Mason v. Lewis
| Docket Number | S-18349 |
| Decision Date | 21 June 2023 |
| Parties | DARON D. MASON SR., Appellant, v. TOCCARA LEWIS, f/k/a Tocarra Johnson and Tocarra McDowell, Appellee. |
| Court | Supreme Court of Alaska (US) |
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court of the State of Alaska, Third Judicial District, No. 3AN-18-09704 CI Anchorage, Gregory Miller, Judge.
DaRon D. Mason, Sr., pro se, Kissimmee, Florida, Appellant.
D Patrick Phillip, Carlson Law Group, LLC, Anchorage, for Appellee.
Before: Winfree, Chief Justice, Maassen, Carney, Borghesan and Henderson, Justices.
The superior court, following an evidentiary hearing, issued a child support order based largely on a finding that the father, the obligor parent, had over the preceding six years earned regular income from buying and selling residential properties. The father contends this was error; he argues that the real estate transactions were simple home sales made necessary by family moves from state to state, and any gains from them were incidental. He also asserts that the superior court erred in some of the numbers it used when calculating his capital gains and in the application of the capital gains tax.
We conclude that the superior court did not clearly err in deciding that the father's real estate gains were income for child support purposes, and we affirm that aspect of the court's order. However, we remand due to a few numerical and calculation errors the court should reconsider.
A. Facts
DaRon D. Mason, Sr. and Toccara Lewis are the unmarried parents of a 12-year-old son. The parties agree that Mason owes child support as of February 15, 2021, but they disagree on the amount.
The superior court held an evidentiary hearing on the issue in May 2021. Mason testified that he was unemployed, supported himself with his savings, and last held a job in January 2020 as a retail worker at Lowe's, working 20 hours a week at $15 an hour. He explained that he purchased his current home in Florida, where he lives with his youngest son, with cash just before leaving his job at Lowe's. He claimed to be looking for more part-time work, though not actively. At several points during Mason's testimony the judge urged him to submit whatever documentation, including tax returns, he might have to support his income-related arguments, reminding both parties that he could only "make the best decisions . . . based on the information in front of [him]."
Lewis testified that she believed Mason owned two homes in Florida. She believed he lived in one of them and in the other was "doing what he's been doing the past couple years, which is buying a property and then fixing it up and selling it for profit." She predicted that Mason's tax returns would reveal real estate sales as his main source of income, given that "[h]e does not have any wages income."
Mason then called the court's attention to a 2018 child support order in a case involving his other son; he asserted that Lewis and the other's son's mother were "working in cahoots" to claim, falsely, that he was making money as "a fixer-flipper." He testified that any money he made on property sales was simply the unavoidable consequence of his moves from state to state. When the court asked him to address the fact that he currently owned two houses in Florida, Mason explained that he had purchased the second about a year earlier for $170,000 in cash. He said it was a "family house" for hosting family and friends, and he planned to eventually pass it on to his younger son. The court ordered him to "produce, file, and serve[] documents as to the purchase of that house."
At the end of the hearing the court ordered both parties to submit their complete 2019 and 2020 tax returns. Lewis complied; Mason submitted a complete 2020 return but a partial 2019 return. The court followed up with an order in August requiring Mason to file "at least the following" information for the period January 1, 2019 to August 10, 2021:
a notarized affidavit . . . that clearly states how he supports himself and his family; a list of all jobs he has held for [that] period; a list of any jobs he has applied for but not received during this period; his complete 2019 and 2020 tax returns, including all schedules; all real estate settlement statements of all properties he has bought and/or sold during this period; for this same period, copies of any lease agreements for any real property he is or has either lived in or rented to anyone; and, any other documents he cares to submit.
In response, Mason provided a letter confirming his receipt of veteran's benefits, a settlement statement and closing disclosure for the sale of one property in Anchorage, and an audit of the child support he received from the mother of his other son. In the court's view, however, Mason "largely failed to provide the explanations and/or evidence [the] court requested."
In December the superior court entered a final child support order in which it calculated Mason's child support obligation to be $1,106.77 per month. To arrive at this figure, the court used the information in the case file to create a spreadsheet that "shows the various houses that Mr. Mason has purchased/sold, and the gain/loss on each." The spreadsheet showed that Mason purchased seven houses between 2006 and 2020 and sold five between 2016 and 2019; he still owned two. The properties' locations and their years of purchase and sale are as follows:
Location
Purchase Year
Sale Year
West 45th Ave., Anchorage
2006
2016
North Klevin St., Anchorage
2011
2016
North Park St., Anchorage
2016
2018
Mast Circle, Anchorage
2018
2019
Nine Mile Rd., Oak Park, MI
2012
2019
Brewster Dr., Kissimmee, FL
2019
Chapman Oak Ct., Kissimmee, FL
The court calculated the average gain per year from Mason's property transactions, subtracted an estimated capital gains tax, and added Mason's yearly veteran's disability benefit. The result was a total adjusted annual income of $61,006.42. From this the court concluded that Mason owed Lewis $1,106.77 per month in child support beginning March 1, 2021.
Mason filed three motions for reconsideration. To the first motion he attached a copy of the 2018 child support order from the case involving his other child; the order included a finding that Mason's capital gains from the sales of the 45th Avenue and Klevin Street properties were "not a regular source of income." To the second motion Mason attached his 2016-18 tax returns, the settlement statement for the Oak Park property, the settlement statement and disclosures for the Mast Circle property, and closing statements for the 45th Avenue, North Park, and Klevin Street properties. The superior court denied both of these motions for reconsideration on grounds that, among other things, they impermissibly attempted to introduce new evidence.
Mason then filed his third motion for reconsideration, which asked the court to "re-review and apply the appropriate mandatory federal tax deduction" and to provide documentary support for its capital gains calculations. The court denied this last motion because it in effect sought reconsideration of the denial of a motion for reconsideration, which "is not permitted by the Alaska Rules of Civil Procedure."
Mason appeals the court's child support order.
"The superior court has 'broad equitable powers' to fashion a child support award."[1] The "broad definition" of "adjusted annual income" in Alaska Civil Rule 90.3(a)(1) gives the superior court" 'broad discretion' in deciding whether certain funds should be included in income for Civil Rule 90.3 purposes."[2] And generally "a trial court is granted discretion to choose 'the best indicator of . . . future earning capacity.' "[3] "We review factual findings regarding a party's income when awarding child support for clear error."[4] Under this standard, we will reverse the trial court's conclusion only if "review of the entire record leaves us 'with a definite and firm conviction that a mistake has been made.' "[5] "We give 'particular deference' to the trial court's factual findings when they are based primarily on oral testimony, because the trial court, not this court, performs the function of judging the credibility of witnesses and weighing conflicting evidence."[6]
Whether something "qualifies as income for the purposes of Rule 90.3 is a question of law that we review de novo, adopting the rule that 'is most persuasive in light of precedent, reason, and policy.' "[7] "Whether the superior court used the correct method of calculating child support and whether it applied the correct legal standard in calculating child support pose[] questions of law we review de novo."[8]
Under Rule 90.3 "[a] child support award in a case in which one parent is awarded primary physical custody" is calculated based on less certain allowable deductions.[9]
The Rule's official commentary provides that the phrase" 'parent's total income from all sources' should be interpreted broadly to include benefits which would have been available for support if the family had remained intact."[10] In this context, income "includes, but is not limited to," "capital gains in real and personal property transactions to the extent that they represent a regular source of income."[11]The commentary recognizes that because child support...
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