Yerrington v. Yerrington

933 P.2d 555, 1997 Alas. LEXIS 38, 1997 WL 112277
CourtAlaska Supreme Court
DecidedMarch 14, 1997
DocketS-7196
StatusPublished
Cited by15 cases

This text of 933 P.2d 555 (Yerrington v. Yerrington) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yerrington v. Yerrington, 933 P.2d 555, 1997 Alas. LEXIS 38, 1997 WL 112277 (Ala. 1997).

Opinion

OPINION

EASTAUGH, JUSTICE.

I. INTRODUCTION

We consider here whether the superior court erred in refusing to modify Luba Yer-rington’s child support in 1995 after she demonstrated that her 1994 income was less than one-sixth the 1993 income which was the basis for setting her child support obligation under Civil Rule 90.3(a)(1). Alaska R.Civ.P. 90.3(a)(1). We reverse and remand for further findings regarding the appropriate rate of child support.

II. FACTS AND PROCEEDINGS

Seth and Luba Yerrington were divorced in 1990. The divorce decree awarded custody of the Yerringtons’ only child, David, to Luba. In 1993 Seth requested and received custody of David; Luba was granted reasonable rights of visitation. Although Luba submitted a child support guidelines affidavit, 1 the superior court apparently faded to enter an order requiring her to pay chdd support.

In 1994 Seth filed a motion for child support. Luba filed a new chdd support guidelines affidavit showing an adjusted annual income of less than $2,000. However, the federal income tax return supporting the affidavit indicated that Luba had received Native corporation dividends totaling $41,300 in 1993. 2 Therefore, the superior court calculated Luba’s total income to be $42,995 and established monthly chdd support payments of $716.58 in accordance with the formula set out in Civd Rule 90.3(a)(1).

In January 1995 Luba moved for a modification of the chdd support order. She supported her motion with her new chdd support guidelines affidavit and federal tax forms showing that her 1994 adjusted annual income was $6,708.24. Luba’s Native corpora *557 tion dividends accounted for $3,685.40 of this sum. Luba argued that based upon her 1994 income her child support obligation would be $50 per month under Rule 90.3. Because this was a reduction of more than fifteen percent from the current child support order, Luba contended that her income decline constituted a material change of circumstances justifying modification of the support order under Civil Rule 90.3(h)(1).

The superior court denied Luba’s motion to modify her child support obligation, stating as its reason that plaintiffs arguments in support of her motion had been “previously considered” by the court. Luba appeals.

III. DISCUSSION

Luba argues that under Civil Rule 90.3(h)(1) she was entitled to a modification of her child support based upon the dramatic decrease in her income between 1993 and 1994. 3 A child support award may be modified upon a showing of a material change in circumstances. Alaska R.Civ.P. 90.3(h)(1). “A material change of circumstances will be presumed if support as calculated under this rule is more than 15 percent greater or less than the outstanding support order.” Id. Luba was required to pay $716.58 per month in child support based upon her 1993 income of $42,995. Child support based on Luba’s 1994 income of $6,708.24 would have been more than fifteen percent lower than the amount awarded.

Seth does not dispute this evidence, but argues that the changes in Luba’s income are temporary and therefore not a sound basis for modification of the 1994 order. We have held that temporary changes in income are generally not a basis for modification of child support. Patch v. Patch, 760 P.2d 526, 530 (Alaska 1988). However, Patch involved a change in occupation. Id. We held that because the variation in income in such cases is temporary, earlier income remains an accurate estimate of earning capacity. Id. This case presents a different situation; the variation in dividends paid by Luba’s Native corporation stock is likely to continue into the future. Patch therefore does not apply to this case.

The trial court apparently reasoned that Luba’s Native corporation dividends, amounting to $41,300 in 1993, but only $3,685 in 1994, justified the denial of Luba’s motion for modification. The trial court evidently assumed that Luba’s reduced income in 1994 was an aberration, and that her income from 1993 was characteristic of her earning ability. A review of the record as a whole leads us to conclude that no factual basis existed for such an assumption. To the contrary, Luba demonstrated that her income varies widely, based upon the size of the dividends paid by her Native corporation stock. In 1992 her total income was only $5,388.78, including $2,793 in Native corporation dividends. Although Luba received a dividend of $41,300 from her Native corporation in 1993, she only received $3,580 in Native corporation dividends in 1994, when her total income was $6,708.24.

Absent any evidence that the 1994 dividend was artificially reduced, and that the 1995 dividend would be comparable to the substantial dividend in 1993, Civil Rule 90.3(h)(1) required modification of the existing support order, and the trial court erred by denying Luba’s motion.

Given that Luba’s income tends to fluctuate from year to year based upon the amount of her Native corporation dividends, upon remand the trial court may properly average Luba’s income in order to determine an appropriate amount of child support. We have approved an income-averaging approach in calculating child support where an obligor parent demonstrates an erratic or fluctuating income. Zimin v. Zimin, 837 P.2d 118, 123 (Alaska 1992) (approving a child support order based on income retrospectively averaged over a three-year period). In addition, the commentary to Civil Rule 90.3 states that in cases where an obligor’s income is erratic, the trial court may choose to average the obligor’s past income over a number of years. Alaska R.Civ.P. 90.3, Commentary III.E. This possible method reflects an understanding that a single year’s income may not be a *558 reliable indicator of future earning potential where an obligor’s income is highly variable.

In Zimin, this court approved a retrospective averaging of the obligor parent’s income to calculate child support. Zimin, 837 P.2d at 123. Luba’s income cannot be retrospectively averaged to include the income she received in 1993 because that income has already been the basis for child support payable under the presumptive schedule of Civil Rule 90.3(a)(2). That year cannot equitably be included in averaging income for subsequent years. The court may, however, take into account income received after 1993 4 to obtain a more accurate picture of the amounts Luba normally receives, and to calculate the appropriate child support to be paid. See Adrian v. Adrian, 838 P.2d 808, 811 (Alaska 1992) (“[T]he goal is to arrive at an income figure reflective of economic reality.

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Bluebook (online)
933 P.2d 555, 1997 Alas. LEXIS 38, 1997 WL 112277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yerrington-v-yerrington-alaska-1997.