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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kestner v. Clark (05/09/2008) sp-6259
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
| DIANE L. KESTNER, | ) |
| ) Supreme Court No. S- 11953 | |
| Appellant, | ) |
| ) Superior Court No. 1JU-94-00541 CI | |
| v. | ) |
| ) O P I N I O N | |
| CHRISTOPHER H. CLARK, | ) |
| ) No. 6259 May 9, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Chrystal Sommers Brand,
Chrystal Sommers Brand, Family Lawyer,
Juneau, for Appellant. Christopher H. Clark,
pro se, Juneau, Appellee.
Before: Fabe, Chief Justice, Matthews and
Eastaugh, Justices. [Carpeneti, Justice, not
participating.]
FABE, Chief Justice.
I. INTRODUCTION
A mother sought modification of child support for her
son, claiming that as a stay-at-home mother of two children from
a subsequent marriage, she could not afford child support
payments above the $50 monthly minimum. The father successfully
obtained a ruling that the mother was voluntarily and
unreasonably unemployed and that her potential income was $25,000
per year. The mother appeals the superior courts rulings on
imputation of income, discovery, and attorneys fees. Because the
superior court appropriately imputed income to the mother and did
not abuse its discretion in its discovery rulings or computation
of attorneys fees, we affirm its rulings in all respects.
II. FACTS AND PROCEEDINGS
Diane Kestner and Christopher Clark were married on
November 29, 1986 and divorced in 1995. They had one child,
Nathan, who was born on August 5, 1990. In their child custody
and support agreement, Diane and Christopher agreed that Diane
would have sole legal and primary physical custody of Nathan, and
Christopher would have regular visitation rights. At the time of
the agreement, Diane planned to attend graduate school in
Illinois in the fall of 1995. The parties agreed that Nathan
would accompany Diane if she left the state. The agreement
included the provision that [u]pon [Dianes] completion of the
graduate program, [she] agrees to use her best efforts to obtain
re-employment in a reasonable job . . . in Juneau, Alaska.
After graduating with a masters degree in sociology in
1997, Diane tried to find employment in Juneau with the State of
Alaska but failed, and she remained in Macomb, Illinois.
Christopher complained that Dianes efforts to find a job in
Juneau were inadequate and moved that she be required to relocate
to Juneau from Illinois. The superior court denied this motion
but found that Christopher could pursue a best interest
determination for Nathans custody. Christopher did not do so at
that time. Diane married Terry Kestner in 2000 and they had two
children who were two and three years old, respectively, in 2004.
Diane left the work force in 2001 to care for all three children.
In 2004 Christopher moved to modify custody on the
grounds that Nathan was about to turn fourteen and wanted to move
to Juneau for high school. Diane conceded that her move to
Illinois constituted a substantial change in circumstances but
requested that the court appoint a custody investigator to
determine the best interests of the child. The superior court
granted Dianes motion, and in July 2004 the custody investigator
recommended that Christopher have school-year custody of Nathan.
The parents reached a settlement before the courts hearing,
agreeing that Nathan would live with his father during the school
year.
Following the change in custody, the parties sought to
modify the child support payments. At the time of the divorce,
the initial child support order required Christopher to pay $331
monthly.1 Diane submitted her Civil Rule 90.3 affidavit on July
26, 2004. The affidavit reflected that Terry and Diane owned
three rental properties, which operated at a net loss of $483 in
2003.
Along with his Alaska Civil Rule 90.3 affidavit and
2003 income information, Christopher filed a cross-motion seeking
Diane and Terrys 2003 joint income tax return. Christopher
maintained that he needed discovery of her entire tax return
because the tax schedule Diane had produced did not reflect
whether she had any income other than her rental income. Diane
refused to release her full income tax information, arguing that
under Rule 90.3(e), she had provided all information necessary
for the court to estimate her income.2 Diane further claimed
that [n]owhere in the rule itself not even in the commentary is
the entire tax return required it all depends on the
circumstances of each case.
Superior Court Judge Patricia A. Collins granted
Christophers motion to require Diane to file her entire 2003 tax
return, which showed an adjusted gross income for Diane and her
husband of $63,857. On October 6, 2004, the superior court
ordered that Diane pay $50 monthly in child support. The court
declined to impute income to Diane, finding that although her
educational background would suggest employability at a higher
level than past earnings indicate, it [was] not unreasonable for
her to be a stay-at-home mother. Christopher moved for
reconsideration because he had not had the opportunity to argue
for imputed income before the court issued its child support
order. The court treated the motion for reconsideration as a
motion to impute income.
Diane filed her opposition to the motion to impute
income, arguing (1) that she was not voluntarily and unreasonably
unemployed or underemployed given the cost of child care3 and her
relatively low income4 when she had been employed full-time; (2)
that Christopher had not met the burden to obtain a variance;5
and (3) that Christopher and his fianc‚e, Nicole Hartmann, had an
estimated combined household income of $90,000$100,000 with which
to support one child (Nathan),6 whereas Diane and Terry had a
combined household income of $64,000 with which to support two
children.
Christopher responded, urging the superior court to
impute income to Diane and to hold an evidentiary hearing to
establish the appropriate income. He maintained that the
superior court must examine the totality of the circumstances in
determining whether to impute income,7 and that under the
circumstances, Dianes unemployment was unreasonable. Christopher
argued, among other things, that Terrys income was substantial,
allowing Diane to stay at home, that [p]aying support based on
imputed income [would] not cause substantial hardship for the
children of her new family, and that Dianes choice to stay at
home rather than work force[d] [Christopher] and Nathan to
finance the raising of the children of the new marriage.
The parties then proceeded to discovery, exchanging
interrogatories and requests for production. Christopher
objected to Dianes discovery requests, maintaining that his
economic circumstances as custodial parent were not relevant,
that the requests were burdensome, that the information requested
was protected by the constitutional right to privacy, and that
Diane inappropriately sought information about the economic
circumstances of Christophers fianc‚e, Nicole Hartmann.
Diane then filed a subpoena duces tecum for Nicole
Hartmann, requesting that Nicole bring extensive income and
expense information8 to her deposition. Christopher moved to
quash the subpoena, arguing that (1) Nicole was not a party and
did not have an obligation to support Nathan; (2) Christophers
legal argument was not that he (and Nicole) could not afford to
support Nathan, but rather that Diane has a duty to do so and
that by not working and paying only poverty child support, she
was not fulfilling that duty; and (3) the requested information
was protected by Nicoles constitutional right to privacy. The
superior court granted the motion to quash.
The superior court held an evidentiary hearing on March
4, 2005. Milton Barker, an economist, testified that the average
wage of social and community service managers in Macomb County,
Illinois was $47,602 and that the range of wage rates for
positions for which [Diane] would qualify ranged from a low of
$20,593 to a high of $63,491. The court also heard testimony
from the Kestners accountant, who claimed that Dianes net take-
home pay after paying child care expenses would be
$14,129$18,531. Finally, the court reviewed evidence produced
during discovery, which showed that Dianes maximum gross income
over a four-year period was $20,381, and that the Kestners net
worth as of March 2004 was $471,886.
The superior court entered its order regarding child
support, imputing income to Diane and finding that Diane would
reasonably expect to earn approximately $25,000 per year if she
chose to return to work. The court reasoned that while Dianes
desire to stay at home with her young children is understandable
and laudable, it is a voluntary decision based in large part on
the fact that [Terrys] income and the family investments are
sufficient to meet the familys needs. In response to Dianes
claim that she should only be required to pay the minimum in
child support, the court determined that this argument conflicts
with the basic premise of Civil Rule 90.3 that both parents
should pay a fair percentage of their income or imputed income as
child support. Diane filed a motion for reconsideration, which
was denied. The court issued its order requiring Diane to pay
$298.77 monthly in child support.
Christopher moved for a full $17,051 in attorneys fees,
claiming that Dianes actions were in bad faith, in addition to
$2,822 in attorneys fees related to discovery motions. Diane
opposed, maintaining that the amount of fees sought was
unreasonable, that her actions were substantially justified,9 and
that an award to Christopher would be unjust under Alaska Civil
Rule 37(a)(4)(A)(B).
The court ultimately granted Christopher $782 in
attorneys fees related to discovery practice and ordered Diane to
pay Christopher thirty percent of actual fees ($4,880.70) because
Christopher was the prevailing party. Diane appeals the courts
decision to impute her income, the courts discovery rulings, and
the awards of attorneys fees.
III. DISCUSSION
A. Standard of Review
We reverse child support orders when we determine that
the superior court abused its discretion or applied the wrong
legal standard.10 Whether the superior court used the right
method of calculating child support is a matter of law to be
reviewed de novo.11 We review discovery rulings12 and awards of
attorneys fees13 for abuse of discretion, and determine that there
has been an abuse of discretion when we are left with a definite
and firm conviction based on the record as a whole that a mistake
has been made.14
B. The Superior Court Did Not Err in Imputing Income to
Diane Under Alaska Civil Rule 90.3(a)(4).
Diane appeals the superior courts order that she pay
child support based on an imputed income of $25,000. While she
concedes that her decision to leave the work force to care for
her three children was voluntary, she challenges the superior
courts finding that it was unreasonable. She emphasizes the
permissive language in Rule 90.3(a)(4) the court may calculate
child support based on a determination of the potential income of
a parent who voluntarily and unreasonably is unemployed or
underemployed and contends that because of her economic
circumstances, her decision to stay at home to care for her
children is both practical and reasonable. As Diane correctly
contends, Beaudoin v. Beaudoin explains that Rule 90.3(a)(4) does
not rigorously command pursuit of maximum earnings.15 She points
to the language of Rule 90.3(a)(4) itself, which forbids
imputation of income to a parent who is caring for a child under
two years of age to whom the parents owe a joint legal
responsibility. And while she concedes that the children for
whom she provides care are not from the original marriage, she
argues that the superior court certainly should be able to
consider the young age of siblings in determining the
reasonableness of the decision. Diane points to the benefits
that Nathan received from her staying at home when he lived with
her and emphasizes Christophers acknowledgment that he does not
need her financial contribution in order to provide for their
son.
Christopher responds that while Dianes decision to stay
at home may be subjectively reasonable for her new family, it is
objectively unreasonable as a matter of law given her legal duty
to support Nathan. Christopher acknowledges that he can afford
to provide for Nathan but maintains that regardless of his
financial situation, Dianes income should be imputed so that she
can properly fulfill her obligation as the non-custodial parent.
Although in most cases, the superior court considers an
obligors actual income in initially determining or later re-
calculating a child support award, in some cases it may be
appropriate to use an obligors potential income:
The court may calculate child support based
on a determination of the potential income of
a parent who voluntarily and unreasonably is
unemployed or underemployed. . . . Potential
income will be based upon the parents work
history, qualifications, and job
opportunities. The court also may impute
potential income for non-income or low income
producing assets.[16]
When deciding whether to impute income, the superior court should
consider the totality of the circumstances.17 Determining whether
or not a parent is voluntarily and unreasonably underemployed is
essentially a question of fact. The trial court should consider
the nature of the changes and the reasons for the changes, and
then . . . determine whether under all the circumstances a
modification is warranted. 18
Parents have a paramount duty to support their
children.19 New obligations incurred after the birth of the
parents first child do not diminish that duty.20 As the
Mississippi Supreme Court put it, a rule relieving a parent of
his obligation to support a prior child because of the birth of a
subsequent child would quite literally allow[] the non-custodial
parent to sire himself out of his child support obligation.21
Because of the significance of a parents duty to meet his or her
child support obligations, we prioritize fulfillment of that duty
over even legitimate decisions to be voluntarily unemployed or
underemployed.22 As we have repeatedly recognized, a parent
should not be relieved of the obligation to support his or her
children except under the most extreme circumstances.23
Rule 90.3 and its commentary provide for limited
exceptions to this general principle, none of which apply to
Diane in this case. The superior court can find unusual
circumstances meriting departure from the Rule 90.3 guidelines
when requiring the obligor parent to meet her child support
obligations under the rule would cause substantial hardship to
the subsequent children.24 The rule also allows superior courts
to consider the interests of the subsequent family . . . where an
obligor proves he or she has taken a second job or otherwise
increased his or her income specifically to better provide for a
subsequent family.25 Diane failed to prove that her child support
obligation would cause substantial hardship to her subsequent
children, and she has elected to leave the work force. As a
result, these exceptions do not apply.
Diane analogizes her situation to the one anticipated
in Rule 90.3(a)(4), which forbids imputation of income to a
parent who is caring for very young children of the marriage,26
and argues that the superior court erred in failing to give
adequate weight to the young age of her children in evaluating
the reasonableness of her decision to leave the work force. But
the rule goes no further than to except obligor parents who care
for children under two years of age who are of the marriage and
to whom the parents owe a joint legal responsibility from strict
adherence to the rules guidelines. By negative implication,
income can be imputed to parents who stay home with children of a
subsequent marriage. Because we conclude that the superior court
did not err in finding Dianes voluntary unemployment to be
unreasonable, we uphold the imputation of income to Diane.
C. The Superior Court Did Not Abuse Its Discretion in
Requiring Discovery from Dianes Spouse While Not
Permitting Discovery from Christopher or His Fianc‚e.
Diane maintains that the superior court erred by
permitting discovery of her husbands finances but prohibiting
discovery of information about Christophers fianc‚es finances.
In explaining her ruling on these discovery motions, Judge
Collins stated that while information about Diane and Terry, as
the heads of the obligor household, was either relevant or likely
to lead to discovery of relevant evidence, information about
Nicoles finances did not have the same potential for relevance.
Diane argues that affirming these discovery orders
would have negative policy consequences. She contends that any
discovery of economic information should have been reciprocal
because the economic information of both parents was equally
relevant to the child support determination. But this argument
reflects a misunderstanding of the procedural stance of her case:
when one parent has primary physical custody, the question under
Rule 90.3 is what amount of child support must be paid by the non-
custodial parent the obligor to support his or her child while
that child is not in his or her custody.27 In other words, the
process is naturally one-sided, focusing on the economic
circumstances of the obligor parent. When the obligor has
remarried, the income of the obligor parents new spouse may be
discoverable if the obligor is seeking a variance from the Rule
90.3 schedule based on financial hardship or where, as here, the
obligor is a stay-at-home parent who does not work because of the
income of the new spouse.28 However, the income of the obligors
spouse will not normally be relied upon when calculating the
obligors child support payment.29
Given the procedural stance of this case, the superior
court correctly determined that the Kestners income information
was discoverable and Christophers fianc‚es financial information
was not.
D. The Superior Court Did Not Abuse Its Discretion in
Awarding Attorneys Fees Pursuant to Alaska Civil Rule
82(b)(2).
Diane contends that the superior court abused its
discretion by awarding attorneys fees to Christopher. She argues
that the superior courts decision was flawed in three ways.
First, Diane claims that the superior court did not accurately
calculate the award under Civil Rule 82(b)(1).30 Second, Diane
contends that the superior court erred by not stating its reasons
for departing from the fee schedule of Rule 82(b)(1). Third, she
maintains that the superior court erroneously relied on the
schedule in Rule 82(b)(2) when it awarded thirty percent of
Christophers actual fees. Her argument for the use of Rule
82(b)(1) over (b)(2) is that the superior court issued a monetary
judgment in this case.
But child support orders do not constitute monetary
judgments.31 As Christopher explains:
[T]he award of prospective child support is
not an appropriate kind of case to which to
apply the schedule [of Rule 82(b)(1)].
Unlike money judgment awards, there is no way
to know, when prospective support is set,
whether the support amount will continue
throughout the childs minority. It is
subject to modification for a variety of
reasons, including substantial changes in the
financial circumstances of either parent, and
modification of custody . . . .
Because Christopher did not recover a monetary judgment, Judge
Collins appropriately relied on Rule 82(b)(2) to calculate the
attorneys fees award.
E. The Superior Court Did Not Abuse Its Discretion in
Awarding Attorneys Fees Pursuant to Alaska Civil Rule
37(a)(4).
Diane argues that the award of attorneys fees related
to discovery was not reasonable under Rule 37(a)(4). She
questions the $2,822 that Christophers attorney spent on
discovery, claims that her actions were substantially justified,
and disputes Judge Collinss ruling that her failure to
meaningfully respond to discovery was unjustified. Finally, she
contends that Judge Collins should have denied the award of
attorneys fees because it was unjust under the circumstances to
require her to pay Christophers attorneys fees.
Christopher argues that Judge Collinss award of
attorneys fees was appropriate. Christopher quotes Judge Collinss
reasoning in support of her decision to award attorneys fees for
costs incurred during discovery: Dianes failure to meaningfully
respond to discovery concerning her economic situation and
related motion for protective order regarding that discovery was
unjustified. [Dianes] economic situation and earning capacity is
such that it is not unfair to impose fees related to the motion
to compel discovery. Rule 37(a)(4) provides clear guidance to
the superior court:
If the motion is granted or if the disclosure
is provided after the motion was filed, the
court shall, after affording an opportunity
to be heard, require the party . . . whose
conduct necessitated the motion . . . to pay
the reasonable expenses incurred in making
the motion, including attorneys fees . . . .
(Emphasis added.) Judge Collins explained that Diane lost every
contested motion associated with the modification request; that
Christopher incurred fees to quash Dianes subpoena duces tecum,
to file the motion to compel discovery, and to oppose Dianes
motion for protective order; and that the motion to compel was
granted while the motion for protective order was denied.32
Because she provided a detailed explanation for her decision and
followed the clear guidance of Rule 37(a)(4), Judge Collinss
award of attorneys fees to Christopher was appropriate and not an
abuse of discretion.
IV. CONCLUSION
We AFFIRM the superior courts decision in all respects.
_______________________________
1 This amount was subsequently reduced by the Child
Support Enforcement Division to less than $300 monthly for a
medical insurance offset.
2 Alaska Civil Rule 90.3(e) states that each parent in a
court proceeding at which child support is involved must file a
statement under oath which states the parents adjusted annual
income and the components of this income as provided in
subparagraph (a)(1).
3 Diane estimated that annual child care costs in Macomb
ranged from $9,360 to $10,242, depending on the provider.
4 Dianes 2001 gross income was $21,501 from two jobs.
5 See Alaska R. Civ. P. 90.3(c)(1); Schuyler v. Briner,
13 P.3d 738, 744 (Alaska 2000) (quotation omitted) (Rule 90.3
only allows a support variance when the obligor parent
demonstrates good cause upon proof by clear and convincing
evidence that manifest injustice would result if the support
award were not varied. ); see also Coats v. Finn, 779 P.2d 775,
777 (Alaska 1989).
6 Diane argued that the Rule 90.3 commentary also
references not just the new spouse but other persons in the
household. Thus, [Christophers] fianc‚[e], Nicole Hartmann,
could fall under the rule under [Christophers] interpretation.
7 Christopher cited Beaudoin v. Beaudoin, 24 P.3d 523,
528 (Alaska 2001), to support this proposition.
8 Diane sought, inter alia, Nicoles pay statements for
September 2004 to January 2005; Nicoles complete 2002 and 2003
income tax returns; Nicoles bank statements from January 2002 to
the date of response; and all statements for investment accounts
and accounts with any financial institutions from January 2002 to
the date of response.
9 See Alaska R. Civ. P. 37(a)(4)(A)(B).
10 Beaudoin, 24 P.3d at 526.
11 Caldwell v. State, Dept of Revenue, Child Support
Enforcement Div., 105 P.3d 570, 573 (Alaska 2005).
12 Miller v. Clough, 165 P.3d 594, 601 n.22 (Alaska 2007).
13 Hixson v. Sarkesian, 66 P.3d 753, 761 (Alaska 2003).
14 Kowalski v. Kowalski, 806 P.2d 1368, 1370 (Alaska
1991).
15 24 P.3d at 530.
16 Alaska R. Civ. P. 90.3(a)(4) (emphasis added).
17 Although not controlling, the commentary to Rule 90.3
directs courts to consider the totality of the circumstances in
deciding whether to impute income. Alaska R. Civ. P. 90.3 cmt.
III.C.
18 Olmstead v. Ziegler, 42 P.3d 1102, 1105 (Alaska 2002)
(citation omitted).
19 Nunley v. State, Dept of Revenue, Child Support
Enforcement Div., 99 P.3d 7, 11 (Alaska 2004) (citing Matthews v.
Matthews, 739 P.2d 1298, 1299 (Alaska 1987)) (Parents have both
a common law and a statutory duty to support their children.);
see also AS 25.20.030 (Each parent is bound to maintain the
parents children when poor and unable to work to maintain
themselves.).
20 Laura W. Morgan, Positive Parenting and Negative
Contributions: Why Payment of Child Support Should Not be
Regarded as Dissipation of Marital Assets, 30 N.M. L. Rev. 1, 3
(2000) (When a parent cannot afford to support prior children and
later children . . . , and someone has to bear the cost of that
choice, the cost should be borne by the later children for the
simple reason that the parent had the choice of whether to have
additional children.).
21 Bailey v. Bailey, 724 So. 2d 335, 339 (Miss. 1998).
22 See Olmstead, 42 P.3d at 1105 (where a father left his
law practice to attend school to obtain certification as a
teacher, we affirmed the trial court, which noted that while [the
father] was free to change jobs, [the mother] and their daughter
did not have to finance that choice); see also Nass v. Seaton,
904 P.2d 412, 418 (Alaska 1995) ([A] noncustodial parent who
voluntarily reduces his or her income should not automatically
receive a corresponding reduction in his or her child support
obligation.).
23 See, e.g., Houger v. Houger, 449 P.2d 766, 770 (Alaska
1969); see also Dunn v. Dunn, 952 P.2d 268, 270-71 (Alaska 1998);
Kowalski, 806 P.2d at 1371.
24 Alaska R. Civ. P. 90.3 cmt. VI.B.2; see also Taylor v.
McGlothlin, 919 P.2d 1349, 1355 (Alaska 1996) (affirming superior
courts finding that a fathers three subsequent children would
suffer substantial prejudice if the fathers child support
obligation were set at the level mandated by Civil Rule 90.3).
25 Alaska R. Civ. P. 90.3 cmt. VI.B.2.
26 The rule states, in relevant part, [a] determination of
potential income may not be made for a parent . . . who is caring
for a child under two years of age to whom the parents owe a
joint legal responsibility.
27 See Rule 90.3(a) cmt. IV.A:
The calculation of child support for the
primary custodial case under 90.3(a) simply
involves multiplying the obligors adjusted
income times the relevant percentage given in
subparagraph (a)(2). . . . [T]he rule assumes
that the custodial parent also will support
the children with at least the same
percentage of his or her income.
(Emphasis added.)
28 See Rule 90.3 cmt. VI.B.5 (A parent who does not work
because of the income of a new spouse . . . may be assigned a
potential income.).
29 Id. (The income of a new spouse of either the custodial
or obligor parent normally will not justify a variation in
support.).
30 Diane filed a Rule 82(b)(1) fee schedule calculation.
She disputed the monthly child support amount that was subject to
the fee schedule, arguing that since she had agreed to pay $69.50
per month, the amount Christopher prevailed on was $229.27 per
month during full months and $57.44 per month during the seventy-
five percent reduced visitation summer months, for a total of
$9,658.56. Diane recommended a total attorneys fees award of
$1,931.71.
31 See State, Dept of Revenue, Child Support Enforcement
Div. ex rel. Inman v. Dean, 902 P.2d 1321, 1323 (Alaska 1995)
(Each unpaid child support obligation is considered a judgment
because, like court-rendered judgments, child support arrearages
are not subject to retroactive modification.).
32 Furthermore, Judge Collins did not grant Christophers
total requested discovery attorneys fees ($2,822), but instead
awarded Christopher the $782 he spent for work directly related
to the motion to compel/opposition to motion for protective
order.
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