Daum v. Daum, Supreme Court No. S-17835

• Docket Number: Supreme Court No. S-17835
• Decision Date: 14 October 2022
• Parties: Mark DAUM, Appellant, v. Kimberly DAUM, Appellee.
• Court: Alaska Supreme Court

518 P.3d 718

Mark DAUM, Appellant,

v.Kimberly DAUM, Appellee.

Supreme Court No. S-17835

Supreme Court of Alaska.

October 14, 2022

Wayne Anthony Ross, The Law Office of Wayne Anthony Ross, Anchorage, and Rhonda F. Butterfield, Wyatt & Butterfield, LLC, Anchorage, for Appellant.

Jimmy E. White, Hughes White Colbo & Tervooren, LLC, Anchorage, for Appellee.

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

OPINION

MAASSEN, Justice.

I. INTRODUCTION

A couple separated after three years of marriage. They had a son who was later diagnosed with several mental disabilities

. The father paid child support until the son turned 19; when the son was in his twenties the father filed for divorce. The superior court entered a divorce decree and ordered the father to pay post-majority child support, finding that the son was unable to support himself by reason of his disability. The father appeals, arguing that the superior court lacked jurisdiction and the statutory authority to order post-majority support and that the court abused its discretion by ordering him to pay the entirety of the son's living expenses.

We affirm the superior court's exercise of jurisdiction and authority to issue the support order. However, because of an inconsistency in the support order's application, we remand it to the superior court for reconsideration of whether the father's support obligation — 100% of the son's living expenses — represents a fair percentage.

II. FACTS AND PROCEEDINGS

A. Facts

Mark and Kimberly Daum married in Anchorage in 1994 and in 1996 had a son, Nathan. The couple separated in 1997, and Kimberly moved with Nathan to Ohio. Kimberly has been Nathan's primary caretaker since the move. Nathan was diagnosed with Asperger's syndrome

at age seven; at age 18 he was diagnosed with autism spectrum disorder, attention-deficit/hyperactivity disorder, and oppositional defiant disorder. Mark, who remained in Alaska, paid child support pursuant to an administrative order issued by the Alaska Child Support Services Division (CSSD) until Nathan turned 19.

B. Proceedings

Mark filed for divorce in 2018, when Nathan was 22. Kimberly counterclaimed for child support for Nathan. The superior court held a trial in October 2019.

Both Mark and Kimberly testified, along with Kimberly's mother. Testimony largely focused on Nathan's needs as they related to his ability to live independently and support himself. Kimberly testified that Nathan had held a seasonal, part-time job as a rides operator at an amusement park for five years, earning approximately $12,000 per year. She testified that although Nathan continued to live with her, he did not pay her "for any utilities or bills or cell phones" or "anything like that"; instead, she paid "for all of the living expenses." She added that she and Nathan both contributed toward maintenance and insurance for a car Nathan used, but he spent his own income "mostly" on eating out.

Kimberly and her mother testified about various tasks Nathan struggled with and the ways Kimberly assisted him with those tasks. According to Nathan's grandmother, he needed prompting and help doing laundry, going to doctor's appointments and the grocery store, and keeping the house clean. Kimberly testified that she had to wake Nathan up in the morning to remind him to go to work. She testified that she made Nathan's doctor's appointments and had "to get him up and ready and out the door to ... be able to get to his appointment on time." There was also testimony about an unsuccessful attempt Nathan made to live on his own through a charity-funded housing program.

Mark and Kimberly both testified about their income and earning potential. Kimberly reported her adjusted gross income in 2017 and 2018 as $6,159 and $7,806, respectively. She testified that she performed a variety of side jobs, such as helping an elderly woman with daily tasks, holding garage sales, and "scrapping when [her] body [felt] like it," to make ends meet. She also testified that she had fibromyalgia

that required her to have a "sit-down job" and that she sometimes needed help at work if she was "having a bad day." Mark testified that he had been employed by the same company for the past 26 years and expected to remain there indefinitely. He testified that his average annual salary was approximately $60,000.

The superior court issued a divorce decree soon after trial. The court initially held off on addressing any potential post-majority child support for Nathan, questioning whether it retained subject matter jurisdiction decades after Kimberly and Nathan's 1997 move to Ohio. But after the parties filed supplemental briefing on the issue, the court agreed with Kimberly that it had jurisdiction to issue a support order, and it issued an order requiring Mark to reimburse her for Nathan's care.

The court found that Nathan had "significant impairments" that he would have "for life" and that his "mental disability

(autism ) ... [made] it impossible for him to fully take care of himself as an adult." The court explained that although Nathan was "capable of earning approx. $12,000/yr working at an [amusement] park," he was "dependent on housing, food, and care, including prompts and coaching, that [were] provided by [Kimberly], to help him get to work, remember his appointments, and take care of the normal activities of daily living."

In a separate decision addressing the allocation of marital debts and assets, the court found that Mark's income was at least $60,000 per year while Kimberly earned approximately $27,000 per year.

The support order required Mark to pay $1,065 per month in child support beginning December 1, 2019. The court found that "this amount reasonably reimburse[d] [Kimberly] for a fair percentage of the funds actually spent on caring for Nathan." In arriving at that amount, the court accepted as evidence a list that Kimberly provided of tracked average monthly expenses for both herself and Nathan over a three-month period for rent, utilities, phone service, and groceries. Nathan's half of those expenses averaged $1,065. The court also found that

[t]he evidence at trial indicated Nathan earns about $12,000 annually. What is not clear, however, is the extent to which he contributes any of his earnings toward household expenses. Assuming that he does, [Mark] should receive a reduction of 50% of the amount Nathan contributes. (The [$1,065 monthly support award] assumes zero contribution from Nathan.)

Finally, the court provided that the child support award "may be adjusted every 12 months to take into account Nathan's earnings, his own contributions toward household expenses, and any new services or financial assistance he receives."

Mark appeals.

III. STANDARD OF REVIEW

"We review jurisdiction issues de novo."¹ "In conducting de novo review, we will ‘adopt the rule of law that is most persuasive in light of precedent, reason, and policy.’ "²

"Findings of fact are reviewed for clear error," and "[w]e will not reverse such determinations unless left with a ‘definite and firm conviction that a mistake has been made.’ "³ "[W]hether the trial court applied the correct legal rule ... is a question of law that we review de novo using our independent judgment."⁴ "Where a question of law is not involved, however, a superior court has ‘broad discretion in making child support determinations’; we review those decisions for abuse of discretion."⁵

IV. DISCUSSION

A. The Superior Court Did Not Err By Concluding It Had Jurisdiction To Order Child Support For Nathan.

Under 28 U.S.C. § 1738B(d), "[a] court of a State that has made a child support order ... has continuing, exclusive jurisdiction over the order if the State is the child's State or the residence of any individual contestant." This principle has its counterpart in Alaska law:

A tribunal of [Alaska] that has issued a child support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order and, ... at the time of the filing of a request for modification, this state is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued.^{[6 ]}

Mark argues that Alaska lost jurisdiction to order child support when Nathan turned 19 and the original child support order issued by CSSD expired by its terms. He also argues that the superior court lacked jurisdiction over Nathan because Alaska is not Nathan's home state.⁷

We hold that the superior court had continuing, exclusive jurisdiction to modify the support order despite the fact it had lapsed. The statutory requirements for continuing, exclusive jurisdiction are met. CSSD is an Alaskan "tribunal"; its original order was issued pursuant to Alaska law; and the superior court has the authority to modify a CSSD child support order.⁸ No other support orders had superceded the CSSD order. And Mark — "the obligor" — continued to live in Alaska following the separation and was a resident of Alaska at the time Kimberly asked that the order be modified.

We also hold that Kimberly's request for post-majority support is correctly characterized as a modification of the original child support order, rejecting the argument that an "expired order" cannot be modified.⁹ Federal law defines a "modification" in the context of child support orders as "a change ... that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order."¹⁰ Kimberly requested a change subsequent to the original child support order that would affect the order's duration. We agree with the superior court that it had jurisdiction pursuant to AS 25.25.205(a) to entertain Kimberly's request.

B. The Superior Court Did Not Err By Concluding It Had Authority To Order Support For Nathan As A Disabled Adult Child.

We concluded in Streb v. Streb that courts in divorce...