*1 (3) to the judgment is VACATED May the scheduled days before nineteen damage award punitive and compensatory Orebaugh again move did Red Oaks trial Austin; Gary plaintiff against favor case. The to the Friedman to add ...me "It does trouble observed: (4) with re- judgment is VACATED reconsideration failed to seek the defendants and costs award of fees spect to the until nine- and waited promptly of this issue Oaks, Reeveses, Orebaugh, Red against trial, it is for days prior teen Parkside; and my a lot more mind caused that its reason (5) for addition- is REMANDED this case cost." delay and additionаl unnecessary the views in accordance with proceedings al appropriate were observations view these our opinion. in this expressed superior court do not believe and we requiring Red Oaks its discretion abused fees Ruth for to reimburse Orebaugh of Friedman to the addition related
and costs party.
aas attorney's fees imposes a court
But when amendments, be a there must dilatory late between the connection
showing of a expenses.61 No such filing and additional BROTHERTON, Wayne under in the order required connection was Appellant, Oaks that agree with Red review. We "ilt liable to bе the defendants unfair for was of whatever time for 50% during this entire Alaska, DEPARTMENT OF STATE attorney saw fit to do plaintiff's REVENUE, SER- CHILD SUPPORT their case." prepare to better ex rel. DIVISION VICES attor- Red agree with Oaks alsoWe BROTHERTON, Appellee. days three incurred after ney's and costs fees No. S-12588. 2006 trial date April the rescheduled before The order awarded. not have been should of Alaska. Supreme Court period. Fur- limited to this by is its terms delay that occurred after ther, the additional March any not due to period the end of appellees.
fault of award. vacate therefore
We only costs should award the court
On remand reasonably to the addition related
and fees continuance and the party, as a
Friedman addition, incurred not later
required trial the rescheduled days before
than three April
time of
IV. CONCLUSION reasons
For the above AFFIRMED judgment final Orebaugh and Parkside dismisses
sofar as it Living;
Assisted with re- judgment is REVERSED Red Oaks Assisted
gard the Reeveses and Inc.;
Living, 2004). P.3d Wash., v. Sisters Providence Hutka *2 Brotherton, se, pro Anchorage,
Appellant. Latta, Jr.,
Leroy K.
Attorney
Assistant
General, Anchorage,
Colberg,
and Talis J.
General, Juneau,
Attorney
Appellee.
wife,
Douglas Warner
Justice,
and his
FABE,
nal uncle
Chief
Before:
CARPENETI,
(the Warners), "to cool
EASTAUGH,
MATTHEWS,
Neiswanger
Pamela
Tahni's child
couple of months."
off for a
WINFREE,
Justices.
through
Douglas, paid
obligation to
*3
(CSSD),
OPINION
Division
Support Services
the Child
continued,
Douglas paid the Warners
but
FABE, Chief Justice.
boarding
boys. Tah-
per month
$500
I.
INTRODUCTION
to the
ni
made a one-time $500
appeals the
Douglas Brotherton
In December
in October 2005.
Warners
Tahni
modification of
2006
court's November
support
child
arrears
Tahni
off her
2005
He
support obligation.
child
Brotherton's
through
The Warners
Douglas
CSSD.
to
court erred
ex-
argues that
Douglas requesting that
a letter to
then sent
income
of Tahni's
its calculation
cluding from
per month he
them the $426.67
he forward
proper-
the divided marital
her share of
Tahni
support
from
receiving in child
did
that Tahni's income
ty.
contends
He also
CSSD,
to November
through
retroactive
support,
in child
justify the reduction
per month direct
in addition to his $500
earning more than
capable of
that she was
Douglas refused and retrieved
payments.
repre-
and that
the reduction
reported,
she
household on
boys from the Warner
variance from Alaska Civil
improper
18,2006.
sents
March
conclude
Rule 90.3. We
had a
Douglas's
to
household
The return
from its caleulation
properly excluded
younger
on the
particularly deleterious effect
Tahni's share
the value of
Tahni's income
son,
health suffered over
whose emotional
property. But the
marital real
of the divided
custody
protracted
yеars
parents'
of his
have
of income should
trial court's calculation
Sper-
Dr. David
child
battles.
inter-
portion of
included the
beck,
boys,
psychiatrist who evaluated both
pro
rata basis to 2006.
est attributable
younger boy
contemplated
had
noted
superior court for
to the
We remand the case
and that he "stated
several times
suicide
Tahni's 2006 income.
findings on
additional
experi
rather die" than continue to
he would
parents.
the conflict between his
ence
II.
AND PROCEEDINGS
FACTS
wishes, the War-
with the child's
accordance
Brotherton married
Douglas and Tahni
custody
and take
moved to intervene
ners
sons,
born
1988
and have two
In a
younger
April
son in
2006.1
June
initially
primary
awarded
1990. Tahni was
agreed that
parties
order the
stipulated
boys after the cou-
custody of the
physical
transferred to
custody of the child would be
divorce,
gained full
Douglas
ple's
but
court,
until further order of the
the Warners
shift,
custody
2004. After
in November
would
Douglas
and the Warners
from her Rule
requested a variance
long-term
to
engage in mediation
consider
claiming that
obligation,
child
custody.
poverty
line
was below
set at thе
obligation should be
and that her
conference,
parties
After a settlement
injus-
minimum or "manifest
per month
$50
custody
stipulated to
award
requested that
She also
tice would result."
stipula-
boy
younger
Warners.
income over several
average her
the court
by
tion,
entered as an order
which was
support obli-
her child
to determine
11, 2006, pro-
superior court on
unpersuaded
superior court was
gation. The
pay the
Douglas would continue to
vided that
in March 2005 it
arguments, and
Tabni's
Douglas
per month and
Warners $500
obligation at
set Tahni's
child
half оf Tahni's
would instruct CSSD to direct
boys.
per month for both
$426.67
to the War-
monthly
support payment
relationship with the children
stipulated
varied
Douglas's
Although the
ners.
procedures
standard child
from the
and on October
became strained
third-party
by Civil Rule 90.8 for
directed
mater-
stay
with their
Douglas sent them
turning eighteen.
away from
son was two months
1. At that
the older
point,
children,
custody
problem
original
of fewer than all the
it was
vice
with the
motion and
necessary
requested
due to the
cireum-
light
deemed
unusual
clarification in
of the fact that
stances of the case.
already
granted,
the modification had
been
Douglas's
responsive
the court
ruled that
earlier,
Several months
June
Tah-
filing
actually
would
be considered as a mo-
requested
ni had contacted CSSD and
tion for reconsideration.
March
2005 order be modified to de-
support obligation.
crease her child
She
reconsideration,
In his motion for
support guidelines
cluded her
affi-
agreed
that Tahni's child
obligation
davit,
detailing
a schedule
her 2006 income
should be modified but contended that
estimate,
return,
her 2005 tax
stubs
increased,
should be
рro-
not reduced. He
*4
employers.
from her three 2006
Her June
posed
month,
pay
per
that she
figure
a
$847
gross
estimate
income for 2006 was
that reflected his
that
capa-
belief
Tahni was
$20,000.
supplemented
she
earning
gross
$28,862.40
ble of
income of
affidavit, decreasing
her
her 2006
per
and his view that his
for
come estimate to
based on the loss of her share of
property
the Wasilla
should be
job.
her
CSSD reviewed the information
included in the caleulation of Tahni's 2006
Tahni,
provided by
and in October it calculat-
Douglas
income.
request
heаring
did not
obligation
per
ed her
to be
month for
$294
on this motion.
children,
1, 2006,
July
both
retroactive to
response
Douglas's
its
to
motion for
filed a motion to
sup-
decrease Tahni's child
reconsideration,
emphasized
CSSD
port obligation to that amount.
had no financial interest
in the matter and
Also in October 2006 Tahni filed with the
represent
did not
party.
either
main-
CSSD
superior
Douglas
paid
court a notice that
had
tained that
its calculation of Tahni's child
her in full for her share of the marital real
support obligation
correct,
while ac-
(the
рroperty divided in their 1995 divorce
knowledging
figure
was based on
property),
Wasilla
after
all
resolution of
liti
Tahni,
provided by
information
her
gation
appeal
on
Douglas
and remand.2
had
guidelines
sworn child
affidavit.
plus
been ordered to
interest at
particular
CSSD noted in
"poor
Tahni's
em-
annum,
percent per
effective from the
ployment history,"
which was marked
decree,
18, 1995,
date of the
April
divorce
"frequent discharges
unsatisfactory per-
for
payment,
until
compensate
the date of
to
Addressing Douglas's argument
formance."
16, 2006,
Tahni for her share. On October
compensating
Tahni
her
$34,417.50,
$18,817.50
he
which included
property
share of the Wasilla
should be in-
in post-judgment interest.3
cluded in her Rule 90.3
CSSD stated
granted
The court
CSSD's motion to de-
interpretation
that such an
of Rule 90.3's
obligation
per
crease Tahni's
to
month.
$294
"may
definition of income
be too broad."
But
"mailing irregularities," Douglas
due to
opposed
Douglas
reconsideration.
modify
did not receive
motion to
CSSD's
replied, contending that CSSD's reliance on
reduce Tahni's child
until
provided by
information
improper
Tahni was
granted
after the court had
it. On Novem-
because she had not included the
14, 2006,
day
ber
after
for her share of the divided marital
modifying support, Douglas
court's order
re-
claiming
in her income and
that she
quested an
oppo-
extension of time to file an
accurately
had not
reported
wages.
sition to the modification motion. The court
granted
request
4, 2007,
January
on November
but
On
Douglas
after
informed the court of
Douglas's
the ser-
denied
motion for reconsideration
parties appeared
Although
2. The
judgment
before us three times on
was not entered until Au-
appeal regarding
7, 2006,
their marital
division.
gust
"postjudgment
we use the term
Brotherton,
See Brotherton v.
through December. the second, figure apparent is not from estimated III OF REVIEW - STANDARD in gross In 2005 Tahni had a the record. of child or Modifications $3,604 $24,801.55. Deducting the of come of for abuse of discretion.5 ders are reviewed unemployment benefits she collected only when find an abuse of discretion We will year, generated approximately she still and firm conviction we are left with definite $21,200 through employment in 2005. In has been made based on the $12,000 that a mistake approximately in sev 2006 she made findings not months, as a whole.6 Factual will record which over the course of a en they clearly $20,570-- are erroneo be set aside unless approximately would have totaled us.7 through made about the same amount she $4,000 of in
work in 2005. Tahai's estimate qualifies a financial benefit earnings Whether last five months of 2006 is for the light for the of Rule 90.3 is in of her problematic, as income even of the loss auditor, questiоn requiring position coding of law de novo review.8 a medical since a as adopt job wage gener rule that "is minimum would paying Under such review we the the reason, $4,000 income in five persuasive light precedent, in ate more than of most 9 policy." issues, light months. of these and be Robinson, appeal P.2d at 1002. not 8. 961 4. does granting custody younger stipulated support ar- son to the Warners and the child 9. Id. rangements detailed therein. Although did make court Robinson,
5. Robinson v. 961 P.2d explicit findings about Tahni's 2006 (Alaska 1998). $16,000 by adopt- implicitly accepted figure Id. ing per $294 month CSSD's recommendation children, projected on a for two which was based Ziegler, 7. Olmstead v. for 2006. income of 2002). pre erty make count as court did not should income under Rule 90.3. cause disagrees. CSSD inc findings regarding Tahni's 2006 cise ome,11 whether we cannot determine Douglas recognizes that "Part III of the reducing erred in Tahni's child superior court Commentary spe to Civil Rule 90.8 does not support obligation. We remand for further cifically payments list settlement findings to ascertain whether factual income" and that we have concluded incomewаrranted the reduction.12 past repre settlements do not support purposes. sent income for child Although Superior
B. Court Did Alexander, Kiel v. we held that a Excluding Payment Err Not from an ex-husband to his former for Tahni's Share of Divided piece wife for her in a proper of real Property Her In- Marital Real from ty "[cllearly represented] ... Support come for Rule 90.3 Child and [was] settlement therefore not income" Purposes, Calculation It Should purposes.13 for Rule 90.3 Other courts have Have Included the Portion of Post- instance, adopted principle this as well. For Judgment Interest Attributable Kyle Kyle14 appellate Indiana argument considered similar to the one There, Douglas makes. the ex-husband was adopted When the CSSD's per ordered to his ex-wife month $100 calculation of Tahni's child obli- equity her share the marital gation, it excluded from its calculation the home.15 The ex-husband contended $34,417.50 payment that Tahni received from excluding lower court erred in Douglas October 2006for her share of the from his ex-wife's income for child property, divided under the terms of Wasilla *6 purрoses.16 Kyle calculation The court af Douglas argues their 1995 divorce. that both exclusion, concluding firmed the that marital property post-judg- the value itself and the property distributions do not count as income paid should ment interest have been included regard: in that purposes calculating in Tahni's income for support obligation. per 90.8 child property her Rule month is a settle- $100.00 payment.
ment It is not maintenance and properly is not included in the definition of 1. Tahni's share of the divided marital income for the of calculat- property real ing support.... The trial court could required [total share of the marital real have Richard to the property equity immediately under de amount] divided the 1995 divorce after di- $15,600. Douglas cree amounted to contends vorce. ... We do believe the terms of payment prop- impact that the she received for distribution should argues superior unjust 11. CSSD court's factual 90.3 formula would be because "this is a findings adequate custody third-party were and cites divided case with a custodian Mattfield 667, (Alaska 2006), Mattfield, 133 P.3d requirements that is a variаnce from the of Civil case in which we held that a standard DR-301 90.3(i) dated [the] Rule as specified form, support order for modification of child If, remand, 2006." the superi- case, by superior was used court in this represents a or court's ordered child provided sufficiently findings detailed formula, the Rule variance from specific court's child order. But findings explaining that variance will also be inapposite appel because there the 90.3(c)(1). necessary. Matifield See Alaska R. Civ. P. "challenge[d] accuracy lant neither "allege[d] used the court" nor information 13. Mem. & J. No. 2003 WL Op. that the court's order errors in calcu contain[ed] (Alaska, 8, 2003). at *7 October Here, Douglas consistently lation." Id. has ar gued that the court "overlooked or mis (Ind.App.1991). 14. 582N.E.2d842 regarding conceived the material facts [Tahni's] granting income" in the reduction. 15. Id.at 844. modify- 12. The court stated in its order ing application at of the Rule 16. Id. 846. support.[17] support obligation under
order ofchild calculating her child Rule 90.8. recognizes that "there Although Douglas opinions exempting previous have been Post-judgment interest on Tahnti's incоme," from he con property settlements share of the divided marital concept should be evaluated that "this tends argues that case-by-case basis." He on a Douglas argues income "co Rule 90.8's definition of because $18,817.50 Tah- post-judgment interest on (with very exceptions) with the few incides proper ni's share of the divided marital real of income" and because IRS's definition ty should have been included in Tahni's Rule disquali which may be "cireumstances there out, points Douglas 90.3 income. As being from excluded fy commentary to Rule 90.8 does includе "inter Revenue Code from income" under Internal in est and dividends" as income.20 But to rules, the Internal Revenue we should follow in Tahni's 2006 income the entire clude as income and count the settlement Code rep amount of interest she received-which under Rule 90.3as well.18 just resented interest accrued not in 2006 but approximately eleven 21-would over any authority to Douglas But fails to cite in paint picture a distorted of Tahni's 2006 position. There is no support his dubious past employed come. We have dispute for Tahni's share averaging a fair assessment when to ensure pursuant marital real was made Thus, obligor's income has fluctuated.22 order. Even if to the 1995 divorce only portion the trial court should deem the authority position, his could find post-judgment of the total past that recognized we have in the the Rule by Douglas to Tahni attributable to 2006 as may of income differ from the 90.3 definition income earned in 2006.23 of inc Internal Revenue Code's definition properly approach ome.19 The exelud- This is consistent with the goals Had Tahni payment representing ed the Tahni's share of interest. timely paid judgment, property from her income in been she could the marital Id. at 847. e.g., See, Mahan, Osmar v. 151 n. (Alaska 2002) ("Although the Internal Revenue *7 Douglas implicitly on Internal Revenue 18. relies Code's "income' Rule definition of differs from governs proper § Code which transfers of respects, noteworthy in other it is 90.3's definition § ty See 26 U.S.C. incident to divorce. that federal income tax law also excludes child (2000). provides general code the That section added)). support (emphasis from income." spouses between rule that transfers of for tax inсident to divorce are treated (Income 20. Alaska R. Civ. P. 90.3 cmt. III.A income, gain gifts and that rather than no or includes, transfer,. ... but is not limited to interest and recognized loss will be on the Id. dividends[.]"). 1041(a)-(b). Treasury regulation imple § The section, however, provides menting this code that a transfer is not made within one if plus 21. ordered marriage ceases, after date the it must be decree, April date terest from the of the divorce years marriage of the date the made within six 18, 1995, actually payment. until the date of He pursuant to a divorce order or the ceases and be that amount on October 2006. general applicable. rule not See 26 C.F.R. is (2008). 1.1041-1T(b), A(6)-(7) regu Q § & This Keturi, 22. Keturi v. provides that made even after the lation transfers 2004) ("[Wle have held in a number of cases that six-year may qualify general period still for income-averaging may be used to calculate a showing upon specific tax treatment that the parent's non-custodial income where it has been in with a divorce» transfer was made connection past."); justi erratic in the see also Alaska R. Civ. P. sufficient related division and that 90.3 crat III.E. delayed See id. at fication exists for the transfer. A(7). Douglas Q & claims that because he did actually pay not Tahni for her Douglas's postjudgment obligation accrued well after six transfer to him until payment, for 138 months before nine and one- ceased, marriage general the date the rule were in 2006. half of which recognize apply does not and we should payment as income. findings in tional factual to determine whether money generated have invested have 2006 income in it.24 That interest would Tabni's warranted reduction terest on important support obligation. income. But as Rule 90.8 her child counted in only accruing interest 2006 would ly, WINFREE, Justice, dissenting part. in year. in that as income to her
have counted Therefore, only portion of interest attrib respectfully disagree I with the court's ul 2006 should be counted as income utable to 16, 2006, timate resolution of Tahni's October superior court erred to Tahni in 2006. The $18,817.50 receipt post-judgment inter including this fraction of the total acknowledges Douglas's ar est. The interest in its calculation of Tahni's 2006 gument that interest is income corresponding support incоme and the 90.3(a) caleu- should be included the Rule year. obligation for income, lation of Tahni's 2006 and further acknowledges receipt of interest remand, in On the court should generally purposes. is income for Rule 90.3 at proportionate clude the share of interest appropriately expresses legiti The court Tahni for tributable to 2006 as income to mate concern that entire support obli calculation of her 2006 child paint amount of the interest "would a distort non-recur gation. Because this interest picture ed of Tahni's 2006 income." But in ring, for it should not be counted concern, allay attempting to its the court portion after 2006.25 We also note astray by goes creating a new rule of law post-judgment interest that is included abridges the trial court's discretion to in Tahni's 2006 income should be reduced appropriate calculate liability Tahni's federal income tax award.1 portion.26 Although question true that the of "wheth v. CONCLUSION qualifies pur er an item as income for the law,"2 poses question of Rule 90.3 is properly exeluded from calculating income for future сhild Tahni's Rule 90.3 income her share of the payments is a matter within the trial court's property. por- marital real But the divided commentary to discretion. The Rule 90.3 tion of that accrued observes: on it 2006 must be included income, REMAND for is calculated as a certain Rule 90.3 and we Child percentage of that amount. Because the of the income which will be calculation paid. income estimate for 2006 used to earned when is to be necessarily calculate Tahni's child has This determination will be speculative relevant explained, not been we REMAND for addi- somewhat because the fact, generally defining con this scenario demonstrates the ratio- Rule 90.3 *8 awarding postjudgment templates than non pre- an income stream rather nale behind and instance, See, 815, recurring payments. For it excludes eg., Ogard Ogard, v. 808 P.2d interest. (Alaska 1991) (recognizing gifts inheritances, and but includes re 817-18 that such one-time curring payments salary, royalties, such as compensate awards are meant "to the successful & cmt III.A. dividends. Alaska R. Civ. P. 90.3 money prevent party [to] for lost use of the unjust party who enrichment of unsuccessful money"). purpose A is "to elimi- had related Haralovich, 643, 26. See v. 170 P.3d 650 Shepherd 2007) ("[Flederal (Alaska tax is to be income litigate prolong nate the incentives to a case or parent's gross income in order deducted from judgment." Morris, Morris v. 724 P.2d 529 adjusted parent's to determine the annual 1986). (Alaska purpose We is also note this 90.3.1"). Rule [under come v. served in the case at bar. See Brotherton (Alaska 2006) Brotherton, 142 P.3d Keturi, (Alaska ("(Il undisputed Douglas vigorously ap- 1. See v. 84 P.3d Keturi is 2004) ("We will not a child equity overturn pealed the award of one-half of the in the the trial court abused its discretion award unless appeal were Wasilla until all avenues of award."). calculating exhausted."). To treat all of the interest though it was earned in 2006 would allow the payor manipulate the child calcula- Robinson, 961 P.2d Robinson 1998). tion. 90.8(a) figure expected is future income. is income for Rule calcula income must examine all available evi inappropriate The court it tions. The rule is because possible calculatio dence to make the best reasonably fit all cannot facts and circum n.[3] may encourage manipulation stances and of timing receipts If Douglas of income. my superi- court should allow the view the 1, 2006, January had on as a opportunity or court the to con- remand only day's matter of law one interest would all of Tahni's 2006 and future sider evidence 90.3(a). income, be income for Rule other situa Doug- but not limited to party receiving tions the interest long-acerued of inter- las's one-time est, might January and to exercise its discretion in fashion- cause to be received ing apprоpriate virtually award for ensure that all of it is treated as may 2006 onward. Rule 90.3 which not be fair to parent either the custodial or the affected superior Tahni has asked the court to low unnecessary The rule is children. be support obligation, er her child and a modifi cause, today, superior at until least court cation of a child is within authority had the to evaluate unusual re the discretion of the court. The (1) ceipts of income and take them into account certainly capable is of: recognizing the income distortion created along with all other relevant facts and cir Douglas's cumstances, one-time of the entire and then had broad discretion to appropriate determine eleven and one-half interest; award.6 exercising authority its and dis apply income-averaging cretion to to this If the court concerned non-recurring source of income its calcula unfairly attempted to skew Tahni's income in tions, appropriate;4 recognizing if his favor after she moved for modification of exercising vary its discretion to the сhild support obligation, proper response 90.3(a) support award under the Rule formu is not to tic the lower hands in all courts' injustice, good la to avoid manifest if cause to cases with a new rule of law fashioned for examining do so exists.5 After all evidence Instead, particular case. it is to allow beyond, Tahni's income for 2006 and court to exercise its sound dis- some, all, may determine that by making possible cretion the best caleula- or none the interest should be going light tion of Tahni's income forward 90.3(a)
taken into account thе Rule calcula of all available evidence. tions or that a variation from calcula those 90.3(c). tions is warranted under Rule
Instead the court fashions a new rule on
what constitutes income for of Rule
90.3. The court holds as matter of law that
when non-recurring payment of acerued given year, only is received in a actually
amount of interest accrued in 90.3(c)(1). 5. See Alaska R. Civ. P.
3. Alaska R. Civ. P. 90.3, IILE, 232 Commentary (2008). commentary "The to Civil Rule 90.3 has officially adopted, provide not been but it can Keturi, at guidance applying useful the rule." Miller v. *9 (Alaska 2007) Clough, 165 P.3d 600 n. State, (citing Caldwell v. 573 n. 6 (Alaska 2005)). (noting holdings
4. See Keturi