BRANLUND T. HOLMES, Appellant,
TAMARA HOLMES, Appellee.
from the Superior Court of the State of Alaska, Third
Judicial District, No. 3 VA-05-00049 CI Valdez, Daniel
Appearances: Herbert M. Pearce, Law Office of Herbert M.
Pearce, Anchorage, for Appellant.
Eschbacher, Law Offices of G.R. Eschbacher, Anchorage, for
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
STOWERS, CHIEF JUSTICE
superior court issued an order modifying a father's child
support obligation. The father appeals, arguing that the
court erred in multiple respects. He asserts that the court
erred in disallowing his claimed business losses from
self-employment and his claimed travel expenses when
calculating his income. And he argues that the court erred in
not counting his at-will visitation with his children and in
recognizing an aberration in the school calendar when
calculating the percentage of time he had custody of the
children. We affirm the order of the superior court.
FACTS AND PROCEEDINGS
T. Holmes and Tamara Holmes are the parents of two minor
children. Branlund lives in Oregon; Tamara lives in Valdez.
Under an August 2013 court order Tamara has physical custody
of the children in Valdez during the school year; Branlund
has physical custody of the children in Oregon during
"summer vacation from one week after school gets out
until a week before school begins" and during other
school vacations. Branlund is also permitted at-will
visitation with the children in Valdez after providing Tamara
30 days' notice.
March 2014 the superior court issued a child support order.
The only disputed issue was whether Tamara had primary
physical custody or custody was shared, which depended on the
number of days each party had custody. The court found
that Tamara had primary physical custody in 2012 and 2013 but
ruled that from 2014 onwards, the parties would exercise
shared physical custody and Branlund would on average
"have just over 115 overnights per calendar year."
The court did not include at-will visitation in this
calculation because that had "historically not occurred
with sufficient regularity to be able to predict that there
[was] a substantial chance of it occurring regularly in the
November 2014 Branlund filed a motion to modify child support
"due to the fact that [he] ha[d] experienced a change in
employment which ha[d] resulted i[n] a decrease in his pay of
more than 15%." Tamara filed a partial opposition and
cross-motion for modification of child support arguing that
Branlund's income had actually increased and that she now
had primary physical custody. An evidentiary hearing on the
matter was held in September and November 2015. The superior
court issued an order modifying child support in February
2016, agreeing with Tamara that Branlund's income had
increased and that Tamara had primary physical custody.
Branlund appeals multiple aspects of this order.
Claimed Business Losses
claimed business losses from his oil spill consulting firm,
HRM Consulting,  and argued that these losses should be
deducted from his income for the purpose of calculating child
support. HRM had not earned money in several years at the
time of the evidentiary hearing. The superior court did not
allow Branlund's claimed business losses, finding that
"HRM Consulting ha[d] not earned income in several years
and [was] not likely to do so in any foreseeable future"
and that "[a]llowance of such losses [would] lower
Branlund's income which [would] lower his child support
obligation, and this [did] nothing to benefit the
children." Branlund appeals the disallowance of his
claimed business losses.
C. At-WiU Visitation
August 2013 custody order provides, "The father will be
allowed at will visitation with the children in Valdez,
Alaska if he provides a minimum of 30 days['] notice to
the mother. The girls will stay with their father during the
at will visits in Valdez." Branlund's wife testified
that because of at-will visitation Branlund had a total of
131 days with the children in 2014 and was scheduled to have
a total of 115 days with the children in 2015. The custody
order provided for 127 days in 2014 and 100 days in 2015 not
counting at-will visitation.
March 2014 child support order the superior court included
at-will visitation that had already occurred when determining
past visitation but did not include an estimate of at-will
visitation in its prospective order because Branlund had not
exercised at-will visitation regularly enough to allow the
court to predict that it would regularly occur in the future.
In its February 2016 order the court did not include at-will
visitation, explaining, "There is no reason to revisit
the prior determination to not include so-called 'at
will' overnights in the calculation of the number of
annual overnights." Branlund appeals this determination.
custody order based custody on the Valdez school calendar,
providing that Branlund would have custody during
"summer vacation from one week after school gets out
until a week before school begins." The superior
court's March 2014 child support order was based in part
on the 2014 Valdez school calendar, a year when summer
vacation was two weeks longer than normal because of the
construction of a new school building. In its February 2016
child support order the court found this aberration provided
"sufficient cause to reexamine the number of
overnights" and accordingly reduced the number of summer
overnights afforded to Branlund to reflect the normal
vacation length. Under this correction the court concluded
that Tamara had primary physical custody. Branlund appeals
the court's decision to recalculate the number of days
each parent would have custody, arguing that all the facts
about the school calendar were known at the time of the prior
order and cannot now be relitigated.
alleged that in a May 2009 hearing the court had orally
ordered that he be allowed to deduct work-related travel
expenses - flights from his home in Oregon to his job in
Alaska - from his total income. He did not provide the
superior court with either the transcript or the recording of
this alleged order. Branlund argued that, in reliance on this
alleged order, he had always deducted his travel expenses
from his income when calculating child support. In its
February 2016 order the superior court ruled that Branlund
could not deduct his travel expenses from his income, noting
that Branlund himself described the deduction as for
"self employment expenses and travel" but he was no
longer self employed. Branlund appeals, arguing that the
superior court was bound by its prior order.
STANDARD OF REVIEW
reverse child support awards only if the superior court
abused its discretion, applied an incorrect legal standard,
or clearly erred in its factual findings.Given the broad
definition of income in Alaska Civil Rule 90.3(a)(1), the
superior court has discretion in deciding whether certain
funds should be included in income for Civil Rule 90.3
purposes. We therefore review for abuse of
discretion the superior court's decision to disallow
Branlund's claimed business losses. We review the factual
findings the court made to reach this conclusion for clear
child support is in large part a predictive
function." "[T]he amount of visitation a parent
will exercise in the future  is ... a prediction that can
be based on past practices." The trial court's act of
predicting a future event is necessarily a discretionary
act-the court considers a range of reasonable possibilities
informed in part by past practices and in part by forecasting
the future. We review the superior court's
decision regarding at-will visitation for abuse of
final child support award may be modified upon a showing of a
material change of circumstances as provided by state
law." "In deciding whether to modify child
support orders, trial courts have broad discretion, "
and "[w]e review a decision by the superior court to
modify child support for an abuse of
discretion." "On the other hand, whether the
trial court applied the proper legal standard in determining
that a change of material circumstances occurred is an issue
of law which we review de novo."
The Superior Court Did Not Abuse Its Discretion In
Disallowing Branlund's Claimed Business Losses.
argues that the superior court should have allowed his
claimed business losses from HRM. We conclude that the
superior court did not abuse its discretion or clearly err ...