from the Superior Court No. 3AN-11-05578 CI of the State of
Alaska, Third Judicial District, Anchorage, Patrick J. McKay,
Przywojski, pro se, Anchorage, Appellant.
appearance by Appellee Terrence Shanigan.
Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger,
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.
FACTS AND PROCEEDINGS
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.
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. Accordingly, in January 2015 CSSD asked
the superior court to modify the existing child support order
to reflect its new calculations.
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
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.
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.
filed this appeal. Terrence did not
STANDARD OF REVIEW
use the clearly erroneous standard when reviewing factual
findings, including findings regarding a party's income .
. . ." "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." ' "
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.
Child support is calculated under Rule 90.3.
90.3 prescribes how child support is calculated. The starting
point is the non-custodial parent's "total income
from all sources." Subtracted from this income figure are
five "mandatory deductions" set out in Rule
(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
(iii) Medicare tax,
(iv) mandatory union dues, [and]
(v) mandatory contributions to a retirement or ...