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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ruppe v. Ruppe (9/25/2015) sp-7052

Ruppe v. Ruppe (9/25/2015) sp-7052

         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  



TERRI L. RUPPE,                                        )  

                                                       )         Supreme Court No. S-15311  

                            Appellant,                 )  

                                                       )         Superior Court No. 3AN-12-11535 CI  

         v.                                            )  

                                                       )         O P I N I O N  

TERRY C. RUPPE,                                        )  

                                                       )         No. 7052 -September 25, 2015  

                            Appellee.                  )  


                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Anchorage, Frank A. Pfiffner, Judge.  

                  Appearances:    Terri  L.  Ruppe,  pro  se,  Waialua,  Hawaii,  

                  Appellant.  Terry  C.  Ruppe,  pro  se,  Fayetteville,  North  

                   Carolina, Appellee.  

                  Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  FABE, Chief Justice.  


                   Terri Lin Ruppe appeals from a superior court order granting her divorce,  

determining custody, distributing marital property, and setting child support obligations  


for her former husband, Terry.  She raises issues related to legal custody, the calculation  


of interim child support, the duration of permanent child support, the distribution of  


----------------------- Page 2-----------------------


property, and the non-award of spousal support and attorney's fees.  We affirm most of  


the  superior  court's  findings  of  fact  and  conclusions  of  law,  but  we  reverse  its  


determination that payments Terry made during the pendency of the divorce could be  

credited against his post-divorce child support obligations.  


                    Terry and Terri Lin Ruppe married in 1997.  They have a daughter, born  


in 2004, and permanent guardianship of a niece, born in 1996, and a nephew, born in  


 1998, the children of Terri Lin's sister.  Terry is a warrant officer in the U.S. Army and  


Terri  Lin  has  been  a  housewife  since  2003.    The  family  moved  to  Anchorage  in  


April 2010, due to Terry's stationing at Fort Richardson.  The Ruppes lived on base in  


a home that was paid for by the $2,202 Terry received as a monthly Basic Allowance for  

Housing and owned a residential property in Virginia, which they rented to tenants.  

                    The   marriage   permanently   disintegrated   after   Terry's   return   from  


Afghanistan in October 2012, and Terry moved out in November.  Terry made an official  


request that Terri Lin and the children be permitted to remain in on-base housing until  


the resolution of the divorce. Although both Terry and Terri Lin believed that she would  


have to leave that housing by the end of March 2013, she and the children were in fact  


able   to   stay   in   on-base   housing   until   mid-June.                          Terry   filed   for   divorce   in  

December 2012; Terri Lin counterclaimed in January 2013.  


                    Between the start of the parties' separation and the trial, Terri Lin made two  

relevant  withdrawals  from  joint  accounts.    First,  she  withdrew  $4,500  from  a  joint  

account after that amount was deposited in the account as per diem pay/travel voucher  


for a training Terry attended after the separation.  Second, she withdrew $4,000 from a  


joint account associated with the Virginia property and used this amount to pay her initial  

attorney's fees.  

                                                                -2-                                                        7052

----------------------- Page 3-----------------------

                    In February 2013 Superior Court Judge Frank A. Pfiffner held an initial  


status hearing.  At this hearing the parties indicated that they believed that Terri Lin and  


the children would stay in the on-base housing until March 31.  At the hearing Terry  


offered to fulfill his child support obligations by paying Terri Lin $2,200 directly every  


month  until  she  moved  out  of  the  on-base  housing  that  was  funded  by  his  Basic  


Allowance for Housing, and by paying Terri Lin $3,000 directly every month thereafter.  


                    After the February hearing the superior court set interim child and spousal  


support  in  a  March  order.    The  superior  court  explicitly  included  the  $2,202  Terry  


received in Basic Allowance for Housing from the military each month in its calculation  


                                                                                                       The superior court  

of his income, as required by Alaska Rule of Civil Procedure 90.3. 

calculated Terry's base monthly child support amount as $2,407.  

                    The March order adopted several of the assumptions and proposals from  


the February hearing.  The order noted that Terry had "testified that he would like to pay  


$3,000 in child support and spousal support until the divorce trial in May," and thus  

ordered $2,407 in monthly interim child support and  an  additional $593 in monthly  


interim spousal support.  The interim child and spousal support order stated that it was  


effective retroactively to December 2012, the first month after the parties separated.  It  

also stated that Terry was to be credited with the amounts actually paid to Terri Lin since  


the separation, which the court calculated to be "$4,500 per month . . . (including his  


[Basic Allowance for Housing] of $2,202 per month through March 31, 2013)" in the  

worksheet that accompanied the narrative order.  The order thus appears to have been  

written under the assumption that Terri Lin and the children would leave the on-base  


housing after March 31, an assumption that also explains the superior court's direction  

that Terry's first payment be due April 1.  

          1         See Alaska R. Civ. P. 90.3 cmt. III.A.28.  

                                                               -3-                                                             7052  

----------------------- Page 4-----------------------


                    Terri Lin and the children continued to live on base until the May trial, and  


Terry continued to pay Terri Lin approximately $2,200 a month.  Terri Lin interpreted  

the March order to require Terry to pay her $3,000 directly each month regardless of  

housing, and she requested that the Child Support Services Division garnish Terry's  

wages for the additional $800 per month she believed he owed, which the agency did.  

                    In mid-April the parties stipulated to an order that granted Terri Lin primary  


physical custody of the children and permitted her to relocate to Hawaii.  Legal custody  


and visitation were left for later resolution at trial, which occurred over three days in  



                    In July 2013 the superior court granted the divorce, ordered child support,  

and made findings of fact and conclusions of law.  The court reaffirmed that Terri Lin  


would have primary physical custody, awarded joint legal custody, and provided for  


unsupervised visitation for Terry during summer vacations and every other Christmas,  

as well as daily phone calls.  


                    The court also ordered the Ruppes to sell the Virginia property, with Terri  


Lin to receive 60% of the proceeds.  She also received 60% of a thrift savings plan held  

in Terry's name.  The remaining assets were distributed nearly equally, which resulted  

in Terri Lin receiving a total of 58% of the marital estate.  

                    The superior court's discussion of child support looked both backward and  


forward.  First, the court settled the dispute about the proper interpretation of its interim  


support order.  Terri Lin understood it to require Terry to pay her $3,000 in cash each  


month, while Terry claimed that Terri Lin's continued residence in housing paid for by  

a housing allowance tied to his military employment meant that he should receive credit  


toward his support obligations for that housing allowance. The court agreed with Terry's  


interpretation and found that he had no unpaid child support because his monthly checks  

                                                              -4-                                                        7052

----------------------- Page 5-----------------------


of $2,200, combined with the housing allowance valued at $2,202, exceeded his monthly  

$3,000 interim support obligation.  


                    Looking  forward,  the  superior  court  noted  that  Terry  had  permanently  


changed  stations  to  a  base  in  North  Carolina  and  thus  had  seen  his  income  reduce  

sharply.    It  calculated  that  his  ongoing  monthly  child  support  obligation  would  be  


                    The superior court declined to order payment of any further spousal support  


to Terri Lin.  The court based its decision on the fact that it had ordered that she receive  


60% of the proceeds from the sale of the Virginia residence and because "Terri Lin ha[d]  

received additional marital cash assets by misappropriating Terry's post-separation per  


diem  pay  in  the  amount  of  approximately  $4,500.00  and  utilized  approximately  


$4,000.00 from the rental property 'rainy day' fund to pay her initial attorney's fees."  

The "misappropriation" of those two amounts also factored into the superior court's  

decision not to award attorney's fees to either party.  


                    The superior court issued an order explaining in detail its child support  

calculation.  The order explained that the March 2013 interim support order had set  

Terry's support at $2,407 per month, dating back to December 2012, but that the court  

had credited him with $4,500 per month in support during the period of December to  


March.    Thus,  the  court  found  that  Terry  should  be  credited  $2,093  (the  difference  


between his actual payment of $4,500 and the owed child support of $2,407) for each of  


the four months before the order, totaling $8,372.  Further, during the period of April to  

June, the order explained that Terry had owed $2,407 per month and paid $4,402 per  


month, composed of $2,200 in cash and $2,202 in housing allowance for the residence  


Terri Lin and the children occupied. Thus, the superior court found that Terry should be  


credited $1,995 (the difference between the actual payment of $4,402 and the owed  

                                                              -5-                                                        7052

----------------------- Page 6-----------------------

support of $2,407) for each of those three months, totaling $5,985.  Terry's total credit  

against future support obligations was therefore $14,357.2  

                  Terri Lin appeals.  



                  "We will uphold a superior court's custody and visitation determinations  

'unless the record shows that its controlling findings of fact are clearly erroneous or the  


court abused its discretion.' "    


                  "This court reviews legal determinations relevant to property division and  


child support based on an independent judgment standard."    


                  "Child support awards are reviewed for abuse of discretion."   "Abuse of  

discretion occurs when a trial court fails to consider statutorily mandated factors, weighs  

factors improperly, or includes improper factors in its decision."6  

                  Whether property is properly characterized as separate or marital "may  



involve both legal and factual questions. . . ."   The trial court "exercises broad discretion  

         2        This calculation appears  to have over-credited Terry by omitting the $593  

in monthly interim spousal  support  that  the  superior  court  ordered in its March 21, 2013  

order establishing interim child and spousal support.  See Part IV.B.1, infra.  

         3        Houston  v.  Wolpert ,  332  P.3d  1279,  1282  (Alaska  2014)  (quoting  

Borchgrevink v. Borchgrevink , 941 P.2d 132, 134 (Alaska 1997)).  

         4        Heustess v. Kelley-Heustess , 158 P.3d 827, 831 (Alaska 2007).  

         5        Heustess v. Kelley-Heustess , 259 P.3d 462, 467 (Alaska 2011).  

         6        Michele M. v. Richard R. , 177 P.3d 830, 834 (Alaska 2008).  

         7        Beals  v. Beals, 303 P.3d 453, 459 (Alaska 2013) (internal quotation marks  


                                                          -6-                                                   7052

----------------------- Page 7-----------------------




in the division of marital assets."               We review the superior court's equitable allocation  



of property "for an abuse of discretion,"  and will reverse only if the allocation is "clearly 



                   "This court reviews the decision not to award  spousal maintenance for  

abuse of discretion."11  

                   "The award of attorney's fees in a divorce action rests within the broad  


discretion of the superior court, and will not be disturbed on appeal unless it is 'arbitrary,  

capricious, manifestly unreasonable, or stems from an improper motive.' "12  


          A.       Child Custody  


                   Terri Lin argues that the superior court erred by granting both parents joint  


                                                                                                          We hold that  

legal custody and by not granting her final decision-making authority. 

          8         Veselsky v. Veselsky, 113 P.3d 629, 632 (Alaska 2005).  

          9        Id.  

          10       Day v. Williams , 285 P.3d 256, 260 (Alaska 2012).   

          11       Silvan v. Alcina, 105 P.3d 117, 125 (Alaska 2005).  

          12       Stevens v. Stevens, 265 P.3d 279, 284 (Alaska 2011) (quoting Koller v. Reft ,  

71 P.3d 800, 808 (Alaska 2003)).  

          13       Terri  Lin  also   appeals  several  of  the  superior  court's  findings  of  fact  

regarding h      er parenting an       d T   erry's medical   history.    These findings are relevant to  

custody, and       in light of the superior court's decision to grant Terri Lin primary physical  

custody, we understand her to be appealing  Terry's visitation  rights.  We do not detect  

any error related to the superior court's grant of visitation, especially   in light of our  

determination "that the best interests of the child standard normally requires unrestricted  

visitation with  the noncustodial parent."  J.F.E. v. J.A.S. , 930 P.2d 409, 413 (Alaska  



                                                            -7-                                                      7052

----------------------- Page 8-----------------------

the superior court did not abuse its discretion by awarding the parents joint legal custody       

of the children.  


                     Terri Lin's contention is that Terry's employment in the military requires  


frequent travel, training, and deployment, which will make joint legal custody "virtually  


impossible."  The superior court did not agree and determined that if Terri Lin had final  


decision-making authority Terry might "no longer have a role in the children's lives."  


This finding was not clearly erroneous, especially given the superior court's award of  

primary physical custody to Terri Lin and the plan for the children to live with her in  

Hawaii and for Terry to live in North Carolina.  


                     We have recognized that "[t]he legislature has expressed a preference for  

                                14   Moreover, the legislature has specifically directed courts that "if  

joint legal custody."                                                         

a parent is deployed or in a position where the parent may be deployed, the court shall  


take particular care to ensure that the child has the maximum opportunity, consistent with  



the best interests of the child, to have contact with the parent."                                          In most cases, "a  

parent's temporary duty, mobilization, or deployment to military service and the resultant  

temporary disruption to the child of the parent may not be a factor in a court's decision  


to  grant  or  deny  a  petition  for  custody  or  visitation."16                               The  statutory  policy  of  


accommodating military service in custody determinations provides further support for  


the superior court's grant of joint legal custody.  

           14        Jaymot v. Skillings-Donat , 216 P.3d 534, 540 (Alaska 2009).  

           15        AS 25.20.095(a).  

           16        Id.  

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          B.        Child Support  

                    1.        Housing allowance  

                    Terri Lin argues that the superior court erred by crediting Terry with $2,202  


toward  his  monthly  child  support  obligations  based  on  her  residence  with  the  three  

children during the pendency of the divorce in housing paid for by Terry's military  


housing allowance. Because the Ruppes' living situation provided "good cause" to vary  


the interim child support award, we affirm the superior court's decision to allow Terry  


to partially satisfy his interim child support obligations by paying for housing for Terri  

Lin and the children.  But we reverse the superior court's decision to credit Terry's  

"overpayments" during the interim period against his post-divorce obligations.  


                    There are a number of principles that are relevant to this appeal.  "The right  

to support is that of the child,"17 and therefore the amount of child support calculated  



under Civil Rule 90.3 cannot be waived or modified other than for good cause. 


agreement between the parties as to child support is not an exceptional circumstance  


justifying deviations from the guidelines, where the agreement requires support less than  


that  called  for  by  the  guidelines."                 And  although  "spousal  support  is  separate  and  

distinguishable from marital property,"20 those two matters are linked by the similar  

          17        State,  Dep't  of  Rev.,  Child  Support  Enforcement  Div.  ex   rel.  Valdez  v.  

 Valdez, 941 P.2d 144, 154 n.14 (Alaska 1997).  

          18        See Cox v. Cox, 776 P.2d 1045, 1049 (Alaska 1989).  



                    Id. ;  see  also  Alaska  R.  Civ.  P.  90.3  cmt.  VI.B.1  ("The  fact  that  the  


parties . . . agree on an amount of support is not reason in itself to vary the guidelines.").  

          20        Stevens v. Stevens, 265 P.3d 279, 288 (Alaska 2011).  

                                                              -9-                                                       7052

----------------------- Page 10-----------------------


factors  that  determine  each  one                  and  the  preference  in  Alaska  courts  that  spousal  


maintenance  only  be  awarded  if  financial  concerns  cannot  be  resolved  by  property  


division.        With these principles in mind, we turn to the facts of this case.  

                    Civil Rule 90.3 contains a formula that determines child support obligations  

on the basis of parents' adjusted annual income, the physical custody arrangement,  and  


the number of children the award will support.  We have explained that the formula  


                                                                                                  and the commentary  

"reflect[s] a paternalistic view toward child support agreements," 


to the Rule states that two of the major purposes of the formula are to "ensure that child  

support orders are adequate to meet the needs of children, subject to the ability of parents  


                                                                                                                 "The right  

to pay" and to make child support awards "[p]redictable and consistent." 

          21        Compare          AS      25.24.160(a)(2)           (factors       for    maintenance           awards),  

with  .160(a)(4) (factors for property division);                    see also AS 25.24.160(a)(2)(F) (spousal  

maintenance award should be based, in part, on the division of property).  For example,   

in Hanlon v. Hanlon , 871 P.2d 229, 233 (Alaska 1994), we found that "[a]lthough the  

factors  trial  courts  consider  in  determining  whether  to  award  spousal  support  are  


essentially identical to those considered in deciding the allocation of marital property,  

spousal       support        and     property-division            serve      distinct      purposes        and      are    not  


interchangeable.  'We have announced a policy of encouraging trial courts to provide for  


parties' financial needs by property disposition, rather than by alimony.' " (citations  


omitted) (quoting Dixon v. Dixon , 747 P.2d 1169, 1173 (Alaska 1987)).  

          22        See, e.g., Fernau v. Rowdon , 42 P.3d 1047, 1058 (Alaska 2002) ("The  


preference in Alaska is to resolve the financial concerns arising from a divorce by means  

of  the  property  division,  but  spousal  maintenance  may  be  awarded  if  it  is  just  and  

necessary." (citation omitted)).  

          23        Laughlin v. Laughlin , 229 P.3d 1002, 1004 (Alaska 2010) (quoting Cox,  

776 P.2d at 1048).  

          24        Alaska R. Civ. P. 90.3 cmt. I.B.  

                                                             -10-                                                        7052

----------------------- Page 11-----------------------

to support is that of the child,"25 and the support that results from application of the  


formula is presumed to contribute to the child's multiple needs, which include food,  

housing, and clothing.  


                    Crediting payments that provide a home for a spouse and children against  


child support obligations risks leaving children with insufficient support.  Such a practice  


may dedicate a greater percentage of the total support children are owed to housing costs  

than the custodial parent would choose to dedicate and may deprive the custodial parent  


                                                                                 The formula in Civil Rule 90.3  

of the ability to provide for the child's other needs. 

does not anticipate a support order that dedicates an unwieldy percentage of the non- 


custodial parent's monthly requirement to only one of the multiple needs of the children.  


                    It is possible, however, that the Ruppes' situation is one in which the child  



support  obligation  calculated  under  the  usual  formula  should  be  varied. 

Rule 90.3(c)(1) permits the court to "vary the child support award as calculated under  

          25        State,  Dep't  of  Rev.,  Child  Support  Enforcement  Div.  ex  rel.  Valdez  v.  

Valdez, 941 P.2d 144, 154 n.14 (Alaska 1997).  

          26        Cf. Young v. Williams, 583 P.2d 201, 203 (Alaska 1978) (affirming trial     

court's refusal to credit voluntary payments against child support obligations because  

"such voluntary payments to the children quite often are intended for particular purposes  

whereas the manner in which child support payments are used to meet the children's  


basic needs is left to the discretion of the parent or guardian with custody").  

          27        The military housing allowance represented roughly 40% of Terry's gross  


annual income but was significantly less flexible than the equivalent value in wages.  It  


is not clear from the record whether the allowance  could  have paid for two smaller  


residences during the pendency of the divorce or whether it was in effect committed to  


the home that continued to house Terri Lin and the children.  Aurora Military Housing,  

the company that provides on-base housing at Fort Richardson, sets the rent for each  

service  member  tenant  as  "equal  to  the  BAH  with  dependent  rate  for  [that  service  


member's]   rank."      Frequently   Asked   Questions ,   AURORA                              MILITARY         HOUSING , (last visited Sept. 14, 2015).  

                                                             -11-                                                       7052

----------------------- Page 12-----------------------


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  

'good cause' inquiry 'must focus first and foremost on the needs of the children.' "28  

This exception can encompass a variation that reflects the obligor's separate provision  


                                                                                                                   Such a  

of a service that would normally be funded out of the child support award.  


variation may be particularly appropriate when the superior court is examining parents'  


                                                                                 Although we have held "that  

conduct before any child support order was entered. 


absent extraordinary circumstances, courts should apply the calculation methodology of  


Rule 90.3 to determine amounts to be reimbursed to custodial parents for support of  

                                                                               31   the commentary to Rule 90.3  

children during periods not covered by support orders,"                                                        

notes  that  "in  some  circumstances  unfairness  may  result  from  rigid  [retroactive]  


application of the rule."              

          28       Koller  v.  Reft ,   71   P.3d  800,  807  (Alaska  2003)  (emphasis  in  original)  

(quoting Doyle v. Doyle , 815 P.2d 366, 373 (Alaska 1991)).  

          29       See Coats v. Finn, 779 P.2d 775, 777 (Alaska 1989) (" '[G]ood cause' may  


be  present  when  application  of  the  formula  produces  a  result  which  requires  the  

non-custodial parent, unreasonably, to contribute substantially more or less than his or  


her  fair  share  of  the  amount  needed  to  satisfy  the  child's  reasonable  needs.").    The  

Alaska Administrative Code's regulations governing the Child Support Services Division  

anticipate crediting "in-kind contributions against an obligor's child support obligation  


if . . . a tribunal of competent jurisdiction has ordered the in-kind contribution in lieu of  


the payment of child support," 15 Alaska Administrative Code (AAC) 125.470(a)(1)  


(2014),  an  indication  that  in-kind  contributions  may  be  appropriate  components  of  

superior court child support orders in some circumstances.   

          30       See Ogard v. Ogard, 808 P.2d 815, 816-17 (Alaska 1991).  

          31        Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska 1996).  

          32       Alaska R. Civ. P. 90.3 cmt. VI.E.1; see also 15 AAC 125.105(c) (stating  


                                                           -12-                                                      7052

----------------------- Page 13-----------------------

                    Here,  although  the  superior  court  erred  by  not  analyzing  the  Ruppes'  


circumstances according to the requirements of Civil Rule 90.3(c)(1),33 we detect no  

error in its conclusion that Terry satisfied his interim child support obligations.  Terry  


paid Terri Lin $2,200 directly every month during the pendency of the divorce, and in  


addition his employment paid for her and the children's home.  Taken together, these  


contributions satisfied Terry's $2,407 monthly interim child support obligation, as well  


as the $593 monthly interim spousal support obligation that the Ruppes and the superior  


court appear to have assumed would not apply until Terri Lin and the children moved out  


of on-base housing.  A variation of either $207 or $800 per month to reflect Terry's  


provision of housing was not legal error.  As Terri Lin testified at trial, the additional  


$800 she believed she was owed each month during the pendency of the divorce could  

not  have  paid  for  housing  comparable  to  the  on-base  housing  she  and  the  children  

enjoyed during that time.  


                    Although we affirm the conclusion that Terry satisfied his interim support  


obligations, the superior court's treatment of Terry's child support obligations following  

the divorce constituted legal error.  The July 15, 2013 order concluded that Terry had  


overpaid during the period between the Ruppes' separation and final divorce, and so  

                                   34  credit against his future obligations.  This conclusion ignores  

awarded him a $14,357                           


that  the  Child  Support  Services  Division  "will  give  credit  for  [pre-order]  in-kind  

contributions" under certain circumstances).  

          33        See Alaska R. Civ. P. 90.3(c)(1) ("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." (emphasis added)).  

          34        We note that this figure appears to have been the result of a math error.  It  



                                                             -13-                                                       7052

----------------------- Page 14-----------------------

the  fact  that  Terry  paid  Terri  Lin  the  amount  he  proposed  at  the  February  hearing:  


$2,200 per month plus the housing, while she remained in the house.  The supposed  


overpayment only emerges by comparing the full dollar value of what Terry contributed  

to Terri Lin with the result of the Rule 90.3 formula.  But contributing more than the  


formula dictates is not an overpayment when it is done pursuant to the parties' proposed  


                    Even if Terry had paid Terri Lin too much during the interim period, it was  


error to credit any voluntary overpayment against his future obligations. We have held  


that "it is contrary to the purpose of Civil Rule 90.3 to offset such contributions against  


future  child  support  payments  except  in  exceptional  circumstances."                                     In  that  case,  


Epperson v. Epperson , we suggested that such an offset should be recognized only if the  

parties  agreed  at  the  time  the  contributions  were  made  that  they  would  constitute  

prepayment of future child support.36  


was reached by comparing the amounts Terry paid to Terri Lin with the interim child  


support obligation established in the March 2013 order.  However, the March 2013 order  

also required Terry to pay Terri Lin $593 in monthly interim spousal support.  Thus,  


even  by  its  own  terms  the  superior  court's  July  15,  2013  order  overstated  Terry's  

overpayment by $4,151.  



                    Epperson  v.  Epperson ,  835  P.2d  451,  453  (Alaska  1992);  cf.  15  AAC  


125.105(d) ("When giving credit for direct payments . . . or in-kind contributions [made  

before an order is entered], the agency will give credit only up to the amount of the  

support that is charged for the [pre-order] period . . . .").  



                    See 835 P.2d at 453 ("On the record presented, it is clear that the court did  


not abuse its discretion in ruling that the 'gifts' [the husband] made to [the wife] could  

not be credited against his child support obligation.  [The husband] does not claim that  


he and [the wife] agreed that his contributions were to constitute prepayment of future  

child support.").  

                                                             -14-                                                        7052

----------------------- Page 15-----------------------

                    Such "exceptional circumstances" were not present here.  As explained  


above,  Terry's  payments  were  made  pursuant  to  a  payment  plan  that  he  proposed.  


During the pendency of the divorce Terry did not directly pay Terri Lin the amount  

prescribed by Civil Rule 90.3, and while his provision of housing easily satisfied the  

difference between what he did pay and that prescribed amount, any excess value of that  

housing should not have been credited against his future child support obligations.  

                    2.       Duration of child support  


                    Terri Lin argues that the superior court erred by failing to explicitly note  


that its order for child support was to continue beyond the time a child turns 18 if that  


child is still in high school.  Alaska Statute 25.24.170 anticipates continued support "for  


the care, nurture, and education of unmarried 18-year-old children of the marriage while  

                                                                          37  and we have held that only in "the  


they are actively pursuing a high school diploma," 

exceptional case" should a court decline to extend support to such an 18-year-old.38                                        In  


light of these policies, we will not read into the superior court's order a strict end date  


at a child's 18th birthday.  Instead we presume that the superior court intended the  


support order to continue for any 18-year-olds actively pursuing a high school diploma.  

                    3.       Evidence of Terry's income  

                    Terri  Lin  argues  that  the  superior  court  erred  by  using  an  estimate  of  

Terry's future income to set his future child support obligations, rather than requiring  

Terry to provide an earning statement.  Terry did not move to North Carolina and start  


receiving his new salary until June, so at the time of the May trial no such statement  


existed.    Moreover,  Terri  Lin  did  not  produce  any  evidence  at  trial  suggesting  that  


Terry's estimate of his future pay rate was inaccurate.  In light of the timing of the trial  

          37        AS 25.24.170.  

          38        Scully v. Scully, 987 P.2d 743, 747 (Alaska 1999).  

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and  the  parties'  respective  moves  out  of  Alaska,  crediting  Terry's  estimate  was  an  


evidentiary decision within the superior court's discretion.  If Terry's salary materially  


differs from the estimated amount, Terri Lin can seek to modify the child support order.39  

          C.       Property Division  

                    1.       GI Bill benefits  

                    Terri Lin appeals the superior court's refusal to require Terry to assign  

education  benefits  he  is  entitled  to  via  the  GI  Bill.    At  trial  she  claimed  that  Terry  


promised these benefits to her niece, while Terry testified that he had not made that  


promise and that he was not yet eligible for the benefit in question.  In light of the  


conflicting testimony on this question and the absence of other relevant evidence, we  


cannot say that the superior court's determination that the benefit should stay with Terry  

was clearly erroneous.  

                   2.        Withdrawals from joint accounts  

                    Terri  Lin  also  argues  that  the  superior  court  erred  by  considering  her  


withdrawals of $4,500 and $4,000 from joint accounts in the context of the division of  

marital property.  We do not detect any error related to the superior court's treatment of  

these withdrawals in the division of marital property.  


                    "As a general rule, 'property acquired after separation is properly excluded  

                                                          40   The $4,500 withdrawal followed the deposit  


from the category of marital property.' "  

of per diem travel allowances related to Terry's post-separation training travel.  Rather  


than force Terri Lin to repay Terry the full amount of the post-separation property she  

had withdrawn, the superior court counted the withdrawal as if it had been from marital  

          39       See Alaska R. Civ. P. 90.3(h).  

          40       Richter v. Richter , 330 P.3d 934, 939-40 (Alaska 2014) (quoting                                Ramsey  

v. Ramsey , 834 P.2d 807, 809 (Alaska 1992)).  

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property.  This treatment favored Terri Lin, as it only reduced her award from the rest  

of the marital property by half of the withdrawn amount.  


                     The $4,000 withdrawal was from the account funded by rental income from  

the Ruppes' Virginia property.  Terri Lin used these funds to pay her initial attorney's  


fees.  The record does not clearly reveal whether the superior court credited her with  


already having received that amount of the marital estate.  The court referenced the  


$4,000 withdrawal several times in its findings of fact, but Exhibit A, which documents  


the distribution of marital assets, does not contain an entry for this $4,000 withdrawal of  


rental income as it does for the $4,500 withdrawal of post-separation per diem pay.  If  


the superior court did credit the $4,000 withdrawal against Terri Lin's share  of  the  


marital estate, doing so was not error.                          

                     Terri Lin requested 60% of the marital assets and received 58%.  Under  


these  facts,  the  superior  court's  equitable  division  of  property  was  not  erroneous.  


           D.        Spousal Support  

                     Terri  Lin  argues  that  the  superior  court  erred  by  not  ordering  that  she  


receive spousal support following the divorce.  

                     "The preference in Alaska is to resolve the financial concerns arising from  


a divorce by means of the property division, but spousal maintenance may be awarded       

                                            42   "[T]he primary  factors which  should  be considered in  

if it is just and         necessary."                                                                               


awarding interim                 spousal maintenance are the relative economic circumstances and  

           41        Cf. Schmitz v. Schmitz, 88 P.3d 1116, 1131 (Alaska 2004) (holding that an  

uncounted benefit from the sale of a marital asset should be treated as an award of  


attorney's fees).  

           42        Fernau v. Rowdon , 42 P.3d 1047, 1058 (Alaska 2002) (footnote omitted).  



                     Despite the inclusion of the word "interim" here, this quotation comes from  


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needs of the parties and the ability to pay the maintenance."44   The superior court noted  


that "[i]n order to have marketable skills in her college major, [Terri Lin] will need to get  


a master's degree."  It found, however, that "[t]he net equity from the Virginia rental  

property split in favor of [Terri Lin] will give her the opportunity for funds to complete  

her education, obtain medical insurance, and support herself."  To award spousal support,  


the superior court must "make adequate findings showing that the property division is  


insufficient to meet the parties' needs."                    Thus, finding that the split of marital property  


was  sufficient  to  equip  Terri  Lin  to  continue  her  education  was  not  an  abuse  of  


          E.        Attorney's Fees  

                    Terri  Lin  argues  that  the  superior  court  erred  by  failing  to  award  her  


attorney's fees.  Under these facts we cannot conclude that the superior court's decision  



was an abuse of its "broad discretion in awarding attorney's fees in divorce actions." 

Both  parties  were  represented  by  counsel  before  the  superior  court  and  represent  

themselves on appeal; additionally, the superior court found that Terry had "no ready  


cash to pay for an award of attorney's fees." Moreover, the superior court awarded Terri  


Lin  60%  of  the  thrift  savings  plan  and  the  proceeds  from  the  sale  of  the  Virginia  



a case evaluating a request for post-divorce maintenance.  

          44        Carr  v.  Carr,  152  P.3d   450,   456  (Alaska  2007)  (quoting  Johnson  v.  

Johnson , 836 P.2d 930, 934 (Alaska 1992)).  

          45        Urban v. Urban, 314 P.3d 513, 516 (Alaska 2013).  

          46        Schmitz, 88 P.3d at 1122.  

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property; in total, she received 58% of the marital assets.  The superior court was within  

its discretion to find that the parties were litigating on an equal plane.47  


                  The superior court's findings of fact and conclusions of law regarding child  

custody, interim child support, permanent child support, property division, permanent  

spousal support, and attorney's fees are AFFIRMED and its conclusions of law regarding  

credits against permanent child support for interim overpayments are REVERSED.  

         47       See Heustess v. Kelley-Heustess, 259 P.3d 462, 479 (Alaska 2011) ("The  

purpose of AS 25.24.140 in a divorce proceeding is to 'assure that both spouses have the  


proper means to litigate the divorce action on a fairly equal plane.' " (quoting Sanders  


v. Sanders, 902 P.2d 310, 319 (Alaska 1995))).  

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