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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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.


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,
                  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.


          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.


     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


          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'


          Walter    appeals   the   award   of   child   support,

rehabilitative alimony, and attorney's fees.


          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


     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


          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


               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


          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


               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
          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


          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
          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


          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


          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


          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


          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


          "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.


          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

     13    Routh v. Andreassen, 19 P.3d 593, 595 (Alaska 2001).

     14     See  Nicholson  v. Wolfe, 974 P.2d 417,  426  (Alaska

     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

     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

     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

     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).