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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Childs v. Childs (10/11/2013) sp-6834
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JOSHUA CHILDS, )
) Supreme Court No. S-14643
Appellant, )
) Superior Court No. 3AN-05-13075 CI
v. )
) O P I N I O N
CHRISTINA CHILDS, )
) No. 6834 - October 11, 2013
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Alex Swiderski, Judge.
Appearances: Joshua Childs, pro se, Fort Polk, Louisiana,
Appellant. Christina Childs, pro se, Fairbanks, Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
I. INTRODUCTION
A mother and father of two minor children dissolved their marriage in 2005.
The mother was awarded sole legal and physical custody of the children and the father
was ordered to pay child support. The father then joined the United States Army in
2006. Five years later, the mother filed a motion to modify the standing child support
award, seeking to increase the father's support obligation due to an increase in his
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income. Although the first notice of the motion that the mother sent to the father was
procedurally defective, after the superior court notified the mother of the defects, she sent
a corrected notice. The father did not respond to the motion to modify until the superior
court informed him that it was prepared to award child support in the amount requested
by the mother if the father did not file an opposition. The father then opposed the
motion, providing his relevant pay stubs, W-2s, and tax returns. He also argued that the
Servicemembers Civil Relief Act protected him from adverse civil actions because he
was actively serving in the United States Army and contended that the mother had not
properly served him with notice of the modification proceeding. Finally, he maintained
that the superior court should deduct the Basic Allowance for Housing that the father
received as a servicemember from his income calculation. The superior court modified
the parties' child support award without holding a hearing, ordering the father to pay
increased child support.
The father now appeals, raising three arguments. He first contends that he
was entitled to a stay of the child support modification proceeding under the
Servicemembers Civil Relief Act. But because he did not qualify for a stay under the
Act, and because he actively participated in the proceeding, the superior court did not
abuse its discretion in declining to issue a stay.
The father next contends that his right to due process was violated because
the mother did not use certified mail to serve him and because the superior court ordered
modification of child support without first holding a hearing. But there was no due
process violation: The mother's corrected service of process satisfied the Alaska Rules
of Civil Procedure, the father had ample notice of the proceeding, and a hearing was not
required in this case because there were no facts in dispute.
The father finally argues that the superior court abused its discretion in
calculating his child support obligation to include his Basic Allowance for Housing. But
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the superior court correctly included the military housing allowance in the father's
adjusted income as Alaska Civil Rule 90.3 directs.
We thus affirm the superior court's decisions in all respects.
II. FACTS AND PROCEEDINGS
Joshua and Christina Childs were married in Alaska in 2002. After
dissolving their marriage in 2005, Joshua and Christina decided that Christina would
have sole legal and physical custody of their two minor children. A December 2005
child support order required Joshua to pay Christina $540.85 per month in support for
both children.
Joshua began serving in the United States Army in 2006. He served a tour
of combat duty in Afghanistan from June 27 to September 30, 2011. After returning
from Afghanistan, Joshua was stationed at Fort Polk in Louisiana.
On September 30, 2011, Christina filed a motion in the superior court to
modify child support, contending that Joshua's income had increased and that an upward
modification was warranted. Christina also submitted a child support guidelines affidavit
in which she estimated that Joshua's monthly child support obligation should be
$ 1,114.83. But she acknowledged in the affidavit that she did not know Joshua's actual
income.
Because Christina failed to complete the certificate of service or sign the
Notice of Motion to Change Custody, Support or Visitation,1 the superior court clerk
promptly informed Christina that her notice was procedurally defective. On October 6,
1 The Notice of Motion to Change Custody, Support or Visitation is a
document the Alaska Court System requires be sent to an opposing party in a child
custody, child support, or child visitation modification proceeding. This form must
accompany a copy of the actual motion submitted to the superior court requesting the
change. See ALASKA COURT SYSTEM , http://www.courts.alaska.gov/forms/dr-701.pdf
(last visited Sept. 5, 2013).
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2011, Christina completed a new copy of the motion, this time signing and completing
the certificate of service.
Initially, Joshua did not file an opposition to the motion to modify. On
November 4, 2011, the superior court issued an order informing Joshua that it planned
to modify the standing child support order according to Christina's estimation of
Joshua's income if Joshua did not file an opposition within ten days. Joshua responded
by filing an opposition, which included a completed child support guidelines affidavit
indicating that his monthly obligation should be $521.59. Joshua also submitted
supporting documentation including pay stubs, W-2s, and tax returns. Although
Joshua's initial opposition was determined by the superior court to be technically
deficient, Joshua was given the opportunity to submit corrected documents, and he did
so.
In his opposition, Joshua argued that the Basic Allowance for Housing that
the military provided to him and his family in Louisiana should not be factored into a
determination of his income because the allowance was not part of his take-home pay
and instead went directly to offset the cost of housing. He also argued that he had not
received any documents from Christina via certified mail, and that "[a]ll information
ha[d] come directly through the United State[s] Post Office to [his] mailbox," which he
contended violated his right to due process. And he argued that he was protected by the
Servicemembers Civil Relief Act from civil litigation while he was on active military
duty.
On February 6, 2012, the superior court ordered modification of Joshua's
child support obligation without first holding an evidentiary hearing. Under the new
award, Joshua was ordered to pay Christina $901 per month in child support for both
children. Joshua now appeals.
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III. STANDARD OF REVIEW
We review a modification of child support for abuse of discretion, "which
we will find only when, based on a review of the entire record, we are left with a definite
2
and firm conviction that the trial court made a mistake." But a trial court's decision as
to the proper method of calculating child support "is a question of law, which we review
de novo, adopting the rule of law that is most persuasive in light of precedent, reason,
3
and policy."
4
We review a trial court's procedural decisions for abuse of discretion. But
a trial court's decision not to hold an evidentiary hearing is subject to our independent
5
review. And whether a trial court violated a party's due process rights is a question of
law, which we review de novo.6
A trial court's interpretation of the provisions of the Servicemembers Civil
7
Relief Act is a matter of law, which we review de novo using our independent judgment.
We have not previously addressed the standard that governs the review of a trial court's
2 Swaney v. Granger, 297 P.3d 132, 136 (Alaska 2013) (citing Faulkner v.
Goldfuss, 46 P.3d 993, 996 (Alaska 2002)).
3 Id. (citing Faulkner , 46 P.3d at 996).
4
Brotherton v. Warner , 240 P.3d 1225, 1228 (Alaska 2010) (citing Rockstad
v. Erikson , 113 P.3d 1215, 1220 (Alaska 2005)).
5 Hartley v. Hartley , 205 P.3d 342, 346 (Alaska 2009).
6
Helen S.K. v. Samuel M.K. , 288 P.3d 463, 473 (Alaska 2012) (citing James
v. State, Dep't of Corr., 260 P.3d 1046, 1050 (Alaska 2011)).
7 See Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 386 (Alaska
2013) (citing State v. Native Vill. of Tanana, 249 P.3d 734, 737 (Alaska 2011); John v.
Baker , 982 P.2d 738, 744 (Alaska 1999)) (applying our independent judgment to
interpretation of a federal statute).
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decision whether to stay a proceeding under the Servicemembers Civil Relief Act. In
Boone v. Lightner , the United States Supreme Court reviewed a trial court's decision not
to continue a proceeding under the Soldiers' and Sailors' Civil Relief Act of 1940, the
8
We have also
precursor to the Servicemembers Civil Relief Act, for abuse of discretion.
recognized that the abuse of discretion standard governs the review of a trial court's
9
We therefore conclude that a
decision whether to stay a proceeding in other contexts.
trial court's decision whether to grant a stay under the Servicemembers Civil Relief Act
is reviewed under the abuse of discretion standard.
IV. DISCUSSION
A. There Was No Violation Of The Servicemembers Civil Relief Act.
Joshua argues that he should not have been required to participate in this
child support modification matter because he is a member of the military on active duty.
But the Servicemembers Civil Relief Act, on which Joshua relies, does not preclude all
civil actions against members of the military. The Act "provide[s] for the temporary
suspension of judicial and administrative proceedings and transactions that may
8 319 U.S. 561, 575 (1943); see also Shelor v. Shelor, 383 S.E.2d 895, 896
(Ga. 1989) ("A trial court has a large degree of discretion in determining whether to
grant a stay under t he [ Soldiers' a nd Sailors' Ci vil Relief] Act." (citing Boone , 319 U.S.
at 575)). But see Lackey v. Lackey , 278 S.E.2d 811, 812 (Va. 1981) (per curiam)
(reviewing trial court's denial of a servicemember's request for a continuance for clear
error).
9 See, e.g., Stone v. Int'l Marine Carriers, Inc., 918 P.2d 551, 554 (Alaska
1996) (applying the abuse of discretion standard to a trial court's ruling on a motion to
stay discovery); Powell v. City of Anchorage , 536 P.2d 1228, 1229 (Alaska 1975)
(stating that whether a stay of an injunction pending appeal will be granted is a question
directed to the sound discretion of the superior court); see also State, Dep't of Transp.
& Pub. Facilities v. Miller , 145 P.3d 521, 528 (Alaska 2006) (reviewing a denial of a
continuance for abuse of discretion).
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----------------------- Page 7-----------------------
adversely affect the civil rights of servicemembers during their military service."10
Relevant to this appeal, the Act allows for an active duty servicemember to seek a stay
11
of a civil action. If an active duty servicemember wishes to stay a proceeding, he or she
can seek a stay in the superior court by complying with the specific requirements set out
in § 522(b)(2) of the Act, which provides:
An application for a stay . . . shall include the following:
(A) A letter or other communication setting forth
facts stating the manner in which current military duty
requirements materially affect the servicemember's ability to
appear and stating a date when the servicemember will be
available to appear.
(B) A letter or other communication from the
servicemember's commanding officer stating that the
servicemember's current military duty prevents appearance
10 50 U.S.C. app. § 502(2) (Supp. 2013). The Act defines a servicemember
as a member of the uniformed services. 50 U.S.C. app. § 511(1). The term "uniformed
services" means any member of the armed forces, which includes the Army, Navy, Air
Force, Marine Corps, and Coast Guard. 10 U.S.C. § 101(a)(4)-(5) (2010). And a
servicemember will be deemed to be in military service if the servicemember is on active
duty. 50 U.S.C. app. § 511(2)(A)(i). "[A]ctive duty" is defined as "full-time duty in the
active military service of the United States." 10 U.S.C. § 101(d)(1). The parties do not
dispute that at the time of the proceeding Joshua was a member of the armed forces,
actively serving in the United States Army.
11 50 U.S.C. app. § 522(a) provides:
This section applies to any civil action or proceeding,
including any child custody proceeding, in which the plaintiff
or defendant at the time of filing an application under this
section -
(1) is in military service or is within 90 days after
termination of or release from military service; and
(2) has received notice of the action or proceeding.
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and that military leave is not authorized for the
servicemember at the time of the letter.
Thus before issuing a stay under the Act, the trial court is required to consider whether
a servicemember's ability to participate in a civil action would be materially affected by
12
the servicemember's duties. Although our prior decisions relating to the Act have not
dealt specifically with the requirements of § 522(b)(2), numerous courts, including the
United States Supreme Court, have concluded that a servicemember invoking a stay
under the Act must make a showing that the servicemember's rights or ability to present
a defense would be materially affected by the servicemember's military duties.13 A
servicemember is not entitled to a stay simply by virtue of serving in the armed forces;
12 50 U.S.C. app. § 522(b)(2).
13 See, e.g., Boone , 319 U.S. at 572-73 (holding that the mere showing that
the defendant was in Washington, D.C. in military service did not render a continuance
mandatory where the defendant's ability to conduct a defense was not materially affected
by his military service); Hackman v. Postel, 675 F. Supp. 1132, 1133-34 (N.D. Ill. 1988)
("[A] stay is not mandated simply because the moving party is in the military service.
Courts interpreting § 521 have observed that for the movant to invoke the protection of
the Act, he must make a showing of his actual unavailability and that his rights would
be adversely affected by virtue of his absence from trial." (citing Johnson v. Johnson ,
139 P.2d 33, 42 (Cal. App. 1943))); Christine M. v. Superior Court, 82 Cal. Rptr. 2d 220,
227 (Cal. App. 1999) (applying provision of the Soldiers' and Sailors' Civil Relief Act
to find no abuse of juvenile court's discretion in denying a stay "where a 'father failed
to demonstrate he was unable to comply with [a court-ordered parenting plan] by reason
of his attendance in the military and that a stay was needed to protect the father's
interests or to permit him to defend the action' "); Wilson v. Butler ex rel. Butler, 584
So. 2d 414, 417 (Miss. 1991) (finding no error by trial court in rendering a paternity
judgment against a father who did not present any evidence of his inability to defend
himself in court as a consequence of his military service); Palo v. Palo, 299 N.W.2d 577,
579 (S.D. 1980) (affirming a denial of continuance on grounds that appellant failed to
show that he was unable to obtain leave or had even tried to obtain leave and therefore
had not shown his actual unavailability or that his rights would be adversely affected by
his absence at trial).
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the servicemember must show that, due to military service, the servicemember's ability
to raise a claim or defense would be prejudiced if a stay were denied.
Joshua does not argue on appeal that his ability to participate in the child
support modification proceeding was materially affected by his military service. And the
record does not include any evidence, such as a communication from Joshua's
commanding officer, suggesting that his military duties prevented him from participating
in the proceeding. In fact, Joshua actually participated in the modification proceeding,
filing an opposition in the superior court, raising legal arguments, and providing
supporting documents including pay stubs, W-2s, and tax returns. Joshua therefore was
not entitled to invoke a stay under § 522(b)(2) of the Act. Under these circumstances,
the superior court did not abuse its discretion in not staying the child support
14
modification proceeding.
B. Joshua's Right To Due Process Was Not Violated.
1. Joshua had notice of the child support proceeding.
Joshua argues that the superior court's child support award should be
reversed because Christina sent him a procedurally defective notice of her motion to
14 Joshua argued in the superior court that "under the Servicemembers Civil
Relief Act, adverse actions are not allowed against active duty officers" and that the Act
"affords the active duty and deployed time to serve their country." These statements may
have provided the superior court with sufficient information to trigger a duty to inform
Joshua of the proper procedure to secure a stay under the Act. See, e.g., Larson v. State,
Dep't of Corr. , 284 P.3d 1, 8 (Alaska 2012) ("The pleadings of pro se litigants are 'held
to less stringent standards than those of lawyers,' and the superior court must 'inform a
pro se litigant of the proper procedure for the action he or she is obviously attempting to
accomplish.' " (quoting Capolicchio v. Levy, 194 P.3d 373, 378 (Alaska 2008))). But
even if the superior court had informed Joshua of the proper procedures, and even if
Joshua had then complied with these procedures, Joshua would not have been able to
obtain a stay under the Act because the record shows that he actively participated in the
proceeding.
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----------------------- Page 10-----------------------
modify child support, which violated his right to due process. Christina acknowledges
that "she lacked one signature on the original submission of the motion to modify," but
she points out that she remedied this omission after the superior court told her to do so
and that she mailed Joshua a signed copy of the motion on October 6, 2011.
Joshua argues that "[t]here is no proof of any process server, certified mail
or otherwise being delivered to the Childs' residence regarding the modification." But
we have previously held that Alaska Civil Rule 5 provides the appropriate procedure for
serving an opposing party in a proceeding to modify the terms of a standing child support
15
order. And Civil Rule 5(b) permits service of a motion to modify "by mailing it to
16 Civil Rule 5 further provides that "[m]ailing of a
the . . . party's last known address."
copy means mailing it by first class United States mail. Service by mail is complete upon
17
mailing." In the trial court, Joshua complained that "[a]ll information ha[d] come
directly through the United State[s] Post Office to [his] mailbox." But by mailing
through the United States mail, Christina complied with Civil Rule 5.
To comply with due process, notice must be given sufficiently in advance
of scheduled court proceedings so that the parties have a reasonable opportunity to
18
Here, Joshua had ample notice of Christina's motion to modify. Christina
prepare.
remedied her first procedurally defective notice by correcting and re-sending the required
15 Crumpler v. State, Dep't of Revenue, 117 P.3d 730, 733 (Alaska 2005) (per
curiam) (citing Balchen v. Balchen, 566 P.2d 1324, 1327 (Alaska 1977)).
16 Alaska R. Civ. P. 5(b).
17 Id.
18 Fidler v. Fidler , 296 P.3d 11, 13 n.5 (Alaska 2013) (citing Doe v. State , 487
P.2d 47, 57 (Alaska 1971)); see also Aguchak v. Montgomery Ward Co., 520 P.2d 1352,
1356 (Alaska 1974) (holding that due process requires notice of a hearing sufficient to
convey information required to present objections).
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documents to Joshua on October 6, 2011. The superior court issued an order on
November 4, 2011,19 nearly 30 days after Christina mailed Joshua the corrected notice,
giving Joshua 10 additional days to file an opposition to Christina's motion. The
superior court received Joshua's initial opposition on November 16, 2011 and his
corrected opposition on December 5, 2011. Joshua had an opportunity to make his legal
arguments and submit relevant financial documents. The superior court then issued the
order modifying child support on February 6, 2012. Because the record indicates that
Joshua had notice of the modification proceedings with sufficient time to prepare and
present his arguments to the superior court, we conclude that Joshua's right to due
process was not violated for lack of notice.20
2. There were no disputed facts to merit a hearing.
Joshua also argues that the superior court should have held an evidentiary
hearing before ordering the modification of child support in this case and that failure to
do so violated due process. Joshua maintains that he was "never given the opportunity
to speak or be present at any hearing regarding child support." But "[a] hearing is not
21
required for all child support disputes." And we have held that a hearing is not
necessary if there is no genuine issue of material fact before the superior court.22
19 The superior court clerk's certificate of service stated that the order was
mailed to Joshua on November 7, 2011.
20 Because Joshua's right to due process was not violated, his argument that
Christina "intentionally inflicted financial distress on [him] because there was no due
process" is without merit.
21 Turinsky v. Long, 910 P.2d 590, 594 (Alaska 1996).
22 See id. (concluding that the superior court did not err in awarding child
support without a hearing where the parties did not argue that the adjusted income levels
used by the superior court were inaccurate).
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Joshua and Christina did not dispute the accuracy of the income information
that Joshua had presented to the superior court. Instead, the parties took different legal
positions on the deductions from income permitted under Civil Rule 90.3. Because the
parties disputed only the legal question whether Joshua's housing and meal allowances
should have been included in his adjusted income under Civil Rule 90.3, the superior
court was faced only with a question of law and was therefore not required to hold an
evidentiary hearing.23
C. The Superior Court's Child Support Award Complied With The
Parental Income Guidelines In Alaska Civil Rule 90.3.
Joshua next argues that his Basic Allowance for Housing should not be
included in the calculation of his income for the purpose of determining his child support
obligation because the allowance is not reflected in his gross pay. Christina argues that
the superior court did not err in calculating Joshua's child support obligation because
Civil Rule 90.3 includes military housing allowances within the definition of adjusted
annual income for the purpose of calculating child support.
Civil Rule 90.3 provides that a trial court must calculate a "parent's total
24
income from all sources." As we observed in Berkbigler v. Berkbigler , the question
whether a military housing allowance qualifies as income is expressly addressed by the
25
commentary to Civil Rule 90.3. Specifically, the commentary advises that income
includes "Armed Service Members base pay plus the obligor's allowances for quarters,
23 See, e.g., id.; Douglas v. State, Dep't of Revenue , 880 P.2d 113, 117
(Alaska 1994) (concluding that mother's due process rights were not violated when the
superior court addressed purely legal issues in assessing mother's child support
obligation and did not hold an evidentiary hearing).
24 See Alaska R. Civ. P. 90.3(a)(1).
25 921 P.2d 628, 631 (Alaska 1996).
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----------------------- Page 13-----------------------
26
rations, COLA and specialty pay" and "perquisites or in-kind compensation to the
extent that they are significant and reduce living expenses, including but not limited to
27
employer provided housing (including military housing)."
Joshua reported that in 2011 he received a Basic Allowance for Housing
of $10,872. Joshua does not dispute that the Basic Allowance for Housing is "an
allowance to offset the cost of housing when [a member of the military] do[es] not
28
receive government-provided housing." In fact, he asserted on appeal that the
allowance "is used to provide housing for [his] current immediate family." Joshua's
Basic Allowance for Housing thus constitutes income under Civil Rule 90.3 and the
29
superior court did not err by including it in the calculation of the child support award.
V. CONCLUSION
Because Joshua did not qualify for a stay under the Servicemembers Civil
Relief Act, and because the superior court did not otherwise err in ordering modification
26 Alaska R. Civ. P. 90.3 cmt. III.A.28.
27 Id. cmt. III.A.19.
28 Office of the Sec'y of Def., Basic Allowance for Housing, MILITARY
COMPENSATION , http://militarypay.defense.gov/pay/bah/index.html (last visited June 26,
2013).
29
Joshua also claims for the first time on appeal that his Basic Allowance for
Subsistence should not have been included in the calculation of his child support
obligation. We decline to reach this contention because Joshua did not first raise it in the
superior court. Preblich v. Zorea , 996 P.2d 730, 736 n.17 (Alaska 2000) (" 'Ordinarily
an issue which was not raised in the trial court will not be treated on appeal.' " (quoting
Padgett v. Theus , 484 P.2d 697, 700 (Alaska 1971))). And Joshua has not provided any
argument or citation to legal authority to support his position. See Sengul v. CMS
Franklin, Inc., 265 P.3d 320, 330 (Alaska 2011) (concluding that appellant abandoned
issues because he "failed to provide any more than cursory briefing devoid of citation to
legal authority" (citations omitted)).
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----------------------- Page 14-----------------------
of Joshua's child support obligation in accordance with the guidelines set forth in Civil
Rule 90.3, we AFFIRM the superior court's decision modifying child support.
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