Martin v. Martin, No. S–14508.

CourtSupreme Court of Alaska (US)
Writing for the CourtWINFREE
Citation303 P.3d 421
Decision Date14 June 2013
Docket NumberNo. S–14508.
PartiesGregory C. MARTIN, Jr., Appellant, v. Melody C. MARTIN, Appellee.

303 P.3d 421

Gregory C. MARTIN, Jr., Appellant,
v.
Melody C. MARTIN, Appellee.

No. S–14508.

Supreme Court of Alaska.

June 14, 2013.


[303 P.3d 423]


Gregory C. Martin, Jr., pro se, Homer, Appellant.

No appearance by Appellee.


Before: FABE, Chief Justice, CARPENETI, WINFREE, and STOWERS, Justices.

OPINION

WINFREE, Justice.
I. INTRODUCTION

Five years after dissolving their marriage, the parents of two children sought to change or clarify aspects of their original decree. The superior court found circumstances had not changed sufficiently to modify the parties' custody agreement, but made changes to the visitation schedule. The superior court also ruled on child support, life insurance, the children's Permanent Fund Dividends, and attorney's fees. The father appeals. Because the superior court's child support award was erroneously calculated, and because the superior court linked its assignment of federal income tax deductions with the erroneous calculation of child support, we reverse those parts of the superior court's order and remand for renewed consideration. We affirm the superior court's rulings in all other respects.

II. FACTS AND PROCEEDINGS

Gregory and Melody Martin married in 1996 and had two children. They dissolved their marriage in 2006, when their children were seven and five years old. With their dissolution petition the couple submitted a detailed parenting agreement providing for joint legal and shared physical custody of the children. By the terms of the agreement, the children would be with Melody during the week and Gregory on weekends. For child support purposes, the parties calculated that Melody would have the children 70% of the time and Gregory would have them 30% of the time, although, based on computing three nights out of seven, their agreement was a 57%–43% shared custody arrangement. The parties agreed to “provide the children with visitation with the grandparents and extended family on their own side of the family ... during their custody time.” They agreed that Melody would apply for the children's Permanent Fund Dividends each year and place the money in an investment account and that Melody would claim the children on her federal income taxes each year.

In late 2010 the parties filed cross-motions to modify the child custody terms of their dissolution. Gregory alleged that he actually had exercised physical custody nearly 50% of the time and sought a change in the decree to reflect this. Melody countered that she had the children 58% of the time, but she also asked the court to modify the decree to give her some weekend time with the children.

The superior court held a hearing on the cross-motions in March 2011 and issued findings of fact and conclusions of law in May. The parties “struggled with interpreting the summer schedule set out by the court,” so

[303 P.3d 424]

the court clarified its rulings in an August 2011 order.

Gregory appeals.

III. STANDARD OF REVIEW

“The superior court has broad discretion in deciding child custody issues,” 1 including whether a proposed custody modification is in the children's best interests.2 We reverse the superior court “only if the record shows an abuse of discretion or if controlling factual findings are clearly erroneous.” 3 An abuse of discretion occurs when “the superior court considers improper factors in making its custody determination, fails to consider statutorily mandated factors, or assigns disproportionate weight to particular factors while ignoring others.” 4 “A factual finding is clearly erroneous if, after reviewing the record as a whole, we are left with a definite and firm conviction that a mistake has been made.” 5 Whether tax credits or other sources of income are included as income for purposes of Alaska Civil Rule 90.3 is a matter of law we review de novo.6 We review an award of attorney's fees for abuse of discretion,7 but “the determination of which statute or rule applies to an award of attorney's fees is a question of law that we review de novo.” 8

IV. DISCUSSIONA. The Superior Court Did Not Err In Modifying The Visitation Schedule.

The Martins' 2006 agreement was that Gregory would have custody of the children every weekend from Friday at 6:00 p.m. until Monday morning—three nights a week. This arrangement resulted in a 57%–43% physical custody division, but the Martins' child support calculation indicated a 70%–30% division.

In 2010 the Martins cross-moved for custody modification. Gregory argued the original order reflecting a 70%–30% physical custody division was incorrect and the computed division should have been 58%–42%. He contended he actually had custody 46% to 48% of the time during the prior three years and requested a custody modification providing an equal division, with each parent having the children in alternating weeks. Melody agreed the decree should be modified to reflect a 58%–42% division, but opposed Gregory's proposed modifications of the custody agreement. She argued Gregory had custody only 42% of the prior three years, as set forth in the 2006 Parenting Agreement. Melody requested modifications also, asking for custody two weekends each month and that weekends end on Sunday nights instead of Monday mornings.

The court held a hearing on the parties' motions in March 2011. In its May 2011 order the superior court stated that it was “concerned that a shared custody agreement may not be appropriate” because the Martins “disagree on many ... day-to-day issues and seem to be unable to discuss any of their issues appropriately or effectively.” Because it could not “see a way to make the children's lives any better,” the court felt “resigned to simply adjust and clarify the custody arrangement so as to minimize the need for

[303 P.3d 425]

contact between the parties.” The court concluded there had been no significant change in circumstances warranting a custody modification, and because the existing arrangement had worked for several years, the court decided to “maintain approximately the same division of time” but “reconsider the way in which that time is actually allocated.” During the school year, the court decided Melody should have custody one weekend each month, with that time being made up by awarding Gregory additional summer visitation.

After the superior court's ruling, Gregory contended that the court failed to divide custody in the same percentage that had developed between the parties. In August 2011 the court stated that its May 2011 decision had been an attempt “to fashion a schedule that was in the best interests of the children and which would reduce the number of encounters between parties who so plainly cannot get along.” The court declined to change the percentage of time each parent had the children because it considered the children's best interests and fewer encounters between the Martins to be “more important than any fractional advantage to one party or the other.” The court also decided that “[b]ecause [Gregory] has most of the summer, any days that both of the children spend overnight at camp shall be counted as part of the father's weeks.”

Gregory contends the superior court erred in finding no substantial change in circumstances yet modifying the visitation schedule in the parties' original parenting agreement. He argues the court “reduced” his custody in its order and also claims he is entitled to an equal custody division.

We conclude the superior court did not err in its order modifying the custody schedule. Alaska Statute 25.20.110(a) provides that “[a]n award of custody of a child or visitation with the child may be modified if the court determines that a change of circumstances requires the modification of the award and the modification is in the best interests of the child.” A party seeking custody modification must first make a prima facie showing that a significant or substantial change in circumstances has occurred “relative to the facts and circumstances that existed at the time of the prior custody order.” 9 However, “a lesser showing is required for a ‘change in circumstances' determination when a parent seeks to modify visitation rather than custody.” 10 The superior court could therefore properly modify the time-sharing schedule as set out in the parties' agreement yet find that Gregory had not made a sufficient showing to modify the underlying custody provisions of that agreement.

The superior court listed several factors that had not changed in the years since approval of the parties' dissolution agreement, and it consequently decided to “maintain approximately the same division of time.” This ruling was both legally and factually sound. But it also found a change in the visitation schedule would be in the children's best interests because of ongoing conflicts between the parents and the need to minimize contact between the parents. Under the superior court's May order, Gregory was awarded custody 42% of the time, and Melody was awarded custody 58% of the time. This division is very close to the parties' original agreement, and we see no abuse of discretion in the superior court's decision.

Gregory also argues the superior court erred in ordering that time spent at overnight summer camps should be counted as part of his time. We might agree with Gregory had the superior court's order unfairly allowed Melody to enroll the children in camps during Gregory's physical custody time. We do not read the order as allowing this, and we caution that neither party should commit the children to overnight camps during the other parent's physical custody period without the other parent's consent. The superior court appropriately fashioned a

[303 P.3d 426]

method for scheduling the children's summer activities, with the court to resolve any disputes, so it appears the superior court fashioned a method to promote a clear summer schedule for the children and minimize the risk of mid-summer scheduling conflicts.

B. The Superior Court Did Not Err In Declining To Grant...

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20 practice notes
  • Collier v. Harris, Supreme Court No. S–15748
    • United States
    • Supreme Court of Alaska (US)
    • August 12, 2016
    ...not be in Zada's best interests.33 Morino v. Swayman , 970 P.2d 426, 428 (Alaska 1999) (citing AS 25.20.110(a) ).34 Martin v. Martin , 303 P.3d 421, 425 (Alaska 2013) (quoting Collier v. Harris , 261 P.3d 397, 408 (Alaska 2011) ); see also Morino , 970 P.2d at 428 (“The change in circumstan......
  • Limeres v. Limeres, No. S–15489.
    • United States
    • Supreme Court of Alaska (US)
    • February 12, 2016
    ...v. Jordan, 984 P.2d 1, 3 (Alaska 1999) ).14 Id. (second alteration in original) (quoting Harrington, 984 P.2d at 3 ).15 Martin v. Martin, 303 P.3d 421, 424 (Alaska 2013) (citing McDonald v. Trihub, 173 P.3d 416, 420 (Alaska 2007) ).16 Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (quo......
  • Marshall v. Peter, Supreme Court No. S–16017
    • United States
    • Supreme Court of Alaska (US)
    • August 26, 2016
    ...1110, 1117 (Alaska 2009) ).11 Limeres v. Limeres , 367 P.3d 683, 686 (Alaska 2016) (footnote omitted) (first quoting Martin v. Martin , 303 P.3d 421, 424 (Alaska 2013) ; then quoting Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014) ).12 Id. at 686–87 (alteration in original) (quoting Po......
  • Villars v. Villars, No. S–15280.
    • United States
    • Supreme Court of Alaska (US)
    • October 31, 2014
    ...for a refundable tax credit for qualifying low-income wage earners).20 See 8 U.S.C. § 1183a(a)(1)(A) (2012).21 8 C.F.R. § 213a.1 (2014).22 303 P.3d 421, 427 (Alaska 2013) (concluding that an EITC received by one parent should not be considered “income” for purposes of calculating another pa......
  • Request a trial to view additional results
20 cases
  • Collier v. Harris, Supreme Court No. S–15748
    • United States
    • Supreme Court of Alaska (US)
    • August 12, 2016
    ...not be in Zada's best interests.33 Morino v. Swayman , 970 P.2d 426, 428 (Alaska 1999) (citing AS 25.20.110(a) ).34 Martin v. Martin , 303 P.3d 421, 425 (Alaska 2013) (quoting Collier v. Harris , 261 P.3d 397, 408 (Alaska 2011) ); see also Morino , 970 P.2d at 428 (“The change in circumstan......
  • Limeres v. Limeres, No. S–15489.
    • United States
    • Supreme Court of Alaska (US)
    • February 12, 2016
    ...v. Jordan, 984 P.2d 1, 3 (Alaska 1999) ).14 Id. (second alteration in original) (quoting Harrington, 984 P.2d at 3 ).15 Martin v. Martin, 303 P.3d 421, 424 (Alaska 2013) (citing McDonald v. Trihub, 173 P.3d 416, 420 (Alaska 2007) ).16 Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (quo......
  • Marshall v. Peter, Supreme Court No. S–16017
    • United States
    • Supreme Court of Alaska (US)
    • August 26, 2016
    ...1110, 1117 (Alaska 2009) ).11 Limeres v. Limeres , 367 P.3d 683, 686 (Alaska 2016) (footnote omitted) (first quoting Martin v. Martin , 303 P.3d 421, 424 (Alaska 2013) ; then quoting Limeres v. Limeres , 320 P.3d 291, 296 (Alaska 2014) ).12 Id. at 686–87 (alteration in original) (quoting Po......
  • Villars v. Villars, No. S–15280.
    • United States
    • Supreme Court of Alaska (US)
    • October 31, 2014
    ...for a refundable tax credit for qualifying low-income wage earners).20 See 8 U.S.C. § 1183a(a)(1)(A) (2012).21 8 C.F.R. § 213a.1 (2014).22 303 P.3d 421, 427 (Alaska 2013) (concluding that an EITC received by one parent should not be considered “income” for purposes of calculating another pa......
  • Request a trial to view additional results

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