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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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| CLIFFORD B. KILLARY,
| ) |
|
| ) Supreme Court No. S-
11639 |
|
Appellant, | ) |
|
| ) Superior Court
No. |
|
v. | ) 3AN-01-10820
CI |
|
| ) |
|
SUSAN KILLARY, | ) O P I N I O
N |
|
| ) |
|
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.
FACTS AND PROCEEDINGS
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.
DISCUSSION
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.
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.
CONCLUSION
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
opinion.
_______________________________
1 E.g., Fernau v. Rowdon, 42 P.3d 1047, 1052-53 (Alaska
2002).
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)).
