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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. CLIFFORD B. KILLARY v. SUSAN KILLARY (11/10/2005) sp-5956

CLIFFORD B. KILLARY v. SUSAN KILLARY (11/10/2005) sp-5956

     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,


) Supreme Court No. S- 11639
) Superior Court No.
v. ) 3AN-01-10820 CI
Appellee. ) [No. 5956 - November 10, 2005]
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Stephanie Joannides, Judge.

          Appearances:  Lawrence A. Pederson,  Paul  J.
          Nangle    &   Associates,   Anchorage,    for
          Appellant.   Mary-Ellen Meddleton, Anchorage,
          for Appellee.

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

          MATTHEWS, Justice.

          Clifford  Killary  moved to modify  custody  and  child
support, seeking to become the primary custodial parent of  Megan
Killary.  The superior court ordered a stay of Cliffords previous
child  support  obligations  while the  issues  of  custody  were
pending.   At  the  close  of  proceedings,  the  superior  court
reaffirmed  Susan Killary as the custodial parent and  reinstated
Cliffords child support obligation.  Upon learning of the  courts
decision,  Megan  ran away from home, and at  the  time  of  this
appeal  she  is  still not living with either  parent.   Clifford
appeals  the superior courts decision to reinstate child  support
payments,  arguing that he should not be required  to  pay  Susan
child  support since Megan does not live with Susan and Susan  is
not financially supporting Megan.  We conclude that child support
payments  should  not  have  been  reinstated  unless  they  were
justified by Susans expenses incurred in an effort to find  Megan
and  secure custody of her and to maintain a suitable  place  for
her  pending her return.  We remand for evidence and findings  on
this point.
          When  the Killarys divorced in 2002 they had one  minor
child,  Megan.   Though  the  parties were  awarded  joint  legal
custody  of  Megan,  they agreed that Susan  would  have  primary
physical  custody and Clifford would have visitation  rights  and
shared physical custody.  The parties agreed that Clifford should
pay  full  child support without reference to the shared physical
custody periods, and the court so ordered.
          Megan lived with Susan until May 2003 when she moved in
with Clifford.  Susan did not oppose this move.  On June 7, 2003,
Susan  moved  to Idaho, while Megan remained with her  father  in
Anchorage.   On  August  13 Clifford filed  a  motion  to  modify
custody  and child support.  Susan did not initially  oppose  the
change  of  custody, citing Megans desire not to leave Anchorage,
however she was not convinced that the change of custody  was  in
Megans  best interest.  While this motion was pending, the  trial
court stayed collection of child support.
          On  January  6,  2004, Susan changed her  position  and
opposed  Cliffords  motion  to modify custody.   Ultimately,  the
trial   court   denied  Cliffords  motion,  noting  that   Megans
educational needs would be better met in her mothers home.
          After  Susans  custody was reaffirmed, Megan  ran  away
from Cliffords house to live with friends.  On the same day,  the
trial  court  issued  a writ of assistance  to  assist  Susan  in
obtaining  custody of Megan.  Susan was unable to obtain  custody
of Megan, however, and returned to Idaho without her.  Megan made
it clear that she was not willing to move back into Susans house.
She also indicated that she was pursuing emancipation.
          On  March  11  the court reinstated the  child  support
order  because  formal  custody  had  been  changed  to  [Susan].
Clifford filed a motion for reconsideration of this order,  along
with  a  second  motion  to modify custody  on  March  22,  2004.
Because  neither parent had de facto custody of Megan, the  court
granted  the  motion for reconsideration of the order reinstating
child  support, thereby staying Cliffords obligation to pay child
support  until  the  resolution of the  custody  issue.   In  the
meantime, Megan moved back in with Clifford.
          After a hearing, the court again decided that the  best
place  for  Megan  was  with Susan and ordered  another  writ  of
assistance;  at some point around this time Megan ran  away  from
Cliffords house again.  An emergency hearing was held on June  23
because neither party had been able to locate Megan.  Susan hired
a private investigator on July 2.
          On  July  21, 2004, Susan again filed a motion to  lift
the  stay of child support.  The trial court granted the  motion,
reinstating  Cliffords obligation to pay child support  effective
July  1,  2004.   Clifford now appeals this order, claiming  that
Megan  is  not residing with either parent, and has  not  resided
with Susan since May 26, 2003.
          At  present Megan is seventeen years old; she  will  be
eighteen on December 9, 2005.
          Awards  of child support are reviewed for an  abuse  of
discretion.1   An abuse of discretion occurs when  based  on  the
record  as  a whole this court is left with a definite  and  firm
conviction that a mistake has been made. 2
          Cliffords  sole argument is that the trial court  erred
in  continuing the award of child support to Susan when  she  did
not have actual physical custody of Megan.  Clifford asserts that
Bennett  v. Bennett3 and Corbin v. Corbin4 support his contention
that Susan is not entitled to child support because she no longer
has   de   facto   custody  and  has  stopped  supporting   Megan
financially.   Clifford argues that requiring him  to  pay  child
support  before  Megan is located will result in  a  windfall  to
          Susan  correctly responds that Bennett and  Corbin  are
distinguishable.  These cases address retrospective child support
awards in situations where, unlike the present case, there was no
pre-existing child support award.5  She also argues that  she  is
entitled   to  child  support  because  she  did  not   willingly
relinquish custody of Megan and because Megan could move in  with
Susan  any  day, even though Megan is currently not  living  with
either parent.  Susan asserts that when Megan finally returns  to
Susans  house, the money will be needed to help [Megan]  put  her
life  back  together. . . .  It will likely take every cent  that
Cliff  is  obligated  to  pay and more  to  restore  Megan  to  a
productive life.  She also contends that she needs child  support
to  maintain  a  place for Megan in her home so that  when  Megan
returns she will have a place to live.  Susan also notes that she
has  fought with every penny she has . . . to do what is best for
Megan,  a  reference that appears to include  Susans  efforts  to
locate Megan and obtain her return to Susans custody.
          Child  support  awards, by their very  definition,  are
intended  to  benefit  the child, not provide  a  windfall  to  a
parent.6   Here,  the  superior court was  assessing  prospective
child  support for a runaway child who was not in either  parents
custody and had been living in a place not known to either parent
for  at least part of the preceding six months.7  The possibility
that  Megan, who will be eighteen years old on December 9,  2005,
may  not return to Susans custody before she reaches the  age  of
majority was evident.
          We have stated that justice is best served if the child
support  amount reflects the actual responsibilities and  burdens
of  the  parties.8  Since Megan was not in Susans actual custody,
and   Susan  was  not  financially  supporting  Megan,  requiring
Clifford in a prospective order to pay child support to Susan for
Megan  might be difficult to justify under this principle.  Under
Civil Rule 90.3(h)(1) a child support award may be modified  upon
a  showing  of a material change of circumstances.  In this  case
the  material change calling for a modification would  be  Susans
loss of de facto custody through Megans running away.
          But Susans arguments that support is needed so that she
can  maintain a suitable home for the eventual return  of  Megan,
and to aid her in securing the return of Megan, might have merit.
Such  expenditures could well reflect her actual responsibilities
and  burdens  as a custodial parent.  Ordinarily  the  amount  of
child  support a non-custodial parent should pay to  a  custodial
parent  is  arrived  at  by a formula prescribed  by  Civil  Rule
90.3(a)  without the need for a showing of the custodial  parents
actual  expenses.  But we believe that in circumstances  such  as
the  present  where the de jure custodial parent is not  actually
exercising custody or supporting the child but is seeking  to  do
so   a factual showing that the custodial parent has incurred and
will  continue  to  incur  expenses  in  the  discharge  of   her
responsibilities  is necessary.  The amount of  her  expenditures
need  not precisely equal, or exceed, the amount of monthly child
support,  but  they  should at least fall within  an  approximate
range of the latter.  Understandably, since this is a subject not
covered  by Rule 90.3 or prior case law, such a showing  was  not
made.   A  remand  for evidence and findings  on  this  point  is
therefore necessary.
          While  we believe that one parent should not ordinarily
be ordered prospectively to pay child support for a child who has
run  away  and  is  not being cared for by the  custodial  parent
unless  the custodial parent continues to incur expenses  related
to  her custodial responsibilities, care must be taken that  this
rule  is  not  abused.  It is conceivable that some non-custodial
parents  might encourage their children to run away, or  stay  at
large, in order to avoid paying child support.  If a court should
find that this has occurred, one remedy might be the reimposition
(or  continued  imposition)  of  child  support  payments.   This
subject  also  was not addressed by the superior  court  in  this
case.  On remand, it should not be considered to be foreclosed by
this opinion.
          For  the  above  reasons we VACATE the superior  courts
order  reinstating Cliffords child support obligations and REMAND
this  case  for  further  proceedings  in  accordance  with  this
     1     E.g.,  Fernau v. Rowdon, 42 P.3d 1047, 1052-53 (Alaska

     2    Richmond v. Richmond, 779 P.2d 1211, 1216 (Alaska 1989)
(citation omitted).

     3    6 P.3d 724 (Alaska 2000).

     4    68 P.3d 1269 (Alaska 2003).

     5    See Corbin, 68 P.3d at 1273.

     6     Bennett, 6 P.3d at 727; see also Murphy v. Newlynn, 34
P.3d 331, 335 (Alaska 2001).

     7     Megan ran away in February 2004 and child support  was
reinstated in August 2004.

     8     Potter  v.  Potter,  55 P.3d 726,  730  (Alaska  2002)
(quoting Morino v. Swayman, 970 P.2d 426, 429 (Alaska 1999)).