Childs v. Childs, No. S–14643.

CourtSupreme Court of Alaska (US)
Writing for the CourtFABE
Citation310 P.3d 955
PartiesJoshua CHILDS, Appellant, v. Christina CHILDS, Appellee.
Decision Date11 October 2013
Docket NumberNo. S–14643.

310 P.3d 955

Joshua CHILDS, Appellant,
v.
Christina CHILDS, Appellee.

No. S–14643.

Supreme Court of Alaska.

Oct. 11, 2013.


[310 P.3d 956]


Joshua Childs, Fort Polk, Louisiana, pro se, Appellant.

Christina Childs, Fairbanks, pro se, Appellee.


Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.

OPINION

FABE, Chief Justice.
I. INTRODUCTION

A mother and father of two minor children dissolved their marriage in 2005. The mother was awarded sole legal and physical custody of the children and the father was ordered to pay child support. The father then joined the United States Army in 2006. Five years later, the mother filed a motion to modify the standing child support award, seeking to increase the father's support obligation due to an increase in his income. Although the first notice of the motion that the mother sent to the father was procedurally defective, after the superior court notified the mother of the defects, she sent a corrected notice. The father did not respond to the motion to modify until the superior court informed him that it was prepared to award child support in the amount requested by the mother if the father did not file an opposition. The father then opposed the motion, providing his relevant pay stubs, W–2s, and tax returns. He also argued that the Servicemembers Civil Relief Act protected him from adverse civil actions because he was actively serving in the United States Army and contended that the mother had not properly served him with notice of the modification proceeding. Finally, he maintained that the superior court should deduct the Basic Allowance for Housing that the father received as a servicemember from his income calculation. The superior court modified the parties' child support award

[310 P.3d 957]

without holding a hearing, ordering the father to pay increased child support.

The father now appeals, raising three arguments. He first contends that he was entitled to a stay of the child support modification proceeding under the Servicemembers Civil Relief Act. But because he did not qualify for a stay under the Act, and because he actively participated in the proceeding, the superior court did not abuse its discretion in declining to issue a stay.

The father next contends that his right to due process was violated because the mother did not use certified mail to serve him and because the superior court ordered modification of child support without first holding a hearing. But there was no due process violation: The mother's corrected service of process satisfied the Alaska Rules of Civil Procedure, the father had ample notice of the proceeding, and a hearing was not required in this case because there were no facts in dispute.

The father finally argues that the superior court abused its discretion in calculating his child support obligation to include his Basic Allowance for Housing. But the superior court correctly included the military housing allowance in the father's adjusted income as Alaska Civil Rule 90.3 directs.

We thus affirm the superior court's decisions in all respects.

II. FACTS AND PROCEEDINGS

Joshua and Christina Childs were married in Alaska in 2002. After dissolving their marriage in 2005, Joshua and Christina decided that Christina would have sole legal and physical custody of their two minor children. A December 2005 child support order required Joshua to pay Christina $540.85 per month in support for both children.

Joshua began serving in the United States Army in 2006. He served a tour of combat duty in Afghanistan from June 27 to September 30, 2011. After returning from Afghanistan, Joshua was stationed at Fort Polk in Louisiana.

On September 30, 2011, Christina filed a motion in the superior court to modify child support, contending that Joshua's income had increased and that an upward modification was warranted. Christina also submitted a child support guidelines affidavit in which she estimated that Joshua's monthly child support obligation should be $1,114.83. But she acknowledged in the affidavit that she did not know Joshua's actual income.

Because Christina failed to complete the certificate of service or sign the Notice of Motion to Change Custody, Support or Visitation,1 the superior court clerk promptly informed Christina that her notice was procedurally defective. On October 6, 2011, Christina completed a new copy of the motion, this time signing and completing the certificate of service.

Initially, Joshua did not file an opposition to the motion to modify. On November 4, 2011, the superior court issued an order informing Joshua that it planned to modify the standing child support order according to Christina's estimation of Joshua's income if Joshua did not file an opposition within ten days. Joshua responded by filing an opposition, which included a completed child support guidelines affidavit indicating that his monthly obligation should be $521.59. Joshua also submitted supporting documentation including pay stubs, W–2s, and tax returns. Although Joshua's initial opposition was determined by the superior court to be technically deficient, Joshua was given the opportunity to submit corrected documents, and he did so.

In his opposition, Joshua argued that the Basic Allowance for Housing that the military provided to him and his family in Louisiana should not be factored into a determination of his income because the allowance was not part of his take-home pay and instead went directly to offset the cost of housing. He also argued that he had not received any

[310 P.3d 958]

documents from Christina via certified mail, and that “[a]ll information ha[d] come directly through the United State[s] Post Office to [his] mailbox,” which he contended violated his right to due process. And he argued that he was protected by the Servicemembers Civil Relief Act from civil litigation while he was on active military duty.

On February 6, 2012, the superior court ordered modification of Joshua's child support obligation without first holding an evidentiary hearing. Under the new award, Joshua was ordered to pay Christina $901 per month in child support for both children. Joshua now appeals.

III. STANDARD OF REVIEW

We review a modification of child support for abuse of discretion, “which we will find only when, based on a review of the entire record, we are left with a definite and firm conviction that the trial court made a mistake.” 2 But a trial court's decision as to the proper method of calculating child support “is a question of law, which we review de novo, adopting the rule of law that is most persuasive in light of precedent, reason, and policy.” 3

We review a trial court's procedural decisions for abuse of discretion.4 But a trial court's decision not to hold an evidentiary hearing is subject to our independent review.5 And whether a trial court violated a party's due process rights is a question of law, which we review de novo.6

A trial court's interpretation of the provisions of the Servicemembers Civil Relief Act is a matter of law, which we review de novo using our independent judgment.7 We have not previously addressed the standard that governs the review of a trial court's decision whether to stay a proceeding under the Servicemembers Civil Relief Act. In Boone v. Lightner, the United States Supreme Court reviewed a trial court's decision not to continue a proceeding under the Soldiers' and Sailors' Civil Relief Act of 1940, the precursor to the Servicemembers Civil Relief Act, for abuse of discretion.8 We have also recognized that the abuse of discretion standard governs the review of a trial court's decision whether to stay a proceeding in other contexts.9 We therefore conclude that a trial court's decision whether to grant a stay under the Servicemembers Civil Relief Act is reviewed under the abuse of discretion standard.

IV. DISCUSSIONA. There Was No Violation Of The Servicemembers Civil Relief Act.

Joshua argues that he should not have been required to participate in this child

[310 P.3d 959]

support modification matter because he is a member of the military on active duty. But the Servicemembers Civil Relief Act, on which Joshua relies, does not preclude all civil actions against members of the military. The Act “provide[s] for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.” 10 Relevant to this appeal, the Act allows for an active duty servicemember to seek a stay of a civil action.11 If an active duty servicemember wishes to stay a proceeding, he or she can seek a stay in the superior court by complying with the specific requirements set out in § 522(b)(2) of the Act, which provides:

An application for a stay ... shall include the following:

(A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember's ability to appear and stating a date when the servicemember will be available to appear.

(B) A letter or other communication from the servicemember's commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.

Thus before issuing a stay under the Act, the trial court is required to consider whether a servicemember's ability to participate in a civil action would be materially affected by the servicemember's duties.12 Although our prior decisions relating to the Act have not dealt specifically with the requirements of § 522(b)(2), numerous courts, including the United States Supreme Court, have concluded that a servicemember invoking a stay under the Act must make a showing that the servicemember's rights or ability to present a defense would be materially affected by the servicemember's military duties. 13 A servicemember is not entitled to a stay simply by virtue of...

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13 practice notes
  • Healy Lake Vill. v. Mt. Mckinley Bank & Healy Lake Traditional Council, No. S–14987.
    • United States
    • Supreme Court of Alaska (US)
    • April 11, 2014
    ...the fiduciary is about to misappropriate the deposit are made to appear by the affidavit of the claimant. 9.See id. 10.Childs v. Childs, 310 P.3d 955, 958 (Alaska 2013) (citing Brotherton v. Warner, 240 P.3d 1225, 1228 (Alaska 2010)). 11.Parson v. Marathon Oil Co., 960 P.2d 615, 618 (Alaska......
  • Geldermann v. Geldermann, Supreme Court Nos. S-16381/16401
    • United States
    • Supreme Court of Alaska (US)
    • August 31, 2018
    ...v. Lashbrook , 957 P.2d 326, 328 (Alaska 1998) (quoting Wright v. Black , 856 P.2d 477, 480 (Alaska 1993) ).17 Childs v. Childs , 310 P.3d 955, 960 (Alaska 2013) (citing Fidler v. Fidler , 296 P.3d 11, 13 n.5 (Alaska 2013) ).18 Lashbrook , 957 P.2d at 328 (quoting Cushing v. Painter , 666 P......
  • Geldermann v. Geldermann, Supreme Court No. S-16381
    • United States
    • Supreme Court of Alaska (US)
    • August 31, 2018
    ...Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998) (quoting Wright v. Black, 856 P.2d 477, 480 (Alaska 1993)). 17. Childs v. Childs, 310 P.3d 955, 960 (Alaska 2013) (citing Fidler v. Fidler, 296 P.3d 11, 13 n.5 (Alaska 2013)). 18. Lashbrook, 957 P.2d at 328 (quoting Cushing v. Painter,......
  • In re Interest of K.M.B., No. 05-19-00591-CV
    • United States
    • Court of Appeals of Texas
    • July 20, 2020
    ...to the inclusion of military allowances for the purpose of calculating an obligor's child support obligation. See Childs v. Childs , 310 P.3d 955 (Alaska 2013) (father's military allowance for housing constitutes income for purposes of determining his child support obligation); In re Long ,......
  • Request a trial to view additional results
13 cases
  • Healy Lake Vill. v. Mt. Mckinley Bank & Healy Lake Traditional Council, No. S–14987.
    • United States
    • Supreme Court of Alaska (US)
    • April 11, 2014
    ...the fiduciary is about to misappropriate the deposit are made to appear by the affidavit of the claimant. 9.See id. 10.Childs v. Childs, 310 P.3d 955, 958 (Alaska 2013) (citing Brotherton v. Warner, 240 P.3d 1225, 1228 (Alaska 2010)). 11.Parson v. Marathon Oil Co., 960 P.2d 615, 618 (Alaska......
  • Geldermann v. Geldermann, Supreme Court Nos. S-16381/16401
    • United States
    • Supreme Court of Alaska (US)
    • August 31, 2018
    ...v. Lashbrook , 957 P.2d 326, 328 (Alaska 1998) (quoting Wright v. Black , 856 P.2d 477, 480 (Alaska 1993) ).17 Childs v. Childs , 310 P.3d 955, 960 (Alaska 2013) (citing Fidler v. Fidler , 296 P.3d 11, 13 n.5 (Alaska 2013) ).18 Lashbrook , 957 P.2d at 328 (quoting Cushing v. Painter , 666 P......
  • Geldermann v. Geldermann, Supreme Court No. S-16381
    • United States
    • Supreme Court of Alaska (US)
    • August 31, 2018
    ...Lashbrook v. Lashbrook, 957 P.2d 326, 328 (Alaska 1998) (quoting Wright v. Black, 856 P.2d 477, 480 (Alaska 1993)). 17. Childs v. Childs, 310 P.3d 955, 960 (Alaska 2013) (citing Fidler v. Fidler, 296 P.3d 11, 13 n.5 (Alaska 2013)). 18. Lashbrook, 957 P.2d at 328 (quoting Cushing v. Painter,......
  • In re Interest of K.M.B., No. 05-19-00591-CV
    • United States
    • Court of Appeals of Texas
    • July 20, 2020
    ...to the inclusion of military allowances for the purpose of calculating an obligor's child support obligation. See Childs v. Childs , 310 P.3d 955 (Alaska 2013) (father's military allowance for housing constitutes income for purposes of determining his child support obligation); In re Long ,......
  • Request a trial to view additional results

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