Childs v. Childs
310 P.3d 955
Alaska2013Background
- Joshua and Christina Childs divorced in 2005; Christina received sole custody and Joshua was ordered to pay child support.
- Joshua joined the U.S. Army in 2006 and served active duty, including deployment to Afghanistan in 2011.
- In Sept. 2011 Christina moved to modify child support upward, initially filing a defective notice but curing it after clerk notification; she estimated support at $1,114.83/month.
- The superior court notified Joshua it would grant the modification unless he opposed; Joshua filed an opposition with pay stubs, W-2s, and tax returns and argued (1) protection under the Servicemembers Civil Relief Act (SCRA), (2) defective service, and (3) that his Basic Allowance for Housing (BAH) should be excluded from income.
- The superior court modified support without an evidentiary hearing, increasing Joshua’s obligation to $901/month; Joshua appealed.
Issues
| Issue | Plaintiff's Argument (Joshua) | Defendant's Argument (Christina) | Held |
|---|---|---|---|
| Whether Joshua was entitled to a stay under the Servicemembers Civil Relief Act | SCRA required a stay because he was on active duty and couldn't litigate | SCRA does not automatically require a stay; servicemember must show military duties materially affect ability to participate | Court: No stay — Joshua made no §522(b)(2) showing and in fact actively participated, so denial was not an abuse of discretion |
| Whether service and notice violated due process | Service was defective (not certified) and he lacked opportunity to be present; due process violated | Christina cured the defective filing, served by first-class mail per Civ. R. 5, and Joshua had adequate time to respond | Court: No due process violation — mailing satisfied Rule 5, Joshua had timely notice and opportunity to litigate |
| Whether an evidentiary hearing was required before modification | He was never given a hearing and therefore deprived of process | No hearing required because there were no disputed factual issues — only legal dispute over deductions | Court: No hearing required — parties did not dispute income facts; only legal question existed |
| Whether Basic Allowance for Housing is includable in income for child support under Civ. R. 90.3 | BAH is not part of take-home pay and should be excluded from income | Civ. R. 90.3 and its commentary treat military housing allowances as income/adjusted income | Court: BAH is income under Civ. R. 90.3 and was properly included in calculating support |
Key Cases Cited
- Boone v. Lightner, 319 U.S. 561 (1943) (stay under Soldiers' and Sailors' Act is discretionary; defendant must show prejudice)
- Swaney v. Granger, 297 P.3d 132 (Alaska 2013) (abuse-of-discretion standard for child support modification review)
- Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002) (standards for reviewing trial-court decisions)
- Hartley v. Hartley, 205 P.3d 342 (Alaska 2009) (no evidentiary hearing required when no genuine issue of material fact)