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Brotherton v. State, Dept. of Revenue, Child Support Services Div. ex rel. Brotherton

Supreme Court of Alaska

March 6, 2009

Douglas Wayne BROTHERTON, Appellant,
v.
STATE of Alaska, DEPARTMENT OF REVENUE, CHILD SUPPORT SERVICES DIVISION ex rel. Tahni BROTHERTON, Appellee.

Page 1207

Douglas Brotherton, pro se, Anchorage, Appellant.

Leroy K. Latta, Jr., Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.

Page 1208

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.

OPINION

FABE, Chief Justice.

I. INTRODUCTION

Douglas Brotherton appeals the superior court's November 2006 modification of Tahni Brotherton's child support obligation. He argues that the superior court erred in excluding from its calculation of Tahni's income her share of the divided marital real property. He also contends that Tahni's income did not justify the reduction in child support, that she was capable of earning more than she reported, and that the reduction represents an improper variance from Alaska Civil Rule 90.3. We conclude that the superior court properly excluded from its calculation of Tahni's income the value of Tahni's share of the divided marital real property. But the trial court's calculation of income should have included the portion of post-judgment interest attributable on a pro rata basis to 2006. We remand the case to the superior court for additional findings on Tahni's 2006 income.

II. FACTS AND PROCEEDINGS

Douglas and Tahni Brotherton married in 1981 and have two sons, born in 1988 and 1990. Tahni was initially awarded primary physical custody of the boys after the couple's 1995 divorce, but Douglas gained full custody in November 2004. After this shift, Tahni requested a variance from her Rule 90.3 child support obligation, claiming that her gross income was below the poverty line and that her obligation should be set at the $50 per month minimum or " manifest injustice would result." She also requested that the court average her income over several years to determine her child support obligation. The superior court was unpersuaded by Tahni's arguments, and in March 2005 it set Tahni's child support obligation at $426.67 per month for both boys.

Douglas's relationship with the children became strained and on October 16, 2005, Douglas sent them to stay with their maternal uncle and his wife, Douglas Warner and Pamela Neiswanger (the Warners), " to cool off for a couple of months." Tahni's child support obligation to Douglas, paid through the Child Support Services Division (CSSD), continued, but Douglas paid the Warners $500 per month for boarding the boys. Tahni also made a one-time $500 payment to the Warners in October 2005. In December 2005 Tahni paid off her child support arrears to Douglas through CSSD. The Warners then sent a letter to Douglas requesting that he forward them the $426.67 per month he was receiving in child support from Tahni through CSSD, retroactive to November 2005, in addition to his $500 per month direct payments. Douglas refused and retrieved the boys from the Warner household on March 18, 2006.

The return to Douglas's household had a particularly deleterious effect on the younger son, whose emotional health suffered over the years of his parents' protracted custody and child support battles. Dr. David Sperbeck, a psychiatrist who evaluated both boys, noted that the younger boy had contemplated suicide several times and that he " stated that he would rather die" than continue to experience the conflict between his parents. In accordance with the child's wishes, the Warners moved to intervene and take custody of the younger son in April 2006.[1] In a June 2006 stipulated order the parties agreed that custody of the child would be transferred to the Warners until further order of the court, and that Douglas and the Warners would engage in mediation to consider long-term custody.

After a settlement conference, the parties stipulated to an award of custody of the younger boy to the Warners. The stipulation, which was entered as an order by the superior court on September 11, 2006, provided that Douglas would continue to pay the Warners $500 per month and that Douglas would instruct CSSD to direct half of Tahni's monthly child support payment to the Warners. Although the stipulated order varied from the standard child support procedures directed by Civil Rule 90.3 for third-party

Page 1209

custody of fewer than all the children, it was deemed necessary due to the unusual circumstances of the case.

Several months earlier, in June 2006, Tahni had contacted CSSD and requested that the March 2005 order be modified to decrease her child support obligation. She included her 2006 child support guidelines affidavit, a schedule detailing her 2006 income estimate, her 2005 tax return, and pay stubs from her three 2006 employers. Her June estimate of gross income for 2006 was $20,000. In September she supplemented her affidavit, decreasing her 2006 gross income estimate to $16,000 based on the loss of her job. CSSD reviewed the information provided by Tahni, and in October it calculated her obligation to be $294 per month for both children, retroactive to July 1, 2006, and filed a motion to decrease Tahni's child support obligation to that amount.

Also in October 2006 Tahni filed with the superior court a notice that Douglas had paid her in full for her share of the marital real property divided in their 1995 divorce (the Wasilla property), after resolution of all litigation on appeal and remand.[2] Douglas had been ordered to pay $15,600 plus interest at 10.5 percent per annum, effective from the date of the divorce decree, April 18, 1995, until the date of payment, to compensate Tahni for her share. On October 16, 2006, he paid $34,417.50, which included $18,817.50 in post-judgment interest.[3]

The court granted CSSD's motion to decrease Tahni's obligation to $294 per month. But due to " mailing irregularities," Douglas did not receive CSSD's motion to modify and reduce Tahni's child support obligation until after the court had granted it. On November 14, 2006, the day after the superior court's order modifying support, Douglas requested an extension of time to file an opposition to the modification motion. The court granted that request on November 17, but after Douglas informed the court of the service problem with the original motion and requested clarification in light of the fact ...


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