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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ward v. Urling (09/14/2007) sp-6161
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
| MARK V. WARD, | ) |
| ) Supreme Court No. S- 12379 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-96-7482 CI |
| ) | |
| MEILYN P. URLING, f/k/a | ) |
| MEILYN P. WARD, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6161 - September 14, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Dan A. Hensley, Judge.
Appearances: Mark V. Ward, pro se,
Anchorage. Carl D. Cook, Houston & Houston,
P.C., Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. (Bryner,
Justice, not participating.)
CARPENETI, Justice.
I. INTRODUCTION
Mark Ward appeals the superior courts order refusing to
modify Wards child support obligation. He contends that the
court erred by (1) prematurely issuing a final order, (2)
incorrectly determining the parties income for support purposes,
and (3) refusing to impute income to Wards ex-wife, Meilyn
Urling. Ward also appeals the award of attorneys fees to Urling
and alleges judicial bias. Because evidence in the record
allowed the court to reasonably calculate Urlings income, we
conclude that the court did not prematurely enter a final order.
Because evidence supports the courts findings that Urling was not
unreasonably underemployed, the court did not err in refusing to
impute income. We also conclude that the court did not abuse its
discretion in awarding attorneys fees and that Wards allegations
of judicial bias are without merit. Accordingly, we affirm the
decision of the superior court in all respects.
I. FACTS AND PROCEEDINGS
A. Facts
Mark Ward and Meilyn Urling (formerly Meilyn Ward)1
divorced in November 1996. The divorce decree awarded the
parties joint legal custody and shared physical custody of the
couples two children and ordered Ward to pay Urling $231.48 per
month in child support.
B. Proceedings
In May 2005 the Child Support Services Division (CSSD)
moved to modify the 1996 support order, noting a material and
substantial change in circumstances and requesting that Wards
monthly payments be increased from $231.48 to $559.00. Ward
opposed CSSDs motion and asked the court to impute income to
Urling on the grounds that she was voluntarily underemployed.2
CSSD responded that Urling was not underemployed, but it
encouraged the court to consider holding an evidentiary hearing
on the issue.
On August 16, 2005, Master Andrew Brown conducted a
hearing on CSSDs motion to modify, focusing primarily on whether
Urling was voluntarily underemployed.3 On August 24, 2005,
Master Brown issued his report and recommendations. The report
determined that Urling was unreasonably underemployed and imputed
income to her for purposes of calculating child support. Despite
this determination, the report ultimately recommended that Wards
monthly support obligation be increased to $682.86 per month4
because his income had increased since the original support order
was calculated.
On September 5, 2005, Ward filed objections to the
report. He primarily argued that Master Brown had erred in
adopting a low mean experienced rate of $15.06 per hour when
calculating Urlings potential income. Urling also objected to
the masters determination that her potential income should be
based on a forty-hour work week. On September 13, 2005, Superior
Court Judge Sen K. Tan entered an order adopting the masters
report.
Only three months later, in December 2005, Ward moved
to modify the support order. He asserted that the court had
erred in adopting the $15.06 hourly wage and in imputing
insufficient income to Urling. He argued that the court should
calculate Urlings 2004 salary potential at $20 per hour. Ward
also disputed the courts application of tax methodology in
determining the parties respective incomes. Urling opposed the
motion, contending that Ward had failed to show a change of
circumstances under Civil Rule 90.3(h)(1).
The court conducted hearings on Wards motion on
February 24 and March 31, 2006.5 At the conclusion of the March
hearing Master Brown took the matter under advisement and
verbally instructed Urling to produce a copy of her 2005 tax
return if it was completed before he issued his final report.
In April 2006 Ward submitted a request for
clarificationof the courts verbal instruction. In response,
Master Brown subsequently issued a written order requiring Urling
to file her tax return with the court if it was completed before
issuance of the masters report.
Master Brown issued his report on May 23, 2006, by
which date Urling had not filed a tax return.6 The report
determined that Urling had shown good cause to work less than the
standard forty-hour workweek and that she was not unreasonably
underemployed, and it calculated her support obligation on the
basis of her $26,400 yearly salary. The report recommended that
Wards request for modification be denied on the grounds that the
courts new calculations would result in Ward paying 9.8% more
than the September 13, 2005 support order then in effect.
Ward objected to the masters report. He argued that
Master Brown had erred by: (1) applying different tax
calculations to the parties respective incomes; (2) failing to
find that Urling was unreasonably underemployed; and (3) using
her salary as the income benchmark when determining her support
obligation. On June 9, 2006, Judge Tan entered an order adopting
the masters report.
On June 23 Urling moved for attorneys fees. No timely
opposition was filed.
On July 10 Wards attorney moved to withdraw and Ward
personally moved for an extension of time in which to file a
Notice of Appeal to the June 9th Masters Report on the grounds
that he had left town on a remote vacation one day after
receiving the order.7 Ward also filed a motion for
reconsideration and opposed Urlings request for attorneys fees.
On July 11, 2006, Judge Tan denied Wards motion for
reconsideration, noting [i]n addition to being untimely, the
motion was filed by the plaintiff himself, and the court file
shows that Mr. Ward is represented by an attorney. On July 20,
the court signed an order of withdrawal of Wards counsel and
awarded Urling thirty percent of her attorneys fees.
Ward then filed a second motion for reconsideration,
arguing that he had asked his counsel to withdraw while Ward was
on vacation, that signature requirements precluded his counsels
filing of the motion to withdraw until Wards return, and that
Ward had diligently filed his motions on the first business day
following his return from vacation. Urling opposed the motion on
the grounds that it was untimely and that it failed to address
any grounds for reconsideration as required under Civil Rule
77(k).8
On August 18, 2006, Judge Tan denied Wards second
motion for reconsideration, noting [i]n addition to being
untimely, this court agrees with the findings of Master Brown.
Ward now appeals the courts order of June 9, 2006 denying his
motion to modify child support.
III. STANDARD OF REVIEW
Trial courts are granted broad discretion in fashioning
child support determinations.9 We review a determination of
whether to modify a child support order for abuse of discretion.10
Whether a party is voluntarily underemployed is
essentially a question of fact.11 We set aside a trial courts
factual findings only if they are clearly erroneous,12 including
a trial courts findings regarding a partys income.13 This
standard also applies to a trial courts determination of whether
to impute income.14
We review an award of attorneys fees for abuse of
discretion.15
IV. DISCUSSION
Ward raises three primary issues on appeal. First,
he argues that the court erred in refusing to grant his request
for modification of his child support obligations on the grounds
that the masters report was prematurely entered prior to receipt
of Urlings 2005 tax return, which resulted in the court applying
improper tax calculations when determining the parties support
obligations. He further asserts that the court erred in refusing
to find Urling voluntarily underemployed and in failing to impute
income. Second, he contends that the court abused its discretion
in awarding Urling attorneys fees. Finally, he alleges that both
Master Brown and Judge Tan were biased against him.
A. The Court Properly Denied Wards Motion to Modify Child
Support.
Civil Rule 90(h)(1) provides that a child support award
may be modified upon a showing of a material change of
circumstances. A material change of circumstances will be
presumed where support calculated under the rule is fifteen
percent greater or less than the outstanding support order.16
Both legal and factual changes may amount to a material change in
circumstances.17 As the moving party, Ward was obligated to show
by a preponderance of the evidence that a material change
existed.18
1. The court did not err in issuing an order prior to
receipt of Urlings 2005 income tax return.
Ward contends that the court [failed] to enforce its
written order demanding Ms. Urlings federal income tax return
prior to drafting and approving the masters report, and that as a
result the court improperly determined Urlings tax filing status
and net income.
At the conclusion of the March 2006 hearing, and upon
inquiry from Wards counsel as to whether Urling would be required
to submit her 2005 tax return, Master Brown stated that returns
are always useful and that if Ms. Urlings tax return is done
prior to your receiving a Masters Report, I do want a copy okay?
Master Brown subsequently clarified:
If a masters report is issued without Ms.
Wards 2005 tax return being part of the
evidence, and the court later finds out that
the return had been done prior to the masters
report being mailed out, then the court will
sua sponte consider vacating any ruling on
the masters report, ordering a new hearing,
and possibly holding the Defendant liable for
any and all future attorneys fees . . . .
The conditional language in the masters verbal
instructions and written order made clear that issuance of the
masters report was not contingent on the production of her tax
return. If Urlings tax return had been completed and she had
failed to produce it prior to receiving the masters report,
Urling would have violated the courts order. That is simply not
the case here.19
Moreover, nothing in the evidence suggests that Urling
was vexatious in not providing her income information to the
court. At the March hearing she testified that she was
undergoing an audit and that her tax return was not yet
available. She subsequently provided a letter from her
accountant stating that her tax return was not completed and that
Urling and her husband had been granted a filing extension until
October 2006.20 There is no evidence that Urlings 2005 tax return
was completed prior to issuance of the masters report and nothing
in the record indicates that Urling defied a court order to
produce her tax return or that the court failed to enforce its
own order.
Ward also argues that because the court issued the
support order before Urlings tax return was produced, the master
improperly calculated her net income. More specifically, he
alleges that because Master Brown unfairly rewarded Urling for
not submitting her tax return by calculating her income assuming
that she filed a separate, rather than joint, tax return. Ward
appears to believe that calculating Urlings income based on a
separate tax return while calculating his own income based on a
joint return distorted the differences in their gross incomes to
Urlings benefit.
Rule 90.3(a)(1) provides that a courts determination of
a partys adjusted annual income means the parents total income
from all sources minus . . . mandatory deductions such as . . .
federal, state, and local income tax . . . . Because Wards 2005
tax return revealed that he filed married filing jointly, Master
Brown subtracted Wards wifes income and her proportionate share
of the household income tax liability before calculating Wards
net income for support purposes.21 But when calculating Urlings
income, Master Brown noted there was no evidence in the record of
whether she and her husband filed a joint or separate return.22
He concluded that Urlings 2005 tax return was presumably a joint
one for her and her husband but found that [because] there is no
evidence as to how Ms. Urling does her income tax, . . . the only
reasonable way for the court to compute her income tax on [her
annual income] is by regarding her as doing a married filing
separately return . . . .
Because there was no evidence regarding Urlings
husbands income in the record, and because Urlings tax return was
not in evidence, the court could not accurately determine Urlings
personal income using a married filing jointly tax methodology.
Master Brown therefore exercised his discretion and determined
Urlings income assuming she had filed an individual tax return.
To the extent that the court might have elected to place both
parties on identical footing, the only other alternative would
have been to calculate Wards income as if he had filed a separate
tax return, which Ward did not do.23 Even assuming the court had
done so, Ward has failed to show that the monthly support
calculations would have amounted to a material change of
circumstances of at least fifteen percent as required under Rule
90.3. Thus, to the extent that the court may have erred on this
issue, we conclude that the error is harmless.
Furthermore, there was sufficient evidence in the
record for the court to determine Urlings net income even absent
her tax return. A trial courts calculation of income should be a
reasonable assessment of the obligors earning capacity.24 In
order for the court to adequately and reasonably assess a partys
income, there must be sufficient evidence from which the court
can make informed calculations.25 Urling provided the court with
her W-2s from 2001 through 2005, pay stubs from recent pay
periods, and copies of her unemployment checks, and she
personally testified to her annual salary. Relying on this
evidence, the court was able to reasonably assess Urlings income
for the purposes of computing her support obligation.26 We
therefore reject Wards claim that the court erred in issuing an
order prior to receipt of Urlings tax return.27
2. The court did not err in concluding that
Urling was not voluntarily underemployed and in
refusing to impute income.
Civil Rule 90.3 gives the court authority to calculate
child support based on a parents potential income if the parent
is found to be unreasonably underemployed.28 The relevant inquiry
under Rule 90.3 is whether a parents current situation and
earnings reflect a voluntary and unreasonable decision to earn
less than the parent is capable of earning.29 A trial court is
granted discretion to choose the best indicator of . . . future
earning capacity30 and to impute income based upon the most
complete evidence before it. 31 In deciding whether to impute
income, a court is bound to consider the totality of the
circumstances, including a partys work history, qualifications,
and job opportunities.32
In September 2005, following CSSDs motion to modify,
the court found that Urling was unreasonably underemployed. That
order, which adopted Master Browns August 2005 report, noted that
Urling had testified that she planned on working three days per
week for eight hours per day and that her 2004 earnings were
$22,559.50. The court found that there was [no] proof that Ms.
Urling has to reduce her work hours for necessary care of the
children . . . [or] cannot find full-time employment as a dental
assistant and imputed income to her based on a forty-hour per
week schedule. The court refused to calculate her potential
income at her actual wage of $22 per hour because that is due to
her particular longstanding employment relationship with [her
employer] Dr. Yuknis and his paying her more per hour in
compensation for her working less than full time. The court
calculated her imputed income using the Department of Labors mean
experienced rate of $15.06 per hour to arrive at a gross yearly
wage potential of $31,083.84. However, even with Urlings imputed
income, the court determined that increases in Wards income from
the date when support had previously been set led to an increase
in Wards monthly support obligation to $682.86.
In contrast to the September 2005 order, the courts
June 2006 order denying Wards motion to modify concluded that
Urling was not unreasonably underemployed. Master Brown found
that the courts 2005 computations had erroneously computed
Urlings income based upon a forty-hour workweek but that more
extensive testimony indicated that it is more realistic to
consider her workweek as no more than a 32-hour one. He used
Urlings new annual salary of $26,400 to calculate her support
obligation. Because the courts final support calculations would
have resulted in Ward paying more not less than that mandated
under the September 2005 support order, but because this increase
was only 9.8% and thus failed to meet the 15% modification
threshold required under Rule 90.3, the court denied Wards motion
to modify.
Ward contends that the courts June 2006 order
overlooked evidence indicating that Urling was underemployed and
erred by refusing to impute income. He argues that the evidence
established that Urling worked approximately twenty hours per
week throughout 2005, hours that are historically consistent with
her prior years of employment. Ward claims that the evidence
established that Urling continues to work less than thirty-two
hours per week, and that therefore her support obligation should
be calculated based on her potential income rather than on her
annual salary.
Wards arguments are not wholly without merit. Contrary
to Master Browns finding that there is no evidence as to Ms.
Urlings actual hours worked in 2005, Urling testified that her
2005 hours averaged twenty hours per week. She also testified
that under her new salary arrangement she worked four days per
week and was expected to be on call when her employer was out of
town. When asked if she would be expected to work more hours
under her salary arrangement, she responded possibly. Thus, Ward
is correct to the extent he argues that the evidence indicates
that Urling may continue to work less than thirty-two hours per
week. Ward asserts that the court overlooked this evidence and
erred by not finding that Urling was unreasonably underemployed.
But while this argument is not without merit, we reject it for
the reasons set forth below.
Evidence presented at the February and March hearings
established that a thirty-two-hour workweek was standard dental
practice. However, not only did Master Brown conclude that
Urling had shown good cause to work less than the standard 40-
hour workweek, he also found that Urlings workweek could properly
be considered no more than a 32-hour one. (emphasis added).
Testimony from Dr. Yuknis established that his dental assistants
worked a maximum thirty-two hour workweek but that most worked
less than thirty-two hours a week. Testimony from Sherry Evans,
an office manager for a local dental office, indicated that while
two dental assistants in that office worked thirty-two hours per
week, two others worked only eight hours.
Moreover, Ward failed to present compelling evidence
that Urling could supplement her employment with Dr. Yuknis.
Ward provided some information to the court on an Anchorage fill
in list for dental assistants interested in substitute work at
other offices, suggesting that Urling was capable of
supplementing her wages with Dr. Yuknis. But testimony presented
at the hearings revealed the practical unlikelihood of Urlings
ability to use this service. Dr. Yuknis testified that he
preferred that his assistants did not use it. Dr. Williams
testified that he did not recall the last time he had used the
list, and Dr. Ingrim testified that he had not used the list in
the last two years. Ward also failed to present evidence that
Urling had the opportunity to work more hours for Dr. Yuknis and
elected not to do so. Thus, to the extent that Urling may work
less than thirty-two hours per week, the evidence supports the
courts findings that it was not unreasonable to do so.
An analysis of Urlings salary also supports the
conclusion that Wards position is flawed. Assuming that Urling
was paid an hourly wage of seventeen dollars based upon a thirty-
two hour workweek with two weeks vacation, she would earn
approximately $28,000, only slightly above her actual salary.
This hourly rate is on par with the mean experienced pay scale
for dental assistants reflected in the Department of Labors
November 2004 statistics and is supported by testimony describing
other dental assistants wages.33
Furthermore, Master Brown found that Urling had a good
relationship with her employer, worked for him for thirteen
years, and that it was unlikely that she could find a job to fill
the other eight potential hours of the workweek without
jeopardizing her job . . . . Dr. Yuknis testified that his
assistants worked a maximum of thirty-two hours per week, but
that most work less than that and that he preferred that his
staff did not work for other offices. Master Brown concluded
that in addition to there being insufficient evidence as to the
likelihood of [Urling] being hired to work in some other dentists
office, . . . there is also the possibility that her doing so
could jeopardize her being employed by Dr. Yuknis. Adequate
evidence supported the courts conclusions.
While Urling may work less than a thirty-two hour
workweek, and while her pay might arguably appear lower than one
might expect for a dental assistant of her experience, the courts
findings on these issues are not clearly erroneous. Nothing in
our law compels a party to earn the maximum possible wage or face
imputation:
We think it important to observe that [the
rule on imputed income] does not rigorously
command pursuit of maximum earnings. The
rules more modest objective is to give courts
broad discretion to impute income based on
realistic estimates of earning potential in
cases of voluntary and unreasonable . . .
underemployment. . . . [T]he boundaries of
Alaskas rule are best left to be defined
through case-by-case consideration based on
the totality of the circumstances.[34]
We therefore conclude that the court did not err in finding that
Urling was not unreasonably underemployed, in determining Urlings
annual salary to be the best indicator of her future earning
capacity,35 and in refusing to impute income.
C. The Award of Attorneys Fees Was Proper.
Ward next contends that the court prematurely awarded
Urling attorneys fees before she had submitted her tax return,
that the amount of fees claimed was excessive, and that the court
improperly awarded fees under the Rule 82 contested with trial
schedule. The court awarded Urling thirty percent of her total
claimed fees of $3,487.50, for a total fee award of $1,046.
Urling responds that Wards challenges to the fee award are waived
because Ward failed to file a timely opposition, failed to
request an extension of time in which to file a response, and
failed to file a notice of appeal disputing the amount of fees
awarded. We need not address Urlings procedural defenses to
Wards claims on this issue because we conclude, on the merits,
that the award of attorneys fees was proper.36
Rule 82(b)(2) provides that where a prevailing party
recovers no money judgment, the court shall award that party in a
case which goes to trial thirty percent of the partys reasonable
actual fees. We will reverse an award of attorneys fees if the
court abused its discretion by compensating excessive attorney
hours37 or the award is otherwise manifestly unreasonable.38
We have previously upheld attorneys fee awards in child
support modification proceedings.39 And we have implicitly
recognized that awards of attorneys fees on a contested with
trial schedule may be appropriate following evidentiary hearings
on support and custody issues.40
Urlings attorney provided representation at two
separate evidentiary hearings, requiring counsel to solicit and
rebut testimony from seven witnesses regarding the standard
hourly workweek and pay scale for dental assistants. Counsel
also filed a pre-hearing brief and engaged in extensive motion
practice, nearly all of which was in response to Wards repetitive
attempts to have the court impute greater income to Urling.
Counsel claimed he expended fifteen and one-half hours of work at
a rate of $225 per hour in connection with this matter. Under
the facts presented here and the amount of work performed, we
conclude that the amount of fees awarded was not manifestly
unreasonable and that there was no abuse of discretion in the
courts award.
D. Wards Allegations of Judicial Bias Are Without Merit.
Wards final argument is that both Master Brown and
Judge Tan expressed an unexplained and unwarranted leniency that
creates the appearance of bias towards a particular party. Ward
fails to allege any actions that would support his claim other
than disputing the merits of the courts determinations on the
issues raised on appeal. Indeed, each of Wards allegations of
bias is simply another iteration of his own discontent with the
courts substantive rulings. Contrary to Wards suggestions, the
simple fact that a judge denies a particular motion is not
grounds for claiming judicial bias.41
Wards comments regarding Judge Tans alleged partiality
on the basis of his ethnic and racial background are particularly
troubling and unfounded. Ward notes that Appellees first name is
Meilyn, an Asian name . . . . [Judge] Tan appears to be of Asian
descent. Due to the unexplainably biased rulings, and that
judges too are human, it would seem prudent to ask for a judicial
reassignment of this case. A review of the record in this case
fails to reveal any unfairness in the conduct of the
[proceedings] and Wards allegations fail to support any
particular instances of bias.42 Because Wards arguments
regarding the alleged bias appear for the first time on appeal,
and are little more than evidence of Wards general
dissatisfaction with the courts rulings,43 his arguments on this
point are without merit.
V. CONCLUSION
Because the superior court did not err in denying Wards
motion to modify child support before the receipt of Urlings tax
return, and did not err in finding that Urling was not
voluntarily or unreasonably underemployed, we AFFIRM the superior
courts support order. Because we find no abuse of discretion in
the courts decision to award attorneys fees and in the amount of
fees awarded, we AFFIRM the courts award. Finally, for the
reasons set forth above, we reject Wards allegations of judicial
bias.
_______________________________
1 Both parties to this appeal have subsequently
remarried.
2 The response also requested an adjustment for provision
of health care coverage and medical premiums, which are not at
issue in this appeal.
3 Ward was represented by counsel, while Urling was not.
4 This was reduced to $586.02 in light of Wards providing
for the childrens health insurance.
5 Both parties were represented by counsel at these
hearings.
6 Urling had received an extension to file her tax return
that made her tax return due by October 2006.
7 The court granted Wards motion for extension of time in
which to file a notice of appeal.
8 On August 7 Ward filed a motion for contempt requesting
that the court find Urling in contempt for refusing to obey the
courts order to provide her 2005 income tax return. Urling
opposed and cross moved for attorneys fees. There is no
indication whether the court ultimately ruled on these issues and
they are not at issue in this appeal.
9 Zimin v. Zimin, 837 P.2d 118, 123 n.8 (Alaska 1992).
10 Olmstead v. Ziegler, 42 P.3d 1102, 1104 (Alaska 2002).
11 See Robinson v. Robinson, 961 P.2d 1000, 1004 (Alaska
1998).
12 Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).
13 Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003).
14 Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998).
15 Hixson v. Sarkesian, 66 P.3d 753, 757 (Alaska 2003).
16 See Rule 90.3(h)(1). The framework for determining
support for cases involving shared physical custody under Rule
90.3(b)(1) requires the court to (1) calculate what each parent
would owe if the other parent had primary custody under rule
90.3(a); (2) multiply that amount by the amount of time the other
parent has physical custody; (3) classify the parent with the
larger figure as the obligor; (4) take the difference between the
parents payments under the Rule 90.3(a) calculation; and (5)
multiply the difference by 1.5. The final number is generally
the obligor parents support obligation.
17 Rusenstrom v. Rusenstrom, 981 P.2d 558, 563 (Alaska
1999).
18 See Acevedo v. Burley, 944 P.2d 473, 475 (Alaska 1997).
Though we address each of Wards arguments in turn below, we note
that it is highly questionable whether Ward was even entitled to
an evidentiary hearing upon filing his motion to modify child
support in December 2005. A trial court may deny a motion to
modify without an evidentiary hearing where the pleading fails to
set forth a prima facie showing of changed circumstances. Id.
Even then, a court may deny a hearing where the moving party
makes only bare assertions or generalized allegations that fail
to create a genuine issue of material fact. Epperson v.
Epperson, 835 P.2d 451, 453 & n.4 (Alaska 1992). In this case,
Wards motion to modify was filed only three months after the
courts previous modification determination, and the allegations
contained therein expressed little more than Wards ongoing
dissatisfaction with the courts previous factual findings
pertaining to Urlings income.
19 Trial courts are generally afforded broad discretion in
determining the scope and extent of discovery. See Byers v.
Ovitt, 133 P.3d 676, 681 (Alaska 2006). While the court could
have stayed entry of the final order pending receipt of Urlings
tax return, it elected not to do so. The courts reason for doing
so is not evident from the record.
20 In October 2006 Urling moved to supplement the record
on appeal with her 2005 income tax return. We denied that
motion.
21 The report made this calculation [i]n light of
Bergstrom v. Lindback, 779 P.2d 1237 (Alaska 1989), requiring the
income tax computation to be based on the income being used for
support purposes. . . .
22 Ward suggests that Urlings 2004 tax return serves as
proof that she and her husband filed a joint tax return in 2004
and thus the court should have calculated her income accordingly
for 2005. But a review of the record indicates that Urlings 2004
return was not submitted to the court prior to the close of
evidence and thus was not available for the courts review. Not
until Wards April 17, 2006 request for clarification does Urlings
2004 tax return appear in the record as an exhibit.
23 As Master Browns report noted, there was no evidence of
Urlings husbands income for the purposes of calculating what
Urlings net income may have been under a married filing jointly
tax status.
24 See Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska
1991).
25 Routh v. Andreassen, 19 P.3d 593, 595 (Alaska 2001)
([T]rial courts must take all evidence necessary to accurately
reflect the parties economic reality.) (quotations omitted).
26 See Coghill v. Coghill, 836 P.2d 921, 925 (Alaska 1992)
(affirming courts reliance on prior calendar year income as best
evidence of partys current income).
27 See Byers, 133 P.3d at 683 (noting court may determine
partys income by various means); Coghill, 836 P.2d at 924 n.1,
926-27(indicating court has discretion to select one tax method
over another).
28 Alaska R. Civ. P. 90.3(a)(4).
29 Beaudoin v. Beaudoin, 24 P.3d 523, 528 (Alaska 2001).
30 Virgin v. Virgin, 990 P.2d 1040, 1049 (Alaska 1999)
(concluding court not obliged to credit speculative testimony
regarding possible decline in partys income).
31 Byers, 133 P.3d at 682.
32 Alaska R. Civ. P. 90.3 Commentary III.C.; see OConnell
v. Christenson, 75 P.3d 1037, 1039 (Alaska 2003).
33 Sherry Evans testified that Dr. Lateens previous
expanded duty dental assistants were paid between $16 and $19 an
hour. Tonya Kish, Dr. Yukniss office manager, testified that
Urling was the highest paid dental assistant in the office.
34 Beaudoin v. Beaudoin, 24 P.3d 523, 530 (Alaska 2001)
(emphasis in original).
35 See Pugil v. Cogar, 811 P.2d 1062, 1067 (Alaska 1991).
36 Wards contention that the court prematurely awarded
attorneys fees before receipt of Urlings tax return is without
merit for the reasons we expressed in Part IV. A.1., supra.
37 O.K. Lumber v. Providence Wash. Ins. Co., 759 P.2d 523,
528 (Alaska 1998).
38 Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005).
39 Patch v. Patch, 760 P.2d 526, 531 (Alaska 1988)
(applying Rule 82 to modification of child support proceeding).
40 See Vokacek v. Vokacek, 933 P.2d 544, 549-50 (Alaska
1997) (upholding fee award which included contested with trial
amount following evidentiary hearing on child support arrearages
and request to modify support).
41 See State v. City of Anchorage, 513 P.2d 1104, 1112
(Alaska 1973) (Mere evidence that a judge exercised judicial
discretion in a particular way is not sufficient to require
disqualification.), overruled on other grounds by State v. Alex,
646 P.2d 203 (Alaska 1982).
42 See Long v. Long, 816 P.2d 145, 156 (Alaska 1991).
43 See Lacher v. Lacher, 993 P.2d 413, 422 (Alaska 1999).
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