Opinion
Supreme Court No. S-13812.
June 15, 2011.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter A. Michalski, Judge, Superior Court No. 3AN-05-08931 CI.
Appearances: Anthony N. Williams, pro se, Anchorage, Appellant.
Candace Russell, pro se, Evanston, Illinois, Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Anthony Williams and Candace Russell are the parents of six-year-old Thaddeus. Candace, who now lives in Illinois, has sole legal and primary physical custody of Thaddeus while Anthony, who lives in Alaska, has visitation for up to four months of the year. Anthony pays Candace child support.
Anthony and Candace signed a parenting plan continuation agreement in August 2005 in which they agreed to each pay for half of Thaddeus's daycare expenses. The superior court first enforced the agreement at Candace's request in January 2006, and Candace also obtained a judgment against Anthony for unpaid daycare expenses in March 2007. In October 2009 Candace again asked the superior court to order Anthony to reimburse her for half of Thaddeus's daycare expenses, amending her request in February 2010 to include amounts prepaid for daycare through May 2010. Anthony objected to paying these amounts, arguing that he signed the agreement only after Candace verbally agreed that she would not seek child support, and also that his child support payments should cover daycare expenses. The superior court, relying on its previous determination that Anthony was responsible for half of Thaddeus's daycare expenses per the August 2005 agreement, entered judgment against Anthony in the amount of $7,598.16.
II. FACTS AND PROCEEDINGS
Anthony Williams and Candace Russell (f/k/a Candace Lundvall) have one child, Thaddeus, born October 16, 2004. Shortly after Thaddeus was born, Candace filed for child support through Alaska's Child Support Services Division (CSSD). CSSD sent Anthony an Administrative Child Support Order on December 23, 2004, which set Anthony's monthly support at $229.
Anthony and Candace were never married.
Anthony's child support obligation varied over the next year. Shortly after December 2004 it was reduced to $50 per month. Then on April 13, 2005, Candace filed a motion to withdraw from CSSD services. On June 2, 2005, Candace requested a modification in the support amount and on September 1, 2005, CSSD issued a modified support order setting Anthony's ongoing child support at $311 per month. Anthony appealed and a hearing was held in front of an administrative law judge on October 19, 2005. On November 28, 2005, the judge reduced Anthony's child support obligation to $291 per month because Anthony could not receive a PFD and was paying deductible union dues. Anthony had requested that his support be further reduced on account of financial hardship, but the judge disagreed that Anthony's financial situation constituted "unusual circumstances" that would justify a departure from the calculated child support pursuant to Alaska Rule of Civil Procedure 90.3(c).
Candace filed for sole legal and primary physical custody of Thaddeus on June 17, 2005, asking that Anthony have limited supervised visitation. Anthony requested joint legal and physical custody. The superior court held a custody trial on August 12, 2005. Candace was granted sole legal and primary physical custody of Thaddeus on August 16, 2005; Anthony received scheduled visitation. The superior court's custody order adopted and incorporated a parenting plan continuation agreement signed by Anthony and Candace and submitted to the superior court at the August 12 trial. The agreement stated, among other things, that "[b]oth parents agree to pay half of all daycare expenses for Thaddeus."
This custody arrangement continued after Candace moved to Illinois in 2007. The superior court held a hearing to address Candace's pending relocation on May 24, 2007 and ordered on May 31, 2007 that Candace was to continue to have sole legal and primary physical custody, with Anthony entitled to visitation during the summers and Christmas breaks.
Candace first sought to enforce the August 2005 agreement on December 1, 2005, when she requested that the superior court order Anthony to pay half of Thaddeus's medical and daycare expenses. Anthony did not respond to Candace's motion in a timely manner, and on January 9, 2006, the superior court ordered that Anthony pay Candace one-half of daycare expenses. Anthony then responded on January 31, 2006, that he should not have to pay any daycare expenses because he was already paying "ample" child support. On March 10, 2006, the superior court held a hearing on the issue. Anthony stated that when he signed the August 2005 agreement to split daycare expenses, Candace verbally agreed that he would be "taken off [of] child support," adding that he was already obligated to pay $291 per month in child support. Despite Anthony's objections, the superior court determined that Anthony "has an obligation to pay one half of daycare expenses" and indicated that it would issue a judgment upon proof of unpaid expenses.
In late March 2006, Candace submitted documents intended to show proof of paid daycare expenses in an effort to reduce Anthony's unpaid amounts to judgment, but these submissions were rejected by the superior court. Anthony filed a few additional oppositions during this time, arguing for example in December 2006 that he was already paying child support at the maximum allowed by his income. The superior court held a hearing on March 15, 2007. Candace submitted a worksheet and payment receipts showing her paid daycare expenses. Anthony again argued that he paid child support every month and did not understand why he would also pay daycare expenses, and that Candace had verbally agreed not to seek child support when he signed the agreement in August 2005.
On March 21, 2007, the superior court granted Candace's request to reduce Anthony's unpaid daycare expenses to judgment. The superior court explained that "in some cases [] the division of daycare expenses is not ordered, [and] . . . child support covers that cost, as well as other costs . . . but not in this case where the parties have specifically agreed to the treatment of daycare expenses." The superior court acknowledged Anthony's argument that he and Candace had a separate verbal agreement but rejected the argument as "inconsistent with the written agreement." The superior court then ordered Anthony to pay Candace $3,428.82 in daycare expenses.
Anthony apparently paid the $3,428.82.
Over two years later, on October 29, 2009, Candace filed another motion for reimbursement for daycare, arguing that Anthony had again failed to pay daycare expenses pursuant to the agreement and asking for $5,250.66. Candace attached several pages of daycare ledgers from October 2006 through October 2009 from facilities both in Anchorage and Illinois. Anthony responded with a number of arguments, most significantly that he "still pa[id] child support . . . at max[imum] ability which also applies to daycare expenses." He added that he should be entitled to a reduction in child support payments because Thaddeus had been living with him during some months. Anthony also filed a motion stating that Candace was not paying for travel expenses and suggesting that Thaddeus live with Anthony during the school year if Candace could not afford his care, and he filed another motion to hold Candace in contempt. Candace opposed Anthony's motions.
The superior court held a hearing on these motions on February 16, 2010. Candace pointed to the agreement under which each parent was to pay half of Thaddeus's daycare expenses and noted that the agreement had been adopted by the superior court in its August 16, 2005 custody order. She acknowledged that Anthony had paid the $3,428.82 judgment issued on March 21, 2007, but she stated that he had not paid anything since that time and currently owed $7,598.16 in daycare expenses. Anthony testified that he had signed the agreement only because Candace verbally agreed not to "put [him] back on" child support. He also argued that he should not have to pay both child support and daycare expenses, explaining that CSSD "[took] the full amount possible out of [his] income" and that after paying child support "there's no way [he could] pay for this extra daycare expense." Anthony added that he had not been awarded any extended visitation credit while Thaddeus was in his care.
Candace asked to amend her request to $7,598.16, representing both past expenses and prepaid expenses through May 2010; she offered to submit documentation showing a recent $6,080 payment that accounted for the increased amount. Candace also stated that Anthony was behind on his child support payments, but the superior court responded that child support arrears were a separate issue.
After hearing argument, the superior court determined that it had "previously ruled that [the duty to pay child care] was part of the agreement" and concluded that "[i]t is correct and appropriate based on the January `06 order that the court grant the motion for the payment of one-half of the child care costs." The superior court did agree with Anthony that if he "in fact ha[d] the child for a third of the year" that he "ought to be getting some acknowledgment of that in the reduction of those months, or the subsequent months child support." The superior court also suggested to Anthony that he might wish to apply to CSSD or to the superior court if he believed that his child support payments were being calculated incorrectly based on his current income.
On February 17, 2010, the superior court issued written factual findings, concluding that, as "had been ordered by the court in January 2006," Anthony owed Candace "half of the recent and near future [daycare] expenses." The superior court thus entered judgment in the amount of $7,598.16 representing "one-half of child care expenses through May, 2010." The superior court also found that Anthony was entitled to have his child support obligation reduced by 75% for the months that he has custody of Thaddeus and denied what it interpreted as Anthony's request to change custody.
Anthony appeals the superior court's judgment.
III. STANDARD OF REVIEW
The interpretation of a child support agreement between parties is a question of law to which we apply our independent judgment. We review a trial court's granting or denying modification of child support orders for abuse of discretion, reversing "only if the record as a whole leaves us with a definite and firm conviction that a mistake has been made." Trial courts have broad discretion in deciding whether to modify child support orders, but the proper method of calculating child support is a question of law reviewed de novo. A trial court's factual findings "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."
Brotherton v. Warner, 240 P.3d 1225, 1228 (Alaska 2010).
Robinson v. Robinson, 953 P.2d 880, 884 n. 4 (Alaska 1998) (internal quotation marks omitted).
Olmstead v. Ziegler, 42 P.3d 1102, 1104 (Alaska 2002).
Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008).
Dunn v. Dunn, 952 P.2d 268, 272 (Alaska 1998).
IV. DISCUSSION
We begin by considering Anthony's two primary contentions: (1) that he should not have to pay daycare expenses pursuant to the August 2005 agreement because Candace verbally agreed not to seek child support if he signed the agreement; and (2) that his share of daycare expenses should be covered by his monthly child support payments and "not additional to or outside of those [payments]." We then briefly address Anthony's additional arguments.
A. The Superior Court Did Not Err In Enforcing The August 2005 Agreement And Ordering Anthony To Pay Half Of Thaddeus's Daycare Expenses.
Anthony asserts that it was error for the superior court to enforce the August 2005 agreement and enter judgment for $7,598.16 against him for two reasons: first, because he agreed to pay daycare expenses only because Candace verbally promised not to "put [him] back on child support if he signed the agreement," and second, because daycare expenses should be covered by his child support payments. Candace counters by pointing to the superior court's March 21, 2007 order stating that while child support usually covers the cost of daycare expenses, in this case the parties explicitly agreed to treat daycare expenses separately.
This is the third time that the superior court has determined that Anthony must pay half of Thaddeus's daycare expenses pursuant to the August 2005 agreement. Candace first moved to enforce the agreement in a motion filed December 1, 2005. Anthony did not respond to this motion, and the superior court issued an order directing Anthony to pay Candace half of Thaddeus's daycare expenses. Anthony did not appeal that order. Instead he filed an untimely opposition on January 31, 2006, arguing that he should not have to pay daycare expenses because he already paid monthly child support. He then raised his related defense, that Candace verbally agreed not to seek child support if he signed the agreement in August 2005, before the superior court in a hearing on March 10, 2006. Over Anthony's objections, the superior court ordered that he was "obligated to pay half of day care expenses." At the hearing, the superior court told Anthony that he could file his own motion if he thought the agreement was unfair. Anthony never filed such a motion and never appealed the superior court's order.
One year later, Anthony repeated these same arguments in opposing Candace's motion for reimbursement of $3,428.82 in daycare expenses. Anthony again stated that he should not have to pay daycare expenses when he already paid monthly child support, and he repeated that Candace verbally agreed not to "put [him] back on" child support if he signed the agreement. The superior court issued a written order entering judgment against Anthony on March 21, 2007, that specifically addressed Anthony's arguments. The superior court recognized Anthony's point that "in some cases . . . the division of daycare expenses is not ordered, [and] . . . child support covers that cost, as well as other costs" but explained this was not true "in this case where the parties have specifically agreed to the treatment of daycare expenses." The superior court also noted Anthony's argument that he and Candace had a separate verbal arrangement but "reject[ed] this argument as inconsistent with the written agreement." Anthony did not appeal this order, and he paid the $3,428.82 judgment.
Over two years later, in October 2009, Anthony again objected to paying half of Thaddeus's daycare expenses, maintaining once more that the agreement was void because of a prior verbal agreement he made with Candace and that his monthly child support obligations should cover daycare expenses. Anthony had voiced these same objections in the earlier proceedings; the issues had already been fully litigated in the superior court. Reflecting this, the superior court expressly relied on its own prior orders in concluding in February 2010 that Candace was entitled to reimbursement. Because Anthony did not appeal the superior court's previous rulings, he cannot challenge enforcement of the August 2005 agreement in the context of this appeal.
See Dunlap v. Dunlap, 131 P.3d 471, 475-76 (Alaska 2006) (holding that an ex-husband's abandoning his appeal of the superior court's order to use a retirement buyout to pay both child support and an agreed-upon educational fund barred his later appeal and noting that although the law of the case doctrine "generally refers to issues that have previously been reviewed at the appellate level, the doctrine is equally applicable to issues that have been fully litigated in the superior court and as to which no timely appeal has been made") (citing Hermosillo v. Hermosillo, 797 P.2d 1206, 1208 (Alaska 1990) (determining that the refiling, in 1989, of a motion nearly identical to a motion denied and not appealed in 1988 was functionally an untimely appeal)).
But we identify an anomaly in that Anthony, who has an obligation to pay one-half of daycare expenses, has not been given a corresponding reduction in his child support obligation for the payment of reasonable daycare expenses pursuant to Alaska Rule of Civil Procedure 90.3. Subsection (a)(1)(E) of that rule directs that the adjusted annual income figure that forms the basis of a child support payment calculation is total income minus "work-related child care expenses for the children who are the subject of the child support order"; our case law confirms that credit should be given for payment of daycare expenses. Anthony did not explicitly request a reduction in his child support obligation by way of a separate motion, but we hold pro se litigants to less stringent standards. But Anthony did argue at the February 16, 2010 hearing that he could not pay for "extra daycare expenses" when child support "take[s] the full amount possible out of [his] income." It appears that the superior court understood that Anthony was trying to reduce the overall amount he was paying for his child; the superior court advised Anthony that he could "bring either to [CSSD] or the court" the argument that his current income was "at a level that does not justify the amount of child support that has been ordered by [CSSD]." If the superior court recognized what Anthony was trying to accomplish, it should have instructed Anthony about the need to file a motion for reduction of his child support payments. We therefore remand to the superior court to consider recalculating Anthony's child support obligation based on an adjusted annual income figure that accounts for reasonable child care expenses pursuant to Rule 90.3(a)(1)(E). B. It Was Not Error For The Superior Court To Find That There Was Sufficient Proof That Candace's Claimed Daycare Expense Figure Was Accurate.
Alaska R. Civ. P. 90.3(a)(1)(E); see also cmt. III.D (describing a deduction for "reasonable child care expenses that are necessary to enable a parent to work"); Tillmon v. Tillmon, 189 P.3d 1022, 1028-29 (Alaska 2008) (remanding for the trial court to determine if father was entitled to relief for uncredited child support deductions for paid daycare expenses).
Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987). We note generally that any other substantive relief that Anthony may request would require a conforming motion to the superior court. See Millette v. Millette, 177 P.3d 258, 266 (Alaska 2008).
See Millette, 177 P.3d at 267 n. 29 ("[T]he trial judge should inform a pro se litigant of the proper procedure for the action he or she is obviously trying to accomplish." (quoting Breck, 745 P.2d at 75)).
We do not decide whether any adjustment to the child support should be made and, if such adjustment is made, the date at which such adjustment should be effective.
Anthony also disputes that Candace provided sufficient proof to verify the accuracy of her claimed daycare expense figure. He states that the superior court based its decision on "hearsay" without requiring that Candace provide documents or receipts from Thaddeus's daycare. He adds that he does not even know the name, address, or phone number of the daycare providers.
Candace includes in her appellate brief several pages of daycare payment histories from October 23, 2006, through February 10, 2010. With the exception of one page, these payment histories are identical to those submitted to the superior court with her motion for reimbursement filed on October 29, 2009. These documents show running tallies of expenses and payments from four different daycare facilities; one in Anchorage and three in Illinois. Three of the four payment histories provide the name of the facility and the city in which it is located; the payment histories do not give street addresses or phone numbers for the facilities.
We determined in Dunn v. Dunn that where an ex-husband did not directly contradict his ex-wife's claimed expenses for carpeting a house, the trial court's finding that the ex-wife paid the expense was not clearly erroneous "even though the [ex-wife's] other evidence was equivocal." The evidence in that case consisted only of the parties' conflicting testimony and a bank statement from their joint checking account, evidence that we termed "not crystal clear." In this case, by contrast, Candace's testimony was supported by payment histories from daycare facilities for the periods claimed. We conclude that the superior court did not clearly err in finding that Candace's claimed expense figure was sufficiently supported.
952 P.2d 268, 273 (Alaska 1998).
Id. at 272-73.
C. The Superior Court Did Not Err By Refusing To Retroactively Credit Anthony With A 75% Reduction In Child Support For Extended Visitation Periods.
The superior court agreed with Anthony that he is entitled to an extended visitation credit, stating in its February 17, 2010 order that Anthony's "request for reduction of his child support for the months he has custody is well taken and shall be recognized by the department's enforcement and be reduced by 75% during those months." But Anthony argues that the superior court improperly refused to retroactively credit Anthony with a 75% reduction for past periods when Thaddeus had allegedly resided with Anthony. Anthony maintains that if the 75% reduction had been applied from 2007 to 2010, the $7,598.16 judgment "would almost be satisfied."
Alaska Civil Rule 90.3(h)(2) states that "[c]hild support arrearage may not be modified retroactively." Retroactively in this context means prior to the date of service of a motion to modify support. In this case, that date is likely October 29, 2009. Because Candace alleged that Thaddeus had not been in Anthony's custody since August 2009 and Anthony presented no contrary evidence, there was no reason for the superior court to address whether Anthony should be credited for any prior extended visitation periods.
Id.
D. Other Arguments
Anthony asks us to determine whether "visitation, child contact and whereabouts of [Candace] [are] being followed through." Anthony maintains that Candace has not "informed [him] of her personal moves" and "has kept [him] in the dark on various whereabouts of Thaddeus." Because Anthony did not raise this issue in the superior court it is waived. Moreover, Anthony does not point to any record support for his contention that Candace moved and did not inform Anthony of her current address.
See, e.g., Partridge v. Partridge, 239 P.3d 680, 685 (Alaska 2010) ("We will not consider arguments that parties fail to raise in the lower court . . . unless the trial court committed plain error.").
Anthony also alleges that the parties were ordered to travel to pick up Thaddeus when taking custody and that while Anthony has done so, Candace has not. Anthony is correct that the superior court's May 31, 2007 order stated that "[t]he party taking custody will have responsibility for traveling to pick up the child." But Anthony does not provide any factual support for his argument other than to allege that Candace "has arranged for our 5 year old son to travel independently with the escort of a flight attendant." This allegation, standing alone, is insufficient factual support.
V. CONCLUSION
We AFFIRM the superior court's judgment ordering Anthony to pay Candace $7,598.16, representing half of Thaddeus's daycare expenses through May 2010. We REMAND for the superior court to consider recalculating Anthony's child support obligation based on an adjusted annual income figure that takes into account reasonable child care expenses pursuant to Civil Rule 90.3(a)(1)(E).