Opinion
Supreme Court No. S-13619.
April 27, 2011.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge, Superior Court No. 3AN-06-05696 CI.
Appearances: John C. Pharr, Law Offices of John C. Pharr, Anchorage, for Appellant. Gayle J. Brown, Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Alaska Appellate Rule 214.
1. This is the second appeal arising from Susan and Clifton Tillmon's divorce proceedings. The first appeal was resolved in an opinion reported at 189 P.3d 1022 ( Tillmon I.) Both before and after this court resolved the issues raised in Tillmon I, the superior court faced a steady stream of disputes about child custody and support. These disputes are outlined below only as necessary to address the issues on appeal.
Tillmon v. Tillmon ( Tillmon I), 189 P.3d 1022 (Alaska 2008).
2. The Tillmons have four children. Their oldest daughter — who had moved in with Clifton in the fall of 2006 — returned to live with Susan in the spring of 2007. Accordingly, in the fall Clifton sought a reduction in his monthly child-support payment, and Susan sought the corresponding increase in the spring. Susan filed a motion requesting modification of child support on May 1, 2007.
3. In the spring of 2007, the superior court also entertained a related dispute about the amount of child-care expenses that the Tillmons incurred each month. The superior court held a hearing in August 2007 during which it addressed disputes about child support, visitation, and child care.
Work-related child-care expenses are deducted from the obligor's income before the obligation is calculated. See Alaska R. Civ. P. 90.3(a)(1)(E); Tillmon I, 189 P.3d at 1025 n. 3 ("[A]ctual reasonable child care expense necessary to enable the parents to work should be deducted when calculating parents' incomes for child support purposes[.]" (citing Duffus v. Duffus, 72 P.3d 313, 319-20 (Alaska 2003))).
4. Disagreements about child support continued to come before the superior court the following summer when Clifton was scheduled to leave Alaska on military orders. At a hearing in June 2008, the superior court ordered Clifton to pay child-support arrears before relocating to Japan.
5. In July 2008, we published Tillmon I, resolving, among other issues, a dispute about child-support calculations. We remanded for the superior court to "ensure that its . . . child support calculations accounted for Clifton's allowable deductions." O n remand, the superior court ordered the parties to contact the court to schedule a hearing if, within 30 days, they could not coordinate a resolution consistent with our decision. The parties exchanged emails in the fall of 2008, but they could not come to an agreement on all the relevant issues. They sought the superior court's intervention.
Id.
6. Throughout this time, the parties continued to present the court with various documents and arguments concerning the proper calculation of income and deductions.
Clifton had submitted proposed child-support calculations to the superior court in June 2008 before leaving for Japan. In August, he filed new calculations and a motion to modify support based on an alleged decrease in his income. In September, Susan filed a motion for modification of child support based on an alleged increase in Clifton's income.
7. Despite the flood of paperwork, it appears the superior court had little evidence upon which to base updated child-support calculations. The parties offered contrary allegations about Clifton's income in Japan and the appropriate level of deductions, but the support for their claims was limited. For example, the parties provided no testimony about Clifton's level of income and deductions while in Japan.
8. In July 2009, the superior court set out to apply our remand instructions and address the outstanding disputes. It entered an omnibus order detailing the child-support obligations from February 2006 forward.
9. The superior court set ongoing child-support payments at $1,816.12, effective June 1, 2007. The ongoing support obligation appears to reflect the fact that all four children have been in Susan's custody since the spring of 2007.
10. Susan appeals this order. She challenges the effective date and amount of the ongoing child-support obligation.
11. Susan argues that the ongoing obligation should be effective as of May 1, 2007, and that she is owed an additional $603.05 for the month of May. Susan points out that on May 1, 2007, she filed the motion for modification of support based on the fact that the oldest daughter had returned to live with Susan. The record reflects that Susan served Clifton by mail on the same day she filed her motion. In an order issued August 14, 2007, the superior court set May 1, 2007, as the effective date of the modified child-support obligation; this order was superseded by the July 2009 order that is now on appeal. In the order that is now on appeal, the superior court set June 1, 2007, as the effective date of the modified child-support obligation. We have explained that the effective date of a child-support modification is presumptively the date of service of the motion for modification; the superior court may select a different effective date if it finds good cause for doing so. Because we are unable to discern the superior court's reasoning for setting June 1, 2007, as the effective date of the ongoing child-support obligation, we remand this issue to the superior court for either imposition of May 1, 2007, as the starting date of the ongoing obligation or explanation as to why May 1, 2007, should not be used.
Tillmon I, 189 P.3d at 1029-30 (citing Boone v. Boone, 960 P.2d 579, 585 (Alaska 1998)).
12. Susan challenges the superior court's decision to set the ongoing child-support payments at $1,816.12 per month. She presents alternative arguments. Susan first argues that the superior court should have let stand an earlier order that set ongoing child-support payments at $2,038 per month. We are not persuaded by this argument because, as the appellee points out, the proposed obligation of $2,038 does not take into consideration required deductions for child-care and retirement expenses.
13. In the alternative, Susan argues that the superior court relied on outdated evidence in setting the level of ongoing child support. She notes that "Mr. Tillmon himself calculated his ongoing child support at $1,839.60 per month." This amount appears to be based on work-related child-care expenses of $350 per month, while the level of support in the current order, $1,816.12, appears to be based on child-care expenses of $391 per month. It is within the superior court's authority to resolve factual disputes about the amount of income and value of deductions based on the evidence in the record. In this case, the superior court is entitled to decide whether $350 or $391 more accurately represents the level of child-care expenses incurred after the oldest daughter returned to live with Susan. However, we are unable to identify the reason why the superior court used the higher figure for child-care expenses, if it did in fact use this figure, and how it calculated the ongoing level of support at $1,816.12. Accordingly, we remand for the superior court to address this issue.
14. In addition, Susan argues that the superior court "exceeded the scope of the remand" in Tillmon I. Because she fails to explain how the superior court disobeyed this court's mandate, we reject this argument.
IT IS SO ORDERED.