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Potter v. Potter (9/27/2002) sp-5636
Potter v. Potter (9/27/2002) sp-5636
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID H. POTTER, )
) Supreme Court No. S-9951
Appellant, )
) Superior Court No.
v. ) 3HO-89-18 DR
)
SHELLY J. POTTER, n/k/a ) O P I N I O N
SHELLY BREWSTER, )
) [No. 5636 - September 27,
2002]
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Homer, M.
Francis Neville, Judge pro tem.
Appearances: Donna C. Willard, Law Offices
of Donna C. Willard, Anchorage, for
Appellant. Joan M. Clover, Gruenberg, Clover
& Holland, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
FABE, Chief Justice, with whom CARPENETI, Justice,
joins, dissenting.
Under review in this case is an order that increased
the child support that David H. Potter must pay and modified his
visitation privileges. We conclude that the order is sustainable
as to child support but not as to visitation because no notice
was given that the latter issue was to be tried.
David Potter and Shelly Brewster divorced in 1990. The
decree incorporated a custody and support agreement which
nominally gave Brewster primary physical custody of the parties
daughter, Sunny, but included a detailed visitation order that
essentially allowed the parties to have shared physical custody.
Potter was to pay child support of $532 per month. Over the nine
years that followed, the parties largely ignored the details of
the visitation order but amicably shared custody and visitation.
During much of this period, Sunny regularly stayed in Potters
home and may have spent as much time with him as with Brewster.
But eventually Sunny began to spend less time with Potter and
more with Brewster. By 1999, when she was fourteen years old,
Sunny evidently lived full-time with Brewster and visited Potter
only occasionally.
In May 1999 Brewster filed a pro se motion to increase
child support payments, alleging that Sunny lived primarily with
her. Potter, pro se, opposed the motion, essentially claiming
that he had paid almost all of Sunnys expenses to date and had
shared equally in her custody. The superior court scheduled an
evidentiary hearing on the motion to increase child support for
January 27, 2000.
By then both parties had hired attorneys. A week
before the hearing Brewsters counsel filed two pleadings. The
first was a motion to modify visitation and child support. The
second was a motion to hold the first in abeyance. Brewster
explained in a pleading filed January 27, 2000, that these
motions were filed only as part of
a contingency plan. In the event Mr. Potter
prevails and the court will not increase
child support without modification of
visitation . . . Ms. Brewster will have in
place, with an early filing date, an
alternative method. Ms. Brewster does not
really want to instigate a custody
modification proceeding with the requisite
best interests inquiry which would
necessarily involve input from her 14-year-
old daughter. Above all she wants to protect
Sunny from involvement in litigation. Ms.
Brewster believes that she is working on
behalf of Sunny by seeking child support from
her father which is both fair and necessary
and if support can be modified without
modifying the custody order, as is our
position here, she will withdraw this
secondary motion.
On January 27 the court decided to take testimony from
Brewster but otherwise continue the scheduled hearing. The court
described the issues and proceedings of that date in an order of
February 18, 2000, as follows:
By the January 27 hearing, it was clear
that there were a number of factual disputes
regarding the incomes of the parties and the
amount of time Sunny had been spending with
each parent. It was also clear that counsel
had not had sufficient time to investigate
and prepare for an evidentiary hearing on all
of these issues and that the issues
concerning income were likely to be resolved
by the parties if they had additional time to
exchange documents. There were also a number
of related issues in dispute. The most
significant legal issues were (1) whether the
court should decide child support on the
basis of a sole custody calculation or a
shared custody calculation and (2) whether
the number of overnights allowed under the
parties settlement agreement or the actual
number of overnights Sunny spent with Potter
should control his child support obligation.
The court agreed to hear testimony from
Brewster since she and her counsel had
traveled to Homer for the hearing, but to
continue the hearing to allow the parties
additional time to prepare. The court also
agreed to address the legal issues described
above before the next hearing. The court
permitted counsel to supplement their
briefing on the legal issues.
On February 23 the evidentiary hearing continued. At
the outset, so that the issues to be tried would be confined,
Brewsters counsel sought a ruling that child support could be
changed without modifying the visitation order. The superior
court so ruled. The parties then proceeded to try the child
support issue, understanding that the court had ruled that the
parties actual visitation practices would determine how child
support would be calculated. After the February 23 evidentiary
hearing the parties submitted final arguments in writing, both
focusing entirely on issues of child support.
Several months after the parties submitted their final
arguments, the superior court issued its written decision. The
court changed child support from $532 to $997 per month. The
court calculated child support under Civil Rule 90.3(a), relating
to primary physical custody, rather than Civil Rule 90.3(b),
relating to shared physical custody. The court also modified
visitation, ruling that Potter would have reasonable visitation
that was to be determined by the parties with a focus on
rebuilding the relationship between Sunny and Potter, and without
concern for child support ramifications.
From this decision Potter appeals, making the following
contentions:
1. That modifying visitation violated due process because
he had no notice that visitation was at issue.
2. That modifying visitation was erroneous because there
was no substantial change in circumstances.
3. That child support must be based on decreed visitation
rather than the visitation practices of the parties.
4. That certain factual findings concerning visitation are
clearly erroneous.
Brewster responds to these arguments as follows:
1. That due process was not violated because her
contingent motion to modify the child custody agreement put
visitation at issue and the court did not rule on her companion
motion to hold the motion in abeyance.
2. That the parties practices regarding visitation
justified the change in visitation.
3. That the child support modification can be upheld based
on the parties actual visitation practices, even if it was error
to modify visitation.
We agree with Potter that he was not given notice that
modification of visitation would be at issue in the evidentiary
proceedings and therefore the courts order regarding visitation
does not satisfy due process. This conclusion moots his second
argument. But we agree with Brewster that child support was
properly modified prospectively based on the parties visitation
practices. Finally, we do not believe that the courts challenged
findings of fact regarding visitation are clearly erroneous.
Our conclusion that the court erred in modifying the
visitation decree without giving the parties notice that this was
an issue for trial follows from the pretrial proceedings.
Brewster argued that child support could be changed based on the
parties past practices with respect to visitation without
changing the visitation decree. She wanted to avoid a trial
regarding visitation modification because she believed that such
a trial would involve the testimony of Sunny and she did not want
Sunny to be involved. Potter, on the other hand, contended that
child support must be based on decreed visitation and argued that
if Brewster wanted increased support she would have to prosecute
her motion to modify visitation. The superior court, wishing to
avoid the potential problem of Sunny getting involved in this
whole dispute, as a player, agreed with Brewster and confined the
issues as Brewster requested.
Due process under the Alaska Constitution requires, at
a minimum, that parties be notified of the subject of proceedings
concerning them so that they will have a reasonable opportunity
to be heard.1 Here this requirement was not met. Potter was
given no notice that modification of decreed visitation was at
issue indeed, based on the courts rulings, both parties
reasonably expected that decreed visitation would not be at
issue. Potters due process rights were therefore violated.
We turn next to the question whether prospective child
support can be modified based on the parties actual, as distinct
from decreed, visitation practices without also modifying the
underlying visitation decree.
As noted, Potter argues that child support awards must
be based on the visitation decreed in a governing order rather
than the actual visitation practices of the parties. He cites
the following language from Turinsky v. Long:
Child support awards should be based on a
custody and visitation order. If the parties
do not follow the custody order, they should
ask the court to enforce the custody order or
should move to modify the child support
order. . . . We hold that the trial court
erred to the extent it based its calculation
of support arrearages on the visitation
exercised, rather than the visitation
ordered.[2]
Potter also quotes another case, Bennett v. Bennett,3 that
explains the rationale underlying Turinsky as follows:
We established this principle to prevent
parents from interfering with court-ordered
custody and visitation in order to gain an
increase in child support payments. We
intended as well to encourage parents to
either comply with court orders or to move to
modify them in a timely manner.[4]
Brewster responds that Potter is overgeneralizing from
the quoted language in the Turinsky and Bennett cases. She
points out that those cases both involved claims for past child
support rather than, as here, an order setting child support
prospectively. Brewster contends that applicable precedent is
found in Boone v. Boone5 and in the commentary to Civil Rule
90.3, section V, paragraph C.6 In Boone, Brewster argues, this
court held that a change in a childs residence from one parent to
the other, contrary to a custody order, could serve as the basis
for modifying child support.7 She points out that the support
was changed prospectively after a motion to modify child support
was made.8 This was accomplished even though the custody order
was not modified during the same period.9
Custody and visitation, on the one hand, and child
support, on the other, are interrelated under Civil Rule 90.3.
Ordinarily, when parties informally agree to make a change in
decreed custody or visitation that is not merely temporary or
experimental, the change should be reflected both in a changed
custody or visitation order and in a changed child support order.
As we stated in Morino v. Swayman:
[A]t some point, informal or de facto
modifications of custodial or visitation
arrangements should be formalized. Child
support amounts and the number of visitation
days allotted to the non-custodial parent are
interdependent under Civil Rule 90.3(a) and
(b). A premise of the rule is that it is in
the best interests of the children that child
support amounts bear a prescribed
relationship to the time the children spend
with each parent. But this can only be
accomplished where the decree reflects actual
practice. Thus, justice is best served if
the child support amount reflects the actual
responsibilities and burdens of the
parties.[10]
We believe that it is generally desirable to base
prospective child support awards on prospectively applicable
custody or visitation awards. But we agree with the commentary,
and with Brewsters interpretation of Boone, that child support
can be modified in recognition of a de facto change in visitation
or custody without the de facto visitation or custodial change
being formalized.11 There may be reasons of expediency justifying
litigating child support before taking up issues of visitation or
custody.12 Further, setting child support is in large part a
predictive function. How much income will a parent make in the
next year or two? The court must sometimes make what is little
more than an educated guess based on the available evidence.13
And what has happened in the past is usually a strong component
of the available evidence.14 Similarly, another component of
child support, the amount of visitation a parent will exercise in
the future, is also a prediction that can be based on past
practices. By contrast, decreed visitation is ideal based what
is best for the child, and the parents? The best visitation
practices may be worth retaining in a decree in the hope that
they will occur, even if they are not consistent with what is
likely to occur. Recognition of the difference between what
should occur and what will probably occur seems to underlie the
commentarys statement that support may be modified even if
custody is not.
The commentary also stresses that its rule must not be
used in a way that allows a custodial parent to profit by denying
visitation.15 We agree and because of this risk and the various
direct and indirect ways that visitation can be denied and
discouraged we caution that only rarely should child support be
set in an amount that reflects visitation practices different
from decreed levels.
We conclude that the court did not err when it modified
child support based on the parties actual visitation practices
and the child support modification can stand even though the
modification of visitation must be reversed.
Potters final point is that the superior court erred in
finding that the amount of time that Sunny has spent with Potter
has decreased over the past few years and that Sunny has lived
primarily with Brewster and has spent less than thirty percent of
her time with Potter during that period. Findings of fact such
as these must be upheld unless they are clearly erroneous.16 The
findings in question are not clearly erroneous because they are
supported by Brewsters testimony. Although her testimony on
these points is contested by Potter, it is not inherently
incredible.
Potter also argues that the court erred by apparently
relying on visitation practices subsequent to Brewsters motion to
modify child support. Potter is correct that post-litigation
events should either be discounted entirely or viewed with
suspicion as evidence of the parties practices.17 But here there
is little to indicate that the court relied on post-litigation
events and virtually nothing shows that they played an important
role in the courts findings. We therefore find no error on this
point.
We conclude for the reasons stated that the courts
decision must be vacated insofar as it modified the 1990 decree
as to visitation, but that it should be affirmed as to child
support.
AFFIRMED in part and VACATED in part.
FABE, Chief Justice, with whom CARPENETI, Justice, joins,
dissenting.
I disagree with the courts conclusion that David Potter
had inadequate notice of Shelly Brewsters desire to modify the
visitation schedule to reflect the parties current visitation
practice. I also disagree that the superior courts decision
modifying visitation surprised Potter or deprived him of his
right to due process. Potter was well aware of Brewsters motion
to modify the visitation schedule and, in fact, he characterized
her attempt to modify child support to reflect current practice
as a de facto request to modify the child custody agreement.
Moreover, in light of the majoritys affirmance of the trial
courts child support modification, its decision to remand this
case for the sole purpose of requiring a new hearing on whether
the visitation schedule should be modified is a waste of the
trial courts valuable resources. Sunny is now within four months
of her eighteenth birthday. She is long past the point of ceding
any real authority in matters of visitation to any of the adults
involved. To remand this case for further litigation at this
point will accomplish more harm than good.
There are a number of places in the trial court record
that reflect Potters awareness that the visitation schedule was
at issue. On January 20, 2000, Brewster filed a motion to modify
visitation to reflect the parties de facto modification of the
visitation schedule as well as a motion to modify child support
to reflect the actual visitation schedule. Judge Neville
explicitly stated at the initial hearing on January 27, 2000 that
Brewsters motion for modification squarely raised the issue of
whether Brewster had primary physical custody of Sunny, thus
requiring calculation of child support under the primary physical
custody schedule of Rule 90.3(a). [T]he real issue is going to
end up being the sole or shared custody formula, which is, in
large part, a legal issue as well as a factual issue. The trial
court also noted in its preliminary decision that [a] fair
reading of Brewsters statements in the documents she initially
filed was sufficient to give Potter adequate notice that Brewster
claimed to have primary physical custody of Sunny and wanted
child support to be calculated on that basis. If Potter
disagreed, Judge Neville gave him the opportunity to prove
otherwise at the second hearing: Potters current child support
obligation should therefore be determined on [primary physical
custody] unless he can establish that there has been a de facto
permanent modification based on Sunny spending at least 110
overnights per year with him. Finally, as Potter recognized in a
February 4, 2000 memorandum on the law to be applied in the case:
Before the Court are two interrelated
issues; a motion to amend the level at which
the child support payments originally were
set as well as a de facto request to modify
the child custody agreement. While Shelly
undoubtedly will quarrel with the latter
statement, it in fact is correct because she
is contending that David voluntarily has
waived his rights of visitation and further
is assuming that he will continue to do so in
the future. Only under those circumstances
would amendment of the child support
obligation be warranted. However, as will
now be demonstrated neither proposition is
well-taken, albeit for differing reasons.
(Emphasis added.)
In this memorandum, Potter further argued that Brewster
had failed to make a prima facie showing of a substantial change
in circumstances justifying a change in visitation and that
rather than relying on a de facto change in visitation, Brewster
should be required to pursue that objective forthrightly and
immediately.
We dealt with a similar situation in Siekawitch v.
Siekawitch.1 There, the parents agreed to share legal custody of
the children, give the father physical custody, and determine a
reasonable visitation schedule.2 After the parents could not
agree on visitation, the mother filed a motion for a specific
custody schedule, and the court ordered each party to submit a
visitation plan. The mother proposed that the children alternate
between the parents weekly during the school year and every two
weeks during the summer.3 The father proposed that the children
spend three weekends per month and one night per week with their
mother during the school year, and spend alternating weekends and
one week per month with their mother during the summer.4
Following a hearing, the court ordered that each parent would
have the children fifty percent of the time.5
The father appealed, arguing that the superior court
violated his due process rights by failing to notify him of its
intention to modify custody.6 He contended that he believed the
sole purpose of the hearing was to establish a visitation
schedule, and that he was therefore denied the opportunity to
call witnesses and present evidence on the issue of physical
custody.7 We rejected the fathers argument, because the father
had sufficient notice that the mother sought equal time with the
children: In her proposed visitation schedule and reply to the
fathers opposition to the motion, she requested equal time with
the children.8 Moreover, the father expressly acknowledged that
the mother sought equal custody in his opposition. We concluded:
Although there may have been confusion about
whether to characterize the time that [the
mother] sought with the children as
visitation or physical custody, the record
discloses that [the father] had notice at the
time of the hearing that she sought equal
time. In light of these facts, we conclude
that [the fathers] right to due process was
not violated.[9]
In January 2000 Brewster filed a motion to both modify
visitation to reflect the parties de facto modification of the
visitation schedule and modify the child support to reflect that
schedule modification. Brewsters purpose was to ensure that a
motion to modify visitation was in place in case the trial court
felt that formalization of the de facto visitation schedule was
necessary to modify child support. Judge Nevilles statements at
both hearings, her preliminary decision, and Potters comments
demonstrate that he had sufficient notice that resolution of the
child support issue rested upon the courts determination whether
Brewster had exercised primary physical custody of Sunny in the
past and whether continuation of such a custody arrangement and
visitation schedule and modification of child support should
occur in the future. I therefore respectfully dissent from the
courts opinion.
_______________________________
1 See, e.g., D.M. v. State, Div. of Family & Youth
Servs., 995 P.2d 205, 212-14 (Alaska 2000).
2 910 P.2d 590, 595 (Alaska 1996).
3 6 P.3d 724 (Alaska 2000).
4 Id. at 727.
5 960 P.2d 579 (Alaska 1998).
6 Section V, paragraph C of the commentary states:
Failure to Exercise Shared Custody. An
inequity may arise under the shared custody
calculation of support if the obligor does
not actually exercise the custody necessary
to make shared custody applicable (i.e., at
least 30% of the time). If the obligor
parent does not actually exercise sufficient
physical custody to qualify for the shared
custody calculation in the rule (at least 110
overnights per year - See Commentary, Section
V.A ), then (a)(2) of this rule will apply to
the child support calculation. Failure to
exercise custody in this regard is grounds
for modification of support, even if the
custody order is not modified. However, this
provision may not be interpreted to allow the
custodial parent to profit by denying
visitation.
7 960 P.2d at 582.
8 Id.
9 Id.
10 970 P.2d 426, 429 (Alaska 1999).
11 See Alaska R. Civ. P. 90.3 cmt. V.C.
12 Id.
13 See Yerrington v. Yerrington, 933 P.2d 555, 557-58
(Alaska 1997).
14 See Alaska R. Civ. P. 90.3 cmt. III.E.
15 See Alaska R. Civ. P. 90.3 cmt. V.C.
16 Alaska R. Civ. P. 52(a).
17 See, e.g., Karpuleon v. Karpuleon, 881 P.2d 318, 321-
322 (Alaska 1994).
1 956 P.2d 447 (Alaska 1998).
2 Id. at 448.
3 Id. at 449.
4 Id.
5 Id.
6 Id. Unlike the father in Siekawitch, Potter was never
awarded primary physical custody.
7 Id.
8 Id. at 450.
9 Id. (footnote omitted).
