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Berry v. Coulman

Supreme Court of Alaska

April 26, 2019

GUY ALAN BERRY JR., Appellant,
v.
COLLEEN MARIE COULMAN, Appellee.

          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 ...


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