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Shanigan v. Shanigan

Supreme Court of Alaska

January 6, 2017

ELISSA SHANIGAN, Appellant,
v.
TERRENCE SHANIGAN, Appellee.

         Appeal from the Superior Court No. 3AN-11-05578 CI of the State of Alaska, Third Judicial District, Anchorage, Patrick J. McKay, Judge.

          Elissa Przywojski, pro se, Anchorage, Appellant.

          No appearance by Appellee Terrence Shanigan.

          Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger, Justices.

          OPINION

          MAASSEN, Justice.

         I. INTRODUCTION

         A mother appeals from an order reducing the amount of child support the father was required to pay. The mother argues that the superior court relied on incorrect income calculations from the Child Support Services Division (CSSD) and that it erred in finding a material change in circumstances sufficient to warrant a reduction in child support. She also argues that the court should have required the father to submit an income affidavit, and that its failure to do so improperly shifted to her the burden of proving the father's income. We conclude that CSSD's income calculations were incorrect, that it was error for the court to adopt them, and that the father should have been required to submit an income affidavit. We therefore reverse the superior court's order modifying child support.

         II. FACTS AND PROCEEDINGS

         Elissa Przywojski (formerly Shanigan) and Terrence Shanigan divorced in January 2012, and Elissa was granted sole legal and primary physical custody of their two minor children. The 2012 child support order required Terrence to pay monthly child support of $1, 932.92.

         In June 2014 Terrence asked CSSD to review his support obligation. He gave CSSD copies of his 2013 federal tax return and the six most recent pay stubs from his employment with the State. CSSD recalculated his support obligation and determined that it could be reduced by $315.92 a month. Because this was a reduction of 16.3%, Terrence was presumed to have had a material change in circumstances as defined by Alaska Civil Rule 90.3(h), which would justify a modification of his obligation.[1] Accordingly, in January 2015 CSSD asked the superior court to modify the existing child support order to reflect its new calculations.

         Elissa opposed the motion to modify, arguing that CSSD's calculations were wrong in several respects. According to Elissa, a correct calculation would result in only a 10.7% decrease from the original child support order, too small a change to justify a reduction in Terrence's support obligation. Elissa also challenged Terrence's failure to submit a sworn income affidavit in support of CSSD's request. Finally, she claimed that CSSD erred in assuming that Terrence had no income from a consulting business he had recently launched.

         Along with her opposition Elissa filed an affidavit from her mother, a certified public accountant, who had done her own calculations based on the income information Terrence had given CSSD. This competing analysis showed that Terrence's monthly support obligation should be reduced to $1, 725.24 per month, a reduction of $207.68 instead of the $315.92 proposed by CSSD. Because her figures showed only a 10.7% reduction in Terrence's obligation, Elissa argued that a material change in circumstances could not be presumed under Rule 90.3(h) and no modification was justified.

         The superior court granted CSSD's requested modification in February 2015, decreasing Terrence's child support obligation to the CSSD-recommended amount of $1, 617 per month. The court issued no separate written findings, but it noted on its order that it had reviewed Elissa's opposition and found "no supporting evidence" for her claims. Elissa filed successive motions for reconsideration, which the court denied.

         Elissa filed this appeal. Terrence did not participate.[2]

         III. STANDARD OF REVIEW

         "We use the clearly erroneous standard when reviewing factual findings, including findings regarding a party's income . . . ."[3] "Factual findings 'are clearly erroneous when, "after reviewing the record as a whole, [we are] left with a definite and firm conviction that a mistake has been made." ' "[4]

         IV. DISCUSSION

         A. It Was Error To Grant The Requested Modification Of Terrence's Child Support Obligation Because He Failed To Show A Material Change In His Income.

         1. Child support is calculated under Rule 90.3.

         Rule 90.3 prescribes how child support is calculated. The starting point is the non-custodial parent's "total income from all sources."[5] Subtracted from this income figure are five "mandatory deductions" set out in Rule 90.3(a)(1)(A):

(i) federal, state, and local income tax,
(ii) Social Security tax or the equivalent contribution to an alternate plan established by a public employer, and self-employment tax,
(iii) Medicare tax,
(iv) mandatory union dues, [and]
(v) mandatory contributions to a retirement or ...

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