Christopher D. v. Krislyn D., Supreme Court No. S-16586

• Court: Supreme Court of Alaska (US)
• Writing for the Court: MAASSEN, Justice.
• Decision Date: 21 September 2018
• Parties: CHRISTOPHER D., Appellant and Cross-Appellee, v. KRISLYN D., Appellee and Cross-Appellant.
• Docket Number: No. 7303,Supreme Court No. S-16586,Supreme Court No. S-16626

CHRISTOPHER D., Appellant and Cross-Appellee,
v.
KRISLYN D., Appellee and Cross-Appellant.

Supreme Court No. S-16586
Supreme Court No. S-16626
No. 7303

SUPREME COURT OF THE STATE OF ALASKA

September 21, 2018

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email corrections@akcourts.us.

Superior Court No. 4FA-14-01381 CI

OPINION

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Michael P. McConahy, Judge.

Appearances: Margaret O'Toole Rogers, Foster & Rogers, LLC, Fairbanks, for Appellant and Cross-Appellee. Daniel L. Callahan, Callahan Law Office, Fairbanks, for Appellee and Cross-Appellant.

Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger, Justices. [Carney, Justice, not participating.]

MAASSEN, Justice.

I. INTRODUCTION

Following a protracted custody dispute, the superior court awarded the mother primary physical custody of a couple's two children and ordered the father to pay child support. Both parents appeal. The father contends that the superior court abused

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its discretion when it refused to vary his child support obligation pursuant to the "good cause" exception of Alaska Civil Rule 90.3(c)(1), given the parents' disparate incomes and the expenses the father was incurring to comply with conditions on his visitation. The mother contends that the superior court erred in setting the child support order's effective date.

We conclude that the superior court did not abuse its discretion by denying a "good cause" variance because the evidence did not support it. But it was error not to expressly consider child support for the period between the parties' separation and the order's effective date. We remand the child support issue for further proceedings consistent with this opinion.

II. FACTS AND PROCEEDINGS

Christopher D. and Krislyn D. were married in 1996 and have two minor children.¹ Christopher was a city police officer and Krislyn was a veterinarian who owned her own practice. The couple separated in January 2014 after Christopher allegedly committed an act of domestic violence while under the influence of alcohol. In February Krislyn filed a complaint for legal separation, which was later converted to a divorce. Both her complaint and Christopher's answer asked that child support be set pursuant to Alaska Civil Rule 90.3. The superior court approved an interim custody schedule by which Krislyn had custody of the children 9 of every 14 nights on an alternating two-week schedule. Neither party pursued a request for child support until the custody trial over two years later.

Christopher resigned from the police force in August 2014, and the parties briefly reconciled. But in November they separated again, this time for good, following another alleged incident of domestic violence fueled by alcohol.

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In January 2015 Christopher was arrested for driving under the influence and possessing a firearm while intoxicated. In the divorce case the court approved the parties' stipulation to a temporary custody order which, among other things, reestablished the alternating two-week custody schedule, prohibited Christopher from driving with the children, and required him to submit to blood alcohol testing at Krislyn's request. A custody investigation was delayed because of Christopher's pending criminal charges, which in turn delayed the trial.

The parties settled their property issues in October 2015, but permanent custody remained to be decided. A few weeks later Christopher was arrested for driving under the influence, reckless endangerment, violating conditions of release, and resisting arrest, and Krislyn moved for modification of the temporary custody order. The court granted her motion in December: its order granted Krislyn sole legal and physical custody, conditioned Christopher's contact with the children on his wearing an ankle monitor, and required that his visitation be supervised by a third party. Christopher sought treatment for substance abuse and in March 2016 graduated successfully from a chemical dependency program. He wore the ankle monitor as required for visitation and continued with therapy. His pending criminal charges were ultimately resolved by a plea agreement.

A custody trial was scheduled for November 2016. Krislyn asked for child support effective November 1, 2015, the month after entry of the property settlement and divorce decree, on grounds that "[p]rior to entry of the Decree of Divorce, there was an informal interim financial arrangement . . . regarding on-going joint expenses such as . . . child support," and the decree "settled any potential claim by either party in regard to interim financial matters, including child support." Christopher asked that his child support obligation be waived pursuant to the "good cause" exception of Civil

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Rule 90.3(c)(1), citing the disparity between his income and Krislyn's and the ongoing expenses of his therapy and the court-ordered conditions on visitation.

In December 2016 the superior court issued written findings of fact and conclusions of law, a custody decree, and a child support order. The court adopted the parties' agreement that Krislyn continue to have sole legal and primary physical custody. It found that Christopher had successfully maintained sobriety for at least six months, but it approved his proposals — also recommended by the custody investigator — that he continue to engage in "an after-care program regarding his alcohol abuse and addiction," complete a parenting class, undergo a psychological evaluation and follow all its recommendations, and keep Krislyn informed of his progress in all these areas. But the court released Christopher from both the ankle-monitor condition on contact with the children and the third-party supervision requirement, allowing his father and his significant other to act as visitation supervisors.

The court also ordered Christopher to pay child support pursuant to the formula of Civil Rule 90.3. The court denied Christopher's request for a variance, concluding that "[d]isparity of earning potential does not, in this case, obviate the need for support to be calculated pursuant to Civil Rule 90.3." The child support order provided that Christopher's payments were to commence the next month, on January 1, 2017.

Both parties timely appealed. Christopher challenges the superior court's refusal to apply a variance to his child support obligation to reflect his ongoing expenses and the parties' disparity of income. Krislyn challenges the court's selection of the child support order's effective date.

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III. STANDARD OF REVIEW

" '[W]e reverse child support awards only if the superior court abused its discretion or applied an incorrect legal standard,' or if 'its factual findings are clearly erroneous.' "² "A superior court abuses its discretion by making a decision that is arbitrary, capricious, manifestly unreasonable, or . . . stem[s] from an improper motive."³ "Abuse of discretion occurs when a trial court fails to consider statutorily mandated factors, weighs factors improperly, or includes improper factors in its decision."⁴

"We review de novo the trial court's determination of the inception date for a child support obligation."⁵

IV. DISCUSSION

A. The Superior Court Did Not Abuse Its Discretion By Declining To Vary Christopher's Child Support Obligation Pursuant To The "Good Cause" Exception Of Civil Rule 90.3(c)(1).

Christopher contends that the superior court abused its discretion when it refused to vary his child support obligation pursuant to the "good cause" exception of Civil Rule 90.3(c)(1). In support of this argument he contends that Krislyn's earning capacity — which he asserts is over twenty times his own — "is more than adequate by itself to provide for the children's needs"; that the amount he is required to pay under the child support order therefore "significantly exceeds the amount of the children's

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reasonable needs"; and that his contribution "provides little more than a token benefit to the children." Christopher further asserts that the substance abuse aftercare, parenting classes, and other court-ordered visitation conditions "cost a substantial investment of both time and money" and that he cannot afford to pay child support while also bearing these costs and the expenses of daily living.

"The superior court may vary a support award calculated under Rule 90.3 only 'for good cause upon proof by clear and convincing evidence that manifest injustice would result if the support award were not varied.' "⁶ "Good cause may include a finding that unusual circumstances exist which require variation of the award in order to award an amount of support which is just and proper for the parties to contribute toward the nurture and education of their children."⁷ To justify a good cause variation, a finding of unusual circumstances must be followed by a finding that "these unusual circumstances make application of the usual formula unjust."⁸

We conclude that the superior court did not abuse its discretion when it found that the parties' disparity in income did not justify a good cause variation. We observed in Laughlin v. Laughlin that "[i]t is not unusual for one spouse to have a greater income than the other."⁹ The disparity in Laughlin was much less dramatic than it is

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here, however;¹⁰ assuming, therefore, that this case presents "unusual circumstances" because of the parties' respective incomes, the question remains whether "these unusual circumstances make application of the usual formula unjust."¹¹

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