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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Skinner v. Hagberg (05/16/2008) sp-6260
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
| JORI LYNN SKINNER, | ) |
| ) Supreme Court No. S- 12504 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-05-1327 CI | |
| v. | ) |
| ) | |
| ADAM ERIC HAGBERG, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6260 - May 16, 2008 |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Charles R.
Pengilly and Douglas L. Blankenship, Judges.
Appearances: Jori L. Skinner, pro se,
Fairbanks. Adam E. Hagberg, pro se,
Anchorage.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
Jori Skinner gave birth to a son in January 2002. She
and the childs biological father, Adam Hagberg, never married
each other. Skinner filed for sole legal and primary physical
custody; Hagberg counterclaimed for shared legal and physical
custody. The trial court awarded the parties shared legal
custody but awarded Skinner primary physical custody. It then
determined Hagbergs child support arrearage from the date genetic
testing results confirmed that he was the biological father; set
up a twice-monthly visitation schedule and ordered each party to
pay fifty percent of the visitation expenses; and conditionally
awarded Hagberg the federal income tax dependency exemption for
the child. Skinner appeals the rulings on child support
arrearage, visitation and related expenses, and the tax
exemption.
For the reasons explained below, we reverse the trial
courts determination that Hagbergs child support obligation began
on the date genetic testing confirmed his paternity and remand
for recalculation of the child support arrearage. We affirm the
trial courts visitation schedule but remand regarding the
calculation and allocation of visitation expenses. We also
affirm the trial courts decision to award Hagberg the federal
income tax dependency exemption.
II. FACTS AND PROCEEDINGS
A. Facts
Jori Skinner gave birth to a son, Adison, on January
10, 2002, after a relationship with Adam Hagberg. Skinner told
Hagberg during the pregnancy that he might be the father, but at
the time neither of them attempted to confirm paternity.
Skinners husband was named as the father on Adisons birth
certificate.
Skinner and her husband separated in March 2003 and
divorced in November 2004. Genetic testing conducted in May 2004
ultimately confirmed that Hagberg was Adisons biological father.
Beginning in June 2004 and continuing through February 2005,
Skinner, who lived in Fairbanks, arranged for Adison to visit
Hagberg and his family in Anchorage.
B. Proceedings
A. In March 2005 Skinner filed for sole legal and primary
physical custody of Adison and for child support. Hagberg, in
turn, sought shared legal and physical custody of Adison. A
paternity decree was entered in September 2005 based on the
genetic testing results.
Superior Court Judge Charles R. Pengilly issued verbal
orders regarding visitation, child support arrearage, and the
dependent tax exemption at a custody trial in March 2006. Judge
Pengilly awarded the parties shared legal custody of Adison but
awarded Skinner primary physical custody. He ruled that Hagbergs
child support obligation began on June 1, 2004 when the genetic
testing results finally confirmed Hagbergs paternity rather than
on January 10, 2002, Adisons date of birth. He also granted
Hagberg visitation rights that included one long weekend visit
per month during the school year until Adison began kindergarten.
Under this arrangement, Hagberg was entitled to pick up Adison in
Fairbanks at noon on Thursdays and was required to return him to
Skinner in Fairbanks by eight oclock on Sunday evenings. Based
on Hagbergs testimony, Judge Pengilly estimated that Hagbergs
visitation expenses totaled $480 per month. He ordered the
parties to share visitation expenses equally, but required
Hagberg to pay all the expenses and take a credit against his
monthly child support for one-half the expenses actually
incurred. Finally, Judge Pengilly awarded Hagberg the federal
income tax dependency exemption for Adison, subject to certain
conditions.
The case was reassigned to Superior Court Judge Douglas
L. Blankenship in April 2006 following Judge Pengillys
retirement. Judge Blankenship held a hearing in July 2006 and
issued a written order in September 2006 based primarily on Judge
Pengillys oral rulings. Skinner moved for reconsideration on
most issues. Judge Blankenship granted reconsideration on the
school year visitation schedule and the mode of travel, but
denied the motion in all other respects. He indicated an
inclination to reduce the strain on Adison by requiring that one
visit per month be by air. He ordered supplemental briefing but
issued no further rulings until March 2007 when the parties were
before him regarding a visitation dispute.1
Judge Blankenship then issued an order modifying the
visitation schedule. He required that one visit per month be by
air. He also set child support at $575 per month subject to
court or Child Support Services Division (CSSD) modification, and
changed the visitation expense framework to account for air
travel and to provide that Hagbergs credit for his payment of
Skinners share of visitation expenses applied only to Hagbergs
arrearage (and not to his ongoing monthly support payments).2
Skinner presents several arguments on appeal. She
claims that the trial court erroneously: (1) found that Hagbergs
child support obligation arose when genetic testing established
his paternity, rather than at Adisons birth; (2) failed to
consider Adisons age and the parties financial capabilities when
it set a visitation schedule that required extensive travel; (3)
allocated visitation expenses equally between the parties and
awarded Hagberg a monthly $240 credit against his child support
arrearage; and (4) awarded Hagberg the federal tax exemption for
Adison. Skinner also asserts that the trial court denied her
equal protection under the law by treating Hagberg more favorably
during the proceedings.
III. STANDARD OF REVIEW
We review de novo the trial courts determination of the
inception date for a child support obligation.3 We also review
constitutional questions de novo,4 adopting the rule of law that
is most persuasive in light of precedent, reason, and policy.5
We review the alleged inadequacy of a trial courts fact findings
to determine whether they give a clear indication of the factors
considered important by the trial court or allow us to determine
from the record what considerations were involved.6 We review
visitation awards,7 custody arrangements, and the accompanying
best-interests determinations for abuse of discretion.8
Generally, we will conclude that a trial court abused its
discretion only when we have a definite and firm conviction,
after reviewing the whole record, that it erred in its ruling.9
IV. DISCUSSION
A. Hagbergs Child Support Obligation Arose at Adisons
Birth.
The trial court acknowledged the general law that a
parents duty of support arises on the date the child is born, but
stated that the Commentary to Alaska Civil Rule 90.3 directed it
to consider all relevant factors, including whether Hagberg knew
he had a child support obligation, in determining when Hagbergs
duty of support began.10 The trial court found that Hagberg did
not know in any meaningful sense that he had a child support
obligation until he received the paternity test results dated
June 1, 2004, and chose that date for the inception of Hagbergs
support obligation. Settled law does not allow this approach.
In State, Department of Revenue, Child Support
Enforcement Division, ex rel. Hawthorne v. Rios,11 we held that a
biological parents duty of support begins on the childs date of
birth and not when paternity is adjudicated.12 We specifically
noted that paternity adjudication may be a prerequisite to
enforcement of a support duty where a child is born out of
wedlock, but does not create that duty,13 and that a custodial
parents conduct cannot amount to an estoppel or waiver altering a
duty to pay child support.14 These rules of law are based on the
sound policy that fulfillment of statutory support obligations
should be encouraged and incentives to avoid or delay such
obligations should be discouraged.15
In Rubright v. Arnold,16 we faced facts very much like
those now before us. There, a mother sued her childs biological
father to establish paternity and to obtain past and future child
support from him, even though she had been and still was married
to another man who was listed as the father on the childs birth
certificate.17 We noted that Rioss principles were well-
established and held that the biological fathers duty of support
arose at the childs birth.18 We acknowledged potential unfairness
in some cases, such as where a biological father has no notice of
his paternity until many years after his childs birth and the
ensuing support arrearage is economically crushing:
The father may have no means, except avoiding
conception, of protecting himself. Large and
unexpected liabilities can be the logical
consequence of the rule that a biological
father is liable for the support of a child
from birth, especially when past arrearages
are based on the child support guidelines set
out in Civil Rule 90.3, rather than on
reimbursement of past expenses.[19]
We nonetheless emphasized that relief from the rules
potentially harsh consequences must come from the Legislature.20
No legislative relief has arrived, and our case law is clear:
the duty of parental support begins on the date of the childs
birth.21 Neither Civil Rule 90.3 nor the Commentary grants a
trial court discretion to adjust the effective date of a parental
child support obligation. Civil Rule 90.3(c)(1) permits the
trial court discretion to vary the child support award as
calculated under Rule 90.3 in unusual circumstances when manifest
injustice would result if the award were not varied.22 Read
together with Civil Rule 90.3(c)(1), the Commentary relied on by
the trial court refers only to limited circumstances in which the
trial court may consider all relevant factors in deciding whether
it is appropriate to deviate from the Civil Rule 90.3 calculation
of the amount of retroactive support due from the date of birth.23
Accordingly, we reverse the ruling that Hagbergs child
support obligation began on June 1, 2004. As a matter of law,
Hagbergs support obligation began on January 10, 2002. Absent
written findings of unusual circumstances not presently evident
from the record, on remand the trial court should determine
Hagbergs retroactive support obligation under Civil Rule 90.3.
B. Visitation-Related Issues
Skinner raises two primary objections to the trial
courts rulings on visitation. First, she asserts the trial court
abused its discretion by failing to consider Adisons age and the
parties financial capabilities when it set a visitation schedule
that required extensive road and air travel. Second, she asserts
the trial court abused its discretion when it allocated
visitation expenses equally between the parties and awarded
Hagberg a monthly $240 credit against his child support
arrearage.
1. The visitation schedules effect on Adison
Skinner argues that the trial court erred in ordering a
visitation schedule requiring Adison, who was only four at the
time of trial, to travel back and forth between Fairbanks and
Anchorage twice a month. She asserts that the trial court failed
to properly consider the emotionally staggering effects on Adison
from the long and frequent travel, the extended periods away from
Fairbanks, and the continual adjustments to be made by going back
and forth between the families, especially when Adison hardly
knew the Hagberg family.
The record reflects that the trial court heard and
considered the factors relevant to determining an appropriate
visitation schedule. Judge Pengilly heard Skinners concerns
about the extent of road travel that the visitation schedule
would involve. He also heard extensive testimony from a custody
investigator about Adisons emotional, mental, and social needs
and how visitation would affect those needs. After observing
that all the adults involved in Adisons life were reasonable
people who were capable of meeting Adisons best interests, Judge
Pengilly determined that Hagberg and his family were willing to
be flexible to make the visitation work smoothly for Adison.
Judge Blankenships March 2007 written order reflects
that he further considered Adisons best interests when he ordered
travel by air once per month. After expressing concern about
Adison driving up and down the highway twice a month, Judge
Blankenship stated that flying once per month should be better
for Adison. Judge Blankenship then explored whether other
options might keep Adison from doing the trek between Fairbanks
and Anchorage. Judge Blankenship ultimately stated he would
order that Adison fly one trip per month.
Notwithstanding the daunting logistics of the
visitation schedule and Adisons young age, the trial court did
consider Adisons best interests, and after reviewing the whole
record, we are unable to conclude that the trial court erred. We
therefore affirm the trial courts visitation schedule.24
2. The allocation of visitation expenses
Skinner argues that the trial court erred when it: (1)
ordered the parties to share visitation expenses equally without
consideration for their respective financial circumstances; (2)
arbitrarily found Hagbergs visitation expenses were $480 per
month; and (3) required Hagberg to pay all of Adisons visitation
expenses as long as Hagberg was in arrears, but then granted him
a monthly $240 credit against his arrearage for half the
expenses. The main thrust of Skinners argument is that in light
of the parties respective financial positions and the significant
visitation expenses, Hagbergs child support payments do little
more than fund his visits with Adison. When Hagbergs arrearage
ultimately is satisfied, Skinner will need to use a substantial
portion of Hagbergs child support payments simply to pay her half
of the visitation expenses.
Skinner raises legitimate concerns about the trial
courts treatment of visitation expenses. As she correctly points
out, Civil Rule 90.3(g) provides that the trial court shall
allocate reasonable travel expenses between the parties as may be
just and proper only after it calculates child support payments
under Rule 90.3. It appears here that the trial court allocated
travel expenses equally between the parties even before CSSD
calculated and instituted the final child support award. Even as
late as the March 2007 hearing, Hagberg apparently was under a
temporary child support order pending final determination by
CSSD.
Given the scant information in the record about the
parties respective financial positions and the ultimate amount of
Hagbergs past and future child support payments, we are not in a
position to determine whether the trial courts rulings on
visitation expenses were appropriately within its discretion. We
remand to the trial court to allocate the burden of Adisons
visitation expenses after calculating the child support award
under Civil Rule 90.3 to account for Hagbergs arrearage based on
Adisons date of birth and considering the totality of the child
support payments and the parties respective financial positions.
Skinner also raises legitimate concerns about the trial
courts approach of granting Hagberg a specified per-visit credit
against his arrears based only on estimated travel costs.
Skinner argues that because nearly $5,000 was credited against
Hagbergs support arrearage for travel expenses, [d]ue process
would then dictate a separate hearing to be held on actual dates
of travel and proof of costs, rather than an individuals best
guess or thought process of such travel. Skinner correctly
points out that Adison is entitled to receive the full ordered
amount of child support,25 and any excess credit against Hagbergs
arrearage that results in an underpayment would violate Adisons
right to support. Thus, any credit for payment of Skinners share
of visitation expenses must be on a dollar-for-dollar basis,
although the court is free to cap the extent of the offset.
Moreover, it should not be Skinners responsibility to
account for Hagbergs visitation expenses. While the March 2007
order modifying custody appropriately requires that Hagberg
provide Skinner with proof of plane ticket expenses, it should
not be Skinners obligation to advise CSSD of the amount of
Hagbergs monthly expenses or whether Hagberg took advantage of
all of his scheduled visits. It is unclear why Hagberg, who is
responsible for the arrears and who is incurring the travel
expenses, is not best suited to perform this accounting function.
On remand, the trial court should ensure that all past
credits against Hagbergs arrears for Skinners portion of
visitation costs were on a dollar-for-dollar basis, not based on
a predetermined estimated credit, and that Hagberg in the future
receive credit only for his actual expenditures upon sending
receipts for such visitation to CSSD and Skinner. In this way,
CSSD can ensure that Adisons right to child support is not
compromised by an underpayment.
C. It Was Not an Abuse of Discretion To Conditionally
Allocate the Federal Tax Exemption to Hagberg.
Skinner asserts that the trial court abused its
discretion when it awarded Hagberg the federal tax exemption for
Adison because she has primary physical custody. Civil
Rule 90.3(k) provides that consistent with AS 25.24.15226 and
federal law, the trial court may allocate the federal tax
exemption for a child between the parties as is just and proper
and in the childs best interests. Here, the trial court
allocated the exemption as follows:
Father may claim Adison as a dependent for
federal tax purposes if Father satisfies the
requirements of federal law and is not in
arrears at the end of the tax year in an
amount more than four times his monthly child
support obligation. If, in the future,
Mother permanently reenters the workplace,
the parties will alternate claiming Adison as
a dependent for federal tax purposes. Mother
will be entitled to take the federal tax
deduction for the first calendar year in
which she obtains permanent employment and
works at least twenty-four weeks. For
example, if she obtains permanent employment
of at least twenty-four weeks in 2007, she
would be able to take the deduction for
Adison for tax year 2007.
The allocation complies with the statute and the rule,
and on the record before us, we conclude that the trial court did
not err. The trial court nonetheless will have an opportunity on
remand to determine whether this allocation remains appropriate
after revisiting the child support and visitation expense issues
discussed above.
D. No Equal Protection Violation Occurred.
Skinner claims that because the trial court found in
favor of Hagberg on most of the issues at trial, her
constitutional right to equal protection under the law was
violated. Equal protection under the law does not mean that the
trial court is obligated to come to some rough equivalency in the
number of rulings favoring each side of a dispute. Our
independent review of the record reveals no evidence of a
deliberate plan to discriminate against Skinner on some
unjustifiable basis or arbitrary classification, and there is no
basis to reverse any of the trial courts rulings on equal
protection grounds.27 We therefore conclude that her claim is
without merit.
V. CONCLUSION
We REVERSE the trial courts determination that Hagbergs
child support obligation began on the date genetic testing
confirmed his paternity, hold as a matter of law that Hagbergs
child support obligation began on January 10, 2002, the date of
Adisons birth, and REMAND for recalculation of Hagbergs child
support arrearage. We AFFIRM the trial courts visitation
schedule but REMAND regarding the calculation and allocation of
visitation expenses. Finally, we AFFIRM the trial courts
decision to award Hagberg the federal income tax dependency
exemption.
_______________________________
1 In the meantime, Skinner appealed from the trial courts
September 2006 order.
2 Judge Pengillys original oral ruling and Judge
Blankenships September 2006 confirmatory written order provided
that Hagberg would receive a reduction in his ongoing monthly
child support obligation in the form of a credit for one-half the
monthly visitation costs. This well may have been an improper
support modification reducing Hagbergs monthly child support, a
modification that was unsupported by any material change in
circumstances. Cf. Alaska R. Civ. P. 90.3(h). Judge Blankenship
corrected any such error by modifying the custody order to
indicate that Father shall be responsible for payment of all the
visitation travel expenses until his child support arrearage is
satisfied, with [the Father] receiving a credit of $240 (for one-
half of the estimated travel expenses per month) per month from
September through May against his child support arrearage
obligation . . . . (Emphasis added.) This latter approach does
not present a problem because any additional sums paid by Hagberg
would only be credited to offset his arrears, not deducted from
his ongoing monthly child support obligation.
3 See Rubright v. Arnold, 973 P.2d 580, 586 (Alaska
1999); State, Dept of Revenue, Child Support Enforcement Div. ex
rel. Hawthorne v. Rios, 938 P.2d 1013, 1015 (Alaska 1997);
Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987).
4 VinZant v. Elam, 977 P.2d 84, 86 (Alaska 1999).
5 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
6 Siekawitch v. Siekawitch, 956 P.2d 447, 451 (Alaska
1998) (citing Borchgrevink v. Borchgrevink, 941 P.2d 132, 137
(Alaska 1997)) (concluding that the trial courts findings
adequately revealed its reasoning even though the court did not
expressly refer to AS 25.24.150(c), because they provided a clear
indication of the factors the court found important).
7 Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1190 (Alaska
1987); see also C.R.B. v. C.C., 959 P.2d 375, 384 (Alaska 1998)
(applying abuse of discretion standard to allocation of
visitation expenses), overruled on other grounds by Evans v.
McTaggart, 88 P.3d 1078, 1085 (Alaska 2004).
8 Ginn-Williams v. Williams, 143 P.3d 949, 952 n.3
(Alaska 2006).
9 Vezey v. Green, 171 P.3d 1125, 1128 (Alaska 2007)
(citing Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1248 (Alaska
2001)).
10 Comment VI.E.1 to Alaska Civil Rule 90.3 states:
It will sometimes be necessary for the court
to establish support for a time when no
complaint or petition for support had yet
been served, and there was no other court or
administrative order in effect. The court
has determined that Civil Rule 90.3 applies
to such calculations. Vachon v. Pugliese,
931 P.2d 371, 381-[8]2 (Alaska 1996).
However, in some circumstances unfairness may
result from rigid application of the rule.
The court should consider all relevant
factors in such a situation, including
whether the obligor was aware of the support
obligation, especially if the obligor had
children subsequent to that child.
11 State, Dept of Revenue, Child Support Enforcement Div.
ex rel. Hawthorne v. Rios, 938 P.2d 1013 (Alaska 1997).
12 Id. at 1015.
13 Id.
14 Id. at 1017 n.8.
15 See id. at 1015.
16 Rubright v. Arnold, 973 P.2d 580 (Alaska 1999).
17 Id. at 581-82.
18 Id. at 586.
19 Id.; see also Vachon v. Pugliese, 931 P.2d at 381-82
(decided after Civil Rule 90.3 came into existence and holding
that absent extraordinary circumstances, the support calculations
of Rule 90.3 should be used to determine past child support
obligations).
20 Rubright, 973 P.2d at 586.
21 Id.; Rios, 938 P.2d at 1015; Matthews, 739 P.2d at
1299.
22 Alaska R. Civ. P. 90.3(c)(1) (emphasis added). Civil
Rule 90.3(c)(1) provides:
The court may vary the child support
award as calculated under the other
provisions of this rule for good cause upon
proof by clear and convincing evidence that
manifest injustice would result if the
support award were not varied. The court
must specify in writing the reason for the
variation, the amount of support which would
have been required but for the variation, and
the estimated value of any property conveyed
instead of support calculated under the other
provisions of this rule. Good cause may
include a finding that unusual circumstances
exist which require variation of the award in
order to award an amount of support which is
just and proper for the parties to contribute
toward the nurture and education of their
children. The court shall consider the
custodial parents income in this
determination.
23 Alaska R. Civ. P. 90.3, cmt. VI.E.1; see supra note 10.
24 Nevertheless, we note that Adison now is six years old.
He likely will start kindergarten this year, at which time the
court-ordered visitation schedule changes significantly. On
remand regarding the child support calculation issues, the
parties and the trial court will be in a good position to
evaluate the current visitation schedule and determine whether
adjustments in the upcoming schedule are appropriate.
25 State, Dept of Revenue, Child Support Enforcement Div.
ex rel. Valdez v. Valdez, 941 P.2d 144, 154 n.14 (Alaska 1997)
(The right to support is that of the child and thus cannot be
waived by CSED.).
26 AS 25.24.152(a) provides:
(a) In an action for divorce, dissolution,
or to declare a marriage void, the court may
not unconditionally grant to a noncustodial
parent the right to claim a child as a
dependent under federal income tax laws. The
court may grant a noncustodial parent the
right to claim a child as a dependent under
federal tax laws for a tax year if the
noncustodial parent satisfies the
requirements of federal law and was not in
arrears at the end of the tax year in an
amount more than four times the monthly
obligation under
(1) a support order applicable to the child
in cases where a payment schedule has not
been established for payment of continuing
support and accumulated arrears under the
support order; or
(2) a payment schedule if a payment schedule
has been established for payment of
continuing support and accumulated arrears
under a support order applicable to the
child.
(Emphasis added.)
27 See VinZant v. Elam, 977 P.2d 84, 87 (Alaska 1999).
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