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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rosen v. Rosen (09/21/2007) sp-6168
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
| BETTINA E. ROSEN, n/k/a | ) |
| BETTINA CAMDEN-ISHIMARU, | ) Supreme Court No. S- 11890 |
| ) | |
| Appellant, | ) Superior Court No. |
| ) 3AN-98-10945 CI | |
| v. | ) |
| ) O P I N I O N | |
| CARL E. ROSEN, | ) |
| ) No. 6168 September 21, 2007 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Bettina Camden-Ishimaru, pro
se, Portland, Oregon. Paul D. Stockler, Law
Office of Paul D. Stockler, Anchorage, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
Bettina Camden-Ishimaru moved for an increase in child
support in 2004, five years after her divorce from Carl Rosen
became final. The superior court denied the motion to modify
support. Bettina then moved to establish a judgment for child
support arrearages and unpaid orthodontic expenses. In March
2005 the superior court denied the motion and instead signed a
partial modification agreement, which the parties had submitted
to the court in 2001 and which the court had neglected to sign
when initially submitted. The court made this order effective
January 2001. The court also denied Bettinas motion to have Carl
pay for orthodontic expenses, reasoning that because Carl had not
consented to the treatment as required by the agreement, he was
not solely responsible for the uncovered expenses. Bettina
appeals: (1) the superior courts decision to approve the earlier
agreement and declare it effective January 2001; (2) its decision
to deny her motion for modification; and (3) its order that
unpaid orthodontic expenses be shared by the parties. We remand
the issue of the unpaid orthodontic expenses for a determination
whether Carl acted reasonably and in good faith when he refused
to consent to the treatment. We affirm the decision of the
superior court in all other respects.
II. FACTS AND PROCEEDINGS
Carl Rosen and Bettina Camden-Ishimaru (formerly Rosen)
married in 1991. They have two children: Taylor, born in 1992,
and Madison, born in 1996. Bettina and Carl separated in 1998.
On July 2, 1999, Superior Court Judge Peter A. Michalski entered
a decree of divorce incorporating the terms of the parties child
custody, child support, spousal support, and property settlement
agreement. The agreement, signed by both parties in May 1999,
provided for joint legal and shared physical custody of the
couples two children. Carl, a physician, agreed to pay child
support to Bettina in the amount of $2,000 per month. The
agreement also provided that Carl would provide health and dental
insurance for the children and would be responsible for all
insurance deductibles and all of the childrens medical,
orthodontic and dental expenses . . . provided, that all such
health care treatment must be reasonable and . . . that no
elective medical or other health care shall be undertaken without
[Carls] prior knowledge and consent.
In December 2000 Carl and Bettina signed a partial
modification of visitation, custody, and child support. The
partial modification agreement stated that Bettina had decided to
move with the children to Portland, Oregon and requested that the
court issue an order modifying the parties agreement. The
parties agreed that Carl would have the children for a long
weekend each month and for the summer. They agreed that Bettina
would pay for the childrens travel for the summer visit and that
Carl would pay for all other visits. The partial modification
agreement also reduced Carls child support payments, stating that
his child support for June, July, and August would be reduced by
fifty percent to $1,000. The $2,000 child support in the
remaining months was to remain fixed and was not [to] be adjusted
for inflation, or otherwise, for the remainder of the support.
The agreement also stated that each party had been advised by
counsel and freely and voluntarily entered into the agreement.
Although the parties filed the agreement with the court in
January 2001, the court took no action in response to the filing
of the partial modification agreement and did not sign it at the
time of filing.
In March 2004 Bettina filed a motion to modify child
support. She requested an increase in child support based on
Carls increased income, a change in medical insurance costs, and
increases in the costs of child rearing, including costs
associated with day care, orthodontics, mental health care,
unpaid visitation costs, and inflation.
Carl opposed the motion, claiming that Bettina had not
shown a material change in circumstances as required by Alaska
Civil Rule 90.3 and refuting Bettinas claimed costs for day care,
orthodontics, mental health care, and unpaid visitation. Carl
agreed to a prospective adjustment for inflation. He referred to
and submitted a copy of the couples partial modification
agreement with his motion.
On June 14, 2004, the court issued an order denying
Bettinas motion to change child support. In August 2004 Bettina
moved to establish a judgment against Carl for child support
arrears. Bettina submitted a worksheet from the Alaska Child
Support Enforcement Division showing that Carl owed $10,785.45 in
arrears and $3,143.16 in interest. This arrearage calculation
apparently assumed that the 1999 agreement was still in effect
and that Carl was obligated to pay the monthly payments of $2,000
throughout the entire year plus a cost-of-living increase added
by the division. Bettina also requested a judgment requiring
payment for unpaid health care bills for orthodontic treatment
for Taylor and moved to compel disclosure of Carls tax returns.
Carl requested and was granted a hearing. The court denied
Bettinas motion to compel disclosure of tax returns.
In January 2005 the court held a hearing on the motion
to establish child support arrears. After the hearing, the court
found that it had failed to sign the parties partial modification
agreement due to a clerical oversight. The court approved and
signed the agreement, declaring it effective as of January 2001,
when it was originally filed with the court. The court reasoned
that it was not making a retroactive modification because it
would have signed the [partial] modification agreement at the
time it was filed if not for the clerical oversight. The court
ordered that child support arrears be recalculated to reflect the
lower payments provided for in the agreement. The court also
found that Taylors orthodontic expenses should be paid equally by
each party given Carls lack of prior consent to the expenses as
provided in the agreement.1 This appeal followed.
III. STANDARD OF REVIEW
Trial courts have broad discretion in making child
support determinations2 and deciding whether to modify child
support orders.3 We review child support awards and decisions to
modify child support for an abuse of discretion.4 An abuse of
discretion occurs only if based on the record as a whole this
court is left with a definite and firm conviction that a mistake
has been made.5 The interpretation and effect of the parties
agreement are questions of law to which we apply our independent
judgment.6
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion by
Approving the Partial Modification Agreement To Be
Effective January 2001.
Private agreements regarding child support are subject
to the requirements of Civil Rule 90.3; parties may not agree to
a level of child support lower than the rule requires or lower
than that provided for in a court order without judicial
approval.7 Bettina implies that the level of support in the
partial modification agreement is lower than would be required by
the rule. She maintains that the agreement imposes a visitation
credit, which she argues is not appropriate in shared custody
situations. Carl counters that the partial modification
agreement meets the requirements of Rule 90.3 and is valid.
Because the partial modification agreement requires Carl to pay
child support exceeding the level of support that would have been
required under Rule 90.3 and because modifications may be made
effective as of the time of initial filing, we agree with Carl
that the superior court properly found the partial modification
agreement valid as of January 2001.
1. The partial modification agreement met the minimum
requirements of Rule 90.3.
The partial modification agreement reduced the level of
child support from that required by the 1999 child support order.
In July 1999 the court determined that Rule 90.3 required Carl to
pay $1,604 monthly, or $19,248 annually. But because Carls
income exceeded $72,000 and because the parties had agreed to
payments of $2,000 monthly, the court awarded more child support
than the rule required $2,000 monthly for a total of $24,000
annually.
Signed in December 2000, the partial modification
agreement reduced Carls obligation to $1,000 in June, July, and
August but required $2,000 per month for the remaining months.
As a result, Carls annual support after the partial modification
agreement was $21,000 annually.
The level of support required by the partial
modification agreement $21,000 annually exceeded the $19,248
that Rule 90.3 required at the time the divorce decree was
entered. But as Bettina correctly notes, we issued an order
effective October 15, 1999 to increase the Rule 90.3 income cap
from $72,000 to $84,000.8 She argues that as a result of the
1999 increase in the income cap, the partial modification
agreement provided for less support than required by Rule 90.3.
The change in the income cap affects the validity of
the agreement because parties agreements must meet the
requirements of Rule 90.3 at the time they are signed.9 When
Bettina and Carl signed the agreement in 2000, Rule 90.3(a)(2)(B)
would have required $22,680 annually if Bettina had primary
physical custody and if there were no visitation credit.10 The
initial divorce decree declared that Bettina and Carl would share
physical custody, and child support is calculated differently
when there is shared physical custody. But Rule 90.3(b)(1)(C)
provides that if the shared custody award calculation yields a
figure that is higher than the amount of support which would be
calculated under paragraph (a) assuming primary custody, the
annual support is the amount calculated under paragraph (a).
Thus, the rule limits a parents obligation in a shared physical
custody arrangement to the amount calculated under paragraph (a).
As a result, at the time Carl and Bettina signed the partial
modification agreement, Rule 90.3 would have required Carl to pay
a maximum of $22,680 annually or $1,890 monthly in child
support payments, assuming no visitation credit applied.
But Rule 90.3(a)(3) also allows a reduction in child
support payments by up to seventy-five percent for any period in
which the obligor parent has extended visitation of over 27
consecutive days. Because the superior court found that Carl
exercised summer visitation for at least two months each summer,
he was eligible for at least two months visitation credit under
Rule 90.3(a)(3).11 Thus, at the time of the agreement, Carls
minimum obligation under paragraph (a) would have been $19,845.12
The partial modification agreement required Carl to pay $21,000
and therefore exceeded the minimum level of support required by
the rule as of December 1999 when Carl and Bettina signed the
agreement. Because agreements regarding child support may be
enforced if they comply with Rule 90.3, the partial modification
agreement is enforceable.
2. The superior court did not abuse its discretion in
making the agreement effective January 2001.
Rule 90.3(h)(2) prohibits retroactive modification of
child support, providing:
Child support arrearage may not be modified
retroactively, except as allowed by AS
25.27.166(d). A modification which is
effective on or after the date that a motion
for modification . . . is served on the
opposing party is not considered a
retroactive modification.
Bettina argues that the court retroactively modified
support in its March 2005 order that declared the agreement
effective as of January 2001. She also relies on the rule that
agreements waiving or reducing child support payments are not
valid until a court has reviewed and approved the agreements.13
Carl responds that the parties filed the partial modification
agreement in January 2001. He contends that this joint filing
was equivalent to a motion for modification and argues that the
rule allows modifications relating back to the time the motion is
filed. The superior court reasoned that it was not making a
retroactive modification because it would have signed the
modification agreement at the time it was filed if not for the
clerical oversight.14
We agree with Carl that under Rule 90.3(h)(2), there
was no retroactive modification in this case when the court
signed the agreement in March 2005 and declared it effective
January 2001. While Bettina is correct that a modification of
child support will not be given retroactive effect, Rule
90.3(h)(2) defines when a retroactive modification occurs in the
context of an agreement modifying court-ordered child support.
And Rule 90.3(h)(2) specifically provides that a modification
that is effective after the date a motion is served on the
opposing party is not a retroactive modification. We have
previously recognized this, holding that absent good cause, a
modified child support order should be effective from the date
the parent receives notice that a modification is being
considered.15 We have explained that
service of the motion . . . gives the
opposing party both fair warning that support
may change and an opportunity to reassess,
even before the court rules, the correct
amount of support. This gives an opportunity
to adjust consumption patterns in
anticipation of modification, and thus
minimize prejudice when relief is granted
effective as of the service date.[16]
In this case, both parties signed the partial
modification agreement.17 The court declared the partial
modification agreement and its revised child support obligations
effective January 2001, when the agreement was initially filed
with the court. Certainly a stipulation to modify child support,
signed by both parties, provides even greater notice that child
support will be modified than receipt of a motion to modify.
Because both parties had notice of this modification and had
agreed to its terms, the court did not issue a retroactive
modification when it declared the partial modification agreement
effective January 2001.18
B. The Superior Court Did Not Abuse Its Discretion when It
Denied Bettinas Motion for Modification.
We must also evaluate Bettinas claims that
circumstances in 2004, when she filed her motion for
modification, warranted modification of the level of child
support. We hold that the superior court did not abuse its
discretion in denying her motion for modification.
Rule 90.3(h)(1) governs the modification of child
support awards, providing:
A final child support award may be modified
upon a showing of a material change of
circumstances as provided by state law. A
material change of circumstances will be
presumed if support as calculated under this
rule is more than 15 percent greater or less
than the outstanding support order.
Bettina argues that the superior court erred when it
did not require Carl to submit documentation of his income, did
not make factual determinations regarding income, and did not
assess whether the fifteen percent materiality rule of Rule
90.3(h)(1) applied. She also suggests the superior court should
have considered the intent of the original divorce decree in
determining whether a modification was warranted, given that the
original decree provided for payments in excess of Rule 90.3
requirements and given that she alleged Carls income increased
over one hundred percent since the divorce. The court denied
Bettinas motion to modify child support in June 2004.19
Carl responds that Bettina waived the issue of the
fifteen percent materiality rule by failing to raise it at the
trial level. He also contends she waived the issue whether the
superior court erred in failing to require disclosure of
financial information because her motion to modify support was
not at issue when the court entered the order from which she
appealed. Carl contends that the June 2004 order denying
Bettinas motion to modify child support resolved all pending
child support issues. Thus, he claims the time for appeal began
running then.
Bettina has not waived her arguments regarding material
change justifying a modification. Contrary to Carls contention,
the issue was before the superior court. Bettinas initial motion
argued that support should be modified because of increases in
Carls income and the cost of child rearing. Carl cites this
courts decision in Mattfield v. Mattfield for the proposition
that an order that functionally resolve[s] all pending child
support issues amounts to a final judgment.20 Although Carl is
correct that the superior court issued an order denying Bettinas
motion in June 2004, this order did not resolve all pending child
support issues. Because the court did not declare the partial
modification agreement valid until March 2005, the June 2004
order did not resolve all pending child support issues. When the
court denied Bettinas motion to modify child support in June
2004, the base level of support was in dispute. As a result, the
issue of child support and its modification was not functionally
resolved until the courts March 2005 order. Because we hold that
Bettina has not waived the issue, we now consider her argument.
As a threshold matter, we note that neither the
existence of an agreement nor the provision in the original
agreement that [t]his Agreement shall not be modified by the
parties except by written instrument signed before a notary
prevents a judicial determination that modification is
appropriate under Rule 90.3. In Robinson v. Robinson, we
rejected the notion that the existence of a prior child support
agreement alone was sufficient to reject a motion for
modification.21 We emphasized that [a]n agreement for child
support cannot prevent modification, because the parties may not
waive the application of Rule 90.3.22
The question thus arises: Did the superior court
properly determine that no modification was required when Bettina
filed her motion in 2004? We conclude that it did. Although
Bettina argues that the $100,000 income cap applies, we adopted
this cap effective April 15, 2005.23 Because Bettina filed her
motion to modify child support in 2004, the $84,000 income cap
applied to her request. As we discussed above, Carls child
support payments at the time comported with the requirements of
Rule 90.3.24 As a result, Bettinas motion to modify finds no
support in the income cap of Rule 90.3. Bettinas argument that
the original decree intended to grant a level of support that was
slightly higher than the Civil Rule 90.3 level does not support
modification; the level of support after the partial modification
agreement remained slightly higher than the Rule 90.3 level at
the time the motion for modification was filed.
We also reject Bettinas argument that the court abused
its discretion by declining to modify child support despite her
claim that she obtained health insurance for the children.
Bettinas original motion to modify child support claimed that
Carl insured the children for catastrophic coverage only and
requested that support payments be adjusted accordingly. Bettina
does not argue that she would reach the fifteen percent
materiality threshold of Rule 90.3(h)(1) based on health
insurance payments. As a result, she has not demonstrated
reversible error. Moreover, we note that the divorce agreement
requires Carl to provide health and dental insurance. And Carl
submitted documentation of the health and dental insurance that
he provided for the children. Even if Bettina were correct that
Carl provided inadequate insurance coverage, the agreement makes
him responsible for all deductibles and all other uncovered
medical expenses. In other words, under the terms of the
agreement, if Carl purchased inadequate coverage, he would be the
party responsible for paying for the uncovered expenses. Under
these circumstances, Bettina has not shown a material change in
circumstances resulting from health insurance expenses. We
therefore conclude that the superior court did not abuse its
discretion when it denied Bettinas motion to modify child
support.25
C. The Superior Court Erred when It Ordered the
Orthodontic Expenses To Be Paid Equally by Each Party
Without a Finding that Carl Acted Reasonably.
In January 2005 Bettina submitted a Motion Requesting
Unpaid Health Care Bills of the Minor, Taylor Rosen as a
Judgment, seeking reimbursement for orthodontic expenses and
noting that two orthodontists had recommended immediate treatment
for Taylor to which Carl refused to agree. Noting that Carl did
not consent to Taylors treatment, the superior court found the
expense to be an uncovered medical expense. The court reasoned
that although the parties original agreement makes Carl
responsible for orthodontic expenses, the agreement also requires
that all health care treatment be reasonable and that no
treatment be undertaken without Carls prior knowledge and
consent. The court applied Rule 90.3(d)(2)s provision that
uncovered medical expenses shall be allocated equally between the
parties and ordered Carl to pay half the expense directly to the
orthodontist.
Bettina argues that the court abused its discretion
when it ordered that Taylors orthodontic expenses be paid equally
by each party. She appears to argue that the court should not
have relied on Rule 90.3(d)(2) because the divorce decree
requires that Carl reimburse one hundred percent of uncovered
expenses. She also argues that Rule 90.3 requires that the party
who did not obtain the care must reimburse the other party within
thirty days and that she has not received payment for ten months.
Carl responds that the superior court found that Carl did not
consent to the treatment and properly relied on Rule 90.3(d)(2).
Carl maintains that his ability to pay is not relevant and notes
that Bettina does not contest the factual finding that Carl did
not consent to treatment.
The 1999 divorce agreement provides that Carl is
responsible for all insurance deductibles and all medical and
dental expenses, expressly including orthodontic expenses. But
as the superior court correctly noted, the agreement requires
that all such health care treatment must be reasonable and . . .
that no elective medical or other health care shall be undertaken
without [Carls] prior knowledge and consent.26
Bettina does not contest the courts finding that Carl
did not consent to the treatment. But her briefing suggests that
Carl withheld consent unreasonably or in bad faith. Bettina
insists that Carls argument before the superior court that he did
not agree with the orthodontists opinion perverts the intention
of the contract. According to her, the original intention was
that he would respect all other specialties . . . [and] [n]ot
simply override specialists[] opinions because he doesnt want to
pay for services.
Like other legally enforceable agreements, this
agreement includes an implied covenant of good faith and fair
dealing.27 Although the superior court found that Carl did not
consent to Taylors orthodontic expenses, it did not make any
findings as to whether Carls actions comported with the intent of
the contract or whether he acted in good faith. Accordingly, we
remand the issue of orthodontic expenses for a determination on
whether Carl reasonably withheld consent for the orthodontic
treatment. If the trial court finds that Carl unreasonably
withheld consent for the orthodontic treatment expressly included
in the parties agreement, it should order Carl to reimburse
Bettina for one hundred percent of these expenses.
D. The Superior Court Did Not Abuse Its Discretion in Not
Ordering Cost-of-Living Adjustments.
Bettina argues that the court should have awarded cost-
of-living adjustments. Her motion for modification claimed an
increase in costs for child rearing due to inflation. The
original agreement provided that support payments would be
adjusted for inflation. The partial modification agreement
provided that the $2,000 child support shall remain fixed and not
be adjusted for inflation, or otherwise, for the remainder of the
support.
Although Carl argues that neither Rule 90.3 nor the
parties agreement requires cost-of-living adjustments, he notes
that he agreed to cost-of-living adjustments in the proceedings
before the superior court. Because Carl has agreed to cost-of-
living adjustments, this issue is moot.
V. CONCLUSION
For the reasons outlined above, we AFFIRM the decision
of the superior court declaring the partial modification
agreement effective January 2001 and rejecting Bettinas motion to
modify child support. We VACATE its order that Carl pay only
half of Taylors orthodontic expenses and REMAND for consideration
whether Carl acted reasonably and in good faith when he refused
to consent to the orthodontic expenses.
_______________________________
1 The agreement provides that Carl is responsible for all
of the childrens medical, orthodontic and dental expenses . . .
provided, that all such health care treatment must be reasonable
and . . . that no elective medical or other health care shall be
undertaken without [Carls] prior knowledge and consent.
2 Zimin v. Zimin, 837 P.2d 118, 123 n.8 (Alaska 1992).
3 Olmstead v. Ziegler, 42 P.3d 1102, 1104 (Alaska 2002).
4 Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002).
5 Flannery v. Flannery, 950 P.2d 126, 129 (Alaska 1997)
(internal quotations and citations omitted).
6 Id.
7 Cox v. Cox, 776 P.2d 1045, 1048 (Alaska 1989); see also
Nix v. Nix, 855 P.2d 1332, 1334 (Alaska 1993) ([A] child support
waiver is not valid and enforceable until a court has reviewed
and approved the waivers substantive adequacy under Rule 90.3.).
8 See Supreme Court Order No. 1362 (Oct. 15, 1999).
Bettina also suggests that the $100,000 cap currently in place
should be used. See Alaska R. Civ. P. 90.3(c)(2). But because
the question is whether the agreement complied with Rule 90.3 at
the time it was signed, the current income cap is not relevant to
the determination whether the agreement is valid.
9 See, e.g., Flannery, 950 P.2d at 128 (referring to
income cap at the time the parties entered into the agreement).
10 Rule 90.3(a)(2)(B) provides that the non-custodial
parents income must be multiplied by .27 for two children.
Applying the income cap of $84,000 which applied at the time
under Rule 90.3(c)(2), Carls payments would be $22,680 under
paragraph (a) if Bettina had primary physical custody.
11 Bettina argues that a visitation credit is not
appropriate because the agreement provided for shared custody and
because the partial modification agreement did not increase the
childrens overnights with Carl. But because Rule 90.3(b)(1)(C)
provides that shared custody support cannot exceed the level of
support for primary custody, the visitation credit allowed under
Rule 90.3(a)(3) applies and is relevant to the calculation of
Carls support obligation under Rule 90.3(a). Moreover, the
question whether visitation changed from the original divorce
decree to the partial modification agreement is irrelevant to the
question whether the partial modification agreement met the
requirements of Rule 90.3 when signed.
12 This amount includes ten months at $1,890 per month,
plus two months with visitation credit of seventy-five percent
(payments reduced to $472.50 for two months), for a total of
$19,845.
13 See Murphy v. Newlynn, 34 P.3d 331, 333 (Alaska 2001)
([A]greements to waive child support are not valid until a court
has reviewed and approved the waivers substantive adequacy under
Rule 90.3, and even a court-approved waiver will be given only
prospective effect.).
14 Bettina characterizes the courts action as an improper
Alaska Civil Rule 60(b) motion to correct a mistake. Carl
characterizes it as a proper Rule 60(a) motion to correct a
clerical error. Instead, we conclude that the court simply
issued an order nunc pro tunc (now for then).
15 State, Dept of Revenue, Child Support Servs. Div. v.
Wise, 122 P.3d 212, 214 (Alaska 2005).
16 Id. (quoting Boone v. Boone, 960 P.2d 579, 585-86
(Alaska 1998)).
17 Bettina contends that the document was never served on
the parties before or after it came into the [s]uperior court.
But because the document was signed and filed jointly by both
parties, each party had notice of the document, and service on
the other party was not required.
18 Bettina also argues that because Carl failed to act to
enforce the agreement within three years, the statute of
limitations renders the agreement ineffective. But Bettina first
raised this issue in her April 2005 Motion for Reconsideration.
Because an issue raised for the first time in a motion for
reconsideration is not timely raised and not properly before this
court on appeal, we do not consider her argument. Stadnicky v.
Southpark Terrace Homeowners Assn, 939 P.2d 403, 405 (Alaska
1997).
19 The courts March 2005 findings of fact and conclusions
of law addressed only the issue of orthodontic treatment and the
validity of the partial modification agreement.
20 133 P.3d 667, 674 n.7 (Alaska 2006).
21 953 P.2d 880, 884 (Alaska 1998).
22 Id. (citing Aga v. Aga, 941 P.2d 1260, 1262 (Alaska
1997)); see also Flannery, 950 P.2d at 129-32 (holding that
agreement to pay more than required by Rule 90.3 did not prevent
father from seeking modification under Rule 90.3(h)(1)).
23 See Supreme Court Order No. 1526 (Apr. 15, 2005)
(increasing cap from $84,000 to $100,000).
24 We note that the $100,000 income cap would apply to any
motion for modification submitted after April 15, 2005.
25 Bettina argues that she did not file the motion to
change custody, support, or visitation submitted to Judge
Michalskis chambers and that the motion was falsified and had no
certificate of service. The exact nature of this argument is
elusive. Bettina signed both the motion and the certificate of
service herself. She did not object to the motion before the
superior court indeed, it is not clear why she would object to
her own motion or what prejudice she alleges resulted. Indeed,
if Bettina were correct that the court erred in accepting the
filing of this motion, her entire appeal would be in doubt. We
find no error in the superior courts acceptance of Bettinas
motion.
26 The partial modification agreement does not alter the
terms for health expenses.
27 In commercial contracts that require one partys consent
for specified events, we have found an implied requirement that
consent be exercised in good faith. Tesoro Alaska Petroleum Co.
v. State, 757 P.2d 1045, 1051-52 (Alaska 1988) (holding that
subjective good faith standard applies to commercial contract
without a satisfaction clause and requires that a party not
exercise a contractual right with an improper motive such as
spite or desire to harm the other party). Settlement agreements
should be interpreted as contracts provided that they meet
minimal contractual requirements. Gaston v. Gaston, 954 P.2d
572, 574 (Alaska 1998).
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