A mother appeals from an order reducing the amount of child support the father was required to pay. The mother argues that the superior court relied on incorrect income calculations from the Child Support Services Division (CSSD) and that it erred in finding a material change in circumstances sufficient to warrant a reduction in child support. She also argues that the court should have required the father to submit an income affidavit, and that its failure to do so improperly shifted to her the burden of proving the father's income. We conclude that CSSD's income calculations were incorrect, that it was error for the court to adopt them, and that the father should have been required to
II. FACTS AND PROCEEDINGS
Elissa Przywojski (formerly Shanigan) and Terrence Shanigan divorced in January 2012, and Elissa was granted sole legal and primary physical custody of their two minor children. The 2012 child support order required Terrence to pay monthly child support of $1,932.92.
In June 2014 Terrence asked CSSD to review his support obligation. He gave CSSD copies of his 2013 federal tax return and the six most recent pay stubs from his employment with the State. CSSD recalculated his support obligation and determined that it could be reduced by $315.92 a month. Because this was a reduction of 16.3%, Terrence was presumed to have had a material change in circumstances as defined by Alaska Civil Rule 90.3(h), which would justify a modification of his obligation.
Elissa opposed the motion to modify, arguing that CSSD's calculations were wrong in several respects. According to Elissa, a correct calculation would result in only a 10.7% decrease from the original child support order, too small a change to justify a reduction in Terrence's support obligation. Elissa also challenged Terrence's failure to submit a sworn income affidavit in support of CSSD's request. Finally, she claimed that CSSD erred in assuming that Terrence had no income from a consulting business he had recently launched.
Along with her opposition Elissa filed an affidavit from her mother, a certified public accountant, who had done her own calculations based on the income information Terrence had given CSSD. This competing analysis showed that Terrence's monthly support obligation should be reduced to $1,725.24 per month, a reduction of $207.68 instead of the $315.92 proposed by CSSD. Because her figures showed only a 10.7% reduction in Terrence's obligation, Elissa argued that a material change in circumstances could not be presumed under Rule 90.3(h) and no modification was justified.
The superior court granted CSSD's requested modification in February 2015, decreasing Terrence's child support obligation to the CSSD-recommended amount of $1,617 per month. The court issued no separate written findings, but it noted on its order that it had reviewed Elissa's opposition and found "no supporting evidence" for her claims. Elissa filed successive motions for reconsideration, which the court denied.
Elissa filed this appeal. Terrence did not participate.
III. STANDARD OF REVIEW
"We use the clearly erroneous standard when reviewing factual findings, including findings regarding a party's income...."
A. It Was Error To Grant The Requested Modification Of Terrence's Child Support Obligation Because He Failed To Show A Material Change In His Income.
1. Child support is calculated under Rule 90.3.
Rule 90.3 prescribes how child support is calculated. The starting point is the non-custodial
Rule 90.3(a)(1)(B) also allows a deduction for "voluntary contributions to a retirement or pension plan or account ... except that the total amount of these voluntary contributions plus any mandatory contributions ... may not exceed 7.5% of the parent's gross wages." After the court has made these deductions (and several others not relevant here), what remains is the non-custodial parent's "adjusted annual income."
Once this amount has been determined, Rule 90.3(a)(2) gives the formula for calculating the child support obligation of the non-custodial parent. Because Terrence and Elissa have two minor children, the amount of the obligation is the adjusted annual income multiplied by .27.
To trigger a modification in child support under Rule 90.3(h)(1), the party petitioning for modification must demonstrate that there has been "a material change of circumstances," which is presumed "if support as calculated under [the] rule is more than 15 percent greater or less than the outstanding support order."
2. Terrence's gross income for 2014 was $108,729.72.
Because Terrence submitted his request for modification before the end of 2014, CSSD extrapolated his gross annual income through the end of the year using his most recent income information. As of his latest pay stub, dated October 28, 2014, Terrence's "total gross" income from his State employment was $88,295.60. Elissa correctly extrapolates that amount to an annual income of $105,954.72.
3. CSSD incorrectly calculated Terrence's Rule 90.3 adjusted annual income by overstating his federal income and Medicare tax obligations.
The following mandatory deductions should have been subtracted from Terrence's gross income to determine his adjusted annual income under Rule 90.3(a)(1)(A): federal income tax, mandatory contributions to Alaska's Supplemental Benefits System (SBS) Annuity Plan (the State's Social Security equivalent), Medicare tax, mandatory union dues, and mandatory contributions to Terrence's retirement plan. While CSSD did take those deductions into account, Elissa argues that it erred in calculating two of them — federal income tax and Medicare tax — resulting in an incorrect figure for Terrence's annual adjusted income. We agree.
a. Federal income tax
Based on the documentation Terrence provided, CSSD determined that his 2014 income tax obligation was $1,731.51 per month, or $20,778.12 per year. Elissa argues that this calculation overstated Terrence's tax obligation because it was based on his
The United States tax code allows certain deductions from gross income before federal income tax is calculated.
The next step in the analysis is to determine the actual tax obligation. In order to do so, CSSD assumes a standard deduction for a single person. In 2014 that standard deduction was $6,200, and the applicable personal exemption was $3,950.
CSSD did not explain to the superior court how it derived Terrence's federal income tax obligation, but whatever method it used, it arrived at a tax obligation of $20,778.12, approximately $5,290 higher than it should have been. In fact, CSSD's federal income tax determination is almost precisely what it would have been had CSSD neglected to deduct Terrence's pre-tax income, as Elissa claims occurred. Subtracting the standard deduction and personal exemption from CSSD's total taxable income figure of $108,729.72 leaves $98,579.72 in taxable income. In 2014, the tax obligation for that income was $20,777
b. Medicare tax
Elissa also addresses Terrence's Medicare tax obligation, arguing that he would have owed only $1,460.57 rather than $1,536.36 as calculated by CSSD.
Had CSSD calculated Terrence's Medicare tax correctly, it would have first deducted from his pay the non-taxed amounts (the $540 cell phone allowance) and pre-tax deductions such as voluntary SBS and employee health insurance ($4,684.32), yielding $100,730.40 in income subject to the Medicare tax.
4. Reliance on CSSD's erroneous income calculations resulted in an unwarranted modification of child support.
Relying on its incorrect calculations of federal income and Medicare taxes, CSSD determined that Terrence's 2014 adjusted income was $71,868.24.
But Terrence's adjusted annual income for Rule 90.3 purposes should have been $76,694.15,
In granting the requested modification, the superior court appears to have relied solely
Here Elissa provided the court with extensive documentation and her own calculations, supported by the affidavit of her accountant witness, in an attempt to demonstrate that CSSD erred. As "the party attacking the child support determination," she "bore the burden of proving, by the preponderance of the evidence, that [CSSD's] income calculations were incorrect."
B. It Was Error To Grant The Requested Child Support Modification In The Absence Of A Child Support Guidelines Affidavit From Terrence As Required By Rule 90.3.
Elissa makes two additional arguments. First, she argues that CSSD, and therefore the superior court, erred not only in its calculation of Terrence's child support obligation but also by performing that calculation without the income documentation that Rule 90.3 requires. Second, she argues that it was error for the superior court to shift the burden to her to demonstrate that Terrence did not receive income from his new consulting business in 2014 rather than requiring him to submit an affidavit stating whether he did.
We agree that Terrence should have been required to submit an income affidavit. In its Notice of Petition for Modification, CSSD requested income information from both Elissa and Terrence, including notarized income affidavits, W-2s and tax returns, and recent pay stubs. Terrence apparently submitted only his recent pay stubs and an unsigned, self-prepared 2013 tax return. Elissa argues that because Terrence failed to submit requested documentation, "especially the sworn income affidavits," CSSD should not have considered his request for modification. She cites to Rule 90.3(e)(1), which requires that "each parent in a court proceeding at which child support is involved must file a statement under oath which states the parent's adjusted annual income.... This statement must be filed with a party's ... motion to modify." The commentary to Rule 90.3 also states that "each parent ... must provide the court with an income statement under oath" and "documentation of current and past income."
Our case law supports Elissa's argument that submission of an income affidavit was mandatory. In Harris v. Westfall an appellant argued that the trial court had erred by failing to require her former husband to file a child support guidelines affidavit, and we agreed that "the [trial] court had to know [his] earning capacity and should have required
An affidavit was particularly critical in this case because of Terrence's nascent consulting business, begun in 2013. Whether it generated any income in 2014 is an unresolved question of fact, though presumably Terrence has access to that information. As Elissa argues, the failure to require Terrence to file an income affidavit improperly shifted the burden to her to show what income he may have received from the consulting business or other sources not reflected in his pay stubs. It was error to grant a modification in Terrence's favor in the absence of his supporting affidavit.
The order modifying the 2012 child support obligation is REVERSED.