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Keturi v. Keturi (01/30/2004) sp-5774
Keturi v. Keturi (01/30/2004) sp-5774
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 ALASKA
TROY R. KETURI, )
) Supreme Court No. S-10536
Appellant, )
) Superior Court No.
v. ) 4FA-00-2595 CI
)
LUCIEL J. KETURI, ) O P I N I O N
)
Appellee. ) [No. 5774 - January
30, 2004]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge and
Katherine R. Bachelder, Standing Master.
Appearances: Troy R. Keturi, pro se, North
Pole. Fleur L. Roberts, Law Offices of Fleur
L. Roberts, Fairbanks, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. Troy Keturi appeals several legal and factual findings
made by the standing master and adopted by the superior court in
connection with his divorce trial. We conclude that the superior
court did not err in aggregating his past income for child
support purposes, in finding that his earning potential would not
be adversely affected by his physical condition in the immediate
future, in characterizing a triplex held in Troys name as marital
property, or in determining there to be no debt on a duplex owned
as marital property. We therefore affirm the decision of the
trial court in these respects. However, we find the calculation
of Troys income for the year 1997 to be clearly erroneous and
accordingly remand for recalculation of his child support
obligation.
II. FACTS AND PROCEEDINGS
A. Facts
Troy and Luciel (Lucy) Keturi were married in Anchorage
in July 1991 and had a son in August 1993. Troy and Lucy
separated on August 1, 2000. They filed a child custody
agreement in March 2001 under which it was determined that
custody would be shared.
Troy is an electrician and part owner of Ray Electric,
an electrical contracting corporation started by Troys father,
Ray, in 1967. Ray Electric is currently owned equally by Troy
and his partner, Clyde Waller. Lucy is employed at Gottschalks
as a security officer and is responsible for detecting
shoplifters and dealing with internal fraud. She previously
worked in a similar capacity at J.C. Penney.
In 1995 Troy was diagnosed with psoriatic arthritis.
Troys treating physician, Dr. Gayle Carpenter, explained that
this is a degenerative disease which manifests itself as a skin
rash accompanied by a destructive arthritis in which the joints
become[] inflamed and are broken down, eventually infusing and
becoming immobile. As a result, Troy has trouble moving his
arms, his neck, and his jaw and is sometimes unable to get out of
bed at all.
Since his diagnosis, Troy has experimented with
different types of treatment, none of which have yet been
approved by his insurance company for psoriatic arthritis. These
treatments include Enbrel, which Troy used for a year and a half
at a cost of between $14,000 and $16,000 a year, and Remicade,
which he was taking at the time of this appeal, at a cost of
$2,500 per shot. He has borne these costs out of pocket due to
his insurance companys refusal to cover them. At the time of
trial, he was also taking steroids, which have great effects, but
his doctor had begun to taper the dosage because of the potential
for damage to his body, including ulcers, osteoporosis,
fractures, and autoimmune disease. Troy has also undergone
surgery to drain excess fluid from his knee joints, and he has
considered the possibility of joint replacement surgery.
However, Dr. Carpenter has cautioned that, following such
surgeries, some patients continue to experience decreased range
of motion and some may experience rejection of the prosthesis.
Dr. Carpenter has also expressed concerns about Troys
level of physical activity, explaining that his work capacity is
severely limited by his arthritis and hes continued to work
despite his ongoing pain and physical limitations. She cautioned
that Troy could someday experience almost total disability as a
result of the disease. Asked within how many years such
disability would occur, Dr. Carpenter responded: As little as two
or three. As long as 10 or 15. It just depends on the
medications.
B. Proceedings
A. Superior Court Judge Richard D. Savell issued a temporary
child support order on April 19, 2001, ordering Troy to pay Lucy
$263.83 per month in child support pending a trial to resolve
disputed issues, including Troys earning potential. Judge Savell
referred the case to Standing Master Katherine R. Bachelder for
trial of the property and debt issues. Judge Savell specifically
requested the master to report on the identity and value of
marital property and debts and that she recommend a distribution.
Trial took place on June 27 and 28 and July 17, 2001. Both
parties were represented by counsel. Lucy testified on her own
behalf. Troy, Dr. Carpenter, Clyde Waller (Troys business
partner), and Raymond Keturi (Troys father) testified on Troys
behalf.
Master Bachelder made findings on several issues, as
requested by Judge Savell. With respect to the calculation of
child support, the master decided to average Troys income over a
four-year period, based on his testimony that his annual income
has fluctuated substantially. Because her decision was issued in
September 2001 and she believed any projection of income through
the end of that year would be speculative, the master averaged
Troys income for the years 1997, 1998, 1999, and 2000 to reach a
base amount from which to determine what Troys child support
obligation should be from that point forward. The master
determined Troys average adjusted annual income to be $84,482.
Based upon Civil Rule 90.3(b), the master calculated Troys child
support to be $892 per month.
The master also made findings regarding Troys health
and the impact of his psoriatic arthritis on his earning
potential. Based on testimony from Troy and Dr. Carpenter, she
concluded that, while Troys condition would certainly limit his
ability to perform manual labor within the next three to four
years, it would not necessarily affect his income because he
could shift his responsibilities from physical labor to
management.
The master made findings regarding the four pieces of
property owned by the Keturis, either jointly or as separate
property. These four pieces of property were the marital home, a
duplex purchased during the marriage, a triplex purchased by Troy
before the marriage, and a shop used by the business. There was
no dispute with respect to the marital home because the parties
had agreed that Troy would remain in the residence and assume the
remaining debt. Similarly, the master recommended that Troys
shop, which had never been used for a marital purpose, be
considered the separate property of Troy and his business, Ray
Electric.
With respect to the duplex, while the parties agreed
that it constituted marital property and should be awarded to
Troy, they disagreed as to whether it was purchased with a bonus
or a loan from Ray Electric. The master concluded that given
Troys and his partners ability to determine what, when, and how
to pay themselves, their prior history of paying themselves
bonuses and classifying them as loans for tax purposes, and the
lack of documentation of the purported loan at the time it was
made, it was more likely than not that the property was purchased
with a bonus received by the husband and not a loan.
Next the master addressed the issue of the triplex
purchased by Troy prior to the Keturis marriage. Troy and Lucy
agreed on the value of the triplex and debt owed on it, but
disagreed as to its classification. Based on the testimony of
the parties at trial, the master urged the superior court either
to classify the property as marital or, in the alternative, to
invade the property in order to accomplish an equitable
distribution.
Finally, the master addressed the equitable factors
involved in this case. She first observed that an equal property
division would be appropriate in this case, despite Troys greater
earning capacity, because Troys progressive illness would result
in high medical costs and potential physical disability in the
coming years. In order to reach an equitable distribution, the
master concluded that Troy would have to pay Lucy $85,399, either
by selling the duplex or triplex or by cashing in one or more
retirement accounts. Whether the court designated the triplex as
marital or separate property, the master recommended that the
payment remain the same, given Lucys limited earning potential as
compared to Troys. Concerning taxes, the master concluded that
refunds should be divided equally but that Troy should pay any
future tax debt.
Troy objected to several aspects of the masters
decision. He challenged her decision to average four years of
income to determine his child support obligation, and her
findings that (1) Troys illness would not necessarily affect his
earning potential, (2) the money used to purchase the marital
duplex was a bonus and not a loan, and (3) the triplex should be
considered a marital asset. Troy also objected to the conclusion
that he should assume any future tax debt but that any refunds
should be divided equally.
Judge Savell considered Troys objections and rejected
all but one1 in his Order Upon Masters Report. Judge Savell
adopted the masters method of calculating Troys income,
explaining that it is within the discretion of the court to
determine the best way to ascertain income for the purpose of
making an initial child support determination. With respect to
the remainder of Troys objections, the court observed that viewed
in a light that favors upholding the Masters
findings[] . . . they are not clearly erroneous. This order was
entered on December 12, 2001 and on January 29, 2002 a final
decree of divorce was signed by the court.
Troy appeals.2
III. STANDARD OF REVIEW
Factual findings based on the evidence presented at
trial will be set aside only if we determine them to be clearly
erroneous.3 The same standard applies to factual findings made
by a standing master.4 A finding may not be set aside as clearly
erroneous unless the reviewing court has a definite and firm
conviction that a mistake has been made. 5 While it may often be
the case that each party will have presented evidence at trial to
support his or her position, it is not our role to weigh the
evidence anew, but rather to determine whether the trial courts
findings are supported by the record.6
We will not overturn a child support award unless the
trial court abused its discretion in calculating the award.7
This includes the courts decision to average a parents past
income to determine his or her child support obligation.8 We
will find an abuse of discretion when we have a definite and firm
conviction, based on the record as a whole, that a mistake has
been made.9
We review a trial courts property division to determine
whether it was within the broad discretion granted to the trial
court by AS 25.24.160(a)(4).10 [T]he trial courts findings that
parties intended to treat property as marital are disturbed only
if clearly erroneous. . . . The equitable allocation of property
is reviewable under an abuse of discretion standard and will not
be reversed unless it is clearly unjust. 11
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion by
Averaging Troys Income Over a Four-Year Period To
Determine His Child Support Obligation.
Because of the variation in Troys income from year to
year, the master recommended that the court use an average of
Troys income over a four-year period to achieve a base figure
from which to calculate his child support obligation:
Due to the fluctuating nature of Mr. Keturis
income, the court finds it appropriate to
average his income in years 2000, 1999, 1998,
and 1997. The court has declined to project
Mr. Keturis income for 2001 where such a
projection would be speculative. He has
received bonuses from the company in addition
to his wages in past years and may receive a
bonus in 2001 depending on the success of the
business.
In adopting the masters recommendation, Judge Savell observed
that [w]hen a parents future earnings are uncertain, the court
may base its calculations on an average of past years.
Troy contests this decision, arguing that those four
years represent the highest-grossing period Ray Electric has ever
experienced and are not representative of his current or likely
future situation. According to Troy, the decision overstates his
income because Ray Electrics current main job is projected to run
over bid and will likely result in a loss to the company, he and
his partner overpaid themselves during those years based on
inaccurate predictions of future jobs, and both he and the
business are currently in a great deal of debt both to creditors
and to the federal government. Based on these factors, Troy
maintains that his wages in those years do not accurately reflect
his future earning capacity, and therefore should not have been
used as the basis for making a prospective determination of how
much his child support payments should be.
In response, Lucy contends that the masters
recommendation is well-grounded in our case law and is supported
by the evidence at trial. She maintains that Troy presented no
evidence to corroborate his claims that Ray Electric has not had
a profitable job of significant size since 1998, that Ray
Electric has no cash reserves, or that Ray Electrics current
project is expected to run over bid. Instead, Lucy argues that
the evidence reflects that Ray Electric had four large,
profitable jobs in the works at the time of trial. In addition,
she maintains that, during the course of the marriage, the
business had accumulated valuable property and equipment, the
value of which was awarded to Troy in the divorce. She also
claims that Troy has always had the discretion whether to pay
himself a salary or to reinvest profits in the business. Lucy
contests Troys claims about tax liability, arguing that any
estimate of debt is speculative. Finally, Lucy notes that she
and Troy had traditionally received in-kind income from Ray
Electric in the form of vehicles, gas, personal credit cards, and
improvements to their property which were not included in the
income calculation.
We agree with Lucy that this decision was not an abuse
of discretion. The Commentary to Alaska Civil Rule 90.3
specifically contemplates situations such as this, providing that
[t]he determination of future income may be especially difficult
when the obligor has had very erratic income in the past. In
such a situation, the court may choose to average the obligors
past income over several years.12 We have explained that the
commentary reflects an understanding that a single years income
may not be a reliable indicator of future earning potential where
an obligors income is highly variable.13
And we have held in a number of cases that income-
averaging may be used to calculate a non-custodial parents income
where it has been erratic in the past.14 Because Troy has
admitted that his income does fluctuate depending on the state of
the business, and because the evidence admitted at trial
established as much, we do not believe the trial court abused its
discretion in averaging Troys income for the years 1997 through
2000 in order to determine his prospective child support
obligation.15
B. The Superior Courts Treatment of the Masters Factual
Findings
The superior court specifically requested the master to
report on the identity and value of marital property and debts
and to recommend a distribution. Troy objected to several of the
masters findings prior to their adoption by the superior court.
Alaska Civil Rule 53(d)(2) requires the court to accept the
masters findings unless clearly erroneous. Judge Savell adopted
all of the masters findings but one, deeming them not to be
clearly erroneous. We address the contested factual findings in
turn.
1. The finding that Troys earning potential will not be
adversely affected by his illness in the immediate future was not
clearly erroneous.
The master described Troy as 37 years old and in
poor health. He has psoriatic arthritis, a progressive disease.
The medications that work effectively are not yet covered by
insurance and are very expensive. His doctor testified that he
could be totally disabled within four years. With respect to his
earning capacity, the master found:
[Troy] has a greater earning capacity than
[Lucy]. However, [Troy] has a progressive
illness that will cause him to have high
medical costs and he will become physically
disabled as early as four years from now
unless new experimental drugs are approved.
His earning capacity will not decrease
immediately where he is a co-owner and
shareholder and will not become involuntarily
underemployed when he is no longer able to
perform physical labor.
Troy argues that the court erred in concluding that his
physical condition would not immediately affect his earning
potential. Troy relies on the testimony of Dr. Carpenter, Clyde
Waller, and Ray Keturi at trial to support his position that his
condition is rapidly deteriorating and that it has already begun
to affect his ability to work. He explains that he will only be
able to continue taking steroids for a short period of time due
to their potential side effects, that there are days when he is
unable to get out of bed at all, and that he has experienced
signs of depression as a result of his condition. Troy maintains
that the court erred in two respects in determining that his
illness would not affect his earning capacity: first, by failing
to account for the fact that he will need to hire someone else to
perform the physical work he is now unable to perform himself,
and second, by neglecting to consider the impact of his
diminished energy level and depression on his ability to work.
Lucy responds that while she has never disputed that
Troys physical ability to work has been limited, the trial court
did not err in finding that his condition would not necessarily
affect his income, given his part ownership of Ray Electric and
his ability to focus on the managerial side of the business. She
argues that because Troy and his partner determine their own
jobs, there is no reason Troy cannot continue to receive a share
of the profits as a manager. Given his position, Troy retains
the ability to simply assign himself duties that do not require
physical labor.
Troy admitted that he has been able to do some of the
companys bidding and to supervise other employees, and that he is
sometimes able to walk around and supervise. However, he also
argues that the amount of non-physical labor he is able to do
does not justify his receiving a salary equivalent to Clydes.
Clydes testimony corroborates Troys statements that he is
physically unable to do what he was previously able to, that
other employees have had to pick up the slack for Troy, and that
Troy has not been able to work as many hours as Clyde in the
three years prior to trial.
However, the master did not find that Troys condition
was not serious, but only that should the business continue to do
well, Mr. Keturi will still receive his share of the profits and
can earn wages as a manager. Based on Troys ability to collect a
share of the profits, his history of receiving in kind income
from the business regardless of how many hours he works, and his
testimony that he remains able to perform certain work-related
tasks, we do not believe the trial courts conclusion was clearly
erroneous.
2. The masters calculation of Troys income for the year 1997
was clearly erroneous.
With respect to Troys income, one of the masters
factual findings was clearly erroneous. The masters report
states that Troys 1997 income was $192,826. However, no evidence
supports that figure. Troy testified at trial that he earned
approximately $52,000 in 1997. At one point Troy was asked
whether 1997 was the year in which he received a $60,000 bonus,
and he responded affirmatively, but later changed that testimony
to indicate that 1998 was the year he had received the bonus.
Even had he received such a bonus in 1997 which he ultimately
clarified that he had not his income would have been $112,000,
not $192,826.
Because Troys testimony was the only evidence offered
to the court with respect to his income in 1997, and because that
evidence did not support the finding that his 1997 income was
$192,826, we remand this issue to the superior court for
correction of the error16 and modification of Troys child support
obligation.
3. The masters finding that Troy purchased the duplex with a
bonus from Ray Electric was not clearly erroneous.
Troy also contests Master Bachelders finding that
the $88,832.67 check written from Ray Electrics account, which
was used to purchase the duplex, was a bonus rather than a loan.
Troy argues that all of the evidence supports a finding that the
money was a loan and not a bonus, and that therefore the masters
contrary finding must have been clearly erroneous.
During the trial there was a wealth of testimony
regarding an incident in 1998 in which Troy and Clyde gave
themselves bonuses of $60,000 each, but failed to pay taxes on
the bonuses within three days as required by the IRS. In order
to avoid paying penalties on top of the taxes, Troy and Clyde
called the bonuses loans for accounting purposes. The following
year, they added $60,000 to their calculated salaries, and
promptly each paid $60,000 back to the company to repay the loan
of the prior year.
From that incident, the master reasoned that the money
used to purchase the duplex could have similarly been designated
a loan after the fact to avoid liability in the divorce
settlement. According to the master,
[g]iven this one proven incident of
classifying a bonus as a loan, the court
finds it more likely than not that the duplex
was purchased by the husband with marital
wages, or a bonus, and that there is no
outstanding debt on the property. The only
proof that the husband produced to show that
he has a debt to pay on the duplex was a
company check showing a payment of $88,832.67
to First National Bank of Anchorage. The
court does not find this to be sufficient
evidence of a debt.
Troy contests this classification, explaining that
there is no evidence the money used to purchase the duplex was a
bonus and not a loan. In the past, he argues, when he has taken
a bonus, Clyde has received an identical bonus, and the two have
declared the amount on their W-2s and paid the required taxes.
Because he and Clyde were partners, he did not feel he needed a
loan agreement at the time the money was removed from the
business. Clyde testified that Troy asked if he could borrow
money from the company to purchase the duplex. According to
Clyde, [Troy] said he would pay it back with interest and we
agreed upon something like 6 percent or something like that.
When asked whether he had any documentation of the loan, Clyde
referred to the check written out by Troy to First National Bank
of Anchorage in the amount of $88,832.67 and explained that the
check plus a handshake is with my partner is a binding deal.
When asked whether Troy had paid any of the money back, Clyde
said he had not checked and could not remember since it had
occurred over two years ago.
While Troy has conceded that he has in the past
purchased supplies and machinery for his personal use on the
business account which were neither classified as loans nor
mirrored by Clyde, he argued that Clyde would usually do the
same, such that their acquisitions would be about equal. Since
Clyde did not spend a comparable amount of Ray Electric funds
that year, Troy argues that the money used to purchase the duplex
should not be considered a bonus.
There was ample testimony at trial regarding Troys
ability to classify distributions to himself and his partner as
he wanted and to use company equipment for personal benefit
without payment to Ray Electric. There was also testimony on the
lack of documentation, payment book, or proof of repayments or
attempts to repay the money. The record supports the masters
finding that the duplex was purchased with a bonus from Ray
Electric and not a loan, and that it therefore carries no
outstanding debt. This finding is not clearly erroneous.
C. The Superior Court Did Not Err in Dividing the Value of the
Triplex Between the Parties.
Concluding that the evidence showed the parties intent
to treat the triplex as marital property, the master recommended
that the superior court find that the triplex had been transmuted
from Troys separate property to marital property. In the
alternative, the master recommended that the superior court
invade the property in order to accomplish an equitable
distribution.
Because we agree that the triplex was transmuted from
separate to marital property during the course of the marriage,
it is not necessary to reach the question whether balancing the
equities requires invasion of the triplex.
The division of property in divorce is governed by AS
25.24.160(a)(4), which vests in the superior court the authority
to provide:
for the division between the parties of their
property, . . . whether joint or separate,
acquired only during marriage, in a just
manner and without regard to which of the
parties is in fault; however, the court, in
making the division, may invade the property
. . . of either spouse acquired before
marriage when the balancing of the equities
between the parties requires it; . . . the
division of property must fairly allocate the
economic effect of divorce by being based on
consideration of the following factors:
(A) the length of the marriage and
station in life of the parties during the
marriage;
(B) the age and health of the
parties;
(C) the earning capacity of the parties,
including their educational backgrounds,
training, employment skills, work
experiences, length of absence from the job
market, and custodial responsibilities for
children during the marriage;
(D) the financial condition of the
parties, including the availability and cost
of health insurance;
(E) the conduct of the parties,
including whether there has been unreasonable
depletion of marital assets;
(F) the desirability of awarding the
family home, or the right to live in it for a
reasonable period of time, to the party who
has primary physical custody of children;
(G) the circumstances and necessities of
each party;
(H) the time and manner of acquisition
of the property in question; and
(I) the income-producing capacity of the
property and the value of the property at the
time of division.
In Wanberg v. Wanberg,17 we explained that under
certain circumstances basic fairness will require that property
held separately by one of the parties be included in a property
division.18 One such circumstance is where the parties, by their
actions during marriage, demonstrate their intention to treat
specific items of property as joint holdings, even though the
properties were separately held by one or another spouse prior to
coverture.19 We have identified four factors to be used in
determining when such intent exists:
(1) the use of property as the parties
personal residence, and (2) the ongoing
maintenance and managing of the property by
both parties, as well as (3) placing the
title of property in joint ownership and (4)
using the credit of the non-titled owner to
improve the property.[20]
Application of this test varies by situation. While we have held
that not all of these factors need to be present in order to
support a finding that a couple intended to treat property as
marital,21 we have been careful to note that [p]articipation by
both spouses in the management and maintenance of the property
will not automatically transform pre-marital into marital
property. Rather, the participation must be significant and
evidence an intent to operate jointly.22
In Wanberg, the couple had built a five-plex on
property which had been separately owned by the husband prior to
marriage.23 Both spouses were involved in the negotiation of the
loan secured to finance the construction.24 Both collaborated on
design decisions and construction of the rental units.25 In
addition, the wife cleaned the apartments and common areas,
advertised vacancies, showed apartments, and collected overdue
rents.26 As we recounted, [t]he Wanbergs consistently combined
their efforts in improving and managing the property, and used
the building as their joint personal residence for nearly two
years.27 The wife also co-signed a loan against the property.28
Under these circumstances, we concluded that the trial court had
abused its discretion by failing to consider this property
marital.29
In this case, the master characterized the triplex as
marital property based on the intent of the parties to treat it
as such. She found that Troy and Lucy had used the triplex as a
marital residence for the first two years of their union and that
their testimony supported the conclusion that Lucy had been
actively involved in the management and maintenance of the
property:
The wife collected rent, cleaned between
renters, assisted in finding renters,
maintained the coin operated laundry room,
and partially landscaped the property during
the marriage. The wife had to borrow money
from her parents to make one of the mortgage
payments. The mortgage was paid out of the
parties joint checking account. The rental
money from the triplex was deposited into the
parties joint checking account for the
benefit of the marriage. After the parties
moved out of the triplex, the wife continued
to place ads in the newspaper to rent the
units, handled the telephone calls, and
cleaned between renters.
These factual findings are sufficient to support the
conclusion that Lucys actions amounted to an active interest in
the ongoing maintenance, management, and control of the property.30
In sum, the evidence showed that the parties lived together in
the triplex for two years after their marriage, that Lucy
participated in the ongoing maintenance and management of the
property, and that marital funds were routinely expended in
making the mortgage payments.31 The parties evinced an intent to
treat the triplex as marital property. Accordingly, the superior
court did not err in concluding that the triplex was transmuted
from separate to marital property during the course of the
marriage. It therefore properly divided the value of the triplex
between the parties.
V. CONCLUSION
We AFFIRM the superior courts decision to average Troys
income over a four-year period in order to determine his child
support obligation. We also AFFIRM the superior courts adoption
of the masters factual findings that Troys earning capacity would
not immediately be affected by his illness and that the duplex
was purchased with a bonus from Ray Electric. And we AFFIRM the
superior courts adoption of the masters factual finding that the
parties intended the triplex to be transmuted from separate to
marital property. We REVERSE the finding that Troys 1997 income
was $192,826 and we therefore REMAND for a recalculation of Troys
child support obligation.
_______________________________
1 The court rejected the masters recommendation that Troy
assume any potential marital tax debt but that any refund be
split between Troy and Lucy. Instead, the court determined that
Troy should be held to any debt that would be incurred and should
be permitted to receive for his sole benefit any refund. This
issue is not before us on appeal.
2 While he was represented by counsel at trial, Troy
represents himself pro se on appeal.
3 Brooks v. Brooks, 733 P.2d 1044, 1051 (Alaska 1987).
4 Alaska R. Civ. P. 53(d)(2) (In an action to be tried
without a jury the court shall accept the masters findings unless
clearly erroneous.).
5 Brooks, 733 P.2d at 1051 (citing Williams v. Alyeska
Pipeline Serv. Co., 650 P.2d 343, 347 (Alaska 1982)).
6 Id.
7 Pugil v. Cogar, 811 P.2d 1062, 1065 n.5 (Alaska 1991).
8 Id. at 1066.
9 Id. at 1065 n.5.
10 McDaniel v. McDaniel, 829 P.2d 303, 305 (Alaska 1992)
(citing Moffitt v. Moffitt, 749 P.2d 343, 346 (Alaska 1988)).
11 Harrelson v. Harrelson, 932 P.2d 247, 250 (Alaska 1997)
(quoting Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994)).
12 Alaska R. Civil P. 90.3, Commentary III.E., 252 (2003).
13 Yerrington v. Yerrington, 933 P.2d 555, 557-58 (Alaska
1997).
14 See, e.g., Yerrington, 933 P.2d at 557 (stating that
[w]e have approved an income-averaging approach in calculating
child support where an obligor parent demonstrates an erratic or
fluctuating income); Renfro v. Renfro, 848 P.2d 830, 833 (Alaska
1993) (noting that [t]his court has approved of an averaging
approach when a parents future earnings are uncertain); Zimin v.
Zimin, 837 P.2d 118, 123 n.9 (Alaska 1992) (explaining that we
believe that a three-year average would provide an accurate
estimate of a parents current earning capacity when a parents
income is subject to yearly fluctuations); Pugil v. Cogar, 811
P.2d 1062, 1066 (Alaska 1991) (holding that superior court did
not abuse its discretion by averaging fathers prior income to
determine his prospective child support obligation).
15 We note that Troy remains free to move for modification
of the child support award should his future income fall by an
amount which would result in a fifteen percent decrease in child
support payments. Alaska R. Civ. P. 90.3(h)(1).
We also note that Troy has raised no argument under
Civil Rule 90.3(c)(1), which allows the court to make an
exception in calculating a parents income and support obligation
where unusual circumstances are present. The Commentary cites as
an example such circumstances as health or other extraordinary
expenses. Alaska R. Civ. P. 90.3(c), Commentary VI.B., 254.
16 While Troy did not raise this issue either in his
objections to the masters report or in his appeal, and while we
usually will not review issues not previously raised, we raised
the issue sua sponte at oral argument in this case and later
allowed Lucys counsel to provide written references to the record
to support the finding that Troy earned $192,826 in 1997. We
have carefully examined the proffered record references in her
response. They do not support the finding.
Given the similarity of the income figures found by the
master for 1997 ($192,826, based on wages of $132,826 plus a
bonus of $60,000), 1998 ($132,826, based on wages of $78,826 and
a bonus of $60,000), and 1999 ($132,880, based on $192,800 minus
$60,000 to pay on loan from 1998), we conclude that the error is
a [c]lerical mistake[] in [a] judgment[] [or] order[] that we may
correct at any time of [our] own initiative. Alaska R. App. P.
519(a).
17 664 P.2d 568 (Alaska 1983).
18 Id. at 571.
19 Id.
20 Cox v. Cox, 882 P.2d 909, 916 (Alaska 1994) (citations
omitted); see also Harrelson v. Harrelson, 932 P.2d 247, 251
(Alaska 1997).
21 See, e.g., Harrelson, 932 P.2d at 251-52 (upholding
finding that property acquired by husband alone could be
considered marital where only first two factors were present).
22 McDaniel v. McDaniel, 829 P.2d 303, 306 (Alaska 1992).
23 664 P.2d at 571.
24 Id.
25 Id.
26 Id. at 571-72.
27 Id. at 572.
28 Id.
29 Id.
30 Brooks v. Brooks, 733 P.2d 1044, 1054 (Alaska 1987).
31 The mortgage payments made from a joint account are
presumptively marital. See Chotiner v. Chotiner, 829 P.2d 829
(Alaska 1992) (Placing separate property in joint ownership is
rebuttable evidence that the owner intended the property to be
marital.) Moreover, the triplex rents that were deposited in the
joint account were insufficient to pay all of the triplex
expenses and the mortgage. The use of joint funds over a ten-
year period to pay at least a portion of the mortgage expenses is
strong evidence that the third Wanberg transmutation factor is
satisfied here.
