Aparezuk v. Schlosser, Supreme Court No. S-17974

CourtSupreme Court of Alaska (US)
Writing for the CourtHENDERSON, Justice.
Citation514 P.3d 283
Parties Mary APAREZUK, Appellant, v. Jeremy SCHLOSSER, Appellee.
Docket NumberSupreme Court No. S-17974
Decision Date29 July 2022

514 P.3d 283

Mary APAREZUK, Appellant,
v.
Jeremy SCHLOSSER, Appellee.

Supreme Court No. S-17974

Supreme Court of Alaska.

July 29, 2022


Hollis Handler, Juneau, for Appellant.

Notice of nonparticipation filed by Jeremy Schlosser, pro se, Juneau, Appellee.

Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.

OPINION

HENDERSON, Justice.

514 P.3d 284

I. INTRODUCTION

When a married couple with two children legally separated, they agreed that the father would pay the mother child support while they lived at separate residences and alternated physical custody of the children. The superior court incorporated this agreement into the separation decree. But instead of living at separate residences, the couple continued living together with their children in the marital home. During this time the father paid for the majority of household expenses but never paid the agreed-upon and court-ordered child support.

After three years of maintaining this arrangement, the couple divorced and the mother sought to collect the father's accrued child support arrears. The father moved to preclude collection under Alaska Civil Rule 90.3(h)(3),1 and the superior court granted his motion. The mother appeals, contending that the plain language of Rule 90.3(h)(3) requires an obligor-parent to exercise primary physical custody of a child before preclusion can apply. Yet we have recognized that the equitable principles underlying Rule 90.3(h)(3) can support preclusion in some circumstances that do not fit neatly within the Rule's plain language. Because these principles apply to the unique circumstances of this case, we affirm the superior court's order precluding collection of the arrears.

II. FACTS AND PROCEEDINGS

Jeremy Schlosser and Mary Aparezuk married in July 2002. The couple had two children during the marriage and lived in Juneau in a house that they rented from Schlosser's mother on the North Douglas Highway (the North Douglas home).

A. Schlosser and Aparezuk Separated And Came To An Agreement On The Terms of Child Custody And Child Support.

In 2013 the couple permanently separated and entered mediation, ultimately reaching a separation agreement. The agreement required joint legal custody and shared physical custody of the children on a week on, week off basis. The separation agreement also provided for child support calculated under Alaska Civil Rule 90.3. Based on the parties’ respective income and the cost of keeping the children on Schlosser's employer-provided healthcare plan, he owed $564 per month in child support.

In March 2014 the superior court issued a decree of legal separation incorporating the agreement. But once the decree went into effect, neither Schlosser nor Aparezuk abided by its terms for paying child support or alternating physical custody of the children.

B. From April 2014 To May 2017, Schlosser And Aparezuk Continued To Live In The Same Home With Their Children.

Rather than having the children move between separate residences as previously agreed, Schlosser and Aparezuk informally agreed to a new arrangement that they referred to as "nesting." Under the arrangement the children would live permanently at the North Douglas home, but the parents, Schlosser and Aparezuk, would move between households. In the end, the parents did not follow the nesting agreement either; they instead continued to live primarily at

514 P.3d 285

the North Douglas home with the children from April 2014 to May 2017.

The mechanics of sharing the home varied. Schlosser initially vacated the master bedroom to give Aparezuk a separate space. He first relocated to a downstairs bedroom, but at one point moved into a common room so his son could have his own bedroom. In December 2014 Aparezuk purchased a separate home in downtown Juneau, but she did not move out of the North Douglas home at that point. Though she maintained a room at the downtown Juneau home, she also rented other rooms to tenants.

The number of nights when Schlosser and Aparezuk lived together in the North Douglas home decreased over time. In 2014 they resided in the North Douglas home together consistently through the entire year, excluding vacations. After Aparezuk purchased the downtown Juneau home, she spent less time at the North Douglas home but still resided there for about 200 nights per year in 2015 and 2016. In 2017 Aparezuk spent 60-70 nights in the North Douglas home. At one point Schlosser tried relocating to Aparezuk's home for two to three weeks while Aparezuk lived with the children in the North Douglas home, but he felt uncomfortable there and did not live elsewhere at any other point during the period at issue.

The parents agreed that their financial relationship for the three years of separation operated as it had during their marriage. Schlosser managed the family's finances, including paying household bills. Schlosser and Aparezuk shared a credit card, which they both used for family expenses. The family expenses charged to the credit card allowed the children "to do nearly all the things that they requested."

The parents used two accounts to pay the credit card bills. Schlosser had a primary checking account where he deposited his paychecks. Aparezuk and Schlosser also shared a bank account, where Aparezuk deposited her income. Schlosser paid the family expenses on the credit card out of these two accounts. He primarily withdrew from his account and withdrew from the shared account only with Aparezuk's permission. From April 2014 to May 2017, family expenses on that credit card totaled $115,638.84. Schlosser paid $76,349.65 from his account and about $39,079.27 from the shared account.

The parents disagree about how parenting worked when they both resided in the home. Schlosser testified that he was the "primary caregiver" during this period, including being at the home when the children left for and returned from school, preparing dinners for the children "about 98% of the time," making sure the children completed their school work, and completing "the majority of the shopping." Schlosser saw himself as always present to meet the children's needs, whereas Aparezuk's availability was more variable due to her work. According to Schlosser, Aparezuk also did not always communicate her planned absences from the home, whether for work trips or vacations. Aparezuk contended that she was available to meet the children's needs just as she "always had been," including getting the children ready for school; feeding the children; signing the children up for activities; arranging play dates; taking them skiing, hiking, and biking; as well as bringing them to social events. She also described "lots of shopping" for the children.

The arrangement ended in May 2017 when Aparezuk permanently relocated to her downtown Juneau home. After Aparezuk moved out, the children started moving back and forth between the downtown Juneau and North Douglas homes.

At no point between April 2014 and May 2017 did Schlosser pay Aparezuk child support. According to Schlosser, he did not pay because Aparezuk told him she would not collect child support while they were living together with the children. Aparezuk testified it was possible that she told Schlosser she would not collect child support, but regardless she still expected Schlosser to pay child support as the separation decree required.

D. After Moving Out In May 2017, Aparezuk Requested Collection Of Schlosser's Unpaid Child Support, Prompting Him To Seek Relief From Enforcement In The Superior Court.

Sometime between May and September 2017, Aparezuk applied to the Child Support

514 P.3d 286

Services Division (CSSD) to collect Schlosser's accrued child support arrears. Aparezuk later withdrew her request to CSSD on advice of former counsel. In December 2017, CSSD notified Schlosser of its intent to close his case, stating that "[t]here is no current support order and the arrears are less than $500 or unenforceable," and also providing an account statement with $0 balance due.

Schlosser filed for divorce in July 2018 and moved to modify his child support obligations due to a change in circumstances. He alleged that Aparezuk now earned more income than he did, making her the obligor effective August 1, 2018. At no other point had Schlosser moved to modify his child support obligations.

At some point after Schlosser filed for divorce, Aparezuk reapplied to CSSD for assistance collecting child support. In March 2019 CSSD notified Schlosser of significant arrearages charged to him. Schlosser replied to CSSD that those arrears accumulated during the period that the parties had been living together with their children. Notwithstanding Schlosser's response, CSSD twice garnished his wages to satisfy arrears.

Schlosser then moved to abate the garnishment of his wages and to preclude CSSD from collecting his arrears. The superior court abated CSSD's garnishment of Schlosser's wages, which Aparezuk did not oppose. Aparezuk did, however, oppose Schlosser's motion for relief from the...

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