Lead Opinion
OPINION
'I. INTRODUCTION
A couple with three childgen divorced after 15 years of marriage. In 2012 the superior court ordered the father to pay roughly $1,500 per month in child support, This child support calculation relied on the superi- or court's finding, based on the parties' testimony. at trial, that the father's income was $40,000 annually despite his self-reported financial documents showing significantly less, income. The father appealed and we affirmed the superior court's findings and support order in early 2014.
We affirm the superior court's denial of the father's motion to modify child support without a hearing and conclude that an evi-dentiary hearing was not required because the father presented no new evidence that would require a hearing, But it was error to award attorney's fees without either requiring the mother to file a motion for fees or advising the father that he had a right to respond to the fee request made in the mother's opposition brief, We therefore vacate the superior court's fee award and remand to give the father an opportunity to respond.
II. FACTS AND PROCEEDINGS
This appeal marks the second time we have been asked to review the child support determination made by the superior court in this case. The underlying facts remain the same as those we described in the first appeal:
Amy and Rene Limeres were married in 1997 and 'had three children together. Amy is an attorney; Rene has made money from a variety of self-employment activities, including guiding, writing articles about the outdoors, and selling books. The couple separated in July 2011, and Amy filed for divorce. ... The court held a two-day divorce and custody trial in July 2012. Following trial it granted the requested divorce and awarded sole legal and physical custody of the three children to Amy. The court found that Rene's net annual income was $40,000 and that he was obligated to pay child support of $1,514 per month retroactive to August 1, 2011.... Rene filed a motion for reconsideration, which the [superior] court denied. Rene appeal[ed].[2 ]
In the first appeal, Rene challenged the superior court's "determination of his child support obligations ... [and] its denial of attorney's fees," among other issues.
Prior to our March 2014 decision, Rene filed numerous motions to stay enforcement of the superior court's support order, to modify his support obligation, and to expedite the superior court's consideration. The superior court denied these motions. In response Rene filed over a dozen motions to reconsider, which the superior court also denied. Most relevant here, in January 2018 Rene filed a motion for modification of child support based on his alleged material change of cireumstances. Rene supported this motion with documents similar to those he had presented during the divorce proceedings just a few months earlier;: He filed a new child support guidelines affidavit and his latest tax return (now for 2012) showing an income of $5,770.93, all from self-reported business profits and his Permanent Fund Dividend (PFD), The superior court denied this motion for modification in July 2018. Rene's subsequent motion for reconsideration alleged that he was entitled to an' evidentiary hearing on the evidence he had presented, but the trial court denied recons1dera’c10n in August 2018.
Five months later, in January 2014, Rene filed a second motion for modification of child support. That motion is the subject of the current appeal. Along with this 2014 motion for modification, Rene also filed another tax return and child support guidelines affidavit, now showing his financial information for 2018 and claiming an annual income of $7,120, entirely from self-reported business profits. Rene also submitted a sworn affidavit alleging financial hardship in an effort "to enter additional evidence into the [record to support [his] claim that the current obligation [was] not based on a realistic assessment of [his] current earning capacity." The affidavit claimed that Rene had no. more books left to sell "nor any funds to print more" and that, because of child support liens against him, his low credit seore made it impossible for him to borrow money to print more books. Rene's affidavit also stated that, despite the fact that he had "aggressively sought additional employment with every local business," he had only been able to secure part-time work that "barely pallid] enough for [h1m] to survwe on."
Amy opposed Rene's motion to modlfy Ins support obligation. In her opposition brief she questioned the veracity. of Rene's reported income of $7,120 from his 2018 tax return, which she asserted was "necessarily inaceu-rate on its face." She suggested that it was
Amy also asgerted that Rene's motion to modify support was "devoid of merit" 'and "frivolous in nature." Amy thus requested, in her opposition brief, an "award of actual attorney's fees [under Alaska Civil Rule 82] and additional sanctions pursuant to Alaska Civil Rule ... 11."
On February 4, 2014, the superior court denied Rene's motion for modification of support ' At the same time, without requiring that Amy make a separate motion for attorney's fees, the court awarded Amy $500 in attorney's fees but declined to impose Rule 11 sanctions "for the filing of a plainly merit-less and frivolous motion." Rene then filed a motion for reconsideration, alleging that he was entitled to an evidentiary hearing on his motion to modify support and contesting the award of attorney's fees in the absence of a motion for fees under Civil Rule 82. The motion for reconsideration was demed and Rene now appeals
III. STANDARD OF REVIEW
"We use our independent judgment to decide whether it was error not to hold an evidentiary hearing.
"We review an award of attorney's fees for abuse of discretion,"
Finally, “[w]e review for abusó of discretion ‘decisions about guidance to a pro se litigant.’ ”
IV. DISCUSSION
A. Rene’s Motion For Modification Of Child Support, Filed Oply Five Months After The Denial Of His Previous Motion For Modification, Did Not Require A New Evidentiary Hearing Because It Did Not Provide Substantially New Evidence.
Rene has argued, both in his motion for reconsideration before the trial court and on appeal here, that the superior court erred in denying an evidentiary hearing on his motion to modify child support. Because this argument raises a legal issue relating to the necessity of holding an evidentiary, hearing, we address this question de novo.
Alaska Civil Rule 90.3(h), which governs the modification of child support orders, provides for modification “upon a showing of a material change of circumstances.”
Moreover, to create an' issue of material fact, a party must present substantially new evidence showing changed circumstances—not simply “additional evidence bolstering ... previously adduced evidence and arguments.”
We also emphasized that only five months had passed between the initial child support determination and Hill's motion to modify child support based on changed cireum-stances.
Given the relatively brief passage of time between the February 2008 evidentiary hearing and the July 2008 motion to modify, and given that the evidence presented in support of the motion to modify was essentially the same as the evidence presented in the evidentiary hearing, we cannot say that the court clearly erred in concluding that Hill had presented no new evidence for the purpose of considering her motion to modify child support. [38 ]
The essence of this conclusion is that no hearing is required where a party files evidence at trial and then, shortly thereafter, refiles the same or similar information in an attempt to claim changed cireamstances.
This analysis applies equally in the current case. Rene argues that the evidence he presented creates an issue of material fact with regard to his level of income and his earning capacity. Rene explains that he provided (1) a tax return and child support affidavit showing that his self-reported annual income was well below the level determined by the superior court, and (2) an affidavit attesting that he had sold out of his supply of books (a primary source of income for him), had sustained a leg injury in a snowmobile accident that reduced his earning capacity, and had "aggressively" sought employment but had only been able to secure a part-time, minimum-wage job. Rene contends that the statement about his book inventory "was not seriously challenged" by Amy, nor did Amy present a "cogent argument ... to dispute" his testimony about his new part-time job.
Amy counters that Rene is not entitled to "repetitive and successive hearings" on the
First, the short timeline of Rene's successive motions supports the conclusion that. a new evidentiary hearing was not. required here. In that respect, this case echoes Hill's suggestion that the "brief passage of time between the ... evidentiary hearing and the . motion to modify" counsels against requiring a new evidentiary hearing.
Furthermore, the evidence Rene filed with his motion was substantially equivalent to the evidence he had recently presented at trial. First, the tax return and child support guidelines affidavit that Rene submitted with his 2014 motion to modify were very. similar to the documents he had submitted to the court in the divorcee trial and in his 2013 motion to modify support. The newly submitted tax return and child support affidavit mirrored his earlier submissions in both character and content: The 2011 tax return submitted in the divorcee trial showed. a total income of $8,427, coming entirely from self-reported business profits and Rene's PFD, while the 2013 tax return showed a total income of $7,120 solely from self-reported business profits. .
In addition -to the fact that the amount of reported income is highly similar across these years, the nature of the income is also identical, in that Rene's non-PFD income consists entirely of self-reported business earnings. To the extent that it differs at all from his earlier filings, Rene's latest tax return actually provides less information by failing to include a Schedule C showing the details of his business earnings, And Rene's new child support guidelines Affidavit; like the affidavit he submitted during the divorce trial, simply matches the amount of income reported on the corresponding tax return. So, like in Hill, this evidence "was entirely consistent with the evidence and arguments" that Rene did present to the court at trial."
Nor does Rene's supplemental affidavit provide sufficient evidence to require a new hearing. We have previously held in the child support context that "a court may deny a hearing where the moving party makes only bare assertions ... that fail to create a genuine issue of material fact."
While the dissent considers Rene's assertions to be highly significant, it fails to address or distinguish our conclusion in Hill v. Bloom that this type of unsupported claim does not justify a new hearing. 'The dissent emphasizes that Rene's assertions differed from the more generalized statements that failed. to justify a hearing in Ward v. Urling.
Rene now claims that he also offered information about a snowmobile injury that forced him to miss part of his book-selling season. In fact, Rene made this assertion in several affidavits pertaining to the 2018 motion to modify child support. By contrast, his 2014 affidavit did not mention this fact, let alone provide further information to support it. Similarly, Rene now invites the court "to fully investigate This] finances," and he made a similar offer in earlier proceedings before the superior court. But he neither provided any further financial documentation nor mentioned this offer at the time of his 2014 motion to modify support. So these assertions, too, fail to meet the bar for requiring an evidentiary hearing.
In sum, given the similarity of the evidence presented at each of these stages, coupled with the short passage of time between each stage, we conclude that Rene was not entitled to a new evidentiary hearing at the time of his 2014 motion to modify support.
B. It Was Error To Award Near-Full Attorney's Fees Without A Motion For Fees And Without Advising Rene Of His Right To Respond.
Rene also argues that it was improper for the superior court to award near-full 'attorney's fees to Amy given that she did not file a motion for fees as required by Alaska Rule of Civil Procedure 82(c) Because this question relates to the superior court's decision not to advise a pro se litigant of his right to respond before granting attorney's fees, "[wle review for abuse of discretion."
As Rene correctly noted in his motion for reconsideration before the superior court and notes again on appeal here, Civil Rule 82(c) provides that "[al motion is required for an award of attorney's fees under this rule or pursuant to contract, statute, regulation, or law." This requirement gives the opposing party a chanee to respond to the fee request. Accordingly, "it is error to award attorney's
Rule 82 also prescribes a formula for caleu-lating attorney's fees, specifying that a court may only vary from the standard award of partial fees after considering certain factors listed in the rule.
Here, Amy made no motion for attorney's fees. Instead, Amy's request for fees was contained within her merits brief in opposition to Rene's motion to modify child support. Amy's opposition brief requested actual attorney's fees under Civil Rule 82 and sanctions under Civil Rule 11. It also briefly stated that her lawyer had worked "[a] total of 2.5 hours attorney time at $225.00 per hour ... for a total of $562.50." The superi- or court effectively treated this request as a nonconforming motion for attorney's fees, despite the fact that no such motion had been made, and it awarded $500 of actual attorney's fees to Amy.
In Breck v. Ulmer we held that the courts have a duty to "inform a pro se litigant of the proper procedure for the action he or she is obviously attempting to accomplish."
We considered the same question in Pedersen v. Blythe, a case that presented similar procedural issues to the current one.
A motion for attorney's fees similarly requires that "the opposing party [be given] an opportunity to respond."
Rene's right to respond is particularly important in light of the fact that Amy requested full fees under Rule 82(c) and sanctions under Rule 11. Because full attorney's fees are only permitted after a finding of "yexa-tious or bad faith conduct," Rene should have had an opportunity to contest Amy's allegation that his motion was "frivolous." Indeed, the record shows that Rene did contest this allegation in his motion for reconsideration, arguing that his motion was "a reasoned and legitimate ery for justice" and that it was not "meritless" or "frivolous" because he submitted "[slufficient supporting evidence." If he had been afforded an opportunity to respond to Amy's request for fees, Rene might have made these same arguments in his response. The failure to afford Rene this opportunity, as Rene argued, "represents a ... violation of due process."
Accordingly, we find that the superior court's fee award constituted an abuse of discretion. We thus vacate the superior court's order of attorney's fees against Rene and remand to give Rene an opportunity to respond to Amy's request for fees and sane-tions. '
On remand, after giving Rene an opportunity to respond, the superior court may then decide whether an enhanced fee award is appropriate. In making this determination, the superior court should follow the two-step process that we have described in past cases. Specifically, for a fee award under Rule 82(b)(8), the trial "court must first calculate what award is authorized under the schedule set forth in Civil Rule 82[ (b)(2)] and then state its reasons for deviating from that award."
In determining whether a litigant's claims "were made vexatiously or in bad faith," we have previously explained, "[the issue is not whether they were ultimately unsuccessful, but whether they were collectively or individually so lacking in merit that it is permissible to infer that [the party] acted in bad faith or
V. CONCLUSION
We AFFIRM the superior court's denial of an evidentiary hearing on Rene's motion to modify child support. 'We VACATE the fee award and the Rule 11 sanctions and REMAND to the superior court to afford Rene an opportunity to respond to Amy's request for full attorney's fees and sanctions.
. Limeres v. Limeres, 320 P.3d 291 (Alaska 2014).
. Id. at 295.
. Id. at 302.
. Id. at 294-95.
. Id. at 295.
. Id. at 297.
. Id.
. Id. at 296.
. Id. at 297.
. Id. at 302.
. In cases not 1nvolv1ng a monetary judgment, Civil Rule 82 generally allows the prevailing party .to recover partial attorney's fees. Alaska R. Civ, P. 82(b)(2). The rule allows enhanced fees upon consideration of certain factors listed in the rule,; including full attorney's fees for. "vexatious or bad faith conduct" under Rule 82(b)(3)(G). Civil Rule 11 requires attorneys and unrepresented parties to certify that the pleadings and motions they file are "not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation." Alaska R. Civ. P. 11(b)(1). We have interpreted it to authorize sanctions against parties who violate the rule. Alaska State Emps. Ass'n v. Alaska Pub. Emps. Ass'n, 813 P.2d 669, 671 (Alaska 1991) (citing Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989)).
. Routh v. Andreassen, 19 P.3d 593, 595 (Alaska 2001); see also Hartley v. Hartley, 205 P.3d 342, 346-47 (Alaska 2009).
. Hill v. Bloom, 235 P.3d 215, 219 (Alaska 2010) (alterations omitted) (quoting Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999).
. Id. (second alteration in original) (quoting Harrington, 984 P.2d at 3).
. Martin v. Martin, 303 P.3d 421, 424 (Alaska 2013) (citing McDonald v. Trihub, 173 P.3d 416, 420 (Alaska 2007)).
. Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (quoting Ferguson v. Ferguson, 195 P.3d 127, 130 (Alaska 2008)).
. Powell v. Powell, 194 P.3d 364, 368 (Alaska 2008) (citing McDonald, 173 P.3d at 420).
. Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013) (quoting Shooshanian v. Dire, 237 P.3d 618, 622 (Alaska 2010)).
. Limeres, 320 P.3d at 296 (quoting Azimi v. Johns, 254 P.3d 1054, 1059 (Alaska 2011)).
. Routh v. Andreassen, 19 P.3d 593, 595 (Alaska 2001).
. Alaska R. Civ. P. 90.3(h)(1).
. Id.
. See Hill v. Bloom, 235 P.3d 215, 219 (Alaska 2010) (reviewing "[w]hether a moving party has made a prima facie showing sufficient to. justify ... a child support modification hearing” (first alteration in original) (quoting Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999))).
. Routh, 19 P.3d at 595-96 (quoting Adrian v. Adrian, 838 P.2d 808, 811 (Alaska 1992)).
. Hill, 235 P.3d at 217.
. Wilhour v. Wilhour, 308 P.3d 884, 888 (Alaska 2013) (internal citation and alteration omitted) (quoting Acevedo v. Burley, 944 P.2d 473, 475 (Alaska 1997)).
. Epperson v. Epperson, 835 P.2d 451, 453 & n. 4 (Alaska 1992) (holding that a party's "bare claim” that the custodial parent had low living expenses did not create a genuine issue of material fact); see also Hill, 235 P.3d at 220 n. 11 ("Without more information, ... [a] bare assertion .., is insufficient to warrant an evidentiaiy hearing.”).
. Hill, 235 P.3d at 219.
. Id. at 217-18.
. Id. at 218.
. Id.
. Id. at 218, 219.
. Id. at 218.
. Id. at 219-20.
. Id. at 218, 220.
. Id. at 218.
. See id. at 220 ("Hill's actual income for the first half of 2008 did not make a prima facie showing for modification of child support given the relatively short amount of time that passed between the evidentiary hearing and the motion to modify.").
, Id. at 219.
. See id.
. See id.
. Limeres v. Limeres, 320 P.3d 291, 296-97 (Alaska 2014).
. See Hill, 235 P.3d at 219.
. Ward v. Urling, 167 P.3d 48, 53 n. 18 (Alaska 2007); see also Hill, 235 P.3d at 220 n. 11.
. Hill, 235 P.3d at 220 n. 11.
. Dissent at 693-94.
. 167 P.3d at 53 n. 18.
. 835 P.2d 451, 453, n, 4 (Alaska 1992).
. 235 P.3d at 219, 220 n. 11.
. See id. at 220 n. 11.
. See Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013) (citing Shooshanian v. Dire, 237 P.3d 618, 622 (Alaska 2010)).
. Gallant v. Gallant, 945 P.2d 795, 800 (Alaska 1997) (citing Bowman v. Blair, 889 P.2d 1069, 1075 (Alaska 1995)).
. See Alaska R. Civ. P. 82(b).
. Kollander v. Kollander, 322 P.3d 897, 907 (Alaska 2014) (alterations omitted) (quoting Johnson v. Johnson, 239 P.3d 393, 400 (Alaska 2010).
, Id. (quoting Johnson, 239 P.3d at 403).
, Id. (quoting Johnson, 239 P.3d at 400).
. Although the superior court found that Rene's motion was "meritless and frivolous," it declined to impose a monetary sanction. It is unclear whether the phrase "meritless and frivolous" is intended to reflect a finding that Rene's motion constituted "vexatious and bad faith conduct" justifying a possible full fee award under Rule 82(b)(3)(G). However, we need not consider that question here because we conclude that the enhanced fee award was improper on other grounds.
. Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (italics omitted).
. Bauman v. State, Div. of Family & Youth Servs., 768 P.2d 1097, 1099 (Alaska 1989).
. 342 P.3d 1245, 1254 (Alaska 2015).
. 292 P.3d 182 (Alaska 2012).
. Id. at 185.
. Id.
. Id. (citing Genaro v. Municipality of Anchorage, 76 P.3d 844, 846 (Alaska 2003)).
. Id. at 183.
. Gallant v. Gallant, 945 P.2d 795, 800 (Alaska 1997) (citing Bowman v. Blair, 889 P.2d 1069, 1075 (Alaska 1995)).
. Pedersen, 292 P.3d at 183.
. Although Amy contends that the fee request in her brief put Rene "on notice of the request being made," this argument is beside the point. Even if Rene could discern from Amy's brief that she was requesting fees, he had no way of knowing that the court would treat this portion of the merits brief as an independent motion for fees.
. Kowalski v. Kowalski, 806 P.2d 1368, 1373 (Alaska 1991) (citing Mullen v. Christiansen, 642 P.2d 1345, 1351 (Alaska 1982)).
. Johnson v. Johnson, 239 P.3d 393, 400 (Alaska 2010).
, Id. at 401.
. See Hill v. Bloom, 235 P.3d 215, 219 (Alaska 2010) ("We 'will affirm a denial of a modification motion without a hearing if, in our independent judgment, the facts alleged, even if proved, cannot warrant modification, or if the allegations are so general or conclusory ... as to create no genuine issue of material fact requiring a hearing.' " (alteration in original) (quoting Harrington v. Jordan, 984 P.2d 1, 3 (Alaska 1999))).
Dissenting Opinion
with whom WINFREE, Justice, joins, dissenting.
I respectfully dissent from the court's holding that it was not error to deny an evidentiary hearing on Rene Limeres's motion to modify child support. I believe that Rene presented unrefuted evidence that was sufficient to raise a genuine issue of material fact about whether he had suffered a permanent reduction in his income.
When Rene filed the motion to modify, his child support was based on the superior court's $40,000 estimate of his 2011 income. As we described in our 2014 opinion, this estimate was based in large part on Rene's testimony at trial, which conflicted with the relatively modest income of $8,426.82 disclosed by his late-filed income tax return.
I agree that Rene's January 2013 motion to modify child support-with which he simply submitted his 2012 income tax return, showing little difference from his reported income in 2011-was inadequate to raise a genuine issue of material fact and entitle him to an evidentiary hearing. But in his January 2014 motion Rene presented a different case.
By affidavit, Rene directly addressed his book-sales fncome source, asserting in straightforward terms that it was no longer viable, He attested that he had "no more big books (Alaska Fishing) left, nor any funds to print more"; that because of damage to his credit rating "borrowing money to print more books is not an option"; and that he "had to 'give away' [his] latest book to a
In Ward v. Urling, the "bare assertions or generalized allegations" this court found likely to be insufficient to justify a hearing were characterized as "allegations [that] expressed little more than [the father's] ongoing dissatisfaction with the court's previous factual findifigs pertaining to [the mother's]! income."
Because Rene's 2011 income was substantially based on the availability of a particular commodity-books-for him to sell, and because he asserted by affidavit that the books were gone and he lacked the funds to print more, he demonstrated a genuine issue of material fact as to whether his income was permanently reduced. This showing entitled him to an evidentiary hearing. I therefore dissent from today's 'opinion affirming the judgment of the superior court.
. Limeres v. Limeres, 320 P.3d 291, 296-97 (Alaska 2014).
. Id.
. Id. at 297 (alteratién in original).
. Id.
. Opinion at 689 (alteration in original) (quoting Ward v. Urling, 167 P.3d 48, 53 n. 18 (Alaska 2007))
. Ward, 167 P.3d at 53 n. 18.
. Id.; Epperson v. Epperson, 835 P 2d 451 453 n. 4 (Alaska 1992).
, Amy countered Rene's claims about lost book-sales income simply by questioning whether he could already have depleted "the entirety of the book inventory" granted him in the division of marital property. Even if this statement from an attorney's memorandum had evidentiary value, it would simply be to highlight a dispute over a highly material issue of fact.