from the Superior Court No. 4FA-14-013 81 CI of the State of
Alaska, Fourth Judicial District, Fairbanks, Michael P.
Margaret O'Toole Rogers, Foster & Rogers, LLC,
Fairbanks, for Appellant and Cross-Appellee.
L. Callahan, Callahan Law Office, Fairbanks, for Appellee and
Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger,
Carney, Justice, not participating.
a protracted custody dispute, the superior court awarded the
mother primary physical custody of a couple's two
children and ordered the father to pay child support. Both
parents appeal. The father contends that the superior court
abused its discretion when it refused to vary his child
support obligation pursuant to the "good cause"
exception of Alaska Civil Rule 90.3(c)(1), given the
parents' disparate incomes and the expenses the father
was incurring to comply with conditions on his visitation.
The mother contends that the superior court erred in setting
the child support order's effective date.
conclude that the superior court did not abuse its discretion
by denying a "good cause" variance because the
evidence did not support it. But it was error not to
expressly consider child support for the period between the
parties' separation and the order's effective date.
We remand the child support issue for further proceedings
consistent with this opinion.
FACTS AND PROCEEDINGS
D. and Krislyn D. were married in 1996 and have two minor
children. Christopher was a city police officer and
Krislyn was a veterinarian who owned her own practice. The
couple separated in January 2014 after Christopher allegedly
committed an act of domestic violence while under the
influence of alcohol. In February Krislyn filed a complaint
for legal separation, which was later converted to a divorce.
Both her complaint and Christopher's answer asked that
child support be set pursuant to Alaska Civil Rule 90.3. The
superior court approved an interim custody schedule by which
Krislyn had custody of the children 9 of every 14 nights on
an alternating two-week schedule. Neither party pursued a
request for child support until the custody trial over two
resigned from the police force in August 2014, and the
parties briefly reconciled. But in November they separated
again, this time for good, following another alleged incident
of domestic violence fueled by alcohol.
January 2015 Christopher was arrested for driving under the
influence and possessing a firearm while intoxicated. In the
divorce case the court approved the parties' stipulation
to a temporary custody order which, among other things,
reestablished the alternating two-week custody schedule,
prohibited Christopher from driving with the children, and
required him to submit to blood alcohol testing at
Krislyn's request. A custody investigation was delayed
because of Christopher's pending criminal charges, which
in turn delayed the trial.
parties settled their property issues in October 2015, but
permanent custody remained to be decided. A few weeks later
Christopher was arrested for driving under the influence,
reckless endangerment, violating conditions of release, and
resisting arrest, and Krislyn moved for modification of the
temporary custody order. The court granted her motion in
December: its order granted Krislyn sole legal and physical
custody, conditioned Christopher's contact with the
children on his wearing an ankle monitor, and required that
his visitation be supervised by a third party. Christopher
sought treatment for substance abuse and in March 2016
graduated successfully from a chemical dependency program. He
wore the ankle monitor as required for visitation and
continued with therapy. His pending criminal charges were
ultimately resolved by a plea agreement.
custody trial was scheduled for November 2016. Krislyn asked
for child support effective November 1, 2015, the month after
entry of the property settlement and divorce decree, on
grounds that "[p]rior to entry of the Decree of Divorce,
there was an informal interim financial arrangement...
regarding on-going joint expenses such as... child
support," and the decree "settled any potential
claim by either party in regard to interim financial matters,
including child support." Christopher asked that his
child support obligation be waived pursuant to the "good
cause" exception of Civil Rule 90.3(c)(1), citing the
disparity between his income and Krislyn's and the
ongoing expenses of his therapy and the court-ordered
conditions on visitation.
December 2016 the superior court issued written findings of
fact and conclusions of law, a custody decree, and a child
support order. The court adopted the parties' agreement
that Krislyn continue to have sole legal and primary physical
custody. It found that Christopher had successfully
maintained sobriety for at least six months, but it approved
his proposals - also recommended by the custody investigator
- that he continue to engage in "an after-care program
regarding his alcohol abuse and addiction," complete a
parenting class, undergo a psychological evaluation and
follow all its recommendations, and keep Krislyn informed of
his progress in all these areas. But the court released
Christopher from both the ankle-monitor condition on contact
with the children and the third-party supervision
requirement, allowing his father and his significant other to
act as visitation supervisors.
court also ordered Christopher to pay child support pursuant
to the formula of Civil Rule 90.3. The court denied
Christopher's request for a variance, concluding that
"[d]isparity of earning potential does not, in this
case, obviate the need for support to be calculated pursuant
to Civil Rule 90.3." The child support order provided
that Christopher's payments were to commence the next
month, on January 1, 2017.
parties timely appealed. Christopher challenges the superior
court's refusal to apply a variance to his child support
obligation to reflect his ongoing expenses and the
parties' disparity of income. Krislyn challenges the
court's selection of the child support order's
STANDARD OF REVIEW
'[W]e reverse child support awards only if the superior
court abused its discretion or applied an incorrect legal
standard,' or if 'its factual findings are clearly
erroneous.' " "A superior court abuses its
discretion by making a decision that is arbitrary,
capricious, manifestly unreasonable, or... stem[s] from an
improper motive.""Abuse of discretion occurs when a
trial court fails to consider statutorily mandated factors,
weighs factors improperly, or includes improper factors in
review de novo the trial court's determination of the
inception date for a child support