Appeal
from the Superior Court No. 4FA-14-02571 CI of the State of
Alaska, Fourth Judicial District, Fairbanks, Douglas
Blankenship, Judge.
Guy
Alan Berry, Jr., pro se, Lillington, North Carolina.
No
appearance by Appellee Colleen Marie Coulman.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
CARNEY, Justice.
I.
INTRODUCTION
A
father appeals an order modifying his child support
obligation. He first argues that the superior court lacked
subject matter jurisdiction to modify the order. He
alternatively argues that the court abused its discretion by
modifying the support order without sufficient proof of a
material change in circumstances. Lastly, the father argues
that the court impermissibly retroactively modified the
support order.
We
hold that the superior court properly exercised its
jurisdiction in modifying the support order, that it did not
abuse its discretion in modifying the order because there was
sufficient proof of material change of circumstances, and
that the one-day retroactive modification is a de
minimis error that does not require correction. We
therefore affirm the superior court's order modifying
child support.
II.
FACTS AND PROCEEDINGS
Guy
Berry and Colleen Coulman have a daughter who was born in May
2010. Berry and Coulman never married. Berry is a soldier; he
was stationed at Fort Wainwright until shortly before their
daughter was born, when he was transferred to Fort Bragg,
North Carolina. Berry and Coulman did not have a custody
agreement. Coulman had sole physical custody of their
daughter from her birth. After Berry's transfer Coulman
contacted Alaska's Child Support Services Division (CSSD)
for assistance in obtaining child support from Berry. In May
2011 CSSD entered an order requiring Berry to pay Coulman
$773 per month in child support.
In
September 2014 Berry, representing himself, filed a complaint
in Fairbanks superior court requesting sole legal and
physical custody. When he filed the custody complaint, Berry
lived in North Carolina[1] and asserted that Coulman and their
daughter lived in Alaska. Coulman retained counsel and
answered Berry's complaint. She stated that she and her
daughter were living in Germany, not Alaska.
In
October 2015 the superior court held a status hearing to
address questions about its subject matter jurisdiction over
the custody dispute. The court concluded it had jurisdiction
to determine child custody pursuant to the Uniform Child
Custody Jurisdiction and Enforcement Act
(UCCJEA).[2] The court entered a temporary custody
order granting Coulman primary physical custody and shared
legal custody with Berry. The temporary custody order did not
address child support.
In
March 2016 Coulman filed a motion to modify child support,
arguing that the child support guidelines affidavit Berry had
filed in September 2014 was "stale." Coulman asked
the court to order Berry to file a current child support
affidavit with supporting income tax returns and military
leave and earnings statements. At a status hearing on the
motion, Berry asked for more time to respond, but ultimately
agreed to provide updated financial disclosures.
In
April Berry filed an updated affidavit and accompanying
documents. Shortly thereafter Coulman sent discovery requests
to Berry seeking additional information and documents about
his income, specifically showing how his pay was affected by
his deployments. Berry filed objections and responses to
Coulman's discovery requests with the superior court.
Over the next nine months they continued to litigate issues
relating to Berry's financial disclosures. They did not
revisit the court's ruling with regard to its
jurisdiction.
In
January 2017 Coulman filed a "Motion For Modification Of
Interim Child Support To Maximum Levels." She accused
Berry of bad faith during discovery and argued that his
incomplete financial disclosures showed that he was
"hiding his income" and "making it impossible
to accurately calculate child support." She argued that
a "suitable remedy" would be to set child support
at the maximum level unless Berry complied with Alaska Civil
Rule 90.3[3] and the orders of the court. In response
the court ordered that child support would be based upon the
maximum income for child support calculations ($120, 000)
unless Berry filed and served a complete Rule 90.3 income
affidavit with an unredacted income tax return and his last
three military leave and earnings statements.
Berry
retained counsel and opposed Coulman's motion later that
month, apparently filing his opposition the same day that the
court distributed its order. For the first time Berry argued
that CSSD was the only Alaskan tribunal that had continuing,
exclusive jurisdiction to modify the order. A week later
Berry filed an updated child support affidavit.
The
court denied Coulman's motion to set the child support at
the maximum level in April and ordered Coulman to lodge an
interim child support order setting the amount at $791.72 per
month, effective October 1, 2014, based on Berry's
recently filed child support affidavit.
Later
that month Berry moved for reconsideration of the
modification order. Berry reiterated his argument that only
CSSD, the tribunal that established the original child
support obligation, had continuing, exclusive jurisdiction to
modify it. He also argued that the court had impermissibly
modified the support order retroactively by making it
effective on October 1, 2014, when Coulman had not filed her
modification motion until March 2, 2016. Lastly Berry argued
that there was insufficient proof of a "material change
of circumstances" to warrant a modification under Rule
90.3.
The
superior court addressed Berry's motion for
reconsideration before the start of the scheduled custody
trial in May 2017. The court (and Coulman's counsel)
agreed that the effective date should be the date the motion
to modify was filed and served. The court explained that it
had not realized there was an existing order when it set the
effective date as October 1, 2014.
Berry
testified at trial that he lived in North Carolina but was a
legal resident of Alaska, and that he maintained his Alaska
residency because he and his wife intended to move back to
the state upon his separation from the military. Berry stated
that he was able to maintain his Alaska residency through the
Servicemembers Civil Relief Act (SCRA).[4] He testified that
he did not have an Alaska driver's license, but did not
pay state income tax in North Carolina because of his Alaska
residency. Berry also testified he intended to claim an
Alaska Permanent Fund Dividend (PFD) in 2017 because he was
physically present in Alaska for the custody
trial.[5]
At the
close of trial the superior court briefly addressed the issue
of jurisdiction, referring to its November 2015 order and
asserting that it had subject matter jurisdiction to modify
the support order pursuant to the UCCJEA.[6] The court noted
that Berry had not raised the issue and that it would
therefore proceed to the merits of the case.
Shortly
after trial Coulman lodged a proposed order modifying
CSSD's 2011 support order. Her proposed order required
Berry to pay three different support amounts: $795.00 per
month from March 1, 2016, until June 30, 2016; $ 1, 018.29
from July 1, 2016, until January 31, 2017; and $819.55
beginning February 1, 2017. The three different amounts were
based upon the formula in Rule 90.3 and accounted for
differences in Berry's income during his deployment from
July 2016 to January 2017 and then upon his
return.[7]
Berry
objected to Coulman's proposed order. He again argued
that only CSSD could modify the 2011 support order. Berry
also argued that there was no material and substantial change
in circumstances to warrant modification of the support
order. Berry addressed the different support obligations in
the proposed order separately and argued that the proposed
amounts for March through June 2016 and from February 2017
onward were modifications of less than 3% and less than 6%
respectively - far below the 15% threshold for a presumed
change in circumstances.[8] Berry also argued that his deployment
from July 2016 to January 2017 was temporary and not a
permanent change in income, so it should not be used as the
basis for modification. Finally he argued for the first time
that Alaska no longer had jurisdiction to modify the order
pursuant to AS 25.25.205[9] and the federal Full Faith and Credit
for Child Support Orders Act (FFCCSOA).[10]
Coulman
replied, arguing that pursuant to AS 09.05.010 Berry had put
child support at issue when he filed his custody complaint.
In response to Berry's newly raised jurisdictional
argument, Coulman emphasized that support is part of custody
under Rule 90.3.
The
superior court issued its final custody order in September
2017. It ordered shared legal custody between the parents and
awarded Coulman primary physical custody. The order's
only reference to child support states:
Child support shall be ordered pursuant to Rule 90.3 of the
Alaska Rules of Civil Procedure. A child support order shall
enter separately. It is recognized that a judicial child
support order is being entered over [Berry's] objections.
Such objections were previously raised on the record in this
matter.
On the
same day the court signed Coulman's proposed order
modifying child support. The court did not otherwise address
Berry's objections or expressly state its jurisdictional
basis for modifying the order.
Berry
appeals the superior court's order modifying child
support. He has not appealed any aspect of the court's
custody order.
III.
STANDARD OF REVIEW
Whether
a court has jurisdiction to modify a child support order
presents a question of subject matter jurisdiction,
[11]
which is a question of law that we review de
novo.[12] "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."[13] Upon a showing of a material change of
circumstances as provided by state law, the superior court
may modify a final child support ...