You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Teseniar v. Spicer (8/1/2003) sp-5720
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 email@example.com. THE SUPREME COURT OF THE STATE OF ALASKA THOMAS TESENIAR, ) ) Supreme Court No. S- 10632/10685/10686 Appellant, ) ) Superior Court No. v. ) 3AN-98-03116 CI ) LYNDA SPICER, f/k/a ) O P I N I O N LYNDA TESENIAR, ) ) [No. 5720 - August 1, 2003] Appellee. ) ________________________________) Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Brian C. Shortell, Karen L. Hunt, Milton M. Souter, and Sharon L. Gleason, Judges. Appearances: Thomas A. Teseniar, pro se, Jefferson City, Missouri, Appellant. No appearance by Appellee. Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices. FABE, Chief Justice. I. INTRODUCTION Thomas Teseniar challenges the superior courts modification of his child support obligation, claiming that the superior court lacked jurisdiction under the Uniform Interstate Family Support Act, erred by increasing his obligation without applying Alaska Civil Rule 90.3, and erred by making the increase retroactive to April 15, 1999. Teseniar also appeals the superior courts decision concerning the amount of unreimbursed medical costs for which he is liable, the courts order that he must deposit funds into his childrens educational accounts, and the courts award of attorneys fees to Lynda Spicer. We hold that the superior court erred in retroactively increasing Teseniars obligation to April 15, 1999 and in failing to perform Rule 90.3 calculations in setting the amount of support. We affirm the remainder of the challenged rulings. II. FACTS AND PROCEEDINGS Thomas Teseniar and Lynda Spicer married in Anchorage in 1995. They had two children: Samantha, born in January 1996, and Robert, born in October 1997. Teseniar and Spicer separated in August 1997. Teseniar moved to Missouri in March 1998; Spicer and the children stayed in Alaska. In November 1998 Superior Court Judge Brian C. Shortell granted the parties a decree of divorce and issued findings of fact and conclusions of law incorporating the parties settlement of all disputed issues. The parties agreed that Spicer would have sole legal and primary physical custody of the children and agreed on an initial child support arrangement. In February 1999 the court issued its child custody and support order, based on the parties agreement, decreeing that Teseniar was to pay $257 per month in child support. In July 1999 Judge Shortell issued a new child custody and support order incorporating more clearly the provisions of the parties settlement agreement. One of the terms of the settlement agreement was that Teseniar was to send his tax returns to the Child Support Enforcement Division (CSED) each year by the earlier of his IRS filing or April 15. On March 8, 2000, Spicer moved to modify child support and moved for a finding of contempt for Teseniars failure to provide her with his tax returns. Although Teseniar eventually filed an opposition to this motion, his opposition was not timely, and one day before it was received, Judge Shortell granted Spicers motion to modify Teseniars monthly support obligation retroactive to April 15, 1999. The exact amount of the modified support obligation was to be determined in the future. In August 2000 Superior Court Judge Karen L. Hunt issued an order increasing Teseniars monthly child support obligation to $778.91, basing the amount on the Palmer superior courts calculation of Teseniars child support obligation for two children from a previous marriage. Judge Hunt made the new monthly support amount retroactive based on Judge Shortells order. At a hearing in October 2000, Superior Court Judge Milton M. Souter ordered the state to provide copies of Teseniars tax returns to Spicer. Judge Souter also heard arguments about child support and unpaid medical expenses. At a November 2000 hearing, the parties presented evidence and further arguments on these issues. In April 2001 Superior Court Judge Sharon L. Gleason issued an order finding $658.61 in unreimbursed medical expenses for the parties children for 1999 and 2000 and ordering Teseniar to pay Spicer half this amount. Judge Gleason also awarded Spicer attorneys fees. In September 2001 Judge Gleason denied Teseniars motion for Spicer to reimburse the childrens educational accounts for the Permanent Fund Dividends (PFDs) that she was supposed to, but allegedly had not, deposited; instead, Judge Gleason ordered Teseniar to deposit funds into the accounts. In December 2001 Teseniar moved to vacate Judge Hunts support modification order and to strike Spicers motion for modification, alleging that they were inconsistent with the Uniform Interstate Family Support Act (UIFSA). Judge Gleason denied this motion and then granted Spicer attorneys fees. Teseniar has filed three appeals which we have consolidated, challenging: (1) the child support modification order, with attorneys fees; (2) the unpaid medical costs order, with attorneys fees; and (3) the order concerning reimbursement of the childrens educational accounts. III. DISCUSSION A. The Superior Court Had Jurisdiction Under the Uniform Interstate Family Support Act. Teseniar argues that Judge Gleason erred by denying his motion to vacate Judge Hunts August 2000 child support modification order and to strike Spicers March 2000 motion for modification because the superior court lacked personal and subject matter jurisdiction in accordance with the UIFSA, adopted in Alaska as AS 25.25. Teseniar contends that the superior court did not have personal jurisdiction over him and did not have subject matter jurisdiction to modify the child support order after he moved to Missouri in 1998. We exercise our independent judgment when reviewing a superior courts interpretation and application of a statute, adopting the rule of law that is most persuasive in light of precedent, reason, and policy.1 The UIFSA defeats Teseniars argument. Alaska Statute 25.25.201 provides a variety of alternative bases for personal jurisdiction over a non-resident in a proceeding to modify a support order; there is jurisdiction if the non-resident individual (1) submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; (2) resided with the child in this state; (3) resided in this state and provided prenatal expenses or support for the child; or (4) engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse[.] Teseniar participated in support proceedings here for several years, including the period of more than a year between the modification order and his motion to vacate it.2 He lived in Alaska with Samantha, agreed to pay for Spicers expenses relating to her pregnancy with Robert and Roberts birth, and presumably conceived the children here. The superior court thus had personal jurisdiction over Teseniar. Alaska Statute 25.25.205 makes clear that the superior court also had jurisdiction over the support order. That statute provides that a tribunal of this state will have continuing, exclusive jurisdiction over a support order it issues as long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued or until each individual party has filed written consent with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.3 Spicer and the children still reside in Alaska, and the parties filed no written consent for another state to modify the order. The statute does state that an Alaskan tribunal cannot modify a support order if the order has been modified by a tribunal of another state under a law substantially similar to this chapter.4 But while the order was registered in Missouri, the Missouri court did not modify the support order.5 Alaska thus maintained jurisdiction. Teseniar relies on section 611 of the UIFSA6 for his argument that the Alaska courts lacked subject matter jurisdiction because Spicer was required to file her modification motion in the state of residence of the obligor, namely Missouri. Teseniars focus on AS 25.25.611 and the comparable Missouri provision is irrelevant, however, because when a court exercises personal jurisdiction over a non-resident, AS 25.25.301-.701 do not apply except for two small exceptions that are unrelated to this case.7 Furthermore, this reliance is misplaced. Alaska Statute 25.25.611 and Missouri Statute 454.973 basically say: When a support order issued in another state has been registered in this state, a tribunal of this state may modify the order only if (1) none of the parties or the children live in the issuing state, the petitioner is a non-resident seeking modification, and a tribunal of this state has personal jurisdiction over the respondent; or if (2) a tribunal of this state has personal jurisdiction over the child or one of the parties and all of the parties have filed written consent in the issuing tribunal that a tribunal of this state may modify the order and assume continuing, exclusive jurisdiction over it. The issuing state in this case is Alaska. Because Spicer and the children live in Alaska and there has been no written consent, Missouri could not modify the order under its statute.8 Because Alaska therefore retains continuing, exclusive jurisdiction,9 Judge Gleason did not err in denying Teseniars motion to vacate Judge Hunts modification order and to strike Spicers motion for modification due to lack of jurisdiction under the UIFSA. B. The Superior Court Abused Its Discretion When Modifying the Child Support Order. Teseniar contends that the superior court erred both by increasing his child support obligation in retaliation for his refusal to supply Spicer with his tax returns and by making the order retroactive to April 15, 1999. In her March 8, 2000 motion to modify, Spicer sought to increase Teseniars support obligation effective April 15, 1999 because she maintained that he was supposed to provide tax documents by then for purposes of recalculating support. In her memorandum in support of that motion, she asked in the alternative to make the support award effective as of the filing of the motion on March 8, 2000. The proposed order she submitted contained the April 15 date, and despite striking a proposed finding of contempt for failure to file tax returns, Judge Shortell signed this order with the retroactive April 15 date still intact. When Judge Hunt later presided over the case, she increased Teseniars obligation from $257 a month to $778.91 to conform to the rate calculated by the Palmer superior court in February 1999 for Teseniars children from a prior marriage, and she made this increase effective April 15, 1999 in conformity with Judge Shortells order. We review modifications of child support under an abuse of discretion standard.10 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. 11 We conclude that both the amount of the increase and the date of retroactivity constituted abuses of discretion. 1. Increase in child support obligation Judge Hunt arrived at Teseniars child support obligation by adopting the Palmer courts child support obligation figure for Teseniars children from a prior marriage, not merely the other courts estimation of Teseniars income. By adopting the Palmer courts monthly obligation figure, Judge Hunt did not go through the Rule 90.3 calculations using Spicers income and allowing deductions such as the child support Teseniar paid for his prior children as provided in Rule 90.3(a)(1)(B).12 It is unlikely that Teseniars obligation to his two children with Spicer would be identical to his child support obligation to the children from his earlier marriage, given that the prior obligation would be factored into the calculation of his current obligation.13 Courts must follow the legal standards set forth in Rule 90.3 in determining awards of child support.14 We therefore conclude that it was an abuse of discretion for Judge Hunt to increase Teseniars obligation to correspond to the Palmer courts child support obligation figure.15 2. Retroactive modification [A]bsent special circumstances . . . , courts may not retroactively modify support orders. 16 Retroactive modification is statutorily permitted only when paternity is disestablished and the modification can be implemented without violating federal law, or on the motion of the obligor when there is a clerical mistake or the support order is based on a default amount.17 Neither of those exceptions is applicable here. Rule 90.3(h)(2) provides, however, that although retroactive modification is generally prohibited, [a] modification which is effective on or after the date that a motion for modification . . . is served on the opposing party is not considered a retroactive modification.18 By this standard, and as Spicer was apparently aware given the alternative relief she requested, Judge Shortell could not have made Teseniars child support obligation effective any earlier than March 8, 2000, when Spicer filed her motion to modify. Judge Shortell therefore erred in failing to correct that portion of the proposed order making the obligation effective April 15, 1999. We note that Judge Shortell struck the proposed finding of contempt from his order, making it unlikely that the retroactivity was meant to be a discovery sanction. However, to the extent that it was meant to be a sanction under Civil Rule 37 for Teseniars failure to provide Spicer with his tax returns, we observe that the parties agreement required Teseniar to provide his tax return annually only to CSED, not to Spicer. C. The Superior Court Did Not Err in Calculating the Amount of Unpaid Medical Costs Teseniar Owed Spicer for 1999 and 2000. Teseniar asserts that Judge Gleason erred in assessing the documentary evidence he submitted concerning unreimbursed medical costs and departed from the parties agreement as a result. We review under the clearly erroneous standard a superior courts factual findings.19 Spicer moved for Teseniar to pay for his half of the childrens medical expenses that had not been covered by insurance. Judge Souter directed Teseniar to file with the court a print-out from his health insurance company showing all claims for the children submitted in 1999 and 2000. The documentation that the company provided showed that Spicer had submitted fourteen claims in 1999 and none in 2000. Judge Gleason concluded that the documentation was incomplete because it indicated that it only included reimbursement regarding medical emergency facilities but did not include claims for other expenses such as medications. Judge Gleason therefore relied upon the documentation Spicer had submitted, which consisted of bills, statements, and receipts, and calculated the total costs to be $658.61, for which Teseniar would be liable for half. Teseniar counters that his documentation is complete and accurate and that no documentation exists for medications or other services because Spicer failed to submit any other claims. Accordingly, he relies on paragraph 19 of the parties agreement, which provides as follows: [Spicer] will be required to apply all known health care coverage options and submit all known claims to the care provider. Coverage benefits sacrificed due to [Spicers] future failure to submit claims to known carriers when and as required will be [Spicers] exclusive expense. He therefore calculates that there were only $336.76 of uncovered costs submitted by Spicer, of which he is liable for half. The difference between Judge Gleasons calculation of Teseniars liability and Teseniars calculation is $160.92. It is the function of the trial court, not of this court, to judge witnesses credibility and to weigh conflicting evidence.20 Because this is a factual question, and because the superior courts resolution was not clearly erroneous, we affirm Judge Gleasons decision to view Teseniars documentation as incomplete and to instead use Spicers. D. The Superior Court Did Not Abuse Its Discretion in Ordering Teseniar To Reimburse the Childrens Educational Accounts. Teseniar charges that Judge Gleason abused her discretion in departing from the divorce decree by ordering him to deposit $1,924.85 into each of the childrens educational accounts when it was Spicer who had failed to deposit the childrens permanent fund dividends. Accepting Spicers claim that she needed the PFD funds to support the children because Teseniar was thousands of dollars in arrears on child support, Judge Gleason determined that having Teseniar deposit the money as an offset against his child support arrearages would serve the dual goals of getting the children the PFDs to which they were entitled and getting Spicer the child support to which she was entitled. Teseniar maintains that Judge Gleasons justification for letting Spicer keep the childrens PFDs is outside the scope of the specific valid reasons for withdrawals from the childrens educational accounts detailed in paragraph 7 of the parties settlement agreement. The agreement dictates that the childrens PFD funds are to be deposited in educational accounts with Spicer as custodian. No funds can be withdrawn before the children reach majority except for: (1) payment of dividends or capital gains tax; (2) any reason with Teseniars consent; or (3) uncovered major medical or other similar emergency uses, in which case Spicer must provide Teseniar with proof of the expenses. Judge Gleason recognized this limitation when rejecting Spicers later attempt to use the PFD funds for the everyday care and support of the children, noting that such a use falls outside the bounds of the agreement but that good cause could also be established upon proof of current outstanding arrears on child support and other necessary expenses of the children. Certainly superior courts have authority to modify a child support order. Alaska Statute 25.24.170 confers broad authority to do so.21 That statute provides for modification of child support, child custody, and alimony.22 An order may be modified notwithstanding the fact that it was based on a separation agreement or stipulation signed by the parties.23 It was within Judge Gleasons discretion to depart from the parties settlement agreement, as incorporated in the courts original custody findings, to ensure that both Spicer and the children received the benefits intended for them by those findings.24 We therefore affirm Judge Gleasons order concerning the childrens educational accounts. E. The Superior Court Did Not Abuse Its Discretion by Ordering Awards of Attorneys Fees to Spicer. Teseniar contends that Judge Gleasons attorneys fees awards are unfair because he has the right under the U.S. Constitution to due process and thus should not be penalized for seeking review of lower court orders. We review for abuse of discretion a superior courts order to pay another partys attorneys fees.25 The trial courts discretion in awarding attorneys fees is broad and its decision will not be disturbed on appeal unless it is arbitrary, capricious, manifestly unreasonable, or stems from an improper motive. 26 There is no indication that Judge Gleason awarded attorneys fees as a penalty for appealing to this court; rather, it appears the award was meant to compensate Spicer for some of her expenses incurred in responding to only some of the numerous motions filed by both sides in this case. Teseniars right to due process was in no way infringed by the attorneys fees awards, and those awards were not arbitrary or capricious. Accordingly, Judge Gleason did not abuse her discretion by awarding Spicer attorneys fees. IV. CONCLUSION Because the superior court did not undertake its own Rule 90.3 calculations when modifying Teseniars child support obligation, and because it impermissibly made the obligation retroactive to a date preceding the date of the motion to modify, we REVERSE the superior courts order increasing Teseniars obligation effective April 15, 1999 and REMAND for calculation of Teseniars obligation under Rule 90.3 to be effective no earlier than March 8, 2000. We AFFIRM the remainder of the challenged rulings. _______________________________ 1 Fleegel v. Estate of Boyles, 61 P.3d 1267, 1270-71 (Alaska 2002) (internal quotations omitted). 2 Teseniars submission to Alaskan jurisdiction can also be found in his opposition to Spicers motion to modify support, in which he noted that he was fighting Spicers attempt to register the decree in Missouri. Teseniar described Spicers attempt as inappropriate and wrong, said there was no logical reason to move enforcement to Missouri, and maintained that Spicer should be ordered to work with Teseniar through Alaska CSED to solve any disputes on support. 3 AS 25.25.205(a)(1), (2); see also State, Child Support Enforcement Div. v. Bromley, 987 P.2d 183, 188-89 (Alaska 1999). 4 AS 25.25.205(b). 5 See Mo. Rev. Stat. 454.946-.953, .971-.973 (1997) (explaining registration of order for enforcement and restrictions on modification, which have not been satisfied here). 6 AS 25.25.611 in Alaska, Mo. Rev. Stat. 454.973 (1997) in Missouri. 7 AS 25.25.202 (allowing tribunal to apply AS 25.25.316 to receive evidence from another state and AS 25.25.318 to obtain discovery through a tribunal of another state). 8 State, Dept of Revenue, Child Support Enforcement Div. ex rel. Wallace v. Delaney, 962 P.2d 187, 191-92 (Alaska 1998) (concluding that Alaska retained exclusive jurisdiction over support order and that CSED could collect interest from obligor because obligors child still resides in Alaska, the issuing state; thus, Washington could not have modified the support order); cf. State, Child Support Enforcement Div. v. Bromley, 987 P.2d 183, 188-89 (Alaska 1999) (holding that Alaska court could modify Maine support order because parents and child no longer resided in Maine, obligee was not resident of Alaska and sought modification here, and obligor was subject to personal jurisdiction of Alaska tribunal). 9 The cases and commentary Teseniar cites in support of his argument concern only situations in which the issuing State no longer has an interest in exercising its continuing, exclusive jurisdiction to modify its order, such as when both parties and the children have moved out of the issuing state. See, e.g., In re Marriage of Abplanalp, 7 P.3d 1269, 1270 (Kan. App. 2000); Groseth v. Groseth, 600 N.W.2d 159, 166 (Neb. 1999). As explained above and as elaborated in the sections of the commentary to UIFSA 611 that precede the sections quoted by Teseniar in his brief, Alaska still has an interest in exercising its continuing, exclusive jurisdiction to modify its order because Spicer and the children reside in Alaska. See Unif. Interstate Family Support Act 611 (amended 2001), 9 I.B. U.L.A. 96, cmt. at 97-98 (Supp. 2003). 10 Flannery v. Flannery, 950 P.2d 126, 129 (Alaska 1997). 11 Beaudoin v. Beaudoin, 24 P.3d 523, 526 (Alaska 2001) (quoting Kowalski v. Kowalski, 806 P.2d 1368, 1370 (Alaska 1991)). 12 Rule 90.3(a)(1)(B) provides for a deduction from a parents total income for child support and alimony payments arising from prior relationships which are required by other court or administrative proceedings and actually paid. 13 While not ruling on the correctness of CSEDs calculation, we note in passing that CSED calculated that Teseniars child support obligation based on his 1999 tax return should be modified to be $639 per month. 14 Marine v. Marine, 957 P.2d 314, 316 (Alaska 1998). 15 See Monette v. Hoff, 958 P.2d 434, 437 (Alaska 1998) (remanding because unclear if superior court adopted CSEDs calculation or conducted required de novo determination of child support obligation); Keating v. Traynor, 833 P.2d 695, 696-97 (Alaska 1992) (holding that court erred by adopting parties original privately stipulated support amount instead of modifying support award based on current income in accordance with Rule 90.3). 16 State, Child Support Enforcement Div. v. Bromley, 987 P.2d 183, 188 (Alaska 1999) (quoting Hendren v. State, Dept of Revenue, Child Support Enforcement Div., 957 P.2d 1350, 1352 (Alaska 1998); Alaska R. Civ. P. 90.3(h)(2). 17 Hendren, 957 P.2d at 1352 (citing AS 25.27.166(d) and AS 25.27.195). 18 Alaska R. Civ. P. 90.3(h)(2); see also Wright v. Wright, 22 P.3d 875, 878-79 (Alaska 2001). 19 Vezey v. Green, 35 P.3d 14, 19-20 (Alaska 2001). 20 Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999). 21 Flannery v. Flannery, 950 P.2d 126, 130 (Alaska 1997). 22 See Allen v. Allen, 645 P.2d 774, 776 n.4 (Alaska 1982) (referring to AS 25.24.170s predecessor, AS 09.55.220). Alaska Statute 25.24.170(a) states: Subject to AS 25.20.110, any time after judgment the court, upon the motion of either party, may set aside, alter, or modify so much of the judgment as may provide for alimony, for the appointment of trustees for the care and custody of the minor children or for their nurture and education, . . . or for the maintenance of either party to the action. 23 Curley v. Curley, 588 P.2d 289, 291-92 (Alaska 1979). 24 See Hayes v. Hayes, 922 P.2d 896, 900-01 (Alaska 1996) (holding that superior court did not err in rejecting fathers motion that mother repay money borrowed from childrens PFDs in part because of courts explanation that mother paid more of child care costs due to fathers underpayment of child support). 25 Nicholson v. Wolfe, 974 P.2d 417, 427 (Alaska 1999); Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999). 26 Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992) (quoting Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)).