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Douglas W. Brotherton v. Douglas Warner and Pamela J. Neiswanger


October 8, 2010


Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge. Supreme Court No. S-13541 Superior Court No. 3AN-94-01210 CI

The opinion of the court was delivered by: Christen, Justice.

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, e-mail


Before: Fabe, Winfree, Christen, and Stowers, Justices. [Carpeneti, Chief Justice, not participating.]


Douglas Brotherton appeals a superior court order extending his child support obligation for his 18-year-old son Nicholas through Nicholas's graduation from high school pursuant to AS 25.24.170(a). Douglas argues that the superior court erred in interpreting both AS 25.24.170(a) and a stipulation setting out his child support obligation. He also argues that the superior court committed various procedural errors. We disagree, and affirm the superior court's order.


Douglas and Tahni Brotherton married on October 1, 1981 and were divorced on April 18, 1995. They have two children together: Benjamin, born June 26, 1988, and Nicholas, born October 5, 1990.

In 2005 Nicholas and Benjamin went to stay with Tahni's brother and sister-in-law, Douglas Warner and Pamela Neiswanger (the Warners).*fn1 In April 2006 the Warners initiated legal action to attain custody of Nicholas. Douglas and the Warners subsequently stipulated to entry of an Order for Temporary Placement, Legal Custody and Child Support Re: Minor Child concerning Nicholas (the stipulation). The stipulation granted the Warners legal custody of Nicholas, one-half of the monthly support payments Tahni paid to Douglas,*fn2 and $500 per month from Douglas "for so long as the [Warners] have legal custody and physical placement of Nicholas." The stipulation acknowledged that this arrangement was a "temporary placement," called for Douglas and Nicholas to participate in counseling, and stated that the parties' goal was "to reunite Nicholas and his father." The stipulation also noted that the "unusual" circumstances of the case (Benjamin was to reside with his father, and Nicholas was to reside with the Warners) merited a variance from the calculation of child support under Alaska Civil Rule 90.3.

On October 5, 2008, Nicholas turned eighteen while enrolled in the twelfth grade at Service High School. The Warners notified the Child Support Services Division (CSSD) that Nicholas was still in high school and requested post-majority support. On October 23, 2008, CSSD responded and notified Douglas that his child support obligation had been extended through Nicholas's anticipated graduation in May 2009. Douglas objected, arguing that the terms of the stipulation precluded the grant of post- majority support. CSSD responded that the parties' stipulation "did not supersede the original child support," and referred to the court order describing Tahni's support obligation to Douglas.*fn3 Douglas argued that because the order applied to Tahni, it did not provide a basis for imposing a child support obligation on him. On December 31, 2008, CSSD sent Douglas and the Warners a Notice of Intent to Close Case which stated that "[t]here is no current support order." On January 26, 2009, CSSD notified Douglas that he had overpaid child support by $844.77 because post-majority support had been automatically deducted from his paycheck after Nicholas was "emancipated effective October 31, 2008."*fn4

In February 2009 the Warners filed a Motion to Continue Child Support Obligation pursuant to AS 25.24.170(a),*fn5 requesting that the superior court order post- majority support from Douglas through Nicholas's graduation from high school. Douglas opposed the motion on the grounds of improper venue and misinterpretation of the stipulation, and also filed a motion for award of judgment requesting that the court require the Warners to repay the $844.77 overpayment identified by CSSD. The superior court issued an order on March 20, 2009 extending Douglas's support obligation "through the month of [Nicholas's] nineteenth (19th) birthday, so long as [he] is (1) unmarried, (2) actively pursuing a high school diploma or equivalent level of technical or vocational training, and (3) living as a dependent with . . . [the Warners] or a designee of the [Warners]." The superior court also issued an order denying Douglas's motion for judgment. Douglas filed two motions for reconsideration, which were denied. Douglas appeals the superior court's extension of child support, denial of judgment against the Warners for $844.77, and denial of his motions for reconsideration.


Interpretation of an agreement between parties is a question of law to which we apply our independent judgment.*fn6

The interpretation of a statute is also a question of law reviewed according to our independent judgment and "according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose."*fn7

We "will not disturb the trial court's factual findings unless those findings are clearly erroneous."*fn8 We review the superior court's procedural decisions for abuse of discretion.*fn9 We also review denial of a motion for reconsideration for abuse of discretion.*fn10 We will find an abuse of discretion "only when, after reviewing the entire record, we are left with a definite and firm conviction that the lower court erred."*fn11


A. The Superior Court Correctly Granted The Warners' Motion To Continue Douglas's Child Support Obligation.

The superior court awarded the Warners post-majority support for Nicholas based upon AS 25.24.170(a) and Scully v. Scully, where we held that "it should be the exceptional case in which a court declines to extend child support payments beyond the child's eighteenth birthday where [the] statutory requirements [for AS 25.24.170(a)] have been met."*fn12 Douglas argues that the superior court erred in granting the motion to extend because: (1) the parties' stipulation precluded an award of post-majority support; (2) AS 25.24.170(a) does not apply to the Warners; and (3) the Warners' motion was not timely.

1. The 2006 stipulation does not preclude post-majority support; evidence indicates that the parties anticipated support would continue post-majority.

Douglas argues that the superior court erred by granting post-majority support because the parties' stipulation precludes such an award. He relies upon the following language from the stipulation:

Beginning in July, 2006 and lasting for so long as the Intervenors have legal custody and physical placement of Nicholas, [Douglas] shall satisfy his child support obligation to the [Warners] as follows . . . . (Emphasis in Appellant's Brief.)[*fn13 ]

The agreement also twice specifies that the Warners' custody of Nicholas was to be "temporary."

We have explained that:

Our primary goal in contract interpretation is to give effect to the parties' reasonable expectations. We discern the parties' reasonable expectations by looking first at the written agreement and also extrinsic evidence regarding the parties' intent at the time the contract was made.[*fn14 ]

The stipulation's plain language makes clear that the parties' originally intended the custody agreement to be temporary; the stipulation was to expire when Nicholas was reunited with his father. That said, we see nothing in the text of the stipulation that can fairly be construed as an agreement by the Warners to forfeit the possibility of post- majority support if Nicholas did not reunite with his father. We also find nothing in the record supporting the assertion that Douglas and the Warners consciously bargained for the provision of post-majority support. The record supports the superior court's finding that, at the July 26, 2006 settlement proceedings, "it was never suggested that the ending of child support at age 18 was a quid pro quo for the agreement. To the contrary, the hearing indicated that while deviation in the amount of child support was considered, the duration was not."*fn15

Tahni's support obligation to Douglas reinforces the conclusion that the parties acknowledged the need for support to continue until Nicholas and Benjamin completed high school. The order setting out Tahni's support obligation to Douglas required that her support payments would continue after the boys' 18th birthdays so long as they were in high school.*fn16 Indeed, Tahni paid Douglas child support for eleven months after Benjamin's 18th birthday. Tahni's obligation to pay Douglas child support for Nicholas also continued after Nicholas turned 18. And the stipulation's treatment of Tahni's obligation indicates that her support payments for the boys would continue regardless of where they resided. Because the stipulation did not expressly address post- majority support, and because Tahni's support obligation indicates that the parties clearly contemplated the need to support both boys after age 18, we conclude that the superior court correctly decided that the parties' stipulation did not preclude post-majority support.

2. The superior court correctly applied AS 25.24.170(a) to the Warners.

Douglas argues that AS 25.24.170(a) does not apply in this case because "the Warners do not meet the statutory requirement of 'parent, guardian, or designee of the parent or guardian.' "

In 1984, our court held that AS 25.24.170(a) did not permit courts to award post-majority support.*fn17 But the legislature changed the entrance age for public kindergarten in 1988, resulting in a marked increase in the number of children turning 18 before their graduation from high school.*fn18 In response, Representative Fran Ulmer sponsored a bill to amend AS 25.24.170(a) in 1992 to address the fact that, with the change in school-entrance age, "many Alaska children must complete their final year of high school without the benefit of financial support from the non-custodial parent," and many families may thus be forced to resort to public assistance.*fn19 The bill's passage amended AS 25.24.170(a) to fill this gap, providing support for children who reach the age of majority but remain enrolled in high school and living in the home of "a parent, guardian, or designee of the parent or guardian."*fn20

Douglas argues that while the Warners may have been a "designee of the parent or guardian" before Nicholas turned 18, this status expired when he reached the age of majority and could no longer be subject to the "legal custody" of another person. We disagree. Douglas's interpretation of AS 25.24.170(a) renders the statute meaningless; if support were tied to legal custody, the superior court could never award child support after a child's 18th birthday. We construe statutes according to the legislature's intent,*fn21 and the clear intent of the amendment to AS 25.24.170(a) -- to provide support for children who reach the age of 18 while still living as dependents of their parents or other parties and attending high school -- would be frustrated if the definitions of "parent," "guardian," and "designee" were premised upon the existence of a legal custody relationship. For this reason, we conclude that the fact that Nicholas was in the custody of third-party "designees," rather than one of his parents, does not affect application of the statute.

Douglas also argues that the superior court erred by relying on AS 25.24.170(a) and Scully v. Scully*fn22 because both authorities leave an award of post- majority support to the discretion of the court and allow that in an "exceptional case" such support may not be appropriate. The fact that courts have discretion in this area does not provide any basis for Douglas's assertion of error by the superior court. The stipulation's acknowledgment that Nicholas's custody arrangement was "an unusual circumstance" merely characterized the custody situation; it does not, absent additional facts, indicate that this is an "exceptional case" within the meaning of Scully.

3. The Warners' motion was timely and did not establish a retroactive child support arrearage.

Douglas argues that the superior court erred by granting the Warners' motion to extend child support because it was not timely and because, by granting the motion, the court effectively established a retroactive child support arrearage in violation of Alaska Civil Rule 90.3(h)(2). The Warners' motion to extend was filed on February 18, 2009, four months after Nicholas turned 18. The superior court order extended Douglas's support obligation from the date of Nicholas's 18th birthday.

i. The Warners' motion was timely.

Douglas's assertion that the Warners' motion was not timely rests on our decision in Bennett v. LeBlanc.*fn23 In Bennett, we upheld a superior court decision denying a party's motion for post-majority support when the party waited to file a request for support until after the child had both turned 19 and completed high school.*fn24 Bennett does indicate that it can be within the discretion of the superior court to deny an untimely motion for post-majority support, but it does not undermine the superior court's extension of Douglas's support award. Within weeks of Nicholas's birthday, the Warners pursued post-majority support through CSSD. And they filed the motion to extend child support less than a month after CSSD decided that there was no post- majority support obligation under the existing support order. The situation here is fundamentally different from that confronted by the superior court in Bennett: it is undisputed that Douglas had notice of the Warners' request for post-majority support in the month Nicholas turned 18. It was not an abuse of discretion for the superior court to treat the motion to extend as timely filed, and to extend child support from the date of Nicholas's birthday.

ii. The Warners' motion did not establish a retroactive child support arrearage.

Douglas's assertion that the superior court established a retroactive child support obligation relies on our decision in State, Department of Revenue, Child Support Enforcement Division v. McCormick.*fn25 Specifically, Douglas's argument turns on interpretation of the following paragraph from that decision:

When a support order by its own terms expires upon a child's eighteenth birthday, a later order providing for post-majority support does not modify any provision of the original order; it extends the order to a time period not covered by the original order. Thus, barring an affirmative provision in the original support order or in an incorporated agreement establishing that the issue of post-majority support was expressly considered and decided, a subsequent motion to extend the duration of support is not a motion to modify the original order and need not allege a change of circumstances.[*fn26 ]

Nothing in the parties' stipulation affirmatively establishes any position on post-majority support. McCormick thus undermines Douglas's argument: because post-majority support was not expressly addressed in the parties' stipulation, the Warners' motion to extend child support did not retroactively modify the original support agreement in violation of Civil Rule 90.3(h)(2).*fn27 The order granting the Warners' motion simply extended Douglas's support obligation to a time period not addressed by the existing support order, a practice we have previously affirmed.*fn28

To the extent Douglas argues he did not receive adequate notice of the extension of his support obligation, he is mistaken. Although the Warners' motion did not seek modification of the original support agreement, the notice requirements governing a motion to modify were satisfied here. We have held that "absent good cause, a modified child support order should be effective from the date the parent receives notice that a modification is being considered."*fn29 Douglas received notice from CSSD that his support obligation was to be extended on October 23, 2008. Because this notice was given the same month that Nicholas turned 18, the superior court did not err in ordering that the support obligation continue uninterrupted from Nicholas's birthday.

B. Any Error By The Superior Court In Denying Douglas's Motion For Judgment Was Harmless Error.

Douglas argues that the superior court erred by denying the motion for a judgment of $844.77, the amount CSSD determined he had overpaid after Nicholas reached the age of 18. Douglas raises three arguments on this point: (1) the superior court exceeded its authority by overturning a CSSD administrative decision; (2) he was entitled to judgment as a matter of law because the Warners did not oppose his motion for judgment; and (3) the CSSD-determined overpayment was an independent obligation that should have been enforced regardless of the superior court's extension of the support award.

1. It was harmless error for the superior court to address CSSD's interpretation of Douglas's child support obligation in its order denying judgment.

Douglas argues that the superior court overstepped its authority when it denied his motion for judgment because the court's order "overturn[ed] CSSD's administrative ruling [interpreting the stipulation]." Douglas specifically objects to the emphasized portion of the following passage from the superior court's order:

CSSD suggested there was an overpayment of child support based on their interpretation that support was to end when Nicholas turned 18. But the court has found that interpretation to be wrong and has extended the support obligation. Consequently there is no basis for a judgment.

Douglas argues that the superior court exceeded its authority by declaring CSSD's interpretation "wrong" because CSSD's administrative decision could only be challenged "in the form of a properly filed appeal."*fn30 But Douglas's characterization of the superior court's order is erroneous: the court order extending Douglas's support obligation did not actually conclude that CSSD's administrative decision incorrectly interpreted the original child support obligation. Rather, the superior court found that extrinsic evidence indicated that the parties did not expressly address post-majority support in their stipulation. This is why the superior court was free to extend the child support obligation. We agree that it was confusing for the superior court's order denying judgment to have characterized CSSD's interpretation of the stipulation as "wrong," but this misstatement was harmless error. It is not grounds to overturn or vacate the superior court's order on the Warners' motion to extend child support.*fn31

2. The superior court did not err by denying Douglas's motion for judgment, even though the Warners never opposed it.

Douglas argues that the superior court erred by denying his motion for judgment because the Warners never responded to this motion. Douglas's argument is legally incorrect. We have consistently held that "[t]he fact that a motion is uncontested does not mean that it must be granted as a matter of right."*fn32 The superior court was obligated to consider and decide Douglas's motion on its merits, even though the Warners never responded. The contention that the motion for judgment should have been granted because it was unopposed is contrary to Alaska law.

3. There was no over-payment.

Douglas argues that the superior court erred by denying his motion for judgment because CSSD's determination that he had overpaid his child support obligation by $844.77 created a distinct legal obligation unrelated to the court's award of post-majority support.

CSSD issued a notice of overpayment because it determined that Douglas was not obligated to pay post-majority support for Nicholas, and that he had made two support payments after Nicholas turned 18. Because we conclude that the superior court permissibly extended Douglas's support obligation, Douglas was required to pay child support to the Warners without interruption; there was no overpayment. The superior court correctly declined to enter judgment in Douglas's favor.

C. The Superior Court Correctly Denied Douglas's Motions For Reconsideration.

Douglas argues that the superior court erred by denying his motions for reconsideration*fn33 because the court "failed to address any of the points raised in said motion[s]." Douglas's motions for reconsideration argued that the superior court:

(1) "overlooked or misconceived" the fact that the stipulation provided for child support only when the Warners maintained "legal custody" of Nicholas and he remained living with them; (2) incorrectly applied AS 25.24.170(a) to the Warners, given that they were no longer Nicholas's legal guardians after he turned 18; (3) retroactively established child support arrears in violation of Civil Rule 90.3(h)(2); and (4) should have granted his motion for judgment as a matter of law because the Warners never contested CSSD's interpretation of the existing support agreement or its determination that overpayment had occurred. The superior court's order denying reconsideration did not directly address the merits of each of these arguments,*fn34 but the court was not required to do so. With one exception, the motions for reconsideration reiterated points previously made in motions that had been considered and correctly denied by the superior court. Douglas's new argument, that the court should have granted his motion for judgment because it was unopposed, is both legally incorrect and an improper basis for a motion for reconsideration.*fn35 The superior court's denial of Douglas's motions for reconsideration, without further explanation, was not an abuse of discretion.


We AFFIRM the superior court's grant of post-majority support to the Warners and its denial of Douglas's motion for judgment.

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