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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nunley v. State, Dept. of Revenue, Child Support Enforcement Div. (10/08/2004) sp-5837

Nunley v. State, Dept. of Revenue, Child Support Enforcement Div. (10/08/2004) sp-5837

     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,


JOHN M. NUNLEY,                         )
                              )    Supreme Court No. S-11030
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3PA-01-1041 CI
STATE OF ALASKA,                             )    O P I N I O N
CHILD SUPPORT ENFORCEMENT          )     [No.  5837 - October  8,
DIVISION (CSED),                        )
             Appellee.                  )
_______________________________    )

          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Beverly W. Cutler, Judge.

          Appearances:   John Nunley, pro se,  Wasilla.
          Diane   L.   Wendlandt,  Assistant   Attorney
          General,  Anchorage,  and  Gregg  D.  Renkes,
          Attorney General, Juneau, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          CARPENETI, Justice.


          John   Nunley  appeals  from  an  administrative  child

support decision issued by the Department of Revenue finding that

he  is voluntarily underemployed and ordering him to pay $209 per

month  to  support  his  child.  The superior  court  upheld  the

agencys  decision on direct appeal.  Because substantial evidence

supports  the  finding that Nunley is voluntarily  underemployed,

and because the department imputed a reasonable annual income  to

Nunley  to determine his child support obligation, we affirm  the

decision of the superior court.


          John  Nunley  and  his  wife, Vansia  Nunley,  are  the

parents  of  Morgan  Nunley,  born  April  20,  1989.   John  was

incarcerated in December 1989, and Vansia began receiving  public

assistance  for  Morgan  that  same  month.   The  Child  Support

Enforcement Division (CSED) opened a child support case  for  the

family  and  served Nunley with an administrative  child  support

order  to reimburse the state $752 per month for Morgans support.

Nunley  appealed  the order by requesting an informal  conference

with CSED.  In his request, Nunley informed CSED that he had been

incarcerated  since December 7, 1989 and that he had  no  assets.

After  a  telephonic  conference on May  2,  1990,  CSED  reduced

Nunleys monthly obligation to $50.

          In June 1992 Vansia gave birth to another child, Kiana.

Because  the Nunleys were married at that time, John was presumed

to  be  Kianas  father as a matter of law.1  In  July  1994  CSED

issued a modified child support order requiring Nunley to support

Kiana  and  increasing the required support to  $282  per  month.

This amount was based upon an annual income of $15,010, which was

extrapolated from Nunleys reported earnings for the first quarter

of  1994.   Nunley  appealed the revised order by  requesting  an

informal  conference with CSED, which was held  on  September  8,

1994.   The  informal conference officer, Chris Berg, upheld  the

modified order, but he did not issue a written final decision  as

required by department regulations2 or notify Nunley of his right

to  appeal to a formal administrative hearing.3  The only  record

of  this  meeting  consists of brief notes in CSEDs  computerized

case   management  system.   According  to  these  notes,  Nunley

informed  Berg that he quit his job after CSED sent a withholding

order  to  his  employer.   Nunley also refused  to  provide  any

information  to  CSED,  threatened to leave  the  state  if  CSED

attempted to locate him, and claimed that all of his assets  were

in other peoples names so that CSED could not collect from him.

          After Nunleys drivers license was suspended in 1997 for

          non-payment of child support,4 he administratively appealed the

suspension.   In a separate action in January 1998, Nunley  moved

to  vacate the administrative child support order pursuant to  AS

25.27.195(b),5 which allows CSED to vacate a support order  based

upon  a default amount rather than an obligors actual ability  to

pay.   He claimed that he had been living at or below the poverty

line  for  several years and that CSED was requiring  support  in

excess  of  his  ability to pay.  In September  1998  the  agency

responded with a letter explaining that the order was based  upon

Nunleys demonstrated ability to pay.

          Nunley   treated  this  letter  as  a  denial  of   his

administrative appeal and he appealed the support  order  to  the

superior  court in Palmer on October 23, 1998.  CSED opposed  the

motion  as  premature  because  Nunley  had  not  exhausted   his

administrative  remedies,  and it asked  the  superior  court  to

dismiss  the  appeal and require Nunley to seek a formal  hearing

from  the  Department of Revenue.  The department indicated  that

Nunley retained the right to an administrative appeal because  he

had  not been notified in writing of his right to appeal from the

1994  informal conference.  Because Nunley had not appealed CSEDs

order  to  a formal administrative hearing, there was no official

administrative  record  for  the  court  to  review  on   appeal.

Notwithstanding  the  lack  of an administrative  record,  Nunley

filed  a  motion  to  proceed with the appeal in  November  1999,

appending  his  own  copy of his CSED file.  The  superior  court

granted Nunleys motion on March 22, 2000.

          Nunley   later  decided  to  pursue  an  administrative

appeal,  and he requested a formal hearing before the  Department

of  Revenue  on December 4, 2000 and withdrew his appeal  to  the

superior court on December 5, 2000.  Prior to the formal hearing,

CSED  conducted a paternity test to determine whether Nunley  was

the  father  of  Kiana.  The test showed that he was  not  Kianas

father  and the department determined that Nunley had no duty  to

provide  for her support.  In preparation for the formal hearing,

          CSED submitted a summary of the issues on appeal, the superior

court record, and a statement explaining why Nunley retained  the

right  to  an  administrative appeal so long after  the  informal

hearing.  These materials, which included an affidavit from  Berg

explaining  his  notes  from the 1994 informal  conference,  were

provided  to  Nunley and his counsel.  In the case overview,  the

department  argued  that  Nunley  was  and  is  voluntarily   and

unreasonably  un/underemployed, that  $15,010  was  a  reasonable

estimation of his potential income based upon his actual earnings

in  the  first quarter of 1994, and that he should pay  $209  per

month  in support for his child, Morgan.  The formal hearing  was

held  on  June  28, 2001 before Revenue Hearing Examiner  Kay  L.

(Katy) Howard.  Nunley attended this hearing with his attorney.

          As the party attacking the child support determination,

Nunley  bore  the  burden of proving, by a preponderance  of  the

evidence,   that   the  departments  income   calculations   were

incorrect.6   Both  CSED  and Nunley offered  opening  statements

focusing  on the primary issue of whether Nunley was  capable  of

earning  an  income  sufficient to pay $209 per  month  in  child

support.  Nunley testified that after his release from prison  he

worked  seasonally as a laborer on the farm of a  family  friend,

earning  between $5 to $8 per hour.  He claimed that although  he

was  a  certified welder, his skills were out-of-date and he  was

unable  to find employment in this field.  He testified  that  he

worked  as a construction laborer for several months in  1993-94,

but that he was laid off in March or April 1994.  It was upon the

basis  of this employment that CSED extrapolated an annual income

of $15,010.

          Nunley  denied  that he told Informal  Hearing  Officer

Berg that he had quit this job to avoid paying child support, and

claimed  instead that Berg had either misunderstood him or  lied.

On  cross-examination he admitted that he had made  only  minimal

effort  to  secure full-time employment since 1994, applying  for

two  to  three  jobs per year, but he claimed that  no  employers

          (except his family friends, who provided seasonal employment)

would  hire  him due to his criminal background.  He acknowledged

that  he  lived with his mother and his girlfriend, both of  whom

gave  him  money  and  paid  for his  living  expenses,  that  he

frequently  used a car owned by his mother and owned a motorcycle

registered  to  his girlfriend, and that he spent his  free  time

helping  his  girlfriend  by cutting  firewood,  caring  for  her

horses, and baling hay.

          Hearing Examiner Howard issued a final decision on July

31,  2001.   She  noted that child support can be based  upon  an

obligor parents potential income if a finding is made that he  or

she  is  voluntarily  and  unreasonably  underemployed,  and  she

articulated  the legal standard for making such a  determination.

She  found  that Nunley was underemployed as a result  of  purely

personal  choices rather than economic factors and  that  $15,010

was  the  best estimate of his potential income.  She  based  her

decision  primarily upon Bergs entry in the CSED case  management

system  after  his 1994 informal conference with  Nunley  and  an

affidavit  he submitted regarding that meeting.  She  found  that

Nunleys description of this meeting was not credible, noting that

in  the  absence  of any evidence to support Nunleys  claim,  she

would not enter a finding that a state employee acted dishonestly

in carrying out his official duties many years ago.

          Howard  commented  that other evidence  in  the  record

supported  the finding that Nunley was voluntarily underemployed,

particularly  the fact that he had applied for only  one  or  two

jobs  per  year over a seven-year period.  Howard noted that  the

financial support of Nunleys mother and girlfriend allowed him to

remain  underemployed since both provided him  with  a  place  to

stay,  purchased food for him, and paid for his living  expenses.

She  also  found Nunleys ownership of a motorcycle registered  to

his  girlfriend to be consistent with Bergs notes that Nunley had

threatened  to  hide  his assets to prevent collection  of  child

support.   Based  upon the evidence as a whole,  she  found  that

Nunley should pay child support for Morgan in the amount of  $209

per  month,  and she affirmed the departments 1994 child  support


          Nunley filed a motion for reconsideration on August  9,

2001  which  was denied by Deputy Commissioner of  Revenue  Larry

Persily  on  August 21, 2001.  Persily found nothing to  indicate

that  the decision was based on any errors of fact, and he  noted

that  an annual income of $15,010 per year was based on full-time

employment at a rate of $7.22 an hour, a modest wage  for  a  50-

year-old worker with reasonable skills.  He commented that  while

Mr.  Nunley has made a personal choice to live without  full-time

employment,  .  .  .  it is unreasonable for his  child  to  live

without  full-time  financial support from his  father.   Persily

concluded that [i]f, as Mr. Nunley states, he has chosen a career

as  a seasonal farm laborer, then perhaps he needs to add to  his

income by finding employment during the rest of the year.   Civil

Rule  90.3  does not allow for a child support obligation  to  be

based solely on a parents seasonal income just because he or  she

has chosen not to seek year-round employment.

          Nunley appealed to the superior court on September  19,

2001,  claiming  that  the  support  award  was  based  upon   an

unreasonable estimate of his earning potential and that it should

have  been  based upon his reported wages as a farm laborer.   On

November  18, 2002 Nunley moved for an order compelling  CSED  to

release  his  suspended  drivers  license.   The  superior  court

affirmed  the  formal  hearing decision  on  February  28,  2003,

holding  that the factual findings were supported by  the  record

and  that  Hearing  Examiner  Howard applied  the  correct  legal

standard   to   determine  that  Nunley   was   voluntarily   and

unreasonably underemployed.  On the same day, the superior  court

denied  Nunleys  motion to release his drivers  license.   Nunley

appeals both decisions.


          When  the superior court acts as an intermediate  court

of  appeal,  we  directly  review the  underlying  administrative

decision  using  our independent judgment.7  An  agencys  factual

findings  are  reviewed  under  the substantial  evidence  test.8

Substantial  evidence is  such relevant evidence as a  reasonable

mind might accept as adequate to support a conclusion. 9  We will

not  evaluate  the  strength of the evidence but  only  note  its

presence.10  We apply our independent judgment to questions of law

that do not implicate agency expertise.11


          Nunley  raises eleven points on appeal, seven of  which

variously restate his primary argument that CSED erred in finding

that  he  was voluntarily and unreasonably underemployed  and  in

setting his support obligation at $209 per month.  He claims that

he  faces  limited employment opportunities due to  his  criminal

background,  which requires registration as a sex offender;  that

he  has no control over who hires him and at what wage; and  that

the support award was not based upon his demonstrated ability  to

pay.    For  the  reasons  discussed  below,  we  reject  Nunleys

arguments  and affirm the agencys decision.  Nunley also  alleges

various   errors  by  the  superior  court,  claiming   that   it

incorrectly  applied case law defining voluntary underemployment,

that  it  lacked a factual basis for its findings, and  that  its

decision  intentionally omitted the procedural  history  of  this

case.   Since  we independently review the departments  decision,

and  since  these alleged errors relate to the factual and  legal

sufficiency  of  CSEDs determination that Nunley was  voluntarily

underemployed,  it  is  unnecessary to separately  address  these

alleged errors by the superior court.12  Nunleys claim that  CSED

erred by suspending his license during the pendency of his appeal

is mooted by our decision today which concludes his appeal.

     A.   The  Department of Revenue Correctly Found that  Nunley
          Is Voluntarily and Unreasonably Underemployed.
          Nunley  argues that he is not voluntarily underemployed

and that CSED is requiring him to pay child support in excess  of

his actual ability to pay.  Because this court will not relieve a

          noncustodial parent from his child support obligations absent an

affirmative  showing  that the obligor parent  cannot  meet  this

obligation,13 Nunley bears the burden of proving that  he  cannot

pay $209 per month to support his child.

          Parents have both a common law and a statutory duty  to

support their children.14  A child support award is based upon  a

parents  total  income and the number of children  that  must  be

supported,15 and the support amount can be based upon  a  parents

potential  income  if he or she is found to  be  voluntarily  and

unreasonably  unemployed or underemployed.16   A  calculation  of

potential  income  must be based upon the parents  work  history,

qualifications, and job opportunities.17  A parent will be  found

to  be  voluntarily unemployed or underemployed if he or she  has

engaged  in  voluntary  conduct for the purpose  of  becoming  or

remaining  unemployed or underemployed.18   The  key  inquiry  is

whether  the lack of employment is the result of economic factors

or of purely personal choices.19  Unemployment or underemployment

can  be  found  to  be voluntary even absent a finding  that  the

parent  is  acting  in bad faith to purposefully  avoid  a  child

support  obligation,20 because the relevant inquiry  under  Civil

Rule  90.3  is  simply  whether a parents current  situation  and

earnings  reflect a voluntary and unreasonable decision  to  earn

less than the parent is capable of earning.21

          In    determining    that   Nunley   was    voluntarily

underemployed,  Revenue  Hearing  Officer  Howard   relied   upon

Informal  Hearing Officer Bergs entry in CSEDs computerized  case

management system summarizing his meeting with Nunley.  According

to  this entry, Nunley claimed that he quit his construction  job

after the state sent his employer a withholding order, he refused

to  provide information to CSED, he threatened to leave the state

to  avoid paying child support, and he admitted to owning  assets

registered  in  the  names of other people.   During  the  formal

hearing,  Nunley claimed that the statements ascribed to  him  by

Berg  were  a  fabrication, but Nunleys counsel also acknowledged

          that Berg might have misinterpreted some of Nunleys comments.  In

support  of  his claim that he was unable to pay $209 in  monthly

child support, Nunley submitted evidence regarding his employment

and  earnings history.  Revenue Hearing Officer Howard found that

Nunleys  claims  lacked  credibility, particularly  in  light  of

evidence  showing that he owned a motorcycle that was  registered

in  his girlfriends name, that his mother and girlfriend paid for

many of his living expenses, and that he had applied for very few

jobs since 1994.

          Nunley attacks the departments reliance on Bergs  notes

from  the  informal conference because he alleges that they  omit

evidence  demonstrating that he is not voluntarily underemployed,

they misrepresent his statements about his willingness to support

his  son,  and  they  provide an insufficient  factual  basis  to

support  Howards finding of voluntary underemployment.  We  agree

that Bergs five-sentence summary of his meeting with Nunley is an

insufficient basis upon which to find that Nunley is  voluntarily

and  unreasonably  underemployed, and we  are  also  troubled  by

Howards unquestioning reliance upon Bergs notes from the informal

conference.  If Bergs notes provided the only evidence to support

the  agencys  findings  we would reverse and  remand  for  a  new

hearing.  But Howard based her decision upon other evidence  that

Nunley  was  voluntarily  underemployed,  and  this  evidence  is


          Our concern regarding Howards reliance upon Bergs notes

is based on Howards statement, in response to Nunleys claims that

Berg  had  either misinterpreted or misrepresented his  comments,

that  absent evidence sufficient to establish [Nunleys] claim  is

more  likely  than not true, I will not enter a  finding  that  a

state  employee  acted dishonestly in carrying out  his  official

duties  many years ago.  While it is appropriate to presume  that

state employees have properly discharged their official duties,22

such  a  presumption is rebuttable.23  The paucity of the written

record from the informal hearing, combined with Bergs failure  to

          issue a written decision or notify Nunley of his right to appeal,

cast  doubt upon the reliability of these notes and it was  error

to  rely  upon them so heavily.  Nonetheless, in light of Howards

specific finding that [o]ther evidence in the record supports the

finding that Mr. Nunley was, and is, voluntarily and unreasonably

underemployed, we hold that this error was harmless.24

          The  evidence of Nunleys voluntary underemployment  was

substantial.   His  testimony at the formal hearing  demonstrates

that  he is capable of performing a wide range of physical labor,

including  repairing  equipment,  loading  and  driving   trucks,

operating  farm machinery, stacking vegetables, cutting firewood,

feeding  horses, grading potatoes, and baling hay, not to mention

performing construction labor.  Moreover, that testimony provided

no  reason  why he is unable to obtain full-time employment.   He

introduced  no  evidence of physical or mental incapacity.25   He

applied  for only ten to fifteen jobs between 1994, when  he  was

allegedly laid off from his construction job, and the 2001 formal

hearing.   While he claims that his criminal record prevents  him

from obtaining full-time employment, he admitted that he does not

always disclose this information.  His record did not prevent him

from obtaining employment in the construction industry in 1993 or

as  a  farm  laborer in subsequent years.  It  appears  that  the

primary obstacle to Nunleys obtaining full-time employment is his

unwillingness  to actively seek it.  Indeed, we  have  previously

held  that  a parent need not even have an employment history  in

order  to impute income to him for child support purposes because

Civil  Rule 90.3 only bars a finding of voluntary underemployment

in two situations: when the underemployed parent is physically or

mentally  incapacitated or is caring for a child under two  years

of age to whom the parents owe a joint legal responsibility.26  In

all  other  situations,  the rule and our case  law  specifically

require  courts to consider the totality of the circumstances  to

decide whether income should be imputed.27  The record reflects a

history  of  seasonal  employment.  Because substantial  evidence

          supports the conclusion that Nunley could reasonably have

expected  to find full-time employment to support his  child,  we

hold   that  CSED  did  not  err  in  determining  that  he   was

unreasonably underemployed.

     B.   The  Amount  of Income Imputed to Nunley Was Reasonable
          Given his Skills, Education, and Experience.
          Nunley  also contests the amount of income  imputed  to
him  by CSED and claims that it is unrealistic to assume that  he
could  earn  $15,010 per year.  In support of  this  argument  he
cites language in Bendixen stating that the wording of Civil Rule
90.3  obviously presupposes that some prospect of earning  income
or some opportunity to find employment actually exists.28  He also
cites  Bostic v. State,29 in which this court overturned a  child
support  determination because the obligor parent  did  not  have
notice  that voluntary underemployment would be an issue  at  the
formal hearing and because the record did not support the hearing
officers  determination that the parent could earn  a  salary  of
$40,000.30   Nunleys reliance on these cases  is  misplaced.   In
Bendixen, we held that an obligor parents incarceration  did  not
amount to voluntarily unemployment.31  Nunley was not incarcerated
at  the time of the hearing and CSED did not rely on his criminal
history  to  support its finding of voluntarily  underemployment.
And  unlike  the  obligor  parent in  Bostic,  Nunley  knew  that
voluntary  underemployment would be at issue  during  the  formal
hearing, and the income imputed to him was based upon his  actual

          CSED  increased  Nunleys child support obligation  from

$50  per  month, the amount he was required to pay while  he  was

incarcerated, to $282 per month based upon his reported  earnings

in the first quarter of 1994.  This support amount was based upon

an  extrapolated  annual income of $15,010 and an  obligation  to

support  two children.  Informal Conference Officer Berg declined

to  modify  this  amount  following an informal  conference  with

Nunley  in 1994, though the department later reduced the  support

obligation to $209 per month after it determined that Nunley  was

not the father of Vansia Nunleys daughter, Kiana.  After a formal

hearing  in  2001,  Revenue Hearing Examiner  Howard  found  that

Nunleys  actual  work history provided the best estimate  of  his

earning  capacity  and she affirmed CSEDs support  obligation  of

$209  per  month based upon an annual income of $15,010.   Deputy

Commissioner  Persily noted that this income works  out  to  just

          $7.22 per hour on a forty-hour week, which is a reasonable wage

for  someone of Nunleys age and experience.  In fact, this hourly

wage  is  consistent with Nunleys reported hourly earnings  as  a

farm  laborer  and is only barely above Alaskas minimum  wage  of

$7.15 per hour.32

          Nunley  is a trained welder, and he has work experience

as an agricultural worker and laborer, carpenter, pipefitter, and

truck  driver.   While  any  imputation  of  income  is  somewhat

speculative, the department reasonably relied upon Nunleys actual

earnings to determine his potential income.  Had CSED relied upon

reported  earnings from a period when Nunley made a significantly

higher  hourly wage than he had historically earned, or  than  he

could reasonably expect to earn in the future, Nunley might  have

grounds  to  attack the support calculation.  But he provides  no

credible evidence to rebut CSEDs finding in this case that he  is

capable of earning barely above minimum wage.

     C.   Nunleys  Claim  of  Error for CSEDs Suspension  of  His
          Drivers License Is Moot.
          Nunley  also  argues that the superior court  erred  in

denying  his motion to stay the suspension of his drivers license

pending  the outcome of his appeal of his child support  order.33

This  claim  is moot because our holding today concludes  Nunleys



          Because the record supports the finding that Nunley  is
voluntarily underemployed, and because the department  imputed  a
reasonable annual income to Nunley to determine his child support
obligation, we AFFIRM the decision of the superior court.
     1     See  AS 18.50.160(d) (presumption of paternity applies
to  mothers husband at time of birth).  It was later proven  that
Nunley is not Kianas father, so support for Kiana is not an issue
in this appeal.

     2     See  former 15 Alaska Administrative Code (AAC) 05.020
(1994) (review officer shall promptly issue written decision).

     3     15  AAC  05.030 (describing process to request  formal
agency hearing).

     4    CSED has authority to suspend a persons drivers license
for nonpayment of child support.  AS 25.27.246.

     5     This  statute provides that [u]pon the  motion  of  an
obligor,  the  agency may, at any time, vacate an  administrative
support  order  issued by the agency . . . that was  based  on  a
default amount rather than on an obligors actual ability to pay.

     6    15 AAC 05.030(h).

     7    Crivello v. State, 59 P.3d 741, 744 (Alaska 2002).

     8     Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).

     9    Id. (quoting Keiner v. City of Anchorage, 378 P.2d 406,
411 (Alaska 1963)).

     10    Id.

     11    Alaska Ctr. for the Envt v. State, 80 P.3d 231, 236-37
(Alaska 2003); Palmer v. Municipality of Anchorage, Police & Fire
Ret. Bd., 65 P.3d 832, 837 (Alaska 2003).

     12     See VECO Intl, Inc. v. Alaska Pub. Offices Commn, 753
P.2d  703,  708  (Alaska 1988) (holding that this court  directly
reviews merits of administrative determination, except to  extent
that  superior  court held supplemental evidentiary  proceedings;
and  noting that petitioner must demonstrate error by agency, not
superior court).

     13    Kowalski v. Kowalski, 806 P.2d 1368, 1371 (Alaska 1991)
(quoting Houger v. Houger, 449 P.2d 766, 769-70 (Alaska 1969)).

     14     AS  25.20.030;  Matthews v. Matthews, 739 P.2d  1298,
1299  (Alaska  1987)  (superseded by rule on  other  grounds,  as
recognized in Vachon v. Pugliese, 931 P.2d 371 (Alaska 1996)).

     15    Alaska R. Civ. P. 90.3(a).

     16    Alaska R. Civ. P. 90.3(a)(4); 15 AAC 125.020(b).

     17    Id.

     18    Bendixen v. Bendixen, 962 P.2d 170, 172 (Alaska 1998).

     19    Vokacek v. Vokacek, 933 P.2d 544, 549 (Alaska 1997).

     20     Kowalski  v.  Kowalski, 806 P.2d 1368,  1371  (Alaska

     21    Beaudoin v. Beaudoin, 24 P.3d 523, 528 (Alaska 2001).

     22     See  Brigman v. State, 64 P.3d 152, 158 (Alaska  App.

     23     See  Finkelstein v. Stout, 774 P.2d 786, 790  (Alaska

     24    See Hayes v. Bering Sea Reindeer Prods., 983 P.2d 1280,
1283 (Alaska 1999) (error harmless unless prejudicial).

     25     Alaska Civil Rule 90.3(a)(4) prohibits the imputation
of   income   for  a  parent  who  is  physically   or   mentally
incapacitated.  In this appeal, and for the first  time  in  this
case,  Nunley alleges that he has a hernia, which severely limits
his  job opportunities.  Because Nunley did not raise this  claim
during  the  administrative proceedings it is not  preserved  for
appeal  and is waived.  Southwest Marine, Inc. v. State, Dept  of
Transp.  &  Pub. Facilities, Div. of Alaska Marine Highway  Sys.,
941 P.2d 166, 179 (Alaska 1997).

     26    Beaudoin, 24 P.3d at 528.

     27    Id. (citing Alaska R. Civ. P. 90.3 cmt. III.C).

     28    Bendixen v. Bendixen, 962 P.2d 170, 172 (Alaska 1998).

     29    968 P.2d 564 (Alaska 1998).

     30    Id. at 569-70.

     31    Bendixen, 962 P.2d at 172-73.

     32    AS 23.10.065.

     33     Both  the  superior court and  this  court  have  the
authority  to  stay  the  operation of a  CSED  decision  pending
appeal.  AS 25.27.220(f) and (h).