Holmes v. Holmes

          Appeal from the Superior Court of the State of Alaska, Third Judicial District, No. 3 VA-05-00049 CI Valdez, Daniel Schally, Judge.

          Appearances: Herbert M. Pearce, Law Office of Herbert M. Pearce, Anchorage, for Appellant.

          Justin Eschbacher, Law Offices of G.R. Eschbacher, Anchorage, for Appellee.

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

          OPINION

          STOWERS, CHIEF JUSTICE

         I. INTRODUCTION

         The 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.

         II. FACTS AND PROCEEDINGS

         A. Background Facts

         Branlund 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.

         In 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.^[1] 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 future."

         In 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.

         B. Claimed Business Losses

         Branlund claimed business losses from his oil spill consulting firm, HRM Consulting, ^[2] 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

         The 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.

         In its 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.

         D. School Calendar

         The 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.

         E. Travel Expenses

         Branlund 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.

         III. STANDARD OF REVIEW

         We reverse child support awards only if the superior court abused its discretion, applied an incorrect legal standard, or clearly erred in its factual findings.^[3]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.^[4] 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 error.^[5]

         "[S]etting child support is in large part a predictive function."^[6] "[T]he amount of visitation a parent will exercise in the future [] is ... a prediction that can be based on past practices."^[7] 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.^[8] We review the superior court's decision regarding at-will visitation for abuse of discretion.

         "A final child support award may be modified upon a showing of a material change of circumstances as provided by state law."^[9] "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."^[10] "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."^[11]

         IV. DISCUSSION

         A. The Superior Court Did Not Abuse Its Discretion In Disallowing Branlund's Claimed Business Losses.

         Branlund 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 ...