Opinion
Supreme Court No. S-11913.
August 15, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Craig F. Stowers, Judge, Superior Court No. 3AN-03-10116 CI.
David R. Edgren, Edgren Law Offices, LLC, Anchorage, for Appellant. Timothy W. Seaver and Jennifer Wagner, Seaver Wagner, LLC, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, and Carpeneti, Justices. Bryner, Justice, not participating.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Fred Armstrong raises various challenges to the superior court's interim child support award. None has merit. He did not preserve his present argument that the superior court failed to follow the procedural requirements of Alaska Civil Rule 90.3, and we discern no plain error. He also argues that he was entitled to an offset against his child support obligation, but the court gave him an offset to the extent one was justified. He was not entitled to an evidentiary hearing because he never asked for one and because there was no genuine factual dispute. We also reject his argument that the property settlement agreement should be set aside due to mutual mistake, because we conclude that there was no such mistake. We therefore affirm.
II. FACTS AND PROCEEDINGS
Fred and Barbara Armstrong married in 1986, separated in 2003, and divorced in 2004. They have one child together, a daughter. Barbara had custody of their daughter while the parties were separated, but no interim child support order was entered, and Fred did not make child support payments to Barbara after they separated. The parties entered into a property settlement agreement on October 6, 2004. On the same day, the court ordered them to submit an Alaska Civil Rule 90.3 child support guidelines affidavit, a proposed final child support order, and "briefing" with affidavits on the issue of reimbursement for interim child support. They were told that either they could jointly submit a Rule 90.3 affidavit and a proposed final child support order, or one party could submit the documents with the approval of the other party.
Barbara submitted an unsigned Rule 90.3 affidavit with a notice explaining that Fred's attorney had not approved the affidavit because the attorney had been out of the office. When Barbara later learned that the Rule 90.3 affidavit understated Fred's income, she submitted one of Fred's pay stubs and the results from an online child support guidelines calculator with her memorandum on the issue of interim child support. On the day she submitted that memorandum, she also filed a proposed final child support order; the memorandum and the proposed order relied on the increased income reflected in Fred's pay stub and proposed child support of $1,071 per month. The superior court signed the proposed final child support order four months after Barbara submitted it.
Fred never objected in the superior court to Barbara's use of his pay stub to calculate interim or final child support, nor did he object to her reliance on the unsigned Rule 90.3 affidavit. He does not challenge the final child support order on appeal. He submitted no affidavit of his own in response to Barbara's memorandum for reimbursement of interim child support. Instead, Fred's attorney argued in opposition only that Fred should be able to offset $18,640 he allegedly spent on the child or Barbara, or for Barbara's "benefit." Barbara filed a reply that argued that Fred's claimed offsets were inflated, had been addressed by the property settlement, or were not payments made on the child's behalf. Her reply argued that Fred was only entitled to an offset of $1,950, and that he therefore owed $21,215 in interim child support. Barbara and her attorney both submitted signed affidavits supporting Barbara's reply. Among other things, Barbara's affidavit stated that Fred spent only $1,300 on clothing and a computer for their daughter, not the $4,040 he claimed. In response to Fred's claimed offset of $2,500 for rent money Barbara received from marital property during separation, Barbara's attorney's affidavit stated that the rent money was discussed during the property settlement conference.
Had Fred objected because the affidavit was unsigned, the superior court could have ordered Barbara to submit a signed affidavit. Alaska R. Civ. P. 90.3(e)(1) (stating "each parent . . . must file a statementunder oath which states the parent's adjusted annual income") (emphasis added)).
Fred did submit a Rule 90.3 affidavit with his complaint in 2004. The affidavit calculated child support at $1,331 per month plus the cost of health insurance.
The superior court awarded Barbara $21,215 in past child support "based upon the facts, arguments, and authorities cited in [her] Memorandum and Response." The court "expressly reject[ed] the factual assertions and arguments contained in [Fred's] Opposition, on the grounds that they were not supported by any evidence." The court denied Fred's motion for reconsideration. Fred appeals.
III. STANDARD OF REVIEW
We will reverse a child support order "only if the trial court abuses its discretion or applies an incorrect legal standard." A superior court has abused its discretion if our review of the record creates a "definite and firm conviction based on the record as a whole that a mistake has been made." We apply our independent judgment to determine whether an evidentiary hearing is necessary to determine how much child support should be awarded. We review matters that were not raised below for plain error. "Plain error exists where an obvious mistake has been made which creates a high likelihood that injustice has resulted."
Beaudoin v. Beaudoin, 24 P.3d 523, 526 (Alaska 2001).
Id. (citation omitted).
Routh v. Andreassen, 19 P.3d 593, 595 (Alaska 2001).
Duffus v. Duffus, 72 P.3d 313, 317, 319 (Alaska 2003).
Id. at 319 (citations omitted).
IV. DISCUSSION
A. The Superior Court Properly Applied Rule 90.3.
Fred argues that the superior court's interim child support award should be vacated because the court allegedly committed procedural errors in applying Rule 90.3. In support, he advances three contentions he did not raise below. Because he did not raise them below, we will reverse only if the superior court plainly erred.
Fred is represented by different counsel on appeal.
Duffus, 72 P.3d at 319.
Fred first contends that the court erred by ordering "briefing" instead of motion practice, but he fails to draw any meaningful distinction between briefing and motion practice and fails to show how he was harmed. Although the word "briefing" often connotes legal arguments, and motion practice usually also encompasses factual arguments, Fred's opposition was based solely on factual contentions. The court's request that he submit "briefing" therefore did not limit his ability to argue or make factual assertions. Fred also seems to argue that evidence cannot be submitted with briefing. But Alaska Civil Rule 76 permits exhibits to be submitted with any filings, and such exhibits can be admitted into evidence if they are admissible under the rules of evidence.
Alaska R. Civ. P. 76(a), (c).
Furthermore, Rule 90.3 does not require either motion practice or briefing. Instead, Rule 90.3 only requires that the parties submit "a statement under oath which states the parent's adjusted annual income and the components of this income" accompanied by "documentation verifying the income." Barbara is the only party who complied with Rule 90.3. She submitted an unsigned Rule 90.3 affidavit initially, and later submitted Fred's pay stub and corrected child support calculations based on that pay stub. Fred submitted a signed Rule 90.3 affidavit with his complaint, but never submitted any supporting documents; his factual contentions supporting his offset claim were unsworn. Because Barbara's Rule 90.3 affidavit was unsigned, the superior court could have ordered Barbara to submit an updated and executed Rule 90.3 affidavit after she submitted the pay stub. But Fred did not object to the unsigned affidavit, the pay stub, or the use of the guidelines calculator. It was therefore not plain error for the court to rely on those documents to establish interim child support.
Fred's second argument is that the superior court "did not direct the filing of child support guidelines affidavits for the period in question." Although the superior court did not ask the parties for a Rule 90.3 affidavit covering any specific dates, it did order the parties to submit a "child support guidelines affidavit." It also told the parties that they could submit "simultaneous memoranda . . . with affidavits" on the issue of interim child support. If Fred thought that the court needed an additional Rule 90.3 affidavit to calculate interim child support properly, he had explicit permission from the court to file one. He did not do so.
Finally, Fred argues that Barbara's reply to his opposition should have been "disregarded." Because the reply directly addressed Fred's argument that he was entitled to an offset, it was not error for the superior court to consider Barbara's reply and the attached affidavits in making its ruling. Moreover, Fred never moved to strike her reply or asked for permission to file additional facts in sur-reply.
The superior court committed no procedural errors in applying Rule 90.3.
B. The Superior Court Did Not Err by Denying Fred an Offset Greater than $1,950.
Fred argues that the superior court erred because it "did not enter specific findings and conclusions concerning the amount of the offset, if any, that was allowed." It seems that Fred is arguing that he cannot tell if he received an offset, that if he did receive an offset, it was too small, and that the court should have entered more specific findings of fact and conclusions of law.
In Ogard v. Ogard, we held that parents are entitled to offsets for money spent supporting children before a child support order is in place. There was no support order in effect during the separation period while Barbara had custody of their daughter. Fred was therefore entitled to an offset per Ogard for any money he spent supporting their daughter. But, as Barbara argues, the court did grant Fred an offset. The superior court awarded Barbara $21,215 in accrued child support. In doing so, it explicitly relied on the evidence Barbara submitted with her initial memorandum and her reply to Fred's opposition, which together established that Fred owed Barbara $21,215 after he received an offset for the $1,950 that she conceded he had spent on their daughter. It is apparent from Barbara's initial memorandum, her reply to Fred's opposition, her supporting affidavits, and the superior court's order, that the court in fact awarded Fred an offset of $1,950.
Ogard v. Ogard, 808 P.2d 815, 816-17 (Alaska 1991).
Barbara's signed reply affidavit stated that Fred had spent $1,300 on clothing and a computer for their daughter. In her reply to Fred's opposition, she conceded that Fred had spent $500 on a trip to Vail, and in her original memorandum, she conceded that Fred had spent $150 on school photos and spending money. These expenditures total $1,950; Barbara was the only party to submit sworn testimony regarding the clothing and computer purchases.
It was not error to deny Fred an offset greater than $1,950. The additional expenses that Fred claimed below were unsupported by any evidence. Fred submitted no evidence with his opposition, and cited no evidence already in the record. Instead, some of the offsets he sought were for money spent on Barbara's other children, or on marital property; those expenses could not be offset against his child support obligation. Absent any supporting evidence, it would have been error for the superior court to grant Fred a larger offset.
To the extent Fred argues that he was entitled to findings of fact and conclusions of law specifying "the amount of the offset, if any," we conclude that the superior court's findings and conclusions were sufficiently detailed. The superior court stated that it was persuaded by "the facts, arguments, and authorities" cited by Barbara and that it "expressly reject[ed] the factual assertions and arguments contained in [Fred's] Opposition, on the grounds that they were not supported by any evidence." This explanation adequately informed Fred of the court's reasoning and is sufficient for effective appellate review.
The superior court did not err by not awarding Fred an offset no greater than $1,950.
C. The Superior Court Did Not Err by Choosing Not to Hold a Hearing.
Fred asserts that the superior court should have held an evidentiary hearing because there was "conflicting evidence" about how much money Fred had spent on his daughter. There are at least two reasons why no hearing was required. First, there was no genuine dispute of material fact. Fred submitted no evidence that conflicted with the evidence Barbara submitted. Indeed, he submitted no evidence at all on the issue. The evidence Barbara submitted was not internally contradictory. Her evidence comprised of Fred's pay stub and the child support guidelines calculator that she submitted with her initial memorandum, and two executed affidavits that she submitted with her reply to Fred's opposition. The affidavits did not contradict the pay stub and the guidelines calculator; instead they provided more information. Second, Fred first requested a hearing when he filed his motion for reconsideration. That was too late.
Fred argues that a superior court cannot conduct a "trial by affidavit." There was no trial by affidavit here. Because Fred never submitted any relevant evidence or evidence that contradicted Barbara's evidence, and because Barbara's evidence was internally consistent, this was not a trial by affidavit, but instead a contest between one party who supported her arguments with evidence and another party who provided no evidence to support his arguments. The superior court did not err by resolving the issue without an evidentiary hearing.
Cf. Adrian v. Adrian, 838 P.2d 808, 811 (Alaska 1992) (holding "[i]n our view, Civil Rule 90.3 does not authorize child support trials by affidavit").
D. The Property Settlement Agreement Is Valid.
Fred seems to argue that the property agreement should be set aside because the superior court committed "clear and apparent error" by not recognizing what Fred considers a "mutual mistake." Fred seems to contend that the parties were mistaken about whether interim child support was included in the property settlement agreement. From the record, it seems clear that child support was not part of the property agreement, and that the parties understood it would be calculated "based on [Rule] 90.3." When the parties read the property settlement agreement into the record, child support was only mentioned once, when Barbara's attorney stated that, "[w]e have not done a child support calculation." Soon thereafter, Fred informed the court that there were no "side agreements."
As Barbara argues, the parties were not mutually mistaken because there is no indication that Barbara thought interim child support was part of the property agreement. The superior court properly applied the law as stated in Arndt v. Arndt, that "[d]ivision of marital property by the court is separate and distinct from questions of child support."
Arndt v. Arndt, 777 P.2d 668, 670 (Alaska 1989).
In his reply brief, Fred makes a slightly different argument. He asserts that "settlement agreements are set aside if entered into by a party with less than `full understanding'" and cites this court's decision in Notkin v. Notkin in support. Although we do not need to consider this argument because it was raised for the first time in Fred's reply brief, Fred has failed to establish that there was any factual dispute about whether he lacked "full understanding" of the property settlement agreement. Instead, the record reflects that the property agreement did not include child support of any kind.
Notkin v. Notkin, 921 P.2d 1109, 1111 (Alaska 1996) (citation omitted).
Sengupta v. Univ. of Alaska, 139 P.3d 572, 580 n. 31 (Alaska 2006).
E. Barbara Is Not Entitled to Full Appellate Attorney's Fees.
Barbara requests full appellate attorney's fees under Alaska Rule of Appellate Procedure 508(e). Rule 508(e) permits us to award full attorney's fees if an appeal "is frivolous" or "has been brought simply for purposes of delay." Although we affirm the superior court's order, we do not conclude that Fred's appeal was frivolous or brought for purposes of delay. We therefore decline to award Barbara full attorney's fees.
V. CONCLUSION
We AFFIRM the superior court's order in all respects.