Appeal
from the Superior Court No. 3AN-13-04681 CI of the State of
Alaska, Third Judicial District, Anchorage, Erin B. Marston,
Judge.
Allison Mendel, Mendel Colbert & Associates, Inc.,
Anchorage, for Appellant.
Maurice N. Ellis, Law Office of Maurice N. Ellis, Anchorage,
for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger,
Justices. [Fabe and Carney, Justices, not participating.]
OPINION
STOWERS, Chief Justice.
I.
INTRODUCTION
Forest
Button and Shelley Fredrickson never married, but they had
one child together. Button and Fredrickson separated in
September 2006. From September 2006 until January 2013
neither sought a formal custody order or a child support
order. Instead, they had an informal arrangement to share
their son's expenses. Button filed a complaint for
custody in January 2013. The parties participated in a
settlement conference and entered into an agreement resolving
all custody issues, but the parties reserved issues of
prospective and retrospective child support for later
resolution by the court.
The
superior court found that Fredrickson was the obligor parent
from September 2006 through August 2010, and calculated her
child support obligation based on Alaska Civil Rule 90.3. The
court then used the shared custody child support rules in
Rule 90.3 to calculate the parties' respective child
support obligations from September 2010 until 2013. For
purposes of these calculations the court included as income
$300, 000 Fredrickson received from the Japanese government
in connection with the death of her brother, who died in the
2011 Japanese tsunami. The court also calculated a
prospective child support award. It found that from 2014
onward Fredrickson had been voluntarily unemployed, and it
imputed income to her to calculate this prospective award.
Following the court's orders, Button filed a motion for
attorney's fees, which the court granted.
Fredrickson
appeals. We hold that (1) the court's finding that the
money from the Japanese government was paid out in three
annual installments was clearly erroneous; (2) there is
insufficient evidence to determine whether the money should
be considered income for purposes of calculating a
retrospective child support award; (3) the court did not err
in finding that a deviation from retrospective child support
calculations under Rule 90.3 was unwarranted; and (4) the
court's decisions to impute income to Fredrickson and not
to impute income to Button were not clearly erroneous.
II.
FACTS AND PROCEEDINGS
A.
Facts
Forest
Button and Shelley Fredrickson never married, but they had
one son in 2003. Button and Fredrickson lived together from
November 2002 until they separated in September 2006.
From
September 2006 until Button filed his complaint for child
custody in January 2013 neither party sought a formal custody
order. Instead, upon separation they agreed to a schedule
where Fredrickson cared for their son every Saturday when she
finished work until his bedtime the following Monday - at
that time, Fredrickson worked as a delivery driver five days
a week, beginning at 5 a.m. - and Button cared for him the
rest of the week. Fredrickson also had visitation on Thursday
evenings. In 2010 Fredrickson's brother volunteered to
care for their son when Fredrickson was at work in the early
mornings. Button and Fredrickson later agreed to a
week-on/week-off schedule, beginning in the summer of 2010.
There
was no child support order in effect from 2006 until 2014;
the first child support order was the superior court's
Order Regarding Child Support Payments, one of the orders at
issue in this appeal. Before the litigation began the parties
had an informal agreement to share their son's expenses,
and they executed an agreement providing that neither party
owed the other child support. After moving out of their
shared home Fredrickson made monthly payments of $660 to
Button to cover their son's expenses. Fredrickson also
included their son on her medical insurance as a dependent,
and she paid the co-pays related to his medical needs.
Fredrickson also paid for his other activities, such as
karate classes, swimming lessons, and football team expenses.
In the spring of 2007 Fredrickson stopped paying Button a
fixed dollar amount, but continued to pay some of their
son's expenses directly.
In
March 2011 Fredrickson's younger brother went missing in
Japan; he had been killed in the 2011 tsunami. Fredrickson
quit her delivery job when her brother went missing. She
testified that she was unable to work due to her grief and
depression. In early 2012 Fredrickson felt well enough to
work part-time as a bartender and also became heavily
involved in charity work.
Fredrickson
worked as a bartender for less than a year, working one to
two days per week at the beginning of the year and three to
four days per week toward the end of the year. Since leaving
her bartender position Fredrickson has not worked for pay,
instead appearing to support herself mainly from payments
issued from a family trust - the annual amount she received
from this trust varied from year to year, and Fredrickson had
no control over the amount or timing of the distributions -
and from a $300, 000 payment she received from the Japanese
government in 2012 relating to her brother's death. At
the time of trial Fredrickson still had approximately $200,
000 of the Japanese government funds, and she planned to put
the money toward a nonprofit she hoped to start "to help
organizations in Japan in [her brother's] memory."
In 2012
Fredrickson also began thinking about returning to school to
study nursing. She did not feel that bartending or truck
driving was something she had a passion for, because her
brother's death caused her to realize that she wanted to
do something to make a difference. It was also difficult for
her to find childcare for her son because of her hours while
working in bartending and truck driving.
Since
the parties' separation Button has received income from
rentals, a consulting business, employment, a time share, and
the sale of a duplex; he also has received income as well as
large losses from stock trading. Button's income varied
greatly from year to year between 2006 and
2013.[1]
B.
Proceedings
Button
filed a complaint for custody in January 2013. The parties
participated in a settlement conference in June. Button was
represented by counsel during that conference but Fredrickson
was not. During the conference the parties entered into an
agreement resolving all custody issues. The final agreement
specified that the parties would exercise joint legal custody
and shared physical custody of their son, and the parties
agreed to a week-on/week-off schedule. The parties also
agreed to bear their own attorney's fees and costs. The
court approved the settlement in November 2013.
However,
Button also raised issues related to prospective and
retrospective child support at the settlement conference. The
parties reserved those issues for later resolution by the
court. Superior Court Judge Erin B. Marston conducted a trial
on the child support issues in June 2014. The court applied
the guidelines set forth in Civil Rule 90.3 to determine
child support obligations.
The
court ultimately found that Fredrickson was the obligor
parent from September 2006 through August 2010 and calculated
her child support obligation based on Rule 90.3. The court
then applied the shared custody child support rules in Rule
90.3, using the parties' actual income to calculate their
respective child support obligations from September 2010
until 2013 (when the parties shared custody on a
week-on/week-off schedule). The court included the $300, 000
payment from the Japanese government as a part of
Fredrickson's income for purposes of its child support
calculations. Because of perceived difficulties tracking the
exact amount and timing of the compensation payment, the
court split the $300, 000 payment into three annual
installments. Therefore, for 2011, 2012, and 2013, the court
determined that Fredrickson's income consisted of the
income she reported on her taxes plus $ 100, 000 per year for
each annual installment.
The
court concluded that Fredrickson owed Button approximately
$76, 231 in child support from September 2006 through the end
of 2013. It deducted around $ 14, 027 from this sum as a
credit for the amount Fredrickson had paid toward their
son's expenses between 2006 and 2013, and it also offset
the total amount by the four months in 2010 for which Button
owed Fredrickson child support. This left Fredrickson owing
Button around $61, 233 in past child support for September
2006 through 2013. Fredrickson moved for reconsideration, and
Button supported Fredrickson's motion and raised
additional points for reconsideration. Upon reconsideration,
the court corrected several errors in its calculations,
reducing the total amount Fredrickson owed Button to
approximately $56, 861.
With
regard to future child support obligations, the court found
that from 2014 onward Fredrickson had been voluntarily
unemployed. Based on this finding the court imputed income to
Fredrickson in the amount of approximately $57, 395, an
average of Fredrickson's adjusted gross income from her
tax returns for 2006 through 2010. The court did not impute
income to Button. Based on Button's 2014 income, the
court concluded that he owed Fredrickson approximately $431
per month from January 2014 onwards.
After
the court issued its child support orders, Button filed a
motion for Alaska Civil Rule 82 attorney's fees.
Thereafter the court entered an amended final judgment
awarding Button approximately $56, 360, consisting of
approximately (1) $48, 963 for child support from prior years
less Button's monthly obligation to Fredrickson beginning
in January 2014 and (2) $7, 396 in attorney's fees.
Fredrickson appeals on multiple grounds.
III.
STANDARD OF REVIEW
Whether
the superior court used the correct method of calculating
child support[2] and whether it applied the correct legal
standard in calculating child support[3]poses questions of law we
review de novo. "Whether an item qualifies as income for
the purposes of Rule 90.3 is a question of law that we review
de novo, adopting the rule that 'is most persuasive in
light of precedent, reason and policy.'
"[4]
A trial
court's decision whether to impute income to a child
support obligor is reviewed for abuse of discretion, and the
amount of income to impute is reviewed for clear
error.[5] "A finding is clearly erroneous if we
are 'left with a definite and firm conviction that the
trial court has made a mistake.' "[6] But
"[w]hether there are sufficient findings for informed
appellate review is a question of law."[7] We
"determine de novo whether an award of attorney's
fees is governed by a rule or an exception to a
rule."[8]
IV.
DISCUSSION
A.
The Court Made Insufficient Findings To Support Its
Determination That Fredrickson's $300, 000 Payment From
Japan Should Be Considered Income For Purposes of Calculating
Child Support.
1.
It was clear error to find that Fredrickson received the
$300, 000 in three annual installments.
The
superior court found that Fredrickson received $300, 000 from
the Japanese government in three annual installments of$100,
000 disbursed in 2011, 2012, and 2013. But the court
acknowledged that the record was unclear on this point. While
Button provided Fredrickson's monthly bank statements
from 2011 to 2013, this did "little to dispel the
confusion" because the payments from the Japanese
government were not identified. Despite this confusion, the
court found that the disbursement was not a one-time payment
and therefore it must be calculated as spread out over
several years. The court based this finding on the fact that
"[n]owhere in the bank statements is a deposit for $300,
000" and that at trial, "Fredrickson testified that
she received money beyond what was reported in her taxes to
live on from 2011-2013," which the court determined was
"clearly a reference to the settlement from the Japanese
government." We conclude that the court's finding of
three annual installments of $ 100, 000 was clearly erroneous
for several reasons.
First,
at the evidentiary hearing on child support, the only
evidence presented as to the timing of the Japanese
government's payment was Fredrickson's uncontradicted
testimony that she received $300, 000 in 2012[9] from the Japanese
government for her brother's death in the tsunami.
Neither party specifically argued that Fredrickson received
more than one payment from the Japanese government, and the
court made no finding that Fredrickson was not a credible
witness. Instead, the court's final order was the first
time it was explicitly suggested that Fredrickson received
the funds as three annual payments. While it is true that
Fredrickson answered in the affirmative when opposing counsel
asked Fredrickson whether she had "received other moneys
from 2011 through 2013" beyond what was reported in her
taxes, opposing counsel did not ask further questions to
clarify what "other moneys" Fredrickson was
referencing or to distinguish specific dates.
Fredrickson's answer to this question is not inconsistent
with receiving the entire $300, 000 payment in 2012; 2012
falls within the 2011 to 2013 range. In addition, opposing
counsel never asked Fredrickson to identify which deposit or
deposits were Japanese funds, nor was she ever asked why
there was not a $300, 000 deposit on her statements. No other
witnesses or evidence contradicted Fredrickson's
testimony that she received $300, 000 in 2012.
Second,
while it is true that the trial court did not find a $300,
000 deposit in the bank records Button submitted, these bank
statements also fail to show any fixed, recurring deposits of
$ 100, 000 or any other amount that would suggest regular
payments from the Japanese government. As Fredrickson states
in her brief, "[t]he reasonable conclusion from the
evidence presented is that the payment from the Japanese
government was maintained in a separate account." There
is evidence supporting this position. Fredrickson's bank
statements submitted at trial show multiple transfers from a
bank account numbered *94. As Fredrickson argues, this
evidence is "consistent with all of the settlement funds
being placed in an account numbered *94 and being transferred
into [Fredrickson]'s checking and savings accounts as
needed."
Third,
if the payments were spread out over three years, Fredrickson
would have had to receive payments in 2012, 2013, and 2014.
But the beginning balance of account *94, which likely held
the Japanese funds, was $240, 142.06 in January 2014. This
suggests that Fredrickson received all of the funds prior to
January 2014, as the account's beginning balance is
higher than the amount of two $100, 000 payments, or $200,
000, and she does not appear to have received a $100, 000
payment into this account during 2014. It is more likely that
Fredrickson received the entire Japanese payment in 2012 as
she testified, placed the $300, 000 in the account in 2012,
and withdrew from the account between 2012 and January 2014,
resulting in a balance of $240, 142.06 in January 2014.
And
while Button cites McDonald v. Trihub to argue that
"[w]hen a party fails to present sufficient evidence
necessary to clarify an issue, the trial court is tasked with
making its determination on the best evidence that it has
available, "[10] this case is easily distinguishable. In
contrast to McDonald, in which questions were raised
as to the adequacy of the evidence of a party's income
before the court's decision on the matter, [11]Fredrickson
would not have known that her evidence was inadequate because
the argument that the funds were received in installments was
never made at trial.[12] We therefore conclude that it was clear
error to find that Fredrickson's payment from the
Japanese government occurred in $100, 000 installments over
three years from 2011 to 2013.
2.
The superior court made no other findings that could support
a determination that Fredrickson's $300, 000 payment
should be considered income for purposes of child
support.
Because
the superior court's finding that Fredrickson received
money from the Japanese government in three installments was
clearly erroneous, and because it relied on that finding to
treat the money as income rather than a one-time gift, its
decision to include the money as income for purposes of
calculating child support is called into question. Yet the
exact nature of the payment remains unknown. We note that
Fredrickson has referred to the $300, 000 payment both as a
gift and as a settlement, though she argues that as a
one-time gift the payment should not be considered income.
And while Button relies in part in his briefing to this court
on cases dealing with gifts, he consistently refers to the
payment as settlement funds. The precise nature of the
Japanese payment was not established in the superior court
and remains unclear.
The
dissent argues that there is sufficient evidence on the
record to support a finding that the payments were a
settlement, and that we should therefore affirm the
court's determination that the payment should be treated
as income. But the superior court never made a finding that
the payment was a settlement, nor any other finding actually
characterizing the payment. Rather, the court merely found
that "as the money was paid out over several years, it
is not a one-time gift or inheritance," and on that
basis concluded that it must be income. Rather than
necessarily implying that the payment must have been a
settlement, the court's reasoning could just as easily
imply that it would have been inclined to treat the payment
as a gift or inheritance but for its finding that the money
was paid out in installments. Because we conclude it was
clearly erroneous to find that the payment was made over
time, the court's conclusion that the payment was
therefore not a one-time gift must be disregarded. Because
the superior court made no other findings that support its
determination that the payment should be treated as income,
that determination must be vacated. We therefore remand to
the superior court to determine whether the payment was a
gift, a legal settlement, or something else and recalculate
its child support award accordingly.
3.
In the event the payment is determined on remand to be a
gift, it may be included as income for purposes of child
support to the extent it was treated as equivalent to other
income.
Based
on the assumption that the money from the Japanese government
was a gift, both parties advance arguments with respect to
whether a gift should be treated as income for purposes of
calculating child support. This debate will be relevant in
the event the superior court on remand determines that the
payment was a gift, so we address it here. Fredrickson argues
that because the "funds were a one-time gift, it was
error to treat [them] as income." Button argues that
"the court only included the ... funds in its
retrospective determination of her child support
obligation" and, therefore, the court did not err in
including the funds in Fredrickson's income for the
purposes of calculating the child support award.
The
Commentary to Rule 90.3 explains that "[t]he principal
amount of onetime gifts and inheritances should not be
considered as income."[13] In Nass v. Seaton, we
endorsed this approach because "any other approach blurs
the easily administered and well-established historical
distinction between gifts and earned
income."[14]
However,
our subsequent decision in Crayton v. Crayton
deviated from the strict rule set out in
Nass.[15] In Crayton a father brought a
motion seeking reimbursement of child support from the
mother.[16] The father argued that certain one-time
monetary gifts the mother had received should be included in
her income when determining her child support obligation for
a period in which no child support order
existed.[17] The superior court relied on our holding
in Nass and rejected the father's
request.[18] We reversed, distinguishing
Nass as relating to calculating support obligations
for the future.[19] Because a gift will not necessarily be
repeated in the future, we reasoned that "the inclusion
as income of a one-time gift or an inheritance would unfairly
inflate" child support obligations "beyond the
obligor's reliable future resources."[20] We concluded
that this logic does not apply where the mother's
"future payments [were] not at issue" and "the
superior court will determine [the mother]'s income only
in retrospect."[21] Because "it [was] fair for the
court to base the amount of reimbursement on the resources
available to [the mother]," we remanded, directing the
superior court to consider gifts in determining the
mother's retrospective child support
obligation.[22]
Crayton
offered no citation to authority for the apparent holding
that gifts should always be treated as income when
making retrospective calculations, [23] and Justice Eastaugh
wrote a concurring opinion taking issue with this court's
analysis.[24] Justice Eastaugh reasoned that
"most one-time gifts and inheritances should be
considered to be capital assets. Such [funds] may represent
the ability to earn income, an ability that should be taken
into account, but the gifts themselves are often treated as
capital assets by the donor and the
recipient."[25] Thus, the touchstone of Justice
Eastaugh's analysis was the treatment of the gift by the
parties involved.
We are
persuaded by Justice Eastaugh's approach. The Commentary
to Rule 90.3 provides that the term "income"
"should be interpreted broadly to include benefits which
would have been available for support if the family had
remained intact."[26] To that end, trial courts may include
one-time gifts as income when calculating retrospective child
support awards to the extent that the principal amount of the
gift was treated as the equivalent of income, i.e., as a
resource to be used for general support and family expenses.
By contrast, to the extent a gift is treated as a capital
asset, with its principal kept separate and with only
interest or rent derived therefrom treated as disposable
income, the principal of the gift should not be included as
income for child support purposes.[27] On remand, should the
superior court determine that money Fredrickson received from
the Japanese government was a gift, it may include those
funds in the income calculation to the extent Fredrickson
treated the payment as equivalent to a source of income
rather than as a capital asset.
B.
Fredrickson Is Not Entitled To An Exception To Rule
90.3.
1.
To qualify for an exception to Rule 90.3, Fredrickson must
prove by clear and convincing evidence that manifest
injustice would result from an application of Rule
90.3.
Rule
90.3(c)(1) provides that a "court may vary the child
support award as calculated under the other provisions of
this rule for good cause upon proof by clear and convincing
evidence that manifest injustice would result if the support
award were not varied."[28] Fredrickson argues that the
facts of her case warrant a deviation from the normal
application of Rule 90.3' s methodology for calculating
child support for periods in which no support order was in
effect. She claims that the parties' agreement to waive
child support and her reliance on the agreement, difficulties
in proving past expenses and income, and her son's
adequate care during the period are unusual circumstances
that make the application of Rule 90.3's regular
methodology unfair. She asserts that this unfairness is
enough to avoid Rule 90.3's application through an
exception to the rule she finds in its Commentary at
VI(E)(1). Fredrickson argues that "[t]his section of the
Commentary makes no reference to Civil Rule 90.3(c)(1)[] and
exists separate from the Commentary interpreting Civil Rule
90.3(c)(1)." Therefore, Fredrickson asserts she does not
need to "include proof of 'manifest injustice'
by 'clear and convincing evidence'" as typically
required under Rule 90.3(c)(1). We disagree.
As we
explained in Ruppe v. Ruppe, Rule 90.3(c)(1)
"permits the court to 'vary the child support award
as calculated under the other provisions of this rule for
good cause upon proof by clear and convincing evidence that
manifest injustice would result if the support award were not
varied'" and "[s]uch a variation may be
particularly appropriate when the superior court is examining
parents' conduct before any child support order was
entered."[29] We went on to note that while "we
have held 'that absent extraordinary circumstances,
courts should apply the calculation methodology of Rule 90.3
to determine amounts to be reimbursed to custodial parents
for support of children during periods not covered by support
orders,' the commentary [at VI(E)(1)] to Rule 90.3 notes
that 'in some circumstances unfairness may result from
rigid [retroactive] application of the rule.'
"[30]
Our
articulation in Ruppe of the prevailing standard for
deviations from Rule 90.3's regular methodology made
clear that its Commentary at VI(E)(1) does not provide an
independent exception to Rule 90.3's application in this
context, but rather is a component of the general standard
governing deviations from Rule 90.3's methodology. In
addition, the structure of the Commentary itself suggests
that Part VI(E)(1)'s instructive language is still
subject to the requirements of Rule 90.3(c). Part VI(A) of
the Commentary provides information on exceptions in general.
Parts VI(B)-(F), including Part VI(E) that Fredrickson relies
on here, discuss more specific issues, all of which fall
under the general category of exceptions to Rule 90.3. This
indicates that Part VI(E) is subject to the general standard
applied to the broader category of exceptions governed by
Rule 90.3(c). In light of our recent case law and the
structure of the Commentary to Rule 90.3, we hold that
Fredrickson, like all parents seeking a variance from the
application of Rule 90.3's methodology, would be entitled
to a variation only "for good cause upon proof by clear
and convincing evidence that manifest injustice would result
if the support award were not varied."[31]
2.
Fredrickson did not prove by clear and convincing
evidence that manifest injustice would result from an
application of Rule 90.3.
Fredrickson
argues that the superior court should have deviated from Rule
90.3 in calculating child support for the periods prior to
Button's complaint on several grounds. We conclude that
none of these grounds warrant a deviation from the
application of Rule 90.3's regular methodology.
Fredrickson
contends that it is unfair to use Rule 90.3 calculations in
this case because she relied on the parties' agreement
that no support was due, and if she had known otherwise she
would have kept careful track of her spending. She explains
that between 2006 and 2013 the parties "made informal
agreements to cover [their son's] expenses as those
expenses arose" and that "[i]n August of 2007, the
parties executed an agreement saying that neither party owed
the other child support." Button signed the agreement
and both parties believed the agreement was fair and
equitable at that time. Fredrickson argues that "the
agreement between the parties that no additional support was
owing is one of the unusual circumstances which makes the
rigid application of Rule 90.3's calculation methodology
unjust on these facts." She also offers the agreement as
evidence that she had no reason to be aware of her potential
liability for retrospective support obligations and that she
therefore did not keep close records of her expenses related
to the child.
But we
made clear in Cox v. Cox "that an agreement
between the parties as to child support is not an exceptional
circumstance justifying deviations from the guidelines, where
the agreement requires support less than that called for by
the guidelines."[32] Cox involved a prospective
child support award, [33] but we have also applied similar
logic to child support arrearages, holding in Mx v. Mx that
"a child support waiver is not valid and enforceable
until a court has reviewed and approved the waiver's
substantive adequacy under Rule 90.3" and "a child
support waiver presented after the initial dissolution
proceeding will be given only prospective effect from the
date of judicial approval."[34] Given these holdings, the
superior court correctly ruled that the existence of the
parties' child support waiver cannot by itself support a
deviation from calculations of child support awards required
by Rule 90.3. In addition, the court correctly recognized
that Fredrickson was aware that she owed support, as
indicated by her payments to Button during this period. These
payments suggest she knew she was at least partially
financially responsible for supporting their son. The fact
that Fredrickson might have done something different in the
absence of the agreement between the parties is not an
extraordinary circumstance that would permit the superior
court to deviate from a calculation under Rule 90.3.
Fredrickson
also contends that it is unfair to use Rule 90.3 calculations
in this case because she made substantial contributions to
her child's expenses that she cannot prove. Fredrickson
offered testimony and evidence about her actual spending
during the time period at issue. She claimed that these
expenses included $660 per month to Button for a time after
they separated, including $400 for half the cost of the
child's school; coverage of the child on her medical
insurance; co-payments for medical care that insurance did
not cover; and payments for karate, swimming, football, and
other miscellaneous expenses. Fredrickson also testified that
in the spring of 2007 she stopped paying a fixed dollar
amount directly to Button and began paying certain of the
child's expenses on her own, including school fees,
doctor's bills, and extracurricular activities like
soccer, football, and swimming. Fredrickson submitted
documentation showing expenses she paid, including a partial
check register for 2007 through 2009. But she was only able
to document "partial" "example[s]" of
what she paid on the child's behalf. She argues that the
child support award should be lower because there were many
expenditures she made that she could not prove.
However,
the court credited Fredrickson $ 13, 602 against her
retrospective support obligation for the contributions she
was able to prove.[35] The court properly based the amount it
credited Fredrickson on the evidence presented, including
Fredrickson's bank records and check book register. We
conclude that Fredrickson's inability to prove additional
claimed expenditures on her child in this context does not
establish by clear and convincing evidence that manifest
injustice would result if the court did not vary the
retrospective child support from what was required under Rule
90.3 for the period from 2006 through 2013.
Fredrickson
further argues that the evidence suggests that the child was
well-supported financially and she would have paid more
support if he needed it. Fredrickson contends the court's
child support order "will only take support away from
[her child] in the present" and that "[t]he
substantial arrearage will effectively mean that the money
available to [Fredrickson] to support [her child] will be
greatly diminished during the half of his life he spends with
her." And she asserts that a rigid application of Rule
90.3 would result in exactly the type of unfairness we have
attempted to avoid - a" 'prolonged dispute'
about who paid for what" in the past.[36]
Fredrickson's
argument that the child support award will only take support
away from their son in the present is without merit. In
addition to the retrospective award, the superior court
entered an award for prospective child support. Both of these
awards are meant to provide for their son's needs, and
the prospective award will ensure that both parents continue
to provide for his needs in the future. Finally, using Rule
90.3 to calculate the retrospective child support award will
definitively end the dispute about past child support, not
result in a "prolonged dispute" about who paid for
what in the past.[37]
In
order to qualify for an exception to calculating child
support obligations under Rule 90.3, Fredrickson was required
to prove by clear and convincing evidence that manifest
injustice would result from an application of Rule 90.3.
Because she failed to do so, we hold that the superior court
did not err in using Rule 90.3 to calculate Fredrickson's
support obligations.
C.
It Was Not Error To Impute Income To Fredrickson, Nor To
Decline To Impute Income To Button.
1.
The court did not err in imputing income to
Fredrickson.
Button
argued in the superior court that it "should treat...
Fredrickson as voluntarily unemployed and... impute her past
income" for the purposes of calculating a future child
support award. The court agreed, finding that from 2014
onwards Fredrickson was voluntarily unemployed. Based on this
finding, the court imputed income to Fredrickson under Rule
90.3(a)(4), which allows the court to "calculate child
support based on a determination of the potential income of a
parent who voluntarily and unreasonably is unemployed or
underemployed, "[38] in an amount of $57, 395.72 per
year.[39]
There
are two aspects to the standard for imputing income in the
child support context. First, the superior court must find
that the obligor is both voluntarily and unreasonably
unemployed or underemployed.[40] Second, the superior
court's method for calculating the obligor's actual
earning capacity must be supported by adequate factual
findings, "based upon the [obligor's] work history,
...