RENE E. LIMERES, Appellant,
AMY W. LIMERES, Appellee
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Andrew Guidi, Judge. Superior Court No. 3AN-11-09292 CI.
Rene E. Limeres, Pro se, Nenana, Appellant.
David W. Baranow, Law Offices of David Baranow, Anchorage, for Appellee.
Before: Stowers, Chief Justice, Fabe, Winfree,Maassen, and Bolger, Justices. FABE, Justice. MAASSEN, Justice, with whom WINFREE, Justice, joins, dissenting.
A couple with three children divorced after 15 years of marriage. In 2012 the superior court ordered the father to pay roughly $1,500 per month in child support. This child support calculation relied on the superior court's finding, based on the parties' testimony at trial, that the father's income was $40,000 annually despite his self-reported financial documents showing significantly less income. The father appealed and we affirmed the superior court's findings and support order in early 2014. Before that appeal was resolved, the father separately moved to modify his support obligation, filing similar self-reported financial documents and arguing that his actual income was less than $10,000 per year as shown on his 2013 tax return. The superior court denied his motion to modify without an evidentiary hearing. It also awarded close to full attorney's fees to the mother despite the fact that she raised her fee request in her opposition to the motion to modify and never made a separate motion for fees. The father appeals the denial of his motion to modify his child support obligation without an evidentiary hearing. He also appeals the superior court's award of attorney's fees in the absence of a motion for fees.
We affirm the superior court's denial of the father's motion to modify child support without a hearing and conclude that an evidentiary hearing was not required because the father presented no new evidence that would require a hearing. But it was error to award attorney's fees without either requiring the mother to file a motion for fees or advising the father that he had a right to respond to the fee request made in the mother's opposition brief. We therefore vacate the superior court's fee award and remand to give the father an opportunity to respond.
II. FACTS AND PROCEEDINGS
This appeal marks the second time we have been asked to review the child support determination made by the superior court in this case. The underlying facts remain the same as those we described in the first appeal:
Amy and Rene Limeres were married in 1997 and had three children together. Amy is an attorney; Rene has made money from a variety of self-employment activities, including guiding, writing articles about the outdoors, and selling books. The couple separated in July 2011, and Amy filed for divorce. . . . The court held a two-day divorce and custody trial in July 2012. Following trial it granted the requested divorce and awarded sole legal and physical custody of the three children to Amy. The court found that Rene's net annual income was $40,000 and that he was obligated to pay child support of $1,514 per month retroactive to August 1, 2011. . . . Rene filed a motion for reconsideration, which the [superior] court denied. Rene appeal[ed].
Although Rene was represented by counsel during the initial divorce proceeding, he has represented himself in the subsequent proceedings.
In the first appeal, Rene challenged the superior court's " determination of his child support obligations . . . [and] its denial of attorney's fees," among other issues. We affirmed the superior court's order on all issues. Most relevant here, we observed that " Rene testified at trial about his 'generation of substantial funds, in the hundreds of thousands of dollars, in terms of book sales, inventory on hand, royalties and guiding fees.'"  Then three months after trial, " Rene submitted his 2011 tax returns and a Child Support Affidavit that showed income of $8,426.82."  Faced with this conflicting evidence, the superior court found that Rene earned " at least $40,000 annually."  Reviewing for clear error, we declined to overturn the superior court's finding: " [G]iven Rene's earlier testimony," we explained, " we cannot say that the court clearly erred when it found his yearly income to be approximately $40,000 despite what he reported on his income tax return."  We also concluded that the superior court did not err in denying additional attorney's fees to Rene after an initial award of interim fees, in connection with the divorce proceedings, under AS 25.24.140(a)(1).
Prior to our March 2014 decision, Rene filed numerous motions to stay enforcement of the superior court's support order, to modify his support obligation, and to expedite the superior court's consideration. The superior court denied these motions. In response Rene filed over a dozen motions to reconsider, which the superior court also denied. Most relevant here, in January 2013 Rene filed a motion for modification of child support based on his alleged material change of circumstances. Rene supported this motion with documents similar to those he had presented during the divorce proceedings just a few months earlier: He filed a new child support guidelines affidavit and his latest tax return (now for 2012) showing an income of $5,770.93, all from self-reported business profits and his Permanent Fund Dividend (PFD). The superior court denied this motion for modification in July 2013. Rene's subsequent motion for reconsideration alleged that he was entitled to an evidentiary hearing on the evidence he had presented, but the trial court denied reconsideration in August 2013.
Five months later, in January 2014, Rene filed a second motion for modification of child support. That motion is the subject of the current appeal. Along with this 2014 motion for modification, Rene also filed another tax return and child support guidelines affidavit, now showing his financial information for 2013 and claiming an annual income of $7,120, entirely from self-reported business profits. Rene also submitted a sworn affidavit alleging financial hardship in an effort " to enter additional evidence into the [r]ecord to support [his] claim that the current obligation [was] not based on a realistic assessment of [his] current earning capacity." The affidavit claimed that Rene had no more books left to sell " nor any funds to print more" and that, because of child support liens against him, his low credit score made it impossible for him to borrow money to print more books. Rene's affidavit also stated that, despite the fact that he had " aggressively sought additional employment with every local business," he had only been able to secure part-time work that " barely pa[id] enough for [him] to survive on."
Amy opposed Rene's motion to modify his support obligation. In her opposition brief she questioned the veracity of Rene's reported income of $7,120 from his 2013 tax return, which she asserted was " necessarily inaccurate on its face." She suggested that it was
nonsensical for Rene to be " earn[ing] less than one-half the Alaskan minimum wage rate for a single individual working a full-time, 40 hour work week." Amy also challenged Rene's assertion that he had no more books to sell, given that Rene had received the whole book inventory in the superior court's property division yet reported no book sale profits on his 2013 tax return. Amy stated that " Rene would apparently leave it to this Court to determine on which occasion (or both) he did perjure himself as to the value/proceeds of these assets." Amy concluded by noting that Rene's " alleged proofs of his most recent de minimis earnings . . . strain credibility well past the bursting point."
Amy also asserted that Rene's motion to modify support was " devoid of merit" and " frivolous in nature." Amy thus requested, in her opposition brief, an " award of actual attorney's fees [under Alaska Civil Rule 82] and additional sanctions pursuant to Alaska Civil Rule . . . 11."  Amy stated that she had incurred attorney expenses for " [a] total of 2.5 hours attorney time at $225.00 per hour . . . to pursue and draft opposition and related pleadings, for a total of $562.50." But Amy did not attach any billing statements to support that figure, nor did she file a separate motion to request attorney's fees as normally required under Civil Rule 82. Rene did not respond to Amy's substantive arguments or the question of attorney's fees.
On February 4, 2014, the superior court denied Rene's motion for modification of support. At the same time, without requiring that Amy make a separate motion for attorney's fees, the court awarded Amy $500 in attorney's fees but declined to impose Rule 11 sanctions " for the filing of a plainly meritless and frivolous motion." Rene then filed a motion for reconsideration, alleging that he was entitled to an evidentiary hearing on his motion to modify support and contesting the award of attorney's fees in the absence of a motion for fees under Civil Rule 82. The motion for reconsideration was denied, and Rene now appeals.
III. STANDARD OF REVIEW
" We use our independent judgment to decide whether it was error not to hold an evidentiary hearing."  This general principle applies equally in the context of motions to modify child support: " We review de novo whether a moving party has made a prima facie showing sufficient to justify a custody or child support modification hearing."  Thus we " will affirm a denial of a modification motion without a hearing if, in our independent judgment, . . . the allegations are so ...