any reduction in his earning potential was
temporary.
19 Alaska R. Civ. P. 90.3(a)(1)(B).
20 Alaska R. Civ. P. 90.3 Commentary II.
21 Alaska R. Civ. P. 90.3 Commentary III.A.17.
22 Alaska R. Civ. P. 90.3(c)(1). See discussion infra
Part IV.A.2.
23 744 P.2d 658, 662 (Alaska 1987) (overruled in part on
other grounds by Nass v. Seaton, 904 P.2d 412, 416 n.7 (Alaska
1995)).
24 Accordingly, we do not consider it. See Zeman v.
Lufthansa, 699 P.2d 1274, 1280 (Alaska 1985).
25 744 P.2d at 659.
26 Id. at 662.
27 The trial court's Turinsky calculation resulted in a
child support obligation for Walter of $1,477.85 based on
Walter's income of $72,000, Elizabeth's income of $12,520, Erin
spending seventy-five percent of her time with Elizabeth, and the
other two children spending equal time with their parents, except
for after school time.
As noted above, rent from the Fairbanks property was
uncertain because it had been paid in cash only sporadically due
to one of the tenants performing work in lieu of rent during some
months. At most -- that is, if it were received every month --
Elizabeth's annual income would have been $16,116 and Walter's
support obligation would have been $1,428.35 -- a difference of
$49.50. Calculating child support with multiple uncertainties
is, at best, an inexact science. Under these circumstances, any
error in the final calculations was so small as to be harmless.
Duffney v. Duffney, 625 N.W.2d 839, 843 (Minn. App. 2001)
(finding omitted source of income de minimis not warranting
remand).
28 Walter's argument that Elizabeth waived this issue is
likewise without merit. Both parties agree that this is a
divided custody arrangement and Elizabeth clearly argued for
variance in her opposition to Walter's motion for
reconsideration, to which he responded.
29 See Turinsky v. Long, 910 P.2d 590, 595 (Alaska 1996).
30 Former Alaska R. Civ. P. 90.3(c)(1) provides:
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, the amount of
support which would have been required but
for the variation, and the estimated value of
any property conveyed instead of support
calculated under the other provisions of this
rule. Good cause may include a finding:
(A) That unusual circumstances, such as
especially large family size, significant
income of a child, divided custody as defined
by paragraph (f) of this rule, 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 determination; or
(B) a finding that the parent with the
child support obligation has a gross income
which is below the poverty level as set forth
in the Federal Register. However, a parent
who would be required to pay child support
pursuant to paragraph (a) or (b) must be
ordered to pay a minimum child support amount
of no less than $50.00 per month except as
provided in paragraphs (a)(3) and (b).
31 Former Alaska R. Civ. P. 90.3 Commentary VI.B.3.
(internal quotation marks omitted).
32 Doyle v. Doyle, 815 P.2d 366, 373 (Alaska 1991)
(internal citation and quotation marks omitted; emphasis in
original). While not exhaustive, examples of good cause are also
given in Rule 90.3(c), and include "unusual circumstances" and
consideration of the custodial parent's income. Former Alaska R.
Civ. P. 90.3(c)(1). Divided custody cases are considered unusual
circumstances. Former Alaska R. Civ. P. 90.3 Commentary VI.B.3.
A separate section now addresses the hybrid custody situation.
Alaska R. Civ. P. 90.3 Commentary V.E.
33 991 P.2d 195, 198-99 (Alaska 1999).
34 See Brown v. Brown, 914 P.2d 206, 209 (Alaska 1996)
(holding property division preferable to alimony for providing
for a partys needs).
35 See AS 25.24.160(a)(2).
36 Jones v. Jones, 835 P.2d 1173, 1178 (Alaska 1992).
37 Tybus v. Holland, 989 P.2d 1281, 1287-88 (Alaska 1999).
38 See Hammer, 991 P.2d at 198-99.
39 Jones, 835 P.2d at 1178-79.
40 Nicholson v. Wolfe, 974 P.2d 417, 426 (Alaska 1999).
41 Edelman v. Edelman, 3 P.3d 348, 358 (Alaska 2000)
(quoting Davila v. Davila, 876 P.2d 1089, 1094 (Alaska 1994)).
42 Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999)
(quoting Myers v. Myers, 927 P.2d 326, 328 (Alaska 1996)).
43 Hammer, 991 P.2d at 198-99.
44 Id. at 198.
45 Using yearly income of $16,116 for Elizabeth (based on
monthly income of $800 rental income, $415 for part-time work,
and $128 for her PFD) and $72,000 per year for Walter, when Erin
reaches age eighteen, Walter's child support obligation for Sarah
and Teddy would be $943 per month, a reduction of over $500 from
the straight Turinsky calculation for the three children and more
than a $1,000 reduction of his Rule 90.3(c) obligation for the
three children.
46 Elizabeth's total attorney's fees exceeded $22,000.
Walter agreed to pay $3,000 for mediation costs. He was later
ordered to pay $10,000 for her attorney's fees in an interim
order, and at the end of trial the court ordered him to pay an
additional $2,000.
47 Sanders v. Barth, 12 P.3d 766, 768 (Alaska 2000)
(internal citations omitted).
48 Nicholson v. Wolfe, 974 P.2d 417, 427 (Alaska 1999).
49 Davila v. Davila, 908 P.2d 1027, 1035 (Alaska 1995).
50 See Doyle v. Doyle, 815 P.2d 366, 373 (Alaska 1991).
