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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