Opinion
Supreme Court No. S-13018.
March 24, 2010.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Douglas L. Blankenship, Judge, Superior Court No. 4FA-99-00189 Civil.
Kimberly Faulkner, pro se, Fairbanks. No appearance by Appellee.
Before: Fabe, Chief Justice, Eastaugh, Carpeneti, and Winfree, Justices. [Matthews, Justice, not participating.].
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Alaska Appellate Rule 214.
I. INTRODUCTION
This dispute over child support comes before us for the fourth time. The appellant challenges both the superior court's decision to uphold its child support awards against her for 2003-2005 on remand, and its denial of her motion to modify the ongoing award against her. We find no abuse of discretion in the superior court's decision on remand, and therefore affirm it. But because the superior court should have modified its award to use her actual wage income, which was substantially lower than the wage income the court estimated she would have, we reverse and remand the court's denial of her motion to modify.
Previous appeals include K.F. v. S.G., Nos. S-11901, S-11971, 2007 WL 1302414 (Alaska May 2, 2007); Faulkner v. Goldfuss, No. S-10196, 2002 WL 1729943 (Alaska July 24, 2002); and Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002).
II. FACTS AND PROCEEDINGS
A. Facts
Kimberly Faulkner (Kim) and Steven Goldfuss (Steve) married in 1995 and divorced in 2000. They have three children, two boys and a girl. Kim is a national guardswoman, and her annual wages vary substantially from year to year. Although she does not explain this, it appears from her W2s that her rate of pay changes when she changes between active duty and reserve duty, and the amount of time she spends on each duty also varies yearly. Kim also owns and manages a number of rental properties. B. Proceedings
Faulkner v. Goldfuss, 46 P.3d 993, 995 (Alaska 2002).
Id.
See id. at 996-97.
After a divorce trial in 2000, the superior court awarded Kim and Steve shared physical custody of their children. Steve had custody of the children more than half the year, and the court ordered Kim to pay Steve child support.
Id. at 995.
Id. at 996.
Kim appealed the child support award (as well as other matters not relevant here) and we issued our first opinion in 2002. We remanded certain aspects of the child support calculation specifically dealing with deductions from Kim's adjusted gross income for expenses and depreciation related to her rental properties.
Id. at 993.
Id. at 996-99. We issued a second opinion rejecting Kim's arguments that the superior court was biased against her and that the superior court judge should have recused himself. Faulkner v. Goldfuss, No. S-10196, 2002 WL 1729943 (Alaska July 24, 2002).
On remand, the superior court referred the matter to a master. The master issued findings of fact and recommendations for child support awards for 2000-2002, and the superior court adopted thoserecommendations. The master's recommendations deducted both Steve's and Kim's net losses on rental properties from their wage income to determine their adjusted gross incomes, but found Kim's claimed deductions to be too high. The master found Kim's credibility to be poor, and believed Steve's experts who testified that many of the rental property deductions Kim claimed were either undocumented or not deductible. Due to the practical impossibility of completely auditing Kim's claimed deductions, the master simply reduced all her claimed deductions by twenty percent. The master considered, and rejected, the formula Steve suggested, which did not deduct any net rental losses from other income. In other words, in that formula rental losses could only offset rental income, not other wage income.
K.F. v. S.G., Nos. S-11901, S-11971, 2007 WL 1302414, *2 (Alaska May 2, 2007).
Id.
In January 2003 Kim moved to modify the existing child support award on the grounds that their daughter had decided to move in with herfull-time. The two boys continued to split their time about sixty-five percent — thirty-five percent between Steve and Kim,respectively. The court granted Kim's motion, and in 2005 issued modified child support awards for 2003, 2004, and 2005 onwards. Those orders did not deduct any of Kim's claimed net rental property losses from her other income when calculating her adjusted grossincome. They simply used Steve's suggested numbers, which, contrary to the Master's recommendation for the 2000-2002 orders, did not deduct net property losses from other income.
Id.
Id.
Id.
Id. at *9.
See id.
Kim appealed both the master's 2000-2002 awards and the superior court's 2003-2005 awards. In 2007 we upheld the 2000-2002 awards, but remanded the 2003-2005 awards. On the 2000-2002 awards, we held (among other holdings irrelevant to this case) that the master did not err in finding Kim committed fraud and perjury, and did not abuse his discretion in disallowing twenty percent of Kim's claimed rental property losses. We also held the master did not err in including a capital gain from the sale of one of Kim's rental properties in her income.
Id. at *2.
Id. at *10.
Id. at *5-*7.
Id. at *8.
We remanded the 2003-2005 and ongoing awards for reconsideration of the change in formula for calculating Kim's adjusted gross income. As discussed above, in the 2000-2002 support awards, the master deducted Kim's net rental losses (to the extent the master allowed them) from Kim's wage income when determining her adjusted gross income. However, in the 2003, 2004, and ongoing 2005 orders, the superior court did not deduct Kim's claimed net rental losses from her other income. The superior court did not explain this change. We remanded "for the superior court to reconsider its ruling [and] enter appropriate findings if it concludes that deductions for those expenses should be denied altogether or altered from the deductions allowed by the master for 2000-2002."
Id. at *9.
Id.
Id.
Id. at *9.
This brings us to the proceedings on appeal here. In April 2006, while her third appeal was pending, Kim moved for modification of the ongoing 2005 order on the ground that her actual 2005 income was substantially less than the projected income the court used to calculate the ongoing award. She argued that using her actual income would change her child support obligation by more than fifteen percent, in which case a material change in circumstances will be presumed, allowing modification of the child support award under Alaska Civil Rule 90.3(h)(1). She argued that the court should deduct her claimed net rental losses from her wage income, but that even if the court did not, the difference between her actual wage income and the court's estimate would still result in a greater than fifteen percent change in her child support obligation.
In 2007 the matter was still not resolved, and Kim moved the superior court for a "professional review entity appointment." She argued that the court should appoint an expert for "verification of income and expenses," and that the parties would share the cost. She did not cite any legal basis for such an appointment. The superior court did not grant the motion.
In January 2008 the superior court issued its ruling on the 2003-2005 remand, and the motion to modify. The superior court treated the issue on remand and on the motion to modify as the same: whether Kim could deduct her net rental losses from her wage income for purposes of her child support adjusted gross income. The superior court denied the motion for modification, and upheld its decision in the 2003-2005 orders on remand. The superior court cited two grounds for this decision.
First, the court discussed an "income shelter" rationale. The court made clear that it considered the rental properties to be an income shelter, rather than a legitimate business. The court said: "[W]hat you're doing eviscerates the child support obligation. And, theoretically, people can go out and acquire property and say I have net operating losses, shelter that income under the tax laws . . . and say `I don't have an obligation to support my kids because I did this.'" In a footnote to its written order, the court wrote: "The court also finds that [Kim]'s methodology of operating her rental activities shows a pattern of utilizing the business activity to increase the total equity and/or the number of real estate holdings without generating taxable income (i.e. as a tax shelter)." The court also mentioned AS 25.20.030 as an example of the policy that a parent must support her children.
Second, the court cited Kim's credibility problems. In its written order, the court wrote that it was "highly suspicious" of Kim's claimed rental losses due to her conduct. The court wrote:
The Master also found more than adequate reason to believe that the rental property expenses claimed by [Kim] on her tax returns were not credible and intentionally deceptive by taking excessive deductions. . . . This court accepts such findings and incorporates the same as part of this decision.[] The master's remedy in 2004 was to accept eighty percent of the deducted amounts. [Kim] represents that the losses from her rental properties now offset a portion of her wage earner income. As noted above, her claimed losses now not only offset all rental income, they now negate other income. Given her demonstrated willingness to lie to the court and make false representations to the Internal Revenue Service, this court cannot recognize any real estate or business losses to offset other income in the child support calculation, absent credible testimony from a certified public accountant or other recognized expert.
Kim appeals the superior court's decision both as to the remanded 2003-2005 orders and the denial of her motion to modify.
III. STANDARD OF REVIEW
We review child support awards for abuse of discretion. We find abuse of discretion only where review of the entire record definitely and firmly convinces us that the superior court made a mistake. The proper method of calculating child support is a question of law that we review de novo. But we review a superior court's determination of a parent's adjusted gross income for abuse of discretion. We review a superior court's decision not to appoint an expert witness for abuse of discretion.
Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002).
Id.
Id.
See K.F. v. S.G., Nos. S-11901, S-11971, 2007 WL 1302414, *7 (Alaska May 2, 2007) (characterizing the master's decision to disallow twenty percent of Kim's claimed deductions when calculating her adjusted gross income as "within her discretion"). See also Gallant v. Gallant, 945 P.2d 795, 800 (Alaska 1997) (treating determination of net income as question of fact reviewed for clear error).
See Willoya v. State, Dep't of Corr., 53 P.3d 1115, 1119 (Alaska 2002).
IV. DISCUSSION
Kim appeals the superior court's decision to uphold the 2003-2005 child support awards on remand and the court's decision to deny her motion to modify the 2005 ongoing award. First, Kim challenges the 2003-2005 orders on the grounds that the superior court did not articulate sufficient reasons for changing its method of calculating her adjusted gross income in 2003. Essentially Kim argues that, because the superior court deducted net rental losses (eighty percent of her claimed losses) from her other income in 2000-2002, it was obliged to do so in 2003-2005 absent any change in circumstances. She also characterizes this as a "law of the case" and res judicata argument.
Next, Kim challenges both the decision to uphold the remanded 2003-2005 support awards, and the decision to deny her motion to modify, on the grounds that the superior court erred in refusing to deduct her net rental losses from her other income. Thus, she argues that even if the superior court did not err in changing the formula in 2003, its new formula was error.
Additionally, Kim challenges the denial of her motion to modify the child support order on the grounds that, even if the superior court properly refused to deduct her net rental losses from her other income, there was still a material change in circumstances. She argues that even using the court's formula, the difference between her actual wage income and what the court estimated it would be results in a greater than fifteen percent change in her child support obligation.
Kim also appeals the denial of her motion to appoint an expert and argues that the superior court should have included a one-time capital gain to Steve in his adjusted gross income for 2005.
A. The Superior Court Did Not Err in Upholding the Change in Its Method of Calculating Kim's Adjusted Gross Income in 2003.
Kim argues that the superior court erred in affirming on remand the 2003 change in its method of calculating her adjusted gross income. We disagree and conclude that the superior court gave sufficient reasons for changing its method of calculating her adjusted gross income. The superior court adequately justified its decision to change how it calculated her adjusted gross income with its concerns about her trustworthiness and her ever-increasing claimed deductions.
Kim primarily relies on two cases in support of her position that the superior court could not change how it calculated her adjusted gross income. First, Kim cites Hixon v. Sarkesian for the proposition that a "court must continue past practice methodology in future [child support] calculations." She also cites Bunn v. House for this proposition, arguing that the old formula was the "law of the case," and res judicata.
123 P.3d 1072 (Alaska 2005).
934 P.2d 753 (Alaska 1997).
We disagree. Although the quotation Kim cites from Hixon appears to support her argument, a full reading of the case reveals that it does not. Kim relies on this language: "The superior court followed this same method when it modified support in August 2000 and, on remand, in May 2003. We conclude that this same method is required now." But Hixon discusses the substantive merits of the two methods at length, and concludes that the old method was legally superior to the proposed newmethod. Thus, the fact that the method had been used in the past was not the determinative factor in whether or not to use it in the future.
Hixon, 123 P.3d at 1075.
Id. at 1074-75.
In Bunn v. House we held that a superior court erred when it changed its entire method of calculating a father's child support obligation without any significant change in the law, the parents' incomes, or othercircumstances. We analyzed Rule 90.3 and prior case law, and concluded, based on that review, that "a change in a party's legal theory is not a change of circumstances which warrants the modification of a child support order." We further held that "where the change is factual, the same method of calculating support must be applied to the old and new facts." Bunn is distinguishable from the current case.
Bunn, 934 P.2d at 758.
Civil Rule 90.3(h) allows modification of a final child support award "upon a showing of a material change in circumstances."
Bunn, 934 P.2d at 758.
Id. at 758.
First, the superior court here changed only its method of calculating Kim's adjusted gross income, whereas the court in Bunn changed its entire method of calculating child support. Alaska Civil Rule 90.3 governs child support awards. It employs a "percentage of income" approach that calculates a parent's child support obligation from that parent's adjusted gross income. We review a trial court's determination of a parent's adjusted gross income for abuse of discretion, whereas we review the method of calculating child support from the adjusted gross income de novo. The commentary to Civil Rule 90.3 supports the conclusion that a trial court has substantial discretion to decide what to include and exclude when calculating a parent's adjusted grossincome. Thus, a superior court has a great deal more latitude to change its methods of calculating a parent's adjusted gross income than it has to change its method of calculating a parent's child support obligation that is based on that parent's adjusted gross income.
See K.F. v. S.G., Nos. S-11901, S-11971, 2007 WL 1302414, *7 (Alaska May 2, 2007).
Faulkner v. Goldfuss, 46 P.3d 993, 996 (Alaska 2002).
Alaska R. Civil P. 90.3 Commentary, III.B. (allowing a court to exclude any claimed self-employment expenses the court determines to be "inappropriate").
Second, Kim's fluctuating income and untrustworthiness in her claimed deductions make this case more complicated than Bunn. In Bunn, there was no significant change in the parties' incomes or circumstances from year to year. The superior court in this case explained its change in calculating Kim's adjusted gross income in terms of its concerns about Kim's trustworthiness, and about the effect of her large claimed deductions. The superior court in Bunn confronted none of these factual complications. Considering both a superior court's discretionary latitude in determining a parent's adjusted gross income, and the superior court's legitimate concerns in this case, we conclude the superior court did not err in changing the formula.
Bunn, 934 P.2d at 758.
Kim also argues that this matter is res judicata and the old formula is the "law of the case." But we have made clear that "we believe that motions to modify child support, under Alaska law, do not technically raise res judicata concerns," although "the principle of finality is a sound one." In this case, as discussed above, the principle of finality gives way to the superior court's ongoing efforts to deal with a difficult and variable factual situation. And the "law of the case" doctrine generally "requires a lower court to follow an appellate court's prior decision and prohibits reconsideration of issues which have been adjudicated in an appeal of the case." In our previous opinions in this case, we have not before heard or decided this issue. Although we did address some questions relating to deductions, we did not require that Kim be able to deduct net rental losses from her other income. The law of the case doctrine does not apply.
Bunn, 934 P.2d at 757.
Dewey v. Dewey, 969 P.2d 1154, 1159 (Alaska 1999) (quoting Bauman v. Day, 942 P.2d 1130, 1132 n. 1 (Alaska 1997)).
B. The New Formula, Which Does Not Deduct Kim's Net Rental Losses From Her Other Income, Was Not Erroneous.
Kim argues that, even if the superior court was permitted to change its method of calculating her adjusted gross income, it erred in adopting a formula that did not deduct her net rental loss from her other income. We conclude that the superior court did not err. We have found no error in similar formulas in the past, and the superior court's reasoning here was appropriate and sensible.
As discussed above, Alaska Civil Rule 90.3 uses a "percentage of income" approach that bases a parent's child support obligation on that parent's adjusted gross income. The commentary to the rule, which we have found "instructive," defines income broadly, including "net rental income." It also includes "self employment income," which includes "rent." It defines "self employment income" as "gross receipts minus the ordinary and necessary business expenses required to produce the income." "Ordinary and necessary expenses do not include . . . any other business expenses determined by the court to be inappropriate." Other deductions from adjusted gross income are "very limited."
Neilson v. Neilson, 914 P.2d 1268, 1272 (Alaska 1996).
Alaska R. Civil P. 90.3 Commentary, III.A.24.
Alaska R. Civil P. 90.3 Commentary, III.B.
Id.
Id.
Alaska R. Civil P. 90.3 Commentary, III.D.
We have interpreted Civil Rule 90.3 a number of times regarding what self-employment expenses are and are not deductible, but we have never held that net losses from self-employment income must or must not be deducted from a parent's other sources of income. In Gallant v. Gallant, we found no abuse of discretion where the superior court refused to allow a parent to deduct losses from his closely-held corporation from his wage income. The superior court determined that his closely-held corporation "effectively serve[d] as a tax or income shelter device." We wrote:
Compare Eagley v. Eagley, 849 P.2d 777, 778 (Alaska 1993) (upholding trial court's deduction of business losses from total income from all sources) with Gallant v. Gallant, 945 P.2d 795, 800 (Alaska 1997) (refusing to deduct losses from father's closely held business from his adjusted gross income for child support purposes on grounds that the closely held business was income shelter).
945 P.2d 795 (Alaska 1997).
Id. at 800.
Id.
John's primary income stemmed from his wages as a corrections officer, rather than from his closely held corporation. Indeed, John has not presented any evidence that he has ever realized any income at all from the closely held corporation. The superior court therefore did not err by refusing to permit John to deduct from his net income expenses incurred in the name of that corporation.
Id. at 800-01.
The superior court's rationale in this case was similar to the superior court's rationale in Gallant, and the superior court similarly did not err in concluding that Kim's rental business inappropriately acts as an income shelter. There is substantial evidence in the record supporting this conclusion, particularly in the master's findings in 2002.
Furthermore, the superior court cited Kim's damaged credibility as an additional reason to exclude her net rental losses. In our 2007 opinion in this case, we found no error in the master's finding that Kim committed fraud andperjury. We also found no abuse of discretion in the superior court's decision to reduce Kim's claimed deductions by twenty percent due to the court's unwillingness to credit her testimony and the practical impossibility of completely auditing the claimed deductions. Cutting off her claimed deductions at the level of her rental income, while cutting off more than twenty percent of her claimed deductions, is another rational way of accounting for the inability to credit Kim's testimony and the difficulties of auditing her claimed deductions. C. It Was Error To Deny Kim's Motion To Modify Child Support.
K.F. v. S.G., Nos. S-11901, S-11971, 2007 WL 1302414, *5 (Alaska May 2, 2007).
Id. at *6-7.
Kim's brief fails to address the court's income shelter rationale or its concerns about her credibility. Instead, she attacks the superior court's formula on a number of minor grounds, which we will address briefly here. First, she argues that the court was inappropriately trying to force her to give up her rental business, based in part on the court's statement: "where I'm coming from is that you got [sic] to make a choice whether you're going to support your kids or you're going to have rental properties." Although we agree with Kim that it is not the province of the court to dictate her profession, that comment was not the considered basis on which the superior court made its decision, and the comment is not grounds for reversal. Second, Kim argues that the superior court erred in citing AS 25.20.030. AS 25.20.030 reads: "Each parent is bound to maintain the parent's children when poor and unable to work to maintain themselves." It is true that AS 25.20.030 does not directly apply in this situation, but the superior court did not err in citing it as evidence of legislative policy. The superior court cited this statute as evidence of legislative policy that a parent may not shirk her duty to her children. We reject Kim's argument because the superior court did not base its decision on that statute, and it is a reasonable example of legislative policy.
Although we conclude that the superior court did not abuse its discretion by changing its formula to exclude Kim's net rental losses, we hold that it was an abuse of discretion to deny Kim's modification motion. Even excluding her net rental losses, the difference between her actual wage income in 2005 and the court's estimate results in a greater than fifteen percent change in her child custody obligations. The court estimated Kim's wage income to be substantially above the average of any combination of her incomes between 2000 and 2004. We therefore remand for the superior court to recalculate her child support obligation using her actual wage income.
Alaska Rule of Civil Procedure 90.3(h)(1) allows a court to modify a child support award "upon a showing of a material change of circumstances." It provides that 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." The commentary to the rule notes that "the determination of future income may be especially difficult when the obligor has had very erratic income in the past. In such a situation, the court may choose to average the obligor's past income over several years."
Alaska R. Civil P. 90.3 Commentary, III.E.
In its 2005 and ongoing order, the superior court estimated Kim's wage income at $70,466, apparently using one unusually high pay stub that was based on her rate of pay as an active duty guardswoman. However, it appears that throughout the litigation Kim has only spent part of the year on active duty and has spent the rest of the year in the reserves. From 2000-2004 her average wage income was $55,260. In 2005 her actual wage income was $52,772. In 2006 Kim moved to modify her child support award based on the discrepancy between the $70,466 estimate and her actual income.
It appears that Steve stipulated that she had shown a material change in circumstances regardless of the deductions. At trial, Steve's attorney said:
The income documents produced by [Kim] for 2006 show a vastly different income picture from 2005. . . . [S]o we're willing to stipulate that, based upon just her income, that there will be at least 15 percent difference, and so, that there is a financial change in circumstances. Regardless of whether you allow these deductions or not, so we'll stipulate to the financial change of circumstances and move forward.
We conclude that it was error to deny Kim's motion without explaining why the presumption contained in Civil Rule 90.3(h)(1) does not apply given that the difference in Kim's child support obligation between the court's estimated 2005 wage income and Kim's actual 2005 wage income is more than fifteen percent. Furthermore, Kim's actual 2005 wage income of $52,772 is not unusually low, but very near the average for 2000-2004, while the court's estimated income is higher than her income during any year in that period. It was error for the superior court to persist with its $70,466 estimate. D. The Superior Court Did Not Abuse Its Discretion in Failing To Appoint an Expert Witness.
The calculations of the difference between the child support using the court's estimated 2005 income and Kim's actual 2005 income are as follows. The court estimated Kim's wage income for 2005 at $70,466, but her actual wage income was $52,772. The difference between the court's estimated wage income for Kim and her actual wage income in 2005 is $17,694. By subtracting $17,694 from the court's estimated adjusted gross income, one can determine the adjusted gross income that the court would have reached if it had used Kim's actual income instead of the estimate. That number is $71,094. In order to calculate child support, that number is multiplied by .27 for two children, which equals $19,195. That number is then multiplied by .65, which is the percentage of time the boys are with their father, which equals $12,477. We then subtract the amount Steve owes Kim in child support for the amount of time the boys spend with her, which is $4,498, which equals $7,979. That number is multiplied by 1.5, which equals $11,968. This is Kim's annual child support obligation. Using the court's estimated wages, Kim's annual child support obligation is $16,627. Fifteen percent of $16,627 is $2,494. The difference between the two child support obligations is $16,627 minus $11,968, which equals $4,659. This is a greater than fifteen percent difference.
Kim argues that the superior court erred in declining to appoint an expert witness, but we conclude that the superior court did not abuse its discretion. This case is not unusually complex, and Kim's reasons for requesting an expert appointment are unpersuasive.
Alaska Rule of Evidence 706 allows a court on its own motion or on the motion of any party to appoint expert witnesses. We have described Rule 706 as a "discretionary, procedural option for a judge when the issues involved in a case are unusually complex." Kim argues that the superior court "needed" an expert witness to "determine the veracity" of her claimed deductions. She argues that the court is "absolutely required to verify (or confirm invalidity) of the numbers." She argues that the case is complex. She also makes a "cost containment" argument.
Willoya v. State, Dep't of Corr., 53 P.3d 1115, 1122 (Alaska 2002).
All of Kim's arguments lack merit. The court does not have a duty to verify or reject her claimed deductions; she has a burden to demonstrate her income, and she failed to meet that burden. This case is not so complex as to require expert assistance. The problem is that Kim has failed to support her claimed deductions. As discussed above, this does not entitle her to an expert. Finally, Kim's "cost containment" argument is without merit. We have held that Rule 706 is not a means for parties to obtain expert testimony at public expense. While Kim proposes that the parties split the cost of the expert, she is not entitled to a certified public accountant to prove her claimed deductions at half-price. The superior court did not abuse its discretion in denying her request. E. The Superior Court Did Not Err in Not Including a $60,000 Capital Gain to Steve in His Income.
Id.
The last argument Kim makes is that the superior court erred by failing to include a 2005 capital gain in Steve's adjusted gross income that year, but we reject that argument on the grounds that there is no evidence that the capital gain was a regular source of income. Kim argues that the superior court should have included that capital gain because the superior court previously included a capital gain in Kim's adjusted gross income, and we upheld that inclusion on appeal. In our 2007 opinion, we held that, although one-time capital gains are not usually included in income, "capital gains are to be included as income to the extent they represent a regular source of income." In this case, we found the capital gains to be "one component" of Kim's rental activities, and properly included in income.
K.F. v. S.G., Nos. S-11901, S-11971, 2007 WL 1302414, *8 (Alaska May 2, 2007) (citing Alaska R. Civil P. 90.3).
Id.
We find no evidence that Steve's 2006 capital gain was a regular source of income, and Kim points to none. Therefore, it appears Steve's capital gain falls into the general rule of exclusion.
V. CONCLUSION
We AFFIRM the 2003-2005 child support awards against the appellant, but REMAND the ongoing 2005 award for modification consistent with this opinion.