Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

CHRISTOPHER D., 

Appellant and 

Cross-Appellee, 

v. 

KRISLYN D., 

Appellee and 

Cross-Appellant

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) Supreme Court Nos. S-16586/16626 

Superior Court No. 4FA-14-01381 CI 

O P I N I O N 

No. 7303 – September 21, 2018 

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Appeal from the Superior Court of the State of Alaska, 

Fourth Judicial District, Fairbanks, Michael P. McConahy, 

Judge. 

Appearances: Margaret O’Toole Rogers, Foster & Rogers, 

LLC, Fairbanks, for Appellant and Cross-Appellee. 

Daniel L. Callahan, Callahan Law Office, Fairbanks, for 

Appellee and Cross-Appellant. 

Before: Stowers, Chief Justice, Winfree, Maassen, and 

Bolger, Justices. [Carney, Justice, not participating.] 

MAASSEN, Justice. 

I. INTRODUCTION 

Following a protracted custody dispute, the superior court awarded the 

mother primary physical custody of a couple’s two children and ordered the father to pay 

child support. Both parents appeal. The father contends that the superior court abused 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

its discretion when it refused to vary his child support obligation pursuant to the “good 

cause” exception of Alaska Civil Rule 90.3(c)(1), given the parents’ disparate incomes 

and the expenses the father was incurring to comply with conditions on his visitation. 

The mother contends that the superior court erred in setting the child support order’s 

effective date. 

We conclude that the superior court did not abuse its discretion by denying 

a “good cause” variance because the evidence did not support it. But it was error not to 

expressly consider child support for the period between the parties’ separation and the 

order’s effective date. We remand the child support issue for further proceedings 

consistent with this opinion. 

II. FACTS AND PROCEEDINGS 

Christopher D. and Krislyn D. were married in 1996 and have two minor 

children.1 Christopher was a city police officer and Krislyn was a veterinarian who 

owned her own practice. The couple separated in January 2014 after Christopher 

allegedly committed an act of domestic violence while under the influence of alcohol. 

In February Krislyn filed a complaint for legal separation, which was later converted to 

a divorce. Both her complaint and Christopher’s answer asked that child support be set 

pursuant to Alaska Civil Rule 90.3. The superior court approved an interim custody 

schedule by which Krislyn had custody of the children 9 of every 14 nights on an 

alternating two-week schedule. Neither party pursued a request for child support until 

the custody trial over two years later. 

Christopher resigned from the police force in August 2014, and the parties 

briefly reconciled. But in November they separated again, this time for good, following 

another alleged incident of domestic violence fueled by alcohol. 

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1 We use initials to protect the parties’ privacy. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In January 2015 Christopher was arrested for driving under the influence 

and possessing a firearm while intoxicated. In the divorce case the court approved the 

parties’ stipulation to a temporary custody order which, among other things, 

reestablished the alternating two-week custody schedule, prohibited Christopher from 

driving with the children, and required him to submit to blood alcohol testing at 

Krislyn’s request. A custody investigation was delayed because of Christopher’s 

pending criminal charges, which in turn delayed the trial. 

The parties settled their property issues in October 2015, but permanent 

custody remained to be decided. A few weeks later Christopher was arrested for driving 

under theinfluence, reckless endangerment, violating conditions of release, and resisting 

arrest, and Krislyn moved for modification of the temporary custody order. The court 

granted her motion in December: its order granted Krislyn sole legal and physical 

custody, conditioned Christopher’s contact with the children on his wearing an ankle 

monitor, and required that his visitation be supervised by a third party. Christopher 

sought treatment for substance abuse and in March 2016 graduated successfully from a 

chemical dependency program. He wore the ankle monitor as required for visitation and 

continued with therapy. His pending criminal charges were ultimately resolved by a plea 

agreement. 

A custody trial was scheduled for November 2016. Krislyn asked for child 

support effective November 1, 2015, the month after entry of the property settlement and 

divorce decree, on grounds that “[p]rior to entry of the Decree of Divorce, there was an 

informal interim financial arrangement . . . regarding on-going joint expenses such as . . . 

child support,” and the decree “settled any potential claim by either party in regard to 

interim financial matters, including child support.” Christopher asked that his child 

support obligation be waived pursuant to the “good cause” exception of Civil 

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Rule 90.3(c)(1), citing the disparity between his income and Krislyn’s and the ongoing 

expenses of his therapy and the court-ordered conditions on visitation. 

In December 2016 the superior court issued written findings of fact and 

conclusions of law, a custody decree, and a child support order. The court adopted the 

parties’ agreement that Krislyn continue to have sole legal and primary physical custody. 

It found that Christopher had successfully maintained sobriety for at least six months, but 

it approved his proposals — also recommended by the custody investigator — that he 

continue to engage in “an after-care programregarding his alcohol abuse and addiction,” 

complete a parenting class, undergo a psychological evaluation and follow all its 

recommendations, and keep Krislyn informed of his progress in all these areas. But the 

court released Christopher from both the ankle-monitor condition on contact with the 

children and the third-party supervision requirement, allowing his father and his 

significant other to act as visitation supervisors. 

The court also ordered Christopher to pay child support pursuant to the 

formula of Civil Rule 90.3. The court denied Christopher’s request for a variance, 

concluding that “[d]isparity of earning potential does not, in this case, obviate the need 

for support to be calculated pursuant to Civil Rule 90.3.” The child support order 

provided that Christopher’s payments were to commence the next month, on January 1, 

2017. 

Both parties timely appealed. Christopher challenges the superior court’s 

refusal to apply a variance to his child support obligation to reflect his ongoing expenses 

and the parties’ disparity of income. Krislyn challenges the court’s selection of the child 

support order’s effective date. 

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III.	 STANDARD OF REVIEW 

“ ‘[W]e reverse child support awards only if the superior court abused its 

discretion or applied an incorrect legal standard,’ or if ‘its factual findings are clearly 

erroneous.’ ”2 “A superior court abuses its discretion by making a decision that is 

arbitrary, capricious, manifestly unreasonable, or . . . stem[s] froman improper motive.”3 

“Abuse of discretion occurs when a trial court fails to consider statutorily mandated 

factors, weighs factors improperly, or includes improper factors in its decision.”4 

“We review de novo the trial court’s determination of the inception date for 

a child support obligation.”5 

IV.	 DISCUSSION 

A.	 The Superior Court Did Not Abuse Its Discretion By Declining To 

VaryChristopher’sChildSupport ObligationPursuant To The“Good 

Cause” Exception Of Civil Rule 90.3(c)(1). 

Christopher contends that the superior court abused its discretion when it 

refused to vary his child support obligation pursuant to the “good cause” exception of 

Civil Rule 90.3(c)(1). In support of this argument he contends that Krislyn’s earning 

capacity — which he asserts is over twenty times his own — “is more than adequate by 

itself to provide for the children’s needs”; that the amount he is required to pay under the 

child support order therefore “significantly exceeds the amount of the children’s 

2 Mitchell v. Mitchell, 370 P.3d 1070, 1076 (Alaska 2016) (footnote omitted) 

(first quoting Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003); and then quoting Limeres 

v. Limeres, 320 P.3d 291, 296 (Alaska 2014)). 

3 Sharpe v. Sharpe, 366 P.3d 66, 68 (Alaska 2016) (alterations in original) 

(quoting Morris v. Horn, 219 P.3d 198, 203-04 (Alaska 2009)). 

4 Ruppe v. Ruppe, 358 P.3d 1284, 1289 (Alaska 2015) (quoting Michele M. 

v. Richard R., 177 P.3d 830, 834 (Alaska 2008)). 

5 Skinner v. Hagberg, 183 P.3d 486, 488-89 (Alaska 2008). 

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reasonable needs”; and that his contribution “provides little more than a token benefit to 

the children.” Christopher further asserts that the substance abuse aftercare, parenting 

classes, and other court-ordered visitation conditions “cost a substantial investment of 

both time and money” and that he cannot afford to pay child support while also bearing 

these costs and the expenses of daily living. 

“The superior court may vary a support award calculated under Rule 90.3 

only ‘for good cause upon proof by clear and convincing evidence that manifest injustice 

would result if the support award were not varied.’ ”6 “Good cause may include a 

finding that unusual circumstances exist which require variation of the award in order 

to award an amount of support which is just and proper for the parties to contribute 

toward the nurture and education of their children.”7 To justify a good cause variation, 

a finding of unusual circumstances must be followed by a finding that “these unusual 

circumstances make application of the usual formula unjust.”8 

We conclude that the superior court did not abuse its discretion when it 

found that the parties’ disparity in income did not justify a good cause variation. We 

observed in Laughlin v. Laughlin that “[i]t is not unusual for one spouse to have a greater 

income than the other.”9 The disparity in Laughlin was much less dramatic than it is 

6 Berkbiglerv. Berkbigler, 921 P.2d 628, 631 (Alaska1996) (quoting Alaska 

R. Civ. P. 90.3(c)(1)); see also Alaska R. Civ. P. 90.3 cmt. I.C. (“The support guidelines 

in the rule may be varied only as provided by paragraph (c) of the rule.”). 

7 Alaska R. Civ. P. 90.3(c)(1). 

8 Alaska R. Civ. P. 90.3 cmt. VI.B. 

9 229 P.3d 1002, 1006 (Alaska 2010). 

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here, however;10 assuming, therefore, that this case presents “unusual circumstances” 

because of the parties’ respective incomes, the question remains whether “these unusual 

circumstances make application of the usual formula unjust.”11 

First, that Krislyn can afford to support the children on her own, while 

relevant to a good cause determination,12 does not by itself excuse Christopher’s own 

obligation to contribute.13 “Rule 90.3 provides the presumptive formula for calculating 

a non-custodial parent’s child support obligation.”14 One “expectation” of the rule is that 

increases in the parents’ income will result in corresponding increases in the amount 

available to spend on the children; “[t]hus, at least in the primary custodial situation, the 

contribution of one parent does not affect the obligation of the other parent.”15 Both 

continue to contribute a certain percentage of their income even as their incomes vary. 

10 See id. at n.17 (noting that mother’s income was approximately $67,000 

and father’s was approximately $32,000). 

11 Alaska R. Civ. P. 90.3 cmt. VI.B. 

12 Alaska R. Civ. P. 90.3(c)(1) (“The court shall consider the custodial 

parent’s income in this determination.”). 

13 Maloneyv.Maloney,969P.2d1148,1152(Alaska1998) (“[N]on-custodial 

parents should not be relieved of their child support obligations simply because custodial 

parents can afford to maintain their children.”). 

14 Morris v. Horn, 219 P.3d 198, 205 n.28 (Alaska 2009); see also Alaska R. 

Civ. P. 90.3 cmt. I.B (“[T]he guidelines presumptively apply to all child support awards 

. . . .”). 

15 Alaska R. Civ. P. 90.3 cmt. II. 

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Even a “token benefit” from the non-custodial parent serves to recognize that “[e]very 

parent has a duty to support his or her child.”16 

Christopher’s argument hinges not only on Krislyn’s ability to support the 

children on her own but also his inability to help because of his debts and expenses. He 

points to the “substantial investment of both time and money” he is required to make in 

counseling and classes in order to comply with the court-imposed conditions on 

visitation. But it was Christopher’s burden to demonstrate good cause by clear and 

convincing evidence.17 “We do not intend that the [good cause] exception become the 

rule.”18 And the fact that a party “has significant debts does not, by itself, mean that the 

award amount should be reduced.”19 

Christopher first raised the issue of a good cause variance in his pretrial 

memorandum, in which he asserted that he was “required to take several classes, engage 

in counseling, and pay for supervised visitation” such that “[h]e cannot afford the $763 

per month” child support obligation calculated under Rule 90.3(a). He did not elaborate 

on the actual costs of these requirements. He reasserted the argument at trial, testifying 

that he was engaged in therapy and had started the classes recommended by the custody 

16 Alaska R. Civ. P. 90.3 cmt. I.B; see Kestner v. Clark, 182 P.3d 1117, 1123 

(Alaska 2008) (“As we have repeatedly recognized, a parent should not be relieved of 

the obligation to support his or her children except under the most extreme 

circumstances.”). 

17 See Alaska R. Civ. P. 90.3(c)(1). 

18 Coats v. Finn, 779 P.2d 775, 777-78 (Alaska 1989). 

19 Berkbigler v. Berkbigler, 921 P.2d 628, 631 (Alaska 1996); see Alaska R. 

Civ. P. 90.3 cmt. VI.B.4 (“Prior or subsequent debts of the obligor, even if substantial, 

normally will not justify a reduction in support.”). 

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investigator. But he again failed to present any evidence of the costs of these activities. 

In closing argument he asserted that he was paying $500 per month for ankle monitoring 

services and $1,300 per month for a visitation supervisor, but the superior court 

eliminated these two expenses in its custody decree by recognizing Christopher’s 

progress, terminating the ankle monitor requirement, and authorizing Christopher’s 

father or significant other to supervise visitation. All that remains in the record now are 

Christopher’s conclusory statements that his unspecified expenses are sufficient to 

constitute good cause for a variance. This falls far short of the “clear and convincing 

evidence” necessary to show “that manifest injustice would result if the support award 

were not varied.”20 

We conclude that the superior court did not abuse its discretion when it 

denied the request for a good cause variance. 

B.	 The Superior Court’s Selection Of January 1, 2017 As The Effective 

Date For Christopher’s Child Support Obligation, Without 

Explanation, Was Error. 

In its December 2016 findings of fact and conclusions of law, the superior 

court determined that Christopher’s child support obligation would be calculated on the 

basis of his child support guidelines affidavit filed in November 2016; the accompanying 

child support order required the first monthly payment to be made on January 1, 2017. 

Krislyn argues that the court erred by selecting this effective date instead of 

“November 1, 2015, the first month following entry of the property settlement and 

20 Alaska R. Civ. P. 90.3(c)(1); see McDonald v. Trihub, 173 P.3d 416, 428­

29 (Alaska 2007) (affirming superior court’s refusal to find good cause for variance in 

father’s claimed disability, where father “failed to offer sufficient evidence, through 

further evidence of his medical disability or of his personal financial straits, that . . . 

manifest injustice would result in his case.”). 

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Decree of Divorce.” She contends that any claim for child support before that date was 

“extinguished” by the parties’ settlement of their respective financial claims. 

Christopher defends the order’s January 2017 effective date. He contends 

that the parties’ “informal financial arrangements” reflect their “understanding that 

interim child support would not be paid by either party”; that Krislyn “waived 

entitlement to interim child support” by agreeing to the property settlement agreement 

in October 2015 that was silent on child support; that Krislyn’s request is unfairly 

retroactive; and that given these facts — along with the parties’ “relative personal and 

financial circumstances,” Christopher’s court-ordered costs, and the late timing of 

Krislyn’s request — it was within the superior court’s discretion to decline to award 

child support for past periods. 

We conclude that neither parent’s argument is correct, and that the superior 

court must revisit the issue of child support for the entire interim period between 

separation and January 1, 2017, the effective date of the existing order. 

The obligation of parents to support their children “begins . . . on the date 

the parents stop living together”;21 “[t]his duty exists even in the absence of a court order 

of support.”22 We have repeatedly recognized that child support should be calculated 

from the date of separation.23 Here, the superior court found in its October 2015 findings 

21 Alaska R. Civ. P. 90.3 cmt. I.B. 

22 Matthews v. Matthews, 739 P.2d 1298, 1299 (Alaska 1987); see also 

Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska 1996) (“[A]bsent extraordinary 

circumstances, courts should apply the calculation methodology of Rule 90.3 to 

determine amounts to be reimbursed to custodial parents for support of children during 

periods not covered by support orders.”). 

23 See, e.g., Spott v. Spott, 17 P.3d 52, 54 (Alaska 2001) (“[The parent] owed 

back child support for the period not covered by the interim order — from the date of 

(continued...) 

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of fact and conclusions of law that “[t]he parties separated in November of 2014”; 

though arguing for different effective dates, neither partyappearsto challengethecourt’s 

finding of when they separated. 

Contrary to Christopher’s characterization of it, calculating child support 

fromthedateofseparation is not impermissibly retroactive. “The ruleagainst retroactive 

modification . . . only prohibits modifying ‘arrearage’ already due under a ‘final child 

support award’ in existence when a motion to modify is filed.”24 When there is no child 

support order covering the relevant time period, applying the methodology of Rule 90.3 

“does not modify an existing arrearage.”25 Indeed, “[p]recluding a retroactive award 

would create an incentive . . . to avoid . . . child support obligations for some period of 

time by delaying the process . . . . The creation of such an incentive would, of course, 

run counter to the statutory purpose of providing for the needs of children . . . .”26 

We must also reject Christopher’s arguments that Krislyn waived interim 

child support by entering into other “informal financial arrangements” with him or by 

failing to address the issue in the parties’ 2015 property settlement agreement, as well 

23 (...continued) 

separation until December 1, 1995.”); State, Dep’t of Revenue, Child Support Enf’t Div. 

v. Pealatere, 996 P.2d 84, 88 (Alaska 2000) (“The trial court, however, failed to 

calculate the amount of back child support from the date of separation.”); Ogard v. 

Ogard, 808 P.2d 815, 816 (Alaska 1991) (“[The parent] clearly owed some amount of 

child support beginning with the date of separation.”). 

24 Duffus v. Duffus, 72 P.3d 313, 320 (Alaska 2003). 

25 Craytonv.Crayton, 944P.2d487,490(Alaska1997) (quoting Vachon,931 

P.2d at 382). 

26 State, Dep’t of Revenue, Child Support Enf’t Div., ex rel. Hawthorne v. 

Rios, 938 P.2d 1013, 1015 (Alaska 1997) (quoting Cyrus v. Mondesir, 515 A.2d 736, 

738-39 (D.C. 1986)). 

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as Krislyn’s assumption that the settlement agreement resolved any earlier child support 

claims. “[N]o parental agreement regarding child support is valid until it receives 

judicial scrutiny under Rule 90.3.”27 From this rule follows a corollary: “a custodial 

parent’s conduct cannot amount to an estoppel or waiver altering the obligation to pay 

child support.”28 

As explained above in section IV.A, the superior court does have discretion 

to vary an award “for good cause upon proof by clear and convincing evidence that 

manifest injustice would result if the support award were not varied.”29 Christopher 

suggests reasons why the court may have decided to apply the “good cause” variance to 

any obligation he had to pay child support before January 1, 2017. But any variance 

must be explained. “The court must specify in writing the reason for the variation, the 

amount of support which would have been required but for the variation, and the 

estimated value of any property conveyed instead of support calculated under the other 

provisions of [Rule 90.3].”30 The failure to “issue written reasons for deviating from the 

guidelines” is error.31 

For these reasons weremandthechild supportorder for the superior court’s 

explicit consideration of the unaddressed period between legal separation and January 1, 

2017, the effective date of the existing order. Because support is being calculated 

27 Laughlin v. Laughlin, 229 P.3d 1002, 1005 (Alaska 2010) (quoting Nix v. 

Nix, 855 P.2d 1332, 1334 (Alaska 1993)). 

28 Paxton v. Gavlak, 100 P.3d 7, 13 (Alaska 2004) (quoting Rios, 938 P.2d 

at 1017 n.8)). 

29 Alaska R. Civ. P. 90.3(c)(1). 

30 Id. 

31 Boone v. Boone, 960 P.2d 579, 584 (Alaska 1998). 

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retrospectively rather than prospectively, “actual income rather than earlier predictions 

as to income should be used” to set the amounts due.32 

This decision is not intended to restrict the parties’ ability to mutually agree 

on support arrearages and seek judicial approval of their agreement, nor is it intended to 

limit the superior court’s discretion to vary the support obligation as required to prevent 

“manifest injustice” pursuant to Rule 90.3(c)(1). 

V. CONCLUSION 

We AFFIRM that aspect of the superior court’s child support order that 

applies prospectively. We REMAND the order to the superior court for explicit 

consideration of child support for the interim period between the parties’ separation and 

January 1, 2017. 

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32 Spott v. Spott, 17 P.3d 52, 56 (Alaska 2001).