Schuyler v. Briner, 5339

• Court: Supreme Court of Alaska (US)
• Parties: 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. BILLY C. SCHUYLER, f/k/a BILLY LEMON, Appellant, v. FLORENCE BRINER and STATE OF ALASKA, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellees.THE SUPREME COURT OF THE STATE OF ALASKA
• Decision Date: 01 December 2000
• Docket Number: 5339

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.

BILLY C. SCHUYLER, f/k/a BILLY LEMON, Appellant,
v.
FLORENCE BRINER and STATE OF ALASKA, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT DIVISION, Appellees.

No. 5339

THE SUPREME COURT OF THE STATE OF ALASKA

December 1, 2000

Supreme Court No. S-9460

Superior Court No. 3AN-96-7125 CI

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Michael L. Wolverton, Judge.

Appearances: Billy C. Schuyler, pro se, Clear, Appellant. Mary-Ellen Zalewski, Anchorage, for Appellee Briner. Mary A. Gilson, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee State of Alaska.

Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices.

OPINION

FABE, Chief Justice.

MATTHEWS, Justice, with whom CARPENETI, Justice, joins, concurring in part and dissenting in part.

I. INTRODUCTION

When the Child Support Enforcement Division (CSED) moved to increase Bill Schuyler's child support obligation, Bill opposed the proposed increase, arguing that he had worked additional overtime for the sole purpose of supporting his new family. He also requested a decrease in his child support and moved for a modification of his daughter's legal custody. The superior court increased Bill's child support and denied his request for a change in custody without holding a hearing. Because the commentary to Alaska Civil Rule 90.3 specifically contemplates that the court may consider overtime or extra jobs taken for the express purpose of providing for a new family, we remand to the superior court for consideration of this defense to a motion to increase support payments. But because Bill did not allege the special circumstances that would entitle him to a support reduction, we affirm the superior court's decision denying him a downward modification of support. And because Bill failed to demonstrate that awarding him sole legal custody would be in his daughter's best interests, we affirm the superior court's decision to deny Bill's request for a custody modification without a hearing.

II. FACTS AND PROCEEDINGS

Bill and Florence Lemon married in 1970 and had their daughter, Valerie, in 1983. Valerie was their only minor child at the time of divorce, but they had an older son, Billy Lemon, who is married and living in Anchorage.

Florence filed for divorce in September 1996. Bill answered, and the superior court entered a decree of divorce in June 1997. Pursuant to the Lemons' agreement, the court awarded sole legal and physical custody of Valerie to Florence, and awarded Bill visitation "as mutually agreed upon by the parties." The court also required Bill to pay $752.73 per month in child support pursuant to Civil Rule 90.3.

After Bill and Florence divorced, Bill met and married Candice Schuyler in 1998. Candice has two minor children living at home, Victoria and Sean, and one minor child in college, Kimberly. When Bill married Candice, he took her last name and is now known as Bill Schuyler. Florence is now known as Florence Briner.

In June 1999 Valerie decided that she wanted to live with her brother Billy and his wife in Anchorage. After discussing it with Billy and Valerie, Florence decided to allow Valerie to move in with them. Since June 1999, Valerie has spent most of her time with Billy and his wife in Anchorage, although Florence continues to keep "a close eye on things and stays in frequent contact with Valerie and Billy." Bill also supports Valerie's desire to live with her brother.

In addition, Florence has continued to assist Valerie financially and has passed Bill's child support payments on to Valerie's brother. For example, in June and July of 1999, Florence paid $200 for Valerie's driver's education training, $665 for her camps, $250 for volleyball fees, $476 for an airline ticket, plus additional money for clothing, shoes, photographs, and Valerie's SAT examination.

In September 1999 CSED moved for an upward modification of Bill's child support order based on its review of his income information. Bill opposed CSED's motion, cross-moved for a reduction in his child support payments, and moved for a custody modification.

In his motion to modify custody, Bill contended that Valerie's move into her brother's home constituted "a material change in circumstances and a violation of the parties' agreement." He requested a hearing to determine whether the court should modify custody, substituting Bill as the sole legal custodian. Citing Gallant v. Gallant,(FN1) he argued that because Valerie was living with a third party, "[c]ustody should be modified and Florence should be ordered to pay 20 percent of her income to child support." Florence opposed Bill's cross-motion for custody modification.

Superior Court Judge Peter A. Michalski denied Bill's motion to modify legal custody of Valerie, concluding that he had "failed in his pleadings to establish a significant change of circumstances justifying a modification or that a modification would be in the minor child's best interest."

With regard to child support, Bill opposed the upward modification motion and cross-moved for a reduction in his support obligation. He argued that his support obligation should not be increased because his rise in income was solely attributable to overtime worked in an effort to provide for his new family. He alleged that he took the additional overtime because he is the only source of income for his new family and that his stepchildren have exceptional medical and educational needs. He also used these circumstances to support his argument that his support obligation should be reduced.

The court did not address Bill's argument regarding the needs of his new family and ordered him to pay $919 per month in child support, pursuant to CSED's request. In addition, the court ordered Florence to pay Valerie's brother $267 per month for Valerie's support, and to pass all of Bill's child support payments on to Billy as well. Bill appeals.

III. STANDARD OF REVIEW

Bill appeals the superior court's order denying a hearing on his motion to modify custody. A court may deny such a motion "if it considers [the] motion and finds it plain that the facts alleged in the moving papers, even if established, would not warrant a change in custody."(FN2) We therefore review de novo a court's decision to deny a hearing on a motion to modify custody.(FN3) We will affirm if, in our independent judgment, "the facts alleged, even if proved, cannot warrant modification, or if the allegations are so general or conclusory, and so convincingly...