*1 SHEPHERD, Appellant, Barbara Appellee.
GeorgeHARALOVICH,
No. S-11692. of Alaska.
Supreme Court 26, 2007.
Oct.
644 imputation require
income because does underemployment. But we remand the mat- ter to the court to Shep- determine Hability herd's federal tax and recalculate her adjusted annual income to account for that liability. tax II. FACTS AND PROCEEDINGS Shepherd George Barbara Haralovich marriage divorced 2002 after a of seven- years. Shepherd primary teen was awarded physical custody parties' of the three chil- dren. The divorcee decree set Haralovich's $1,654 support obligation child per base part divorcee, month. Shepherd As of the family received the home and also a received property rental estimated in 2002 to be $235,000. worth property The rental carried mortgages totaling two about property sold the rental for Curtain, Juneau, E. James and Vance A. $265,000in 2003. Sanders, Sanders, Law Office of A. Vance LLC, Juneau, July In Appellant. away 2008 the oldest child moved from In home. December the court issued Haralovich, se,
George pro J. Juneau. custody new order for the two children still at home which set out a week off BRYNER, on/week Justice, Before: Chief April schedule. 2004 the MATTHEWS,EASTAUGH,FABE, and court support issued a new child ending order Har- CARPENETI, Justices. support obligation alovieh's child for the old- est child changing custody and also ar- OPINION rangement remaining for the two children. PER CURIAM. support Child living was based on one child I. INTRODUCTION week parents, off with both while on/week primarily other child resided Shep- with Alleging that her income had declined fol- herd. lowing Haralovich, George her divorceefrom Barbara asked the April court 2004 Shep- order also noted that support. recalculate child January in- herd's 2004 child affidavit part come had declined in affidavit, because she had reflected less income than her 2002 rent-producing sold property that partly she had because she did not list been awarded in the divorcee. The income in 2004. 2002 affidavit had found that $50,000 income was ef- listed her including income as fectively $21,288 the same as Shep- wages, before. When in rental reconsideration, $2,050 herd moved for the trial April from other sources. The considered that income could rely stated that the court would realize from reinvesting net from 2002 affidavit in- compensate sale would compute come to Shep- child unless for the small information, decline her net income and supplemental herd submitted in- denied reconsideration. appeals cluding return," full "her 20083federal and, the denial of her reconsideration explained motion her decreased income. Based among things, argues other affidavit, because she in April voluntarily underemployed, was not it was Shep- determined that impute any error $51,639 income to her. We herd's net income was after allowable affirm the court's of deductions. order, long-term." holding it She also stated that response April to the necessary explaining by poor sale was made finan- an affidavit
herd submitted position partially and declar- cial caused Haralovich's had sold the gone "my pay support. from rentals has She asserted ing that failure any proceeds did not submit not re-invest to zero." She she did equivalent way provide regu- documents. in a that would her a tax return or sale *3 lar income. July superior 2004 the court issued The regarding support. order child another September superior 2004 the court is January pay to esti- court used a 2004 stub order, addressing Shepherd's sued a third $44,126; at this mate net income reconsideration motion. Based on the finan $7,513 set out in was less than the amount newly by Shep cial information submitted $44,126 April figure did not order. The motion, herd with her reconsideration any property include income from adjusted superior court calculated her net generated income from funds investment superior annual income at The property. The the sale of the rental figure that court noted $909 that Ms. superior "[wJhile court declared $51,639 less than the net income of it had that sold her income- Shepherd indicates prior superior used the two orders. The property, that producing reconsgid- the court assumes court denied motion for that in- she could have continued to receive eration; although that it reasoned her annual funds come that she re-invested those and/or wages were less than the court had $909 way financially in such a is as or more $95,000 (excluding previously assumed advantageous previously as was the case." capital gain1), "it is reasonable to assume July The in its order thus portion" proceeds that at least some of the of $7,518 in in- impute seemed to investment the sale of the rental would be Shepherd. come to The court indicated way "in invested such a as to net at least calculating it would use an child per year." The there $909 $51,639 adjusted figure annual income $51,639 net "[the fore concluded annual Shepherd. court noted that 2002 income" listed Civil Shepherd had still not her 2003 submitted "appears to be at least 90.3 affidavit federal tax return "and all attachments" or [Shepherd's] that best reflects cur income any "explanation under oath as to the producing income abili rent and/or disposition amount and of the ty- n property." an- income-producing The court Shepherd appeals September from the or- barring request nounced that a for reconsid- denying hеr reconsideration motion. der information, eration and submission of that would issue a order based on the IIL STANDARDOF REVIEW prior calculation. review a trial court's denial of a
Shepherd then moved for reconsideration attaching her affidavit her motion for reconsideration for abuse of discretion.2 and submitted decisions to 2002 and 2008 federal tax returns. Her 2008 W e review a wage a income of income for abuse of discretion.3 Whether tax return reflected taxable $44,421 $95,893 depends gain a from the trial court has abused its discretion capital property. stated in on whether "we are left with definite sale of the rental She conviction, reviewing her affidavit "was firm after the whole ruling." record, producing enough justify income to the trial erred its [her] 90.3, A(16) Commentary 1. Alaska Civil Rule III Christenson, 1037, 75 P.3d 1039 O'Connell gains suggests capital should be treated as in- (Alaska 2003) (citing Rhodes, Rhodes v. they represent regular come "to the extent (Alaska 1988). source of income." Co., 2. Neal & Inc. v. Ass'n Vill. Council Presidents Auth., (Alas g'l Re Hous. 1995). ka September But the trial court it found that "[wlhether used order because
4
sup
the correct method of
financial
herd's
information indicated her
law,
port
give
$50,730. Therefore,
we
is matter of
therefore
no
current
income was
deference to the trial court's decision."5 We
most,
imputed,
court's final
"independent
judgment
apply our
when re
Shepherd,
of investment
$909
viewing
interpretation
a lower court's
stat
$51,639
difference between
and the
legal questions."
and other related
utes
April
referred to in the
2004 order.
however,
probable,
It is
IV. DISCUSSION
potential
court's consideration of
Superior
A. The
Did
Court
Not Abuse
impu
income is not an
at all.
If
by Considering
Its Discretion
appropriate,
typically
tation is
a court
finds
Income-Producing
Caрability
specific
to the
Funds from the
of the Rental
Sale
*4
parent
figure
and
to
uses this
calculate child
Property.
support.8
superior
simply
The
here
Shepherd argues
superior
that
the
earning power
looked to the
of "at least some
by imputing
court erred
income to her and
portion"
proceeds
from the rental
may only
imputed
that "income
'a
be
to
sale,
and assumed
would "net
parent
voluntarily
unreasonably
who
and
is
per year,"
in
least
order to confirm
$909
unemployed
underemployed.'"7 Shep
or
significant
that
there was no
difference be
herd
that "as a matter of
the trial
law
figure
tween the income
the court had used
court must make a determination of volun
July
in
figure
its
order and the income
de
tary
unemployment
and unreasonable
or un
in
scribed
reconsideration motion.
deremployment"
imputing
before
income.
way
appropriate
supe-
This was an
for the
ques-
first
observe
there is some
grant Shep-
rior court to decide whether
tion whether the
court's final order
herd's motion for reconsideration.
There
reconsideration,
denying
Septem-
issued in
was a difference of
between the
$909
ber, actually
any
imputed
Shep-
prior
figure
net income
and the net income
uncertainty may
herd. This
stem from the
figure
in Shepherd's
revealed
reconsideration
three orders issued
court.
affidavit.
2008
return listed
April
imputed
The
order
no income to
price
sales
of the rental
herd and was based on
earlier
$265,000.
previ-
Given
the court had
approxi-
statement
she had received
ously
existing
been informed that there were
$21,000
mately
July
income. The
$110,000
mortgages
approximately
on the
imputed
order
have
income of about
property,
it was reasonable
to think that
$7,500
Shepherd,
but that order was su-
proceeds
prop-
some net.
from the sale of the
perseded by
September
order issued af-
erty
safely
could have been
reinvested and
ter
moved for reconsideration.
that the
income would more than
Shepherd appeals
September
deny-
compensate
relatively
for the
small differ-
ing reconsideration.
ence in net income.
order,
April
In
its
support
relied on
2002 child
affi-
The
court therefore did not abuse
provided
davit
and
that child
would its discretion
concluding
September
be based on her net income of
figure
net income
the court used
superior court
April
July
denied reconsideration in its
in the
and
orders to caleulate child
90.3,
Seafoods,
Stepanoff,
Quoting
Commentary
4. Peter Pan
Inc. v.
650 P.2d
375,
(Alaska 1982).
III(C).
378-79
590,
Turinsky
Long,
v.
910 P.2d
594 n. 10
See,
O'Connell,
e.g.,
(explaining
Given Rule statement may impute potential court also "tlhe Shepherd argues in alternative producing for ... low income assets" and our by even court did not err precedents, it would have been error to imputing some investment erred with- determining the amount of ad- finding underemploy- out first deliberate i justed support purposes. income for child ment. asserts the net rental briefly argues also in approximately would have been vestment income should not be be "handyperson" reduced the cost of a be- unreasonably cause did not volun performed building cause she could not have tarily forgo income-producing assets. She herself. She asserts that maintenancé *6 selling property contends that the rental was $21,000figure she listed for 2002was "given and that reasonable her then-extant wrong parties' because it was for "all" of the cireumstances, economic it would be difficult just properties, proper- rental the rental selling property conclude that ty impute awarded to her. Hence fu- "[tlo actually voluntary." voluntary The and un property ture income from Shepherd Ms. did requirеments reasonable set out in Rule 90.3 simply unsupported by not then own is case imputation expressly apply only for to unem law, record, Third, or common sense." Thus, ployment underemployment.16 in that she asserts the rental income should Ogard, we that the trial court noted could averaged three-year have been over a two- or impute earnings parent if a sold income- period. These three contentions are all mortgage producing in assets to reduce assumption based on her that pay Such a reinvestment ments.17 imputed Shepherd. court rental unreasonable, would selling not be one But the court did not presum investment offset Habilitieswould most, At court ably situation, improve parent's financial portion proceeds. from some of the net sale why and it is not obvious it would be reason Finally, Shepherd able parent's to decreasе that share of child that the court support considering proceeds based on the "loss" of the asset. erred in from the Also, property the issue is not whether it was unrea they sale because re- (Alaska Ogard 'The court calculate child Ogard, based 819 n. 815, 1991). potential on a determination of the income of a parent unreasonably who is un- Princmpess Institute, 14. American Law or tur Law or employed underemployed." Famiy Anatysts amp Recommenpations Dissorurion: 90.3(a)(4). 3.14(4)(2002). § Ogard, 819 n. 6. § Id. at 3.14 cmt. d. sulted from a one-time sale and were not significant legal expenses curred in relation 90.83, regular Commentary income. Rule properties at issue in the divorcee. She III(A) suggests treating capital gains in- as legal expenses were de- indicated they "represent regular come source purposes ductible for federal year tax of income." only. The court did not treat challenged No one this valid de- income; capital gain the one-time as Shepherd duction." further maintains in her proceeds considered the sale that she brief informed the trial court that nét insofar as could have been reinvested to she "used the from the sale [of the provide regular a source of $14,835 income. The property] pay in federal III(A) Shepherd commentary to Rule 90.3 taxes for 2008." then out states that gifts "one-time and inheritances should not that "[the trial court failed to mention or be considered as but interest why discuss Shepherd Ms. did not in- incur 2002; principal amount should be considered liability as come tax for the one-time expense legal By implication, pres- nothing services related to the income." there wrong treating with income from ervation income-producing of her property. capital gain Insteаd, one-time as income. it used the aberration of justify
sale-related taxes 2003 to no tax B. It Was Error To Calculate Child liability or deductions in 2004." Support Assumption Based on the Shepherd further maintains in her brief Would Have No Fed- rejected trial court "[t]he the use of Liability. eral Income Tax standard deductions since Ms. In allowable deductions itemizes deductions and exemp- has three for child purposes, determination tions for purposes. The court assumed would believed since Ms. tax liabili- pay no federal income taxes on her income. zero, ty for 2002 was that amount should be September noted its 'appears used as it closely approxi- to most order: mate actual projected income liabili- federal ty.'" analysis," Shep- "Based on this flawed Ms. owed no federal complains, herd trial court concluded $14,335
income taxes. she owеd "the $51,639 'the net annual However, Ms. in federal income taxes. these Shepherd represented adjusted net in- high taxes are tied to her sale of the rental come in her 2002 ap- ARCP 90.8 affidavit receipt capital pears to be at least income that best gains.... Since her actual tax *7 reflects (zero) pro- current income income zero, 2002 was that number and/or appears ability' ducing and thus denied Ms. closely approximate to most project- actual herd's motion for reconsideration." Al- lability. ed federal income tax though arguments these are made under the A question threshold is whether the cor- case," heading of "statement of the rather assumption rectness of the trial court's in than in the section of that there would be brief, adequate we conclude that are no Hability federal has been appeal. raise the claim on sufficiently raised and argued so as to be properly brief, Shepherd major legal But two appeal. before us on In her points in the section of brief: her Shepherd question raises the whether (1) imputing that the trial court erred in supports record the trial court's calculation (2) income, that, even if income imputed income and out that she imputed, sup- could be the record failed to sought reconsideration of the trial court's port the court's caleulation of the amount of decision, submitting both her 2002 and 2008 imputed addressing the see- income tax returns and attachments from point, computa- ond her alternative claim of both returns. in And her statement of the error, Shepherd argues: tional specifically case, Shepherd explained contends that she to the trial court "that she did have tax the court [Slhould be otherwise inсlined to liability year for 2002 because that she in- non-existent net rental v. CONCLUSION average that income. As demon-
should Shepherd's 2002 and strated Ms. above, the reasons stated For returns, income from the tax federal income is imputation of investment court's property varied Grant Street the case is REMANDED AFFIRMED but 2002) (in two-year annual in for a to 0 may determine the the trial court so that $4,452. was average of Since income tax lia- amount of federal 2008, though, in Ms. will sold adjusted bility and recalculate in proceeds from it receive no rental to account for that tax liabili- annual income year average and a three or hereafter ty. in- yield average annual rental would an come Justice, EASTAUGH, with whom CARPENETI, Justice, joins, dissenting in argument squarely addresses the com- This part. describes putational flaw court's
her statement of facts: EASTAUGH, Justice, with whom recognize failure to Justicе, CARPENETI, joins, dissenting liability a one-time federal tax was zero part. averaging Shepard's for event. validity of her claim that hinges on the reasons that The court non-recurring. assuming appellant 2002 tax deduction erred Shepherd's argument does not draw would While such pay no income taxes.1 Because the child an could affect explicitly, implic- error this connection award,2 remands determination the court it, minimal treatment of it seems and her liability.3 appellant's income tax unsurprising given for the the reason liability apparently zero tax in 2002 has never part respectfully I dissent from questioned. been opinion that remands for that deter court's Appellant's lawyers have not ar mination. responding question from this court gued any appeal pro error on and the se such argument, at oral maintained topic. The appellee has not аddressed the September court's order was appellant Shepherd ade court concludes Shep the court assumed erroneous because question on quately raised the income tax liability was herd's normal federal income tax view, my not raise the appeal,4 but she did reasons, For conclude zero. all of these we all, explicitly implicitly. issue at either Hability that the issue of tax the income should therefore not consider us, properly before and we therefore turn liability topic, grant much relief to tax less 90.8(a)(1)(A)G), the merits. CivilRule Under unpreserved issue. appellant on this federal income tax is to be deducted from parent's gross in order to determine hypertechnical require an seem adjusted parent's annual income. We argue explicitly. After appellant issue previously have directed federal all, аppellant probably here raised the should be deducted from *8 court, and this court issue in the Therefore, income.18 we remand this case to the issue to be so clear apparently considers trial amount that the court to determine the only with that its merits can be resolved four should be deducted from and without benefit of lines of discussion5 remand, into briefing. good On the trial court take But there are rea appellate argue requiring appellants of to an account the actual sons for implicitly. explicitly, or at least in her tax returns. issue reflected Majority (Alaska 3. at 650. Rodvik, 338, 18. Rodvik v. 151 P.3d 2006). Majority 4. at 649-50. 649, Majority 90.3(a)(1)(A)(i) (providing
2. Alaska R. Civ. P. Majority income). income taxes are deductible appellate specify litigants against appellee rules how an appellant Our on an issue the present applied deprives must issues and we have hаs not raised appellee the of notice opportunity and an Doing to be heard. so treating those standards as waived issues Thus, adequately Ap especially that were not can prejudicial pro briefed. appel- se lees, opportunity 212(c), who lose both the to decide pellate Rule labeled Re "Substantive quirements," specifies appellant's the (un- whether to hire counsel to address the contain," raised) items, among opportunity brief "shall other a issue and the to address review, presented statement of issues a the issue themselves. describing proce statement of case why There are various appel reasons an facts, history dural and relevant an might particular lant not brief a issue. An section, stating and a "short" conclusion appellant might particular decide to focus "precise sought." Aрpellate relief Rule ly contentions, compelling ignore and to oth 212(c)(1)(I) provides see primary, only, ers. The if not theme of tion "shall contain the contentions of the appeal is that it was error appellant respect present with to the issues Shepherd. rental income to Appel ed, therefor, and the reasons with citations to 1, 18-14, 15, 16, 21, 22, 28, 24, lant's Brief at authorities, statutes, parts of the 25. Counsel could have reasoned that this added.) (Emphasis record relied on." We theme, compelling was a given undisputed do not requirement light treat evidence had been awarded ly. point We have held that a "[where only property, one rental that she sold in given cursory more than a statement in the 2008. And evidence she sold it because brief, argument portion point of a will not appellee pay failed to sup appeal."6 be cоnsidered on pro Even se ported her assertion that she did not unrea
litigants must adhere to this standard even sonably or forgo rental though expansive we tend to be more making imputation thus inappropriate. Ap interpreting arguments.7 their 19-20, pellant's Brief at 28-24. There is adopted satisfy good an reason appellant's to think counsel esthetic interest appearance the cosmetic argue chose not to appel the tax issue.8 An briefs, but to make might sure that the issues we lant also choose to avoid an issue in truly decide in controversy, are appellee's we do order to limit responsive argu raised, parties not overlook issues the have ments and minimize discussion of unflatter and that parties' we have the benefit of ing legal propositions, evidence or limit thoughts about the facts and bearing law on the litigated issues to bе on remand. deciding. issues we are rig- Some elemental course, party might Of not raise an issue describing or in the issues for decision also through simple oversight. But even helps with the doctrines of law of the case lawyer appellant's negligent in failing to judicata. and res appellant brief a meritorious issue or a pro se process Due is the ultimate foundation for fails to regard discuss an we it as preservation requirement. Ruling unraised.9 why It does not matter the issue pursuant ceive to Alaska R. Civ. P. 90.3." Had Petersen v. Mut. Ins. Co. N.Y., 803 P.2d Life 406, (Alaska 1990) (citations omitted). point appel- this been discussed in these terms in arguments, question lant's there is no she would preserved have it. But (Alaska because the other two Ek, 7. Peterson v. 464 n. 9 2004) (stating points judge pro litigant's appeal listed on "[wle her statement of se correspond exactly arguments standard"); two she performance by demanding less brief, City appears Springs, Gates v. does raise in Part VIII of her Tenakee intentionally (Alaska 1991) chose not to brief issue. Com- (treating as abandoned claims pro litigant paring the texi cursorily se raised below with the text of her arguments appeal). strongly suggests or not at all on intentional *9 waiver. Seenote 25 below. appeal, 8. statement of on filed appeal, Inc., when she commenced Investigations, her included this 9. State v. O'Neill Cf. appellate (Alaska 1980) ("When, contention: "2. The trial court argument erred in in the brief, failing mandatory portion major to include point given deductions of a has been statement, appellant cursory which is entitled re- no more than we will not appellate briefs lawyers, co-signed her who raised; not not decide issues not we do
is by parties.10 her in the represented raised the and also court, when how to raise the issue knew unworthy case for particularly This is wanted to. using it to issue and considering an unraised opinion reviews lawyers co- The court's appellant. Two grant relief to length and concludes opening opening brief at some and signed Shepherd's substantial raised, implicitly.11 at least that the issue briefs, argument exceeded reply and her oral Haralovich, by com- unfamiliar with A casual reader usual time allotted. the brief, might pro arguments actual as only eight-page an se briefs and her parison, filed her description little discusses matters of sume from the court's much of which actually argued appeal. He ar- opening the issues on brief relevance to with that Only fifteen a reader familiar only nine of his allotted the issue. gued for part of the brief Shepherd had the burden of would know what Here brief minutes. demonstrating quoted or described appeal passages and contains the going forward on If, I prejudice. as the court. legal error and both issue,
think, pro se not the the she did raise open part-by-part, appellant's Considered unjustly. appellee being treated ing not brief the remand issue. brief does to the "issue" are the No. All of the direct references Do briefs raise issue? in, in, opening certainly only part the implicitly. Not And found and explicitly. Not procedural discussing transactional and adequately. brief the ts.12 fac parts and The issue list, describe, Thus, opening of contents of the or the table
herd's two briefs do not topic main argument section's the income brief lists the discuss error headings follows: "The trial court erred It therefore seem that tax deduction. would Shepherd, by imputing any income to Ms. appellant's briefs is prolonged review of unemployed nor underem- has not who is neither not needed to confirm theory superi- ... The record does not ployed. asked us to reverse calculation of income." the income tax deduc- trial court's miscaleulated heading Shepherd Appellant's If Brief at ii. Neither awarding support. tion in taxes; so, headings impu- refer to expect would mentions both asking were us to do one clearly argument part her brief to tation of income. directly superior court erred assert the two issues Part V of the brief lists by failing tax to deduct presented as follows: for review liability, tax by assuming there was zero by imputing 1. Did the trial court err required. This and that reversal is therefore appellant? income to easily factually argument can be made. trial did not err in im- If the simple. Although made no legally she appellant, did the trial puting income appeal raised the issue such determining the amount of court err court. The there appellant? clearer, could have been but she asserted Appellant's Brief at 1. Both issues focus on had no that it was error assume liability. of income. The first asks This confirms properly argue the matter before this Court: Failure to relevant to consider it further. it."). erroneously impute non-exis- Did the trial court an abandonment of constitutes long-sold property to tent rental income from Reply appellant?" Brief Id. advisedly, without im- Majority I use the word "issue" at 649-50. The court refers "appel- plying question opening Nothing appellant's that the tax is indeed appellant's brief. question was an issue in the reply al- late issue." The brief can be read to raise this court though reply court. It is an issue before brief does confirm how limited is, Thus, says not because the appellate it asserts that because this issues are. appellant says "Many appellee's simply it is. are assertions *10 impute whether it was error income to rental income. Both presuppose Shepherd; the second asks superior imputed whether court rental income to erroneously court Shepherd. determined the amount of Both therefore state the issues in imputed income. Neither issue as set out even more limited fashion than the two issues or tax mentions taxes errors. No stand- V, described in Part which lists the issues listed; computational alone issue is the com- presented for review. putational by Shepherd issue listed arises Thus, argument the second argues section only superior if imputed court income to it impute was error to rental income to Shepherd. Shepherd for property longer she no owns. correctly court notes that Part VI of Appellant's Brief at Nothing in that brief, setting out the "statement of thе section discusses income tax liability; it case," does discuss the rul court's largely focuses on her contention that she ings on the deduction and what reasonably acted and involuntarily in 2003 court assumed about only she sold the rental property she when part annual income taxes.13 That is fourteen owned, and that the standard for imputing pages long. It many also discusses other income was therefore not met.14 Appellant's procedural transactional Appel facts. Brief at 19-21. There is no basis lant's Brief at 1-14. Some of those facts do argument section for granting any appel directly any appellate issue, bear on if, late relief as the agrees, entire court many relate to the division that superior court did not impute any fact awarded the rental to Shepherd, Shepherd.15 property,
her sale of that and Haralovieh's allеged noncompliance support with his child The third section obligations. Shepherd's fact statement dis record does not imputing to length cusses at the orders and reconsidera net rental income of Ap tion motions that Septem culminated in the pellant's Brief at 21. It also contains ancil ber Appellant's 2004 order. Brief at 1-14. lary arguments, all relating imputation consequently It variety superi- describes income. None arguments of those or court rulings issues and that are not at asserts that the erred bas appeal. issue on ing the income calculation on one-year Part argument part. VIII is the briefs It experience of liability. zero tax Appellant's contains three sections. The first section Brief at challenges 22-28. None "the cor "applicable discusses case law." This section rectness of the trial assumption court's legal discusses deciding standard for that there would be Appellant's whether to Brief no federal liability," as this court at 15-17. does not imput- discuss how describes the deciding issue before whether ed amount should be calculated. It focuses argued was "raised and sufficientlyso as to on demonstrating imput- be properly appeal." before us on Critical parent ed and unrea- to her that there was a caleulation sonably unemployed underemployed. Ap- al error is contention that the pellant's Brief at 17. imputed a substantial amount
The second and third appel- sections of of rental income to her. But all members of lant's part both imputed address agree this court there was no that, part per Appellate 13. This is the (cit- underemployment. Majority ment or at 647 212(c)(1)(G), provide description "shall a brief ing 90.3(a)(4)). re- the case concise statement of the course of imputing employment lies on the standard for proceedings in, and the decision of, the trial contending income, but she is actually Appellant court. shall state the facts relevant to rental, employment, each with references to the record as re- Appellant's income to her. Brief at 19-21. (c)(8), quired by paragraph in this section or in appropriate argument sections." Majority at 648-49. impute employment 14. To a court must Majority voluntary first find unemploy- and unreasonable *11 [is] before this court unanimously properly it: "the issue thus rental income.17 We to Ms. from of income Her claim argument.
reject the root of error, argued, withers Reply as sold." Brief property previously calculational real away. opinion concludes of the court's Part IV.B passages Shepherd's in The court reads sufficiently argued and Shepherd raised issue, discussing raising the at as brief liability.18 disagree. I of income tax the issue passages But all of the implicitly.21 least too, will when he learns Surely Haralovich opinion pages by the court's discussed only issue on which surprise that his only portion, fact not 649-50 are found not one that has remands is appellant's brief. argument portion, Haralovich appeal and which argued on opinion pages at passage quoted in the The reason to think he should had no therefore alleged says nothing of an error 649-50 address either. passage liability. That assuming zero tax preserved has I not think do not of erro speaks of "0" rental characterizing in by unfavorably merely issue assumption there was "0" tax.22 neous of her brief the facts section perceived by the court is The issue any give not to her credit court's decision it be characterized as hav "implicit" nor can
incometax deductions.19 If "minimal treatment."23 ing received even portion think that I do not raised, expect one would the issue had been quoted at section some au lawyers to have cited opinion of the court's length page error, presumably thority to demonstrate the refers, implicitly, to expressly or the court cites con the same Civil Rule liability. Shepherd firming that income tax is to be deducted any income is to only that if rental passage passage But the income.24 her, only imputed to should be be opinion says quoted page at 650 of the brief years, income over two average of her rental taxes, cites no nothing of a failure to deduct no including year in which she earned taxes, discussing a deduction for rule or case Appellant's Brief at 25. income.20 only to the tax returns to demon refers supported by reading of the is This droрped zero in brief, strate that "the Shepherd's reply which states argu at 25. This Appellant's Brief 2008. this properly [is] now before Court matter claim erroneously impute non is made to trial court ment [dlid averaged, income should long-sold proper income from existent rental Ap be deducted. payments that tax should Reply reply at 1. Her ty appellant?" Brief pellant's at 25.25 dispute she sees Brief later reiterates the as brief Treating history argu- prejudicial. Majority less or this at 649-50. 17. ment, represented appellants, can at least for Majority at 649-50. 18. surprise lead to and confusion. argu- between the fact and 19. The distinction Majority 20. at 649-50. seem, at first ment sections of the brief glance, not, for two to be harsh. unduly Majority First, 21. at 649-50. Appellate Alaska reasons. 212(c)(1)(I) explicitly re- and our case law both quire preserved issues be in the Majority Compare with Second, permit parties portion we of the brief. if quoted passage. negative to treat characterizations of legal arguments, were court's decision as Majority at 649-50. unfairly surprise their adver- we allow them to Following re- case, will be saries. parties (citing Majority at 650 lurking carefully parse quired the facts for 90.3(a)(1)(A)@)). issues, represented legal opponent even if their Moreover, parties by legal often in- counsel. appellant's procedural Comparing brief with the state- thorough clude a discussion of the case, points appellant filed when she com- partly ment of history because our rules seem of a 8, above, it, appeal, con- give see footnote encourage perhaps menced her also to some argued the even any alleged that she has not error was harm- firms indication whether topiс up briefly argu did come at oral ment, because a member of this MILLER, Appellant, Frank *12 court asked Sep counsel tember order supe error because the rior court assumed that normal SAFEWAY, INC., and Mick liability federal was zero. Not Galic, Appellees. surprisingly, agreed, recognizing counsel No. S-12331. one, pitch slow nothing when he saw appellant's question. briefs raised that And Supreme Court of Alaska. if a member of the court had not asked that question, topic would not have been men Nov. argument. tioned at Parties not raise argument.26 new issues at oral That the sponte
court sua topic argument raised the
does not excuse failure to pre Haralovich,
serve the issue. representing
himself, adequate had no warning that he prepared
should be topic to discuss a
mentioned the briefs.
Finally, even if opening brief charitably
could be read to have mentioned it was indirectly mentioned so obscurely that we should hold the discussion cursory preserved
was too to have the issue.
We should every therefore affirm aspect of court's final order denying re- join
consideration. I opinion the court's
the extent it affirms the court's denying reconsideration. implicitly. The relevant words in her second taxes must be deducted deductions," appeal "mandatory on are that the court erred in calculating in- income," "gross and Civil Rule "90.3." "Manda- come tax or deductions due for income "deductions," income," tory," "gross and "90.3" liability. appeal The statement of appear nowhere in the table of contents {and implies Shepherd's attorneys therefore chose issues, headings), thus the the list of appeal. waive review, the standard of or the conclusion sec- appellant's tions of brief. The words "mandato- N.Y., 26. See Petersen v. Mut. Ins. Co. Life "deductions," ry," "gross appear income" (Alaska 1990) (holding P.2d that when parts appellant's argu-
nowhere in the three appellant's argument, brief does not raise an ment section of her brief. And the references to waived). issue is Rule 90.3 in the section are never support any offered to contention that