Opinion
Supreme Court No. S-11320.
November 24, 2004.
Petition for Review from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge, Superior Court No. 3AN-02-9212 Civil.
David W. Baranow, Rhonda F. Butterfield, Law Offices of David W. Baranow, Anchorage, for Petitioner.
Herbert M. Pearce, Law Offices of Herbert M. Pearce, Anchorage, for Respondent.
Diane L. Wendlandt, Assistant Attorney General, Anchorage, Gregg D. Renkes, Attorney General, Juneau, for Amicus Curiae State of Alaska, Department of Revenue, Child Support Enforcement Division.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Paul Edwards filed a petition for review asking this court to reverse the superior court's decision denying Paul's motion to hold his child support obligation in abeyance while his ex-wife Doris Edwards and two minor children were still living in his home. We granted this petition and asked for supplemental briefing as to the remedies requested by Paul and whether they entailed retroactive modification of support orders. The rule against retroactive modification of child support orders prevents the modification of Paul's support obligations that accrued before the filing of his motion. But we construe his motion for abeyance as, in part, a motion to prospectively modify support. We therefore remand to the superior court to consider whether prospective modification is proper.
II. STATEMENT OF FACTS AND PROCEEDINGS
Paul and Doris Edwards were married in Anchorage in June 1992. They had two children: Nicole Marie Edwards, born in September 1993, and Kasey Lynn Edwards, born in December 1996. The parties permanently separated on July 22, 2002. After settlement discussions, Paul and Doris entered into a settlement agreement, the terms of which were entered into the record during a supervised settlement conference held on February 26, 2003. The agreement concluded that Paul would retain sole title to the marital home, while Doris would be paid a cash settlement of $80,000, "to be drawn, to the extent possible, from the liquidation of the husband's deferred compensation account(s)." The agreement also provided that "the wife shall remove from the [marital home] within ninety (90) days." Per their agreement, the court granted Paul and Doris joint legal custody of the children and shared physical custody. Paul was ordered to pay child support pursuant to Civil Rule 90.3(b), with directions to calculate that amount based on Paul exercising forty-seven percent of effective physical custody of the children. Superior Court Judge Mark Rindner entered a decree granting Paul and Doris a divorce on May 30, 2003.
Paul, through counsel, submitted a proposed final child support order, which Judge Rindner signed on July 29, 2003. This order provided that Paul would pay child support in the amount of $678.29, due by the first of each month beginning March 1, 2003.
In August, Doris applied to the Child Support Enforcement Division (CSED) for help in collecting child support from Paul. On her application she stated that she had received no support from Paul, but that she continued, at that time, to live in the same household as Paul. CSED began withholding money from Paul's paychecks in order to satisfy his child support obligation. Paul filed a "Motion to Hold Child Support Order in Abeyance while Mother and Children Still Live in Father's Home and Father is Supporting Children Directly." Doris, through counsel, opposed this motion. On December 8, 2003, Judge Rindner denied this motion without explanation.
Paul petitioned this court for review. In an order dated March 16, 2004, we granted this petition, asking Paul to "specify the precise relief sought from the superior court and address whether that relief would entail retroactive modification of previously accrued support obligations." We also requested that CSED submit an amicus curiae memorandum. According to Paul's briefing, Doris eventually lived in the house for a total of thirteen months. Doris does not include the exact date when she moved out in her briefing.
III. STANDARD OF REVIEW
Generally, courts have broad discretion in child custody matters, and we will not disturb a decision unless "the record demonstrates that the controlling findings of fact are clearly erroneous or that the trial court abused its discretion." A court's modification of a support order is reviewed for abuse of discretion. We will not reverse such a decision unless "a review of the record as a whole leaves the appellate court with a definite and firm conviction that a mistake has been made."
Turinsky v. Long, 910 P.2d 590, 593 n. 7 (Alaska 1996).
Boone v. Boone, 960 P.2d 579, 582 n. 2 (Alaska 1998).
IV. DISCUSSION
In his motion to hold the child support order in abeyance, Paul asked the superior court to suspend his child support obligation "so that it is not enforced, while the children and Doris continue to be 100% supported by Mr. Edwards while they are living full-time in his house." Paul denies that he was asking the court to retroactively modify his obligations under the child support order, but our reading of Paul's motion and proposed order shows that he was asking the court to excuse child support for the entire time that Doris and the children lived with him. Paul asked the court to order Doris to refund all money received from CSED. His motion was supported by an affidavit in which he stated that he was "continuing to support [his] children directly, and to support Doris directly." Paul's counsel stated through affidavit that had there been an administrative child support order in force in this case, "CSED would lift its administrative support order, or hold it in abeyance, or suspend it, while the parents are living in the same household."
In opposition Doris argued that the motion was effectively no different than an attempt to retroactively modify Paul's child support obligation, which became final and effective on July 29, 2003. Doris emphasized that Paul himself had drafted the proposed child support order, which explicitly stated that Paul's child support obligation would begin on March 1st, even though at the time of drafting Doris was still living with Paul. Finally, Doris argued that she was still living with Paul only because of his own failure to pay her the $80,000 settlement that she was entitled to under the divorce settlement.
Child support orders may not be modified retroactively. But Paul's motion sought prospective as well as retroactive relief from the child support order. Under Civil Rule 90.3(h)(1), "[a] final child support award may be modified upon a showing of a material change of circumstances as provided by state law." Changed circumstances existed in this case since the divorce decree contemplated that Doris would move out of the house within ninety days. The child support order was premised on this understanding.
It is not evident that the superior court considered Paul's December 2, 2003 motion as a motion seeking a prospective modification of child support based on changed circumstances. We remand this case in order that the motion can be so considered. When considering the motion on remand, the superior court should take into account the policies underlying 15 Alaska Administrative Code (AAC) 125.870, which permits CSED to suspend ongoing support for periods of time during which the custodial parent is living with the obligor parent. Whether these policies should be found controlling under the circumstances of this case is a matter left to the discretion of the superior court.
15 AAC 125.870(1) provides that support may be suspended for periods when the "custodian of the child for whom support is sought is living with the parent identified as the obligor under the support order."
V. CONCLUSION
The superior court's denial of the motion of December 2, 2003, is VACATED and this case is REMANDED for further proceedings in accordance with this memorandum opinion and judgment.
I disagree with the court's decision to remand this case for further proceedings concerning Paul's right to prospective modification.
In response to our request to clarify his claim, Paul filed a memorandum that identifies a single narrow point of law as the only point that he has raised. As Paul's memorandum frames it, "The issue is whether one parent is entitled to collect child support from the other parent, even though a child support order exists, while they and the children are still living together under one roof." More precisely, Paul asserts that he "seeks a `suspension' or a `holding in abeyance' of the valid child support order during any and all periods of time that the obligee [Doris] and the children were living with him."
Paul's only contention, then, is that we should declare as a matter of law that he has a self-executing, backward-reaching right to have his child support obligation nullified merely because Doris and the children continued to live under his roof. Paul bases this argument on the legal premise that Doris's presence in the home automatically and absolutely bars her from claiming support. This theory raises the issue of prospective modification only in the narrow sense that Paul might be entitled to ongoing relief (from the time of filing his motion) if his legal argument for obtaining backdated relief prevailed.
While recognizing that Paul's legal theory is fatally flawed because it impermissibly seeks retroactive relief, the court reasons that he might nonetheless be entitled to prospective relief. The court thus vacates the superior court's order denying Paul's motion and sends his case back for further proceedings. But the court's reasoning is problematic because it overlooks the significance of a separate flaw in Paul's theory — Doris's continued presence in the home would not by itself categorically bar her from claiming support. As the court itself tacitly acknowledges in consigning the matter to the trial court's discretion on remand, Doris's right to continued support turns on the existence of many circumstances other than her mere presence under the same roof with Paul — circumstances that include the intended meaning of the parties' settlement agreement, Doris's purported breach of the agreement, and Paul's own compliance.
MOJ at 5.
Paul has carefully chosen to press his motion as a pure question of law. As Paul insists in his memorandum on review, "The issue presented is a legal issue. The standard of review for questions of law is de novo. . . ." To be sure, Paul portrays the facts as he wishes them to be understood: he insists that he has complied with the agreement's terms; and he advances a conclusory claim that Doris "took advantage of [Paul] financially, while he continued to pay all of the household expenses for himself, [and] the children." Yet Doris has consistently disputed these allegations and has advanced her own version of the relevant facts, effectively contending that Paul has kept her from finding a home of her own by deliberately violating their agreement. Instead of seeking to resolve this dispute, Paul has made every effort to avoid requesting a hearing, arguing that his right to relief depends not on any disputed matter of fact, but rather on the law alone.
In arguing his case before this court, Paul nowhere contends, or even suggests, that the superior court erred in failing to consider the lesser alternative of granting purely prospective relief; and he never asserts that the superior court erred in denying an evidentiary hearing to resolve the disputed issues of fact raised by Doris. Nor did Paul ever ask for prospective relief or an evidentiary hearing in the superior court. His pleadings there said nothing about wanting a hearing or a limited grant of prospective relief.
I certainly do not dispute the point that a hearing would have been required if Paul had moved for prospective modification and asked for a chance to prove the facts needed to resolve the issues disputed by Doris. But Paul made no such request below, and he fails to make one here. This is not a case involving a hapless pro se litigant who needs guidance in asserting his claim. Paul has been represented by experienced counsel, who have relentlessly steered a tactical course aimed at avoiding the need for a hearing — even going so far as to expressly deny the existence of any dispute as to relevant questions of fact.
In short, because the superior court properly denied relief on the only issue Paul raised, its decision does not require our review. As it currently stands, this case meets none of the criteria for granting the extraordinary remedy of discretionary appellate review. Indeed, if we simply returned the case to the superior court and did nothing else, the doctrine of equitable tolling would still entitle Paul (assuming he were interested in doing so) to ask for prospective relief as of the filing date of his motion to hold support in abeyance. In my view, then, today's opinion needlessly vacates a properly entered superior court order for the sake of preserving a remedy that has never been requested.
I thus dissent, and would deny review as improvidently granted.