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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Koller v. Reft (6/13/2003) sp-5699
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,
e-mail corrections@appellate.courts.state.ak.us.THE
SUPREME COURT OF THE STATE OF ALASKAJOHN M. KOLLER,
) ) Supreme Court No. S-
10088 Appellant, )
) Superior Court No. v. )
3KO-99-00284 CI )KRISTEEN
E. REFT, ) O P I N I O N
) Appellee. ) [No. 5699 -
June 13, 2003]_______________________________ )Appeal
from the Superior Court of the State of Alaska, Third
Judicial District, Kodiak, Elaine M. Andrews and Eric
T. Sanders, Judges.Appearances: Steve Cole, Cole and
Razo, LLC, Kodiak, for Appellant. Matthew D. Jamin and
Karen L. Lambert, Jamin, Ebell, Schmitt & Mason,
Kodiak, for Appellee. Before: Fabe, Chief Justice,
Matthews, Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.I. INTRODUCTION John
Koller appeals several of the superior court's rulings
and findings concerning the financial ramifications of
his custody dispute with Kristeen Reft over their son,
Noah. First, he argues that the superior court had no
evidentiary support for, nor findings explaining, its
interim and prospective child support awards. He
alleges that the court erroneously imputed his
potential income in violation of Alaska Civil Rule
90.3(a)(4) and then exacerbated the error by increasing
his child support obligation under Rule 90.3(c).
Second, John contends that the court erred in ordering
him to pay Kristeen's attorney's fees, the custody
investigator's costs, and the fees for Kristeen's
psychological evaluation. We remand the award of
prospective child support for additional findings and
affirm the remainder of the challenged rulings.
II. FACTS AND PROCEEDINGS John Koller and
Kristeen Reft had a brief intimate relationship in
October 1998. Kristeen lived in the village of Karluk
on Kodiak Island, and John lived in Kodiak, where he
was finishing a two-year term as a physician. Shortly
after John left for a new position in New Mexico,
Kristeen learned she was pregnant. Interactions between
Kristeen and John became and remained decidedly
strained. In May 1999 John took a leave of absence
from his position in New Mexico so that he could be
present for his son's birth. Kristeen gave birth to
Noah in July 1999. Kristeen resisted any involvement
by John with Noah.
Unable to establish an amicable arrangement
with Kristeen for seeing his son, John filed a
complaint in September 1999 seeking primary custody of
Noah. Pursuant to Civil Rule 90.3, John filed a child
support guidelines affidavit with his initial pleadings
and attached a wage statement from his most recent
employer, the U.S. Department of Health and Human
Services. These documents showed John's monthly net
income to be $4,938.79 and his hypothetical child
support obligation to be $987.75 per month.
Kristeen answered the complaint, responding
that she should have custody and that John should pay
child support. Her child support guidelines affidavit
estimated her monthly net income to be $826.19.
Superior Court Judge Elaine M. Andrews
presided briefly over the case, holding a status
hearing in November 1999 and issuing written orders
setting an interim custody schedule, appointing a
custody investigator, ordering John to pay the
investigator's retainer and initial expenses, and
deferring the question of whether any of the
investigator's fees should be paid by Kristeen.
The interim custody order awarded Kristeen
primary custody and gave John visitation rights as
follows: one out of every four weeks, Kristeen was to
come to Kodiak and provide John with three hours of
visitation each morning and three each afternoon; the
remaining three weeks Kristeen had to offer John the
same visitation schedule if he was in Karluk. John,
who emphasizes repeatedly throughout his briefing that
he wanted to spend time with his child during Noah's
critical bonding stage, "chose his son over his
career," living in Karluk three weeks out of four and
focusing on Noah during the one Kodiak week, even
though there were no employment opportunities in Karluk
and few in Kodiak. John found no work in Kodiak,
despite his employment opportunities there prior to
moving to New Mexico. He spent most of the end of 1999
and 2000 unemployed and living off his savings, but
spending time and bonding with Noah. For a few months
in 2000, John worked in Craig, where his employer let
him work for one or two weeks and then take one or two
weeks off to return to Kodiak, but John terminated that
employment because it kept him away from Noah for too
long.
In late 1999 the case was assigned to
Superior Court Judge Eric T. Sanders. In December 1999
Judge Sanders ordered John to pay Kristeen $750 a month
in interim child support, to pay $5,000 towards her
attorney's fees, and to pay $5,000 towards the custody
investigator's costs. In May 2000 Judge Sanders
ordered John to pay $3,900, the cost for Kristeen's
psychological evaluation. At a settlement conference
in July 2000, John and Kristeen reached agreement on
the issues concerning custody of Noah. On October 3,
2000, Judge Sanders issued findings of fact and
conclusions of law granting John and Kristeen joint
legal and physical custody of Noah and setting out a
year-round custodial schedule. On October 4 Judge
Sanders ordered John to pay another $10,000 towards
Kristeen's attorney's fees, $3,000 in back child
support, and $1,000 a month for future child support.
In February 2001 Judge Sanders ordered John to be
solely responsible for the remaining $5,611.58 owed to
the custody investigator.
John filed three motions for reconsideration.
The first, filed October 16, sought to modify the
October 3 custody order. The second, filed October 17,
sought to modify the October 4 fee and support order.
The third, filed December 19, again sought to modify
the October 4 fee and support order. Judge Sanders
ruled that the first two motions were not well taken
because John had not complied with Civil Rule 77(k).
Judge Sanders nevertheless modified his financial order
to clarify his reasoning for setting John's child
support obligation at $1,000 a month. Judge Sanders
struck the third motion, refusing to consider the
motion or its accompanying documents, because the
motion was untimely.
John appeals, arguing that the superior court
erred in issuing interim and prospective child support
orders without any evidence to support its estimates
and based on his potential income in violation of Civil
Rule 90.3(a)(4), and that it exacerbated the error by
increasing the child support amount under Rule 90.3(c).1
John also argues that the superior court erred in
ordering him to pay Kristeen's attorney's fees, the
custody investigator's costs, and the fees for
Kristeen's psychological evaluation.
III. DISCUSSION A. Issues Concerning Child Support
We reverse child support awards only if the superior court abused
its discretion or applied an incorrect legal standard.2 We will
find an abuse of discretion when our review of the record leaves
us with "a definite and firm conviction based on the record as a
whole that a mistake has been made."3 Whether the superior court
applied the right legal standard in making its child support
determination is a question of law that we review de novo.4 The
superior court's factual findings regarding a party's income for
calculating child support are subject to the clearly erroneous
standard of review.5
1. John failed to preserve for appeal his
challenge to the interim child support award.
John argues that the superior court erred by failing to
use the prescribed guidelines under Civil Rule 90.3(a) to
determine John's interim child support obligation, instead
pulling a figure out of "thin air." John never challenged the
correctness of the interim child support award before the
superior court. As such, he failed to preserve this claim for
appeal.6
Even if John had preserved this claim, the interim
award was well within the court's discretion. The only evidence
of John's income before the court when it issued the interim
child support order in December 1999 was his child support
guidelines affidavit, which indicated that his monthly net income
was $4,938.75 and that his corresponding child support obligation
would be $987.75. Kristeen is thus correct in asserting that the
information before the court could have justified an award of
$987.75, let alone an award of $750. Granted, John's income
figures were based on the assumption that John would be returning
to his position in New Mexico, which never occurred. John
provided no new income figures for the court, however, and did
not submit a new child support guidelines affidavit.7
Accordingly, even if John had preserved this argument for appeal,
setting the interim award at $750 was well within the court's
"broad equitable powers to fashion a child support award."8
2. The prospective child support award must be
remanded for additional findings.
The day after granting John and Kristeen shared
physical custody of Noah, the superior court issued its October
4, 2000 order setting prospective child support. Since John and
Kristeen had joint physical custody, the court traditionally
would have applied the Rule 90.3(b) formula. Instead, the court
based its award on Rule 90.3(c)(1)(A), finding that "manifest
injustice would result if the standard calculation was utilized
in this instance." The court found that the increased award was
justified by Kristeen's move from Karluk to Kodiak so that Noah
could spend time with John and by the concomitant sacrifices in
her lifestyle and increases in her expenses. The court fulfilled
its Rule 90.3(c)(1)(A) obligation to "specify . . . the amount of
support which would have been required but for the variation"
four months later in its order on motions for reconsideration,
when it modified its October 4 order to include the following:
Based on the parties' prior income earning
capacity, I find that Dr. Koller should make
net income in excess of $84,000 per year, and
Kristeen's is about $12,000 per year.
Assuming they split custody, which they will
soon, Rule 90.3(b) would normally require
John to pay Kristeen $10,800 per year, or
$900 per month.
John challenges the court's estimation of his child support
obligation.
a. The court's estimation of
John's income at more than $84,000 did not
have adequate evidentiary support.
John first argues that the court had no basis for
finding his net income to be in excess of $84,000. It was
certainly understandable that the court intuited that John could
make more than $84,000 as a physician in a town the size of
Kodiak. Some circumstantial evidence supported this intuition,
such as the fact that John had previously received the employee
of the year award and was made chief of staff at the hospital.
However, given that John notified the court of his difficulties
finding work, the court needed to base John's income figure on
stronger evidence.
"In determining earning capacity under Alaska Civil
Rule 90.3, a trial court has the discretion to choose `the best
indicator of . . . future earning capacity' based on the evidence
before it."9 The only income documents of John's that the court
had before it on October 4, 2000 were his child support
guidelines affidavit and the attached wage statement from New
Mexico, which showed his net income to be $59,265.48.10 His gross
income, derived from those forms, was $78,396. "A trial court is
required to make specific findings to support a determination of
adjusted income under Civil Rule 90.3,"11 but the court issued no
findings explaining how it arrived at the $84,000 figure.
Because there was no evidentiary support for the court's finding
that John's income was in excess of $84,000, we vacate the
prospective child support award and remand for additional
findings. On remand, the court can take additional evidence and
testimony at its discretion concerning the availability of jobs
in the area, how much other similarly situated doctors earn,
John's historical earnings, and what John actually earned.12
b. The exception for parents
caring for a child under the age of two would
be inapplicable in this context.
John next contends that the court erred by imputing his
income under Rule 90.3(a)(4). Because we are vacating the
prospective child support award, we need not determine whether
the court in fact imputed John's income or merely determined
John's future earning capacity.13 However, to provide guidance to
the court should it decide on remand that John was unreasonably
underemployed, we now address John's principal argument, namely
that the court was prohibited from imputing his income because he
was caring for a child under the age of two.
Rule 90.3(a)(4) states: "A determination of potential
income may not be made for a parent . . . who is caring for a
child under two years of age to whom the parents owe a joint
legal responsibility." John's argument is relevant only for the
period from October 2000, when the court ordered prospective
child support, to July 2001, when Noah turned two. John owed a
legal responsibility to Noah, since "a parent's duty of support
`commences at the date of the birth of the child.' "14 Because
there was shared physical custody, both Kristeen and John could
also be said to be "caring" for Noah. However, although Rule
90.3(a)(4) applies to cases of shared custody,15 the "caring for a
child" exception is not meant to apply to situations like the
present one.
If each of the parents sharing physical custody of a
child under the age of two could stop working and claim that his
or her income could not be imputed under Rule 90.3(a)(4), then no
support would be provided for that child. This result would be
contrary to the very purpose of the Rule 90.3 guidelines, namely
"to ensure that child support orders are adequate to meet the
needs of children, subject to the ability of parents to pay."16
Cases and guidelines from other states support the view that
"caring for a child" exceptions are only intended to prevent the
penalization of one parent who stays home virtually full-time to
act as the primary caregiver.17 The court below may thus impute
John's potential income should it deem such action necessary on
remand, although it can of course consider John's care of Noah
and his difficulty in finding employment when determining whether
John was "voluntarily and unreasonably . . . unemployed or
underemployed."18
c. The court's use of the
"manifest injustice" exception was not an
abuse of discretion.
John contends that the court "exacerbated its
error" by increasing to $1,000 under Rule 90.3(c) the $900 award
it had estimated under Rule 90.3(b).19 Rule 90.3(c)(1) permits
variance from the usual Rule 90.3 calculations "for good cause
upon proof by clear and convincing evidence that manifest
injustice would result" without the variance. The "good cause"
inquiry "must focus first and foremost on the needs of the
children."20 John maintains that the court's findings of
"manifest injustice" and "good cause" were insufficient and that
the court's focus on Kristeen's move from Karluk to Kodiak
resembled alimony more than child support because it focused on
Kristeen's needs instead of Noah's. John alleges that Kristeen
had to move to Kodiak anyway for her older son's schooling and
that the court's findings fail to consider the sacrifices that
John made to spend time with Noah. The court's findings,
however, are not clearly erroneous.
Rule 90.3(c)(1)(A) states that "good cause" could
include a finding of "unusual circumstances"; the Rule's
commentary notes that examples of unusual circumstances could
include "extraordinary expenses."21 In an affidavit, Kristeen
estimated her expenses for moving to and living in Kodiak. John
countered the assertions in Kristeen's affidavit in an e-mail to
his lawyer, but although the subject line of this e-mail was
"affidavit," it cannot be considered one.22 Regardless, it was
within the court's discretion to find Kristeen's affidavit to
constitute "clear and convincing evidence" that her expenses for
moving to Kodiak would be "extraordinary," particularly factoring
in Kristeen's income as required by Rule 90.3(c)(1)(A).23
Furthermore, the court acknowledged the distinction between child
support and alimony, noting that "Dr. Koller has a duty to
financially support Noah, not Ms. Reft." The court's recognition
that Kristeen's move was "so that Noah can be with his father
about half the time" further manifests the court's awareness of
the child's needs.24
Accordingly, because the court recognized the
distinction between child support and alimony and acted within
its discretion in finding Kristeen's moving expenses to
constitute "unusual circumstances," we conclude that the court
did not err in varying the award under Rule 90.3(c)(1)(A).25 If
the court determines on remand that such a variation is still
required to avoid manifest injustice, it may again use Rule
90.3(c)(1)(A) to vary the award to an amount it believes is "just
and proper for [John] to contribute toward the nurture and
education of [his] child[]."26
B. Issues Concerning Fees and Costs
John challenges several of the superior court's orders
concerning fees and costs. We review for abuse of discretion a