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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hill v. Bloom (7/9/2010) sp-6490
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
| ALLISON HILL, | ) |
| ) Supreme Court No. S- 13338 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-06-4224 CI | |
| v. | ) |
| ) O P I N I O N | |
| DEBORAH BLOOM, | ) |
| ) No. 6490 July 9, 2010 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Herbert A. Viergutz, Barokas
Martin & Tomlinson, Anchorage, for Appellant.
R. Scott Taylor, Feldman Orlansky & Sanders,
Anchorage, for Appellee.
Before: Fabe, Winfree, and Stowers,
Justices. [Carpeneti, Chief Justice, and
Christen, Justice, not participating.]
STOWERS, Justice.
I. INTRODUCTION
On February 20, 2008, following an evidentiary hearing,
the superior court calculated the future child support
obligations that Allison Hill owed to Deborah Bloom. The court
used a five-year average of Hills income from 2002 to 2006 to
calculate child support for 2008 forward. The court rejected
Hills argument that her substantially reduced 2007 income should
be the basis of her future child support obligations and
expressly found her reduced 2007 income to be an aberration.
Hill did not appeal the courts child support order.
Five months after the February 2008 evidentiary
hearing, Hill filed a motion to modify child support, arguing
that her reduced income for the first half of 2008 was a presumed
material change in circumstances under Alaska Civil Rule
90.3(h)(1). The superior court denied Hills motion without an
evidentiary hearing, finding no new evidence or changed
circumstances. Hill appeals the superior courts finding that
there was no new evidence presented and its denial of her motion
to modify. We conclude that the superior court did not clearly
err by finding that Hill had presented no new evidence. We also
conclude that the superior court did not err in denying Hills
motion without an evidentiary hearing because she had not
presented sufficient evidence of permanently reduced income to
show a material change in circumstances. We therefore affirm the
superior courts denial of the motion to modify.
II. FACTS AND PROCEEDINGS
Allison Hill and Deborah Bloom lived together as
domestic partners from February 1995 until September 2005. Two
children were born to and adopted by the parties during their
partnership. Hill, a chiropractor, was the sole owner of The
Hill Clinic. The majority of the parties financial issues from
their separation were settled in mediation on May 15, 2007. As
part of the settlement, both parties agreed to establish future
child support under Alaska Civil Rule 90.3.
Shortly after the mediation, both parties filed
affidavits for calculation of child support under Rule 90.3. Due
to differences in the calculations of the parties, Hill filed a
request for an evidentiary hearing specifically in order to
testify as to the decline of her business.
On February 20, 2008, the superior court held an
evidentiary hearing on child support. At the hearing, Hill
entered into evidence a report on her income prepared by her
accountant. As the sole owner of The Hill Clinic, Hill received
all the net income from the clinic in addition to a salary of
approximately $36,000 a year. The report showed that there were
differences in the year-to-year net income from the clinic.
Specifically, the clinic experienced a large drop in net income
from 2006 ($106,148) to 2007 ($42,645). Hill testified that her
relocation of The Hill Clinic and the clinics loss of some
massage therapists and another chiropractor caused her drop in
income in 2007. Hill also testified that although The Hill
Clinic had previously hired independent contractors, the results
of a December 2007 Department of Labor audit would prevent the
clinic from hiring independent contractors after March 25, 2008.
She testified that it took her years to build her business up to
where it was before the audit and that the Department of Labor
audit made it impossible for her to increase [her] income back to
what it was.
At the conclusion of the hearing, the superior court
calculated Hills child support obligation. The court declined to
use Hills 2007 income to calculate her ongoing child support
obligation because it found 2007 to be an aberration. The court
stated that Hills 2007 income was low because she had to move her
clinic, but she has a long-established history going back ten
years of managing a chiropractic clinic on an ongoing basis. The
court averaged Hills income from 2002 to 2006 and estimated her
adjusted annual income to be $94,017. It set her ongoing child
support payment at $888.50 monthly.
On July 16, 2008, five months after the evidentiary
hearing, Hill filed a motion to modify child support. Hill
supported her motion with a sworn affidavit stating that her net
income for the first six months of 2008 was $15,877. Hill argued
that her net income for all of 2008 would be approximately
$31,754, substantially less than the five-year average estimated
by the court. Hill asserted that her decreased income was
explained at the [h]earing, and that the drop in her 2008 income
was due to a May 2008 Department of Labor ruling affirming the
December 2007 audit, the clinics change in location, and the
clinics loss of practitioners.
On October 14, 2008, the superior court denied Hills
motion to modify without an evidentiary hearing. In its order,
the court stated that [u]pon review, this court finds no change
[in] circumstances or new evidence. The same arguments were
considered and ruled on by this court in setting the present
child support.
This appeal follows.
III. DISCUSSION
Alaska law allows for the modification of child support
orders upon a showing of a material change in circumstances.1
This rule provides an exception to the general principle that
final judgments should not be disturbed.2 However, [t]he change
ordinarily must be more or less permanent rather than temporary.3
A material change in circumstances is presumed if a
parents child support obligation calculated under Rule 90.3 using
her present income is greater than fifteen percent more or less
than her existing support obligation.4 We have held that because
Rule 90.3(h)(2) provides that child support arrearages may not be
modified retroactively, it [is] incumbent upon [the parties] to
promptly apply for a modification of child support when the
material change in circumstances occur[s]. 5
We have never drawn a bright line establishing a
minimum period of time that a party must wait after child support
has been calculated by a trial court before that party may file a
motion to modify support based upon an alleged material change in
circumstances. In this case, where the superior court calculated
child support based on a multi-year averaging of income, and
where the support obligor sought to modify support after only
five months, relying on essentially the same evidence and
arguments previously provided to the court, we hold that the
court did not err in denying the motion without conducting
another evidentiary hearing.
A. Standard Of Review
We review de novo [w]hether a moving party has made a
prima facie showing sufficient to justify a custody or child
support modification hearing.6 We will affirm a denial of a
modification motion without a hearing if, in our independent
judgment, the facts alleged, even if proved, cannot warrant
modification, or if the allegations are so general or conclusory
. . . as to create no genuine issue of material fact requiring a
hearing.7 Under Alaska Civil Rule 52(a), [f]indings of fact
shall not be set aside unless clearly erroneous.
B. The Superior Court Did Not Err In Finding That Hill Had
Presented No New Evidence.
Hill argues that the superior court erred in finding
that she presented no new evidence in support of her July 2008
motion to modify child support. Bloom argues that Hill did not
present new evidence to support a change in the circumstances on
which the original child support order was based.
The record shows that in addition to her express
reliance on the evidence she adduced at the February 2008
evidentiary hearing, Hill produced evidence in support of her
July 2008 motion to modify that her net income for January
through June 2008 was $15,877. Her motion also included hearsay
business summaries that showed that her gross income from the
first half of 2008 was $19,874. This evidence of Hills actual
income for January through June 2008 was not presented to the
superior court in the February 2008 hearing, so in that sense it
was new evidence, but it was entirely consistent with the
evidence and arguments that Hill did present to the court at the
hearing.
At the February 2008 hearing Hill presented evidence
and argued that her decreased 2007 income was due to: (1) the
clinics loss of massage therapists and another chiropractor and
(2) the clinics relocation. She also testified that a December
2007 Department of Labor audit would prevent her from hiring
independent contractors in the future. In her memorandum in
support of her motion to modify, Hill argued that her decreased
2008 income was due to: (1) many of her practitioners having left
the clinic; (2) the relocation of her office; and (3) the actions
of the Department of Labor. On appeal, Hill acknowledges that
the reasons for her reduced income had been previously presented
to the superior court to explain her 2007 income.8 Hills new
evidence of her 2008 income was, at best, additional evidence
bolstering her previously adduced evidence and arguments.
In February 2008 the court considered all of the
evidence that Hill presented in support of her argument that her
future income was likely to be consistent with her reduced 2007
income, but determined that her 2007 income was an aberration
after looking at her history of success with her chiropractic
practice. Hill did not appeal the courts February 2008 order.
Given the relatively brief passage of time between the February
2008 evidentiary hearing and the July 2008 motion to modify, and
given that the evidence presented in support of the motion to
modify was essentially the same as the evidence presented in the
evidentiary hearing, we cannot say that the court clearly erred
in concluding that Hill had presented no new evidence for the
purpose of considering her motion to modify child support.9
C. The Superior Court Did Not Err By Denying Hills Motion
To Modify Without An Evidentiary Hearing.
Even if we agreed with Hill that the superior court
erred in determining that she had presented no new evidence
supporting her motion to modify child support, the evidence of
Hills actual income for the first half of 2008 did not make a
prima facie showing for modification of child support given the
relatively short amount of time that passed between the
evidentiary hearing and the motion to modify. Hill argues that
she fulfilled the requirements for a presumptive material change
in circumstances under Alaska Civil Rule 90.3(h)(1) by
introducing evidence that her 2008 income would reduce her child
support obligation by more than fifteen percent. She argues that
her 2008 income was a continuation of her reduced income in 2007
and implicitly argues that her 2008 income shows that 2007 was
not an aberration. Bloom argues that the superior court did not
err in denying Hills motion because the motion relied on the same
evidence and testimony presented to the superior court during the
February 2008 child support hearing.
The evidence that Hill presented supporting her motion
to modify support included documents showing that her gross
income for the first half of 2008 was $19,874. Hill argued in
her July 2008 motion that her projected 2008 income would be far
below the income figures projected by the court in February 2008,
thus meeting Civil Rule 90.3(h)(1)s fifteen-percent threshold for
a presumptive material change in circumstances.
Because even a large drop in income is not a material
change in circumstances if it is temporary,10 parents must also
provide some evidence that the drop in income is permanent. For
example, a parent could not file a motion to modify child support
one day after losing her job and prevail because one day of
unemployment is clearly insufficient evidence to show that her
drop of income was permanent.
Evidence that a drop in income is permanent is
especially important in cases such as this one, where the trial
court has only recently conducted an evidentiary hearing and
calculated child support based on a careful retrospective multi-
year income average approach. It is also a consideration where
an obligor parent owns a business. Businesses, and especially
small businesses, often experience income fluctuations seasonally
or from month to month. Evidence that a business has experienced
reduced income for several months may not, without more, be
sufficient to show that the drop is permanent.
The determination of when a change in income ceases to
be temporary and becomes permanent is an exercise in drawing a
line. There is no bright line test for making this
determination, and each case must be evaluated individually.
Hill acknowledges that the reasons for her reduced 2008 income
had been previously presented to the superior court to explain
her reduced 2007 income. The superior court had only recently
heard Hills evidence and arguments explaining why her income had
dropped in 2007, and the court found that this decrease was
aberrational and, by implication, not permanent. When the
superior court denied Hills motion to modify and explained that
it found no change in circumstances, the court necessarily had to
find that Hill had not made a prima facie showing sufficient to
justify conducting another child support evidentiary hearing.
Given the relatively short time between the date of the hearing
and the date of the motion to modify, in our de novo review of
the record we cannot conclude that the superior court erred in
denying the motion to modify without conducting a hearing because
we agree that Hills evidence did not make a prima facie showing
that her reduction in income was permanent.11
D. Hills Other Arguments Are Waived Or Without Merit.
Hill also alleges that the superior court erred by
failing to force Bloom to produce additional income information
at the February hearing, by using a five-year average of income
to calculate Hills future income at the February hearing, and by
failing to issue specific findings of fact in denying the motion
to modify. None of Hills arguments have merit. She has waived
any arguments alleging error at the February hearing by failing
to file a timely appeal.12 The superior courts order on the
motion to modify contained findings adequate for appellate
review.13
IV. CONCLUSION
For the preceding reasons, we AFFIRM the superior courts
denial of Hills motion to modify child support.
_______________________________
1 Alaska R. Civ. P. 90.3(h)(1) states:
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.
2 Bunn v. House, 934 P.2d 753, 757 (Alaska 1997).
3 Patch v. Patch, 760 P.2d 526, 529 (Alaska 1988)
(quoting Curley v. Curley, 588 P.2d 289, 291 (Alaska 1979)).
4 Alaska R. Civ. P. 90.3(h)(1).
5 Flannery v. Flannery, 950 P.2d 126, 133 (Alaska 1997)
(citing Alaska R. Civ. P. 90.3, Commentary X) (internal
alterations omitted).
6 Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999)
(quoting Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999))
(footnote omitted).
7 Id. (footnotes and internal quotations omitted).
8 Hill argues on appeal that a May 2008 final ruling by
the Department of Labor preventing the clinic from hiring
independent contractors was new evidence supporting a material
change in circumstances. But the May 2008 ruling was not
mentioned in the motion to modify until Hills reply to the
opposition to the motion to modify. The function of a reply
memorandum is to respond to the opposition to the primary motion,
not to raise new issues or arguments. Demmert v. Kootznoowoo,
Inc., 960 P.2d 606, 611 (Alaska 1998). Hill also failed to
present the May 2008 final ruling to the superior court, and thus
it is not properly part of the appellate record. See State, Dept
of Natural Res. v. Transamerica Premier Ins. Co., 856 P.2d 766,
776 (Alaska 1993). We therefore do not consider it.
9 A parents obligation to provide new facts on a motion
to modify is especially important because a motion to modify that
alleges no new facts could serve to circumvent the requirement of
a timely appeal. Cf. Cline v. Cline, 90 P.3d 147 (Alaska 2004)
(Civil Rule 60(b) may not be used as a substitute for a timely
appeal).
10 Patch v. Patch, 760 P.2d 526, 529-30 (Alaska 1988)
(affirming lower courts denial of modification because fathers
eighty-percent decrease in income was temporary).
11 In her affidavit submitted in support of her motion to
modify, Hill also testified that she was diagnosed with adrenal
adenoma and alleged that Bloom had quit her job and was self-
employed. These facts do not establish a material change in
circumstances. Hill stated that she did not know the costs and
recovery time of the surgery required for her adrenal adenoma.
Without more information, Hills medical condition does not cross
the evidentiary threshold to require an evidentiary hearing.
Hill also did not supply the superior court with information on
Blooms self-employed income. Hills bare assertion that Bloom was
self-employed is insufficient to warrant an evidentiary hearing.
12 Appellate Rule 204(a) requires appeals to be filed
within thirty days of judgment. The superior court issued its
order setting Hills child support obligation on February 21,
2008. Hill did not file this appeal until after the July 2008
hearing, well outside of the thirty-day window. See, e.g.,
Wagner v. Wagner, 205 P.3d 306, 310 (Alaska 2009).
13 See Keating v. Traynor, 833 P.2d 695, 696 (Alaska 1992)
(The trial court has a duty to make findings of fact sufficient
to provide this court with a clear understanding of the basis of
the award.).
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