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 

MICHAEL J. MITCHELL, 

Appellant, 

v. 

JOHANNA M. MITCHELL, 

Appellee. 

) 

) Supreme Court No. S-15870 

Superior Court No. 1JU-09-01002 CI 

O P I N I O N 

No. 7087 – March 18, 2016 

) 

) 

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) 

) 

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Appeal from the Superior Court of the State of Alaska, First 

Judicial District, Juneau, Philip M. Pallenberg, Judge. 

Appearances: Michael J. Mitchell, pro se, Tucson, Arizona, 

Appellant. Johanna M. Mitchell, pro se, Juneau, Appellee. 

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

Bolger, Justices. 

FABE, Justice. 

I. INTRODUCTION 

This appeal raises the question whether the superior court ordered the 

proper amount of child support in resolving a motion to modify support. A mother and 

father divorced, and the final decree granted them joint physical custody of their two 

minor children. Three years later, at age 47, the father quit his job, moved from Alaska 

to retire in Arizona, and withdrew significant funds from his retirement account. The 

mother moved for a modification of child support based on these changed circumstances. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

She argued that the withdrawn retirement funds should be included in the father’s 

income and that he could afford to pay more child support based on his earning potential. 

The superior court ordered that the withdrawn retirement funds be included in the 

father’s income for determining child support for a one-year period, effective from the 

date of the mother’s motion. The father appeals, arguing that he cannot now be required 

to pay child support based on his income from the previous year. The mother challenges 

this contention and continues to argue that the court should have imputed income to the 

father based on his earning potential. 

Because the father’s significant increase in income from his retirement 

account withdrawal justifies a corresponding increase in his child support obligation, we 

conclude that the superior court’s approach of ordering a year’s worth of child support 

based on this year of increased income was not error. But because the superior court 

failed to consider the imputed income claim that the mother plainly raised in her motion, 

we remand for further consideration of that question. 

II. FACTS AND PROCEEDINGS 

A. Facts And Prior Proceedings 

Johanna and Michael Mitchell married in 1996, had two children together 

in 1998 and 2001, and then separated in the fall of 2009. An attorney mediator helped 

the parties reach a divorce settlement agreement, which the superior court accepted after 

a hearing in December 2009. Both parties represented themselves throughout the 

divorce and subsequent proceedings. 

The superior court issued a divorce decree and final child support order 

following the December 2009 hearing. The child support order gave Johanna and 

Michael joint legal custody and shared physical custody of their two children, stating that 

the children would reside with their mother 55% of the time and with their father 45% 

of the time. Both parents were living in Juneau at that time. Based on the shared custody 

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arrangement and an evaluation of Michael’s and Johanna’s relative incomes, the court 

ordered Johanna to pay $273.35 per month in child support and to purchase health 

insurance for the children. 

In November 2012, at age 47, Michael retired from his job at the National 

Weather Service, and in March 2013 he moved to Tucson, Arizona. Michael then 

withdrew $50,000 from his pension account, which he apparently used to purchase his 

house in Arizona. In July 2013 Johanna filed her first motion to modify child support 

based on these changed circumstances. Johanna explained that, following Michael’s 

move to Arizona, “[t]he children are now living with the mother . . . 100% of the time 

and have been since mid-February 2013. Mother is no longer paying child support to 

father and father is not currently paying child support to [m]other.” Johanna did not state 

a specific amount of child support she was requesting from Michael. 

Michael filed a response, agreeing that the existing child support order 

should be modified and that he should now pay child support to Johanna. But he 

explained that, for purposes of child support, his income should be calculated based on 

his predicted future income rather than his current actual income because “[n]either [his] 

2012 or 2013 income [was] representative of [his] future earnings.” He claimed that 

from 2014 through 2020 his “only source of earnings” would be his retirement account, 

which would yield yearly payments of approximately $17,380. He explained that he 

would begin receiving a pension in 2021. 

Michael filed several documents to support the contentions in his response 

brief. First, he filed a copy of his 2012 tax return showing a gross income of $95,319, 

earned while he was still working for the National Weather Service. Second, he filed a 

child support affidavit reporting his “2013 actual and expected” income of $8,991. 

Finally, Michael filed another child support affidavit showing his “[e]stimated 

2014-2020” income of $17,382 per year from his retirement account. Based on his 

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estimated future income, Michael calculated that he owed $341 per month in child 

support. In the affidavit showing his actual 2013 income, Michael noted that the figure 

excluded “a 1 time lump sum withdrawal” from his Individual Retirement Account 

(IRA). But he did not list the amount of this withdrawal. Johanna did not file a reply or 

otherwise contest Michael’s calculations. 

The superior court granted Johanna’s first motion to modify child support 

in October 2013. But rather than using his actual income including the lump-sum 

withdrawal, the court used Michael’s expected income calculations as the basis for 

determining the amount of support he owed. In granting the motion, the court noted that 

“Michael filed a response indicating that he agrees with the motion, but he requests that 

the support order be based on his future retirement income. Johanna filed no reply 

disagreeing with this request.” The court ordered Michael to pay $341 per month in 

child support, which is the amount Michael had calculated based on his estimated future 

income of $17,382. Johanna did not appeal this decision. 

B. Proceedings Leading To This Appeal 

In July 2014 Johanna filed a second motion to modify child support, which 

is the subject of this appeal. Johanna argued that changed circumstances warranted 

further modification of child support as permitted under Alaska Civil Rule 90.3(h)(1). 

Johanna alleged that Michael’s actual 2013 income had been much higher than the 

expected income he had reported in his affidavit during the previous year’s proceedings. 

Johanna cited Michael’s 2013 tax return and explained that his actual “2013 adjusted 

gross income was $58,506 compared to his July 2013 estimate of $17,382.” Thus, she 

continued, “[h]is taxable 2013 income was $41,124 higher than he told the court it would 

be last year.” To support this contention, Johanna filed a copy of Michael’s 2013 tax 

return showing the $50,000 withdrawal from his retirement account, for a total gross 

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income of $58,506.1 She also filed a child support guidelines affidavit using Michael’s 

2013 actual income, as reported on his tax return, to calculate his child support obligation 

at $1,230.98 per month. Based on his actual income, she concluded, “[h]e can afford to 

pay more than $3,852 per year.” 

Johanna also argued that Michael should be required to pay more child 

support because he was capable of earning a higher income: “He should use this access 

[to retirement funds] to also help support his children.” She emphasized that Michael’s 

unemployment was voluntary and that it reduced his ability to support his daughters, 

explaining that “[h]e ‘retired’ (quit) working at the National Weather Service voluntarily 

[in] late 2012 of his own accord. His children should not suffer for that decision. He is 

only 49 years old, too young to retire, capable of working.” While Johanna did not file 

any new documentation of Michael’s earning potential, the record already contained 

Michael’s 2012 tax return, which had been filed in the 2013 proceedings and showed that 

he earned $95,319 in the year leading up to his retirement. 

Michael opposed Johanna’s motion to modify support. He did not contest 

Johanna’s ability to move for modification based on the retirement withdrawal, instead 

responding to her motion on the merits. He argued that the lump-sum withdrawal from 

1 The record does not reveal exactly how or when Johanna received 

Michael’s tax return showing his actual 2013 income. She may have received a copy of 

the return as part of a request for income information under Civil Rule 90.3(e)(2), which 

provides, in part: “While there is an ongoing monthly support obligation, either party 

must provide to the other party, within 30 days of a written request, documents such as 

tax returns and pay stubs showing the party’s income for the prior calendar year.” For 

our purposes, it suffices to note that this information was apparently not available at the 

time of Johanna’s 2013 motion to modify, when Michael submitted his 2012 tax return 

and his estimated income for 2013, mentioning the IRA withdrawal but not giving its 

amount. Michael’s 2013 tax return — the only information in the record documenting 

Michael’s actual 2013 income — would not have been available until 2014. 

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his retirement account should not be included in the calculation of his income because, 

he argued again, his “2013 income [was] not representative of [his] 2014 and future 

income.” He further explained that “the vast majority” of his 2013 income was the lumpsum withdrawal from his retirement account, which he said was used to purchase his 

primary residence in Arizona. According to his own interpretation of Civil Rule 90.3 

Commentary III.A, Michael argued that a pension withdrawal “is specific[al]ly excluded 

from income calculations.” He reiterated that his income from 2014 to 2020 would be 

“primarily an $18,000 yearly payment from [his] IRA.” 

Michaelalso responded at leastindirectly to Johanna’sassertionthat hewas 

voluntarily unemployed by contending that his “early retirement and move to Arizona 

[was] in the best interest of [his] physical and mental health, which in the long term, will 

be in the best interest of [his] daughters.” Michael also stated that he “would like to 

reserve the right to collect unpaid child support from [December] 2009 to [February] 

2012 from the plaintiff,” though he provided no documentation to support the allegation 

of unpaid child support. With his response, Michael filed a copy of his 2013 tax return 

showing $58,506 in income including the lump-sum withdrawal. He also filed a child 

support guidelines affidavit based on his estimated 2014 income of $18,000 plus capital 

gains and dividends; this affidavit calculated his child support obligation at $546.32 per 

month. 

In Johanna’s reply, in addition to highlighting the high costs and time 

pressure she faces in raising the children, she again alleged that Michael’s voluntary 

unemployment was unreasonable and not in the best interest of the children: 

Michael sold his house, quit his full-time job with excellent 

benefits, and moved over 2,200 miles away from his 

daughters. And he insists that he is “retired” at the age 

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of 49,[2] and can’t afford to pay more than $546.32 per month 

to help support his children. Why doesn’t he seek a job? He 

has a bachelor’s degree. 

Johanna also questioned the veracity of Michael’s reported income for 2014, requesting 

more details about Michael’s retirement plan and asking “why [it cannot] be used to help 

support his children.” She noted that she has heard Michael “does a lot of traveling” and 

wondered “[h]ow [it] is . . . that he can afford to travel if his budget is indeed only 

$18,000 per year.” 

InFebruary2015 thesuperior court granted Johanna’s modification motion 

in part. The court accepted Michael’s estimate of his reduced income for future years but 

rejected his contention that the lump-sum withdrawal should be completely excluded 

from his income. The superior court noted that the Commentary to Civil Rule 90.3 

provides: “Lump sum withdrawals from pension or profit sharing plans . . . will not be 

counted as income to the extent that the proceeds have already been counted as income 

for the purposes of calculating child support . . . (i.e., contributions to a voluntary 

pension plan).”3 The superior court explained that this provision is intended “to avoid 

double-counting: that is, counting income once when it is contributed to a retirement 

account and again when it is withdrawn. It does not say that lump sum withdrawals are 

never counted as income for child support purposes.” Here, the court found that 

“Michael provides no basis from which the court could conclude that the $50,000 

withdrawn from [his] retirement account in 2013 was previously counted as income for 

the purposes of calculating child support.” The court also found that “Rule 90.3 bases 

child support upon the obligor parent’s ‘total income from all sources,’ which does 

2 The record shows that Michael was 49 at the time of these proceedings; he 

was 47 when he retired. 

3 Alaska R. Civ. P. 90.3 cmt. III.A. 

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include lump sum withdrawals when there is no double-counting.” The superior court 

therefore concluded that the withdrawal should properly be considered part of Michael’s 

2013 income. 

But the court accepted Michael’s argument “that a one-time withdrawal 

should not be used to determine child support for any period other than the one during 

which it was made.” The court reasoned that “[i]f it is truly a one-time withdrawal, it 

would not be fair to include it in the obligor parent’s income for all subsequent years.” 

Thus, the court concluded that “Michael’s 2013 retirement withdrawal should be used 

to determine child support for a period of one year only, but not thereafter.” On this 

basis, the court calculated that Michael’s child support obligation based on his 2013 

income was $1,207.30 per month using the formula given in Civil Rule 90.3. “Because 

this amount is more than 15% greater than the amount order[ed] in 2013,” the court 

concluded, “there has been a material change of circumstances which requires 

modification of the 2013 order” under the Rule 90.3 threshold for presumptive changed 

circumstances. 

To capture Michael’s 2013 withdrawal in his current payments, the court 

reasoned that “[t]ypically child support is calculated one year late, because tax 

information is not available for any given year until after that year is completed.” Thus, 

the court essentially ordered Michael to pay the year’s worth of child support based on 

his 2013 income one year late, beginning the month after Johanna filed her motion. 

Under this order, Michael would pay $1,207.30 monthly child support for 12 months 

beginning August 1, 2014. Then on August 1, 2015, Michael’s child support obligation 

would “revert to $546.32, the figure proposed by Michael.” The court also ordered that 

the parties exchange tax and income documents in early 2015 and explained that the 

parties were free to “move to modify child support in advance of August 1, 2015[,] if 

they believe this figure should be changed.” 

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Although the superior court briefly acknowledged Johanna’s contention 

that Michael is voluntarily unemployed, it failed to decide whether the unemployment 

was unreasonable, seeming to conclude that Johanna had not adequately raised a claim 

for imputed income under the “potential income” provision of Rule 90.3. “While Civil 

Rule 90.3(a)(4) allows the court to impute additional income to a parent who is 

voluntarily and unreasonably underemployed,” the superior court explained, “Johanna 

has not asked the court to do so.”4 In acknowledging that she had raised this issue to 

some extent, the court mentioned only Johanna’s assertions made in her reply brief and 

stated that “fairness precludes the court from considering arguments made for the first 

time in a reply brief.”5 Thus, the court declined to assess Michael’s earning potential or 

decide the question whether he was voluntarily and unreasonably unemployed. 

Michael now appeals the trial court’s modification order. 

III. STANDARD OF REVIEW 

Generally “[c]hild support awards are reviewed for abuse of discretion.”6 

Similarly, “[t]rial courts have broad discretion in deciding whether to modify child 

support orders”; thus “[w]e review a trial court’s determination of whether to modify 

4 The court cited Nunley v. State, Department of Revenue, Child Support 

Enforcement Division for the proposition that a court may impute income to a parent who 

is voluntarily and unreasonably unemployed, but the court did not discuss whether 

Johanna’s contentions might have raised an implied claim in this regard. See 99 P.3d 7, 

11 (Alaska 2004). 

5 See King v. Carey, 143 P.3d 972, 974 & n.4 (Alaska 2006); Alaska State 

Emps. Ass’n v. Alaska Pub. Emps. Ass’n, 813 P.2d 669, 671 n.6 (Alaska 1991). 

6 Ruppe v. Ruppe, 358 P.3d 1284, 1289 (Alaska 2015) (quoting Heustess v. 

Kelley-Heustess, 259 P.3d 462, 467 (Alaska 2011)). 

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child support for an abuse of discretion.”7 “We will find an abuse of discretion when the 

decision on review is manifestly unreasonable.”8 

However, “[w]hether the superior court applied the correct legal standard 

to its child support determination is a question of law that we review de novo.”9 

Similarly, “[t]he interpretation of Alaska Civil Rules governing child support orders is 

reviewed de novo; we will adopt the rule of law that is most persuasive in light of 

precedent, reason, and policy.”10 Thus, “[w]e reverse child support awards only if the 

superior court abused its discretion or applied an incorrect legal standard,”11 or if “its 

factual findings are clearly erroneous.”12 

Finally, in determining whether a party has waived or adequately raised a 

particular claim in the proceedings below, generally “[w]aiver is a legal issue that this 

court reviews de novo.”13 But we review for plain error when the parties have not 

7 Wilhour v. Wilhour, 308 P.3d 884, 887 (Alaska 2013) (citing Olmstead v. 

Ziegler, 42 P.3d 1102, 1104 (Alaska 2002)). 

8 Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508 

(Alaska 2015) (citing Tufco, Inc. v. Pac. Envtl. Corp., 113 P.3d 668, 671 (Alaska 2005)). 

9 Limeres v. Limeres, 320 P.3d 291, 295 (Alaska 2014) (citing Koller v. Reft, 

71 P.3d 800, 804 (Alaska 2003)). 

10 J.L.P. v. V.L.A., 30 P.3d 590, 594 (Alaska 2001) (italics omitted); see also 

Millette v. Millette, 240 P.3d 1217, 1219 (Alaska 2010). 

11 Koller, 71 P.3d at 804 (citing Beaudoin v. Beaudoin, 24 P.3d 523, 526 

(Alaska 2001)). 

12 Limeres, 320 P.3d at 296. 

13 State v. Jacob, 214 P.3d 353, 361 (Alaska 2009) (citing Lauth v. State, 

Dep’t of Health & Soc. Servs., Div. of Pub. Assistance, 12 P.3d 181, 184 (Alaska 2000) 

(“We . . . apply our independent judgment when determining whether an issue has been 

(continued...) 

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technically appealed the superior court’s finding of waiver.14 “Plain error exists where 

‘an obvious mistake has been made [that] creates a high likelihood that injustice has 

resulted.’ ”15 

IV. DISCUSSION 

The fundamental question we must address in this case is whether the 

superior court ordered Michael to pay the proper amount of child support when it 

decided Johanna’s second motion to modify support. In considering this question, we 

recall our longstanding principle “that in child support cases the court’s paramount 

concern is the best interests of the child[ren].”16 We have explained that “[c]hildren have 

an interest in adequate support independent of either parent’s interest,”17 and therefore 

our ultimate duty here is to ensure that the superior court’s child support order serves the 

best interests of Michael and Johanna’s children. 

Michael argues that the amount of child support ordered here is improper 

because it uses the income he earned in 2013, including the IRA withdrawal he made in 

that year, as the basis for his child support obligation in the following year. He contends 

that this method of calculating income is inconsistent with section III.E. of the 

Commentary to Alaska Civil Rule 90.3 regarding the appropriate time period for 

13(...continued) 

waived below due to inadequate briefing.”)). 

14 SeeLaughlinv. Laughlin, 229P.3d1002, 1005-06 (Alaska2010)(applying 

the plain error standard of review to an element of the trial court’s decision that the 

parties had not challenged on appeal). 

15 Id. at 1005 (citing In re Estate of Fields, 219 P.3d 995, 1011 (Alaska 

2009)). 

16 Hinchey v. Hinchey, 722 P.2d 949, 952 n.5 (Alaska 1986). 

17 Laughlin, 229 P.3d at 1006. 

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calculating income. Relatedly, he argues that the amount of child support ordered is 

“excessive” because, when compared to his current income, “it exceeds the amount 

dictated by Civil Rule 90.3” and other guidelines. Johanna contests these arguments and 

also argues that the court should have imputed income to Michael based on his earning 

capacity, as permitted under Rule90.3(a)(4)’s“potential income”provision. In assessing 

whether the superior court used the proper method for determining child support, we first 

consider Michael’s arguments and then turn to Johanna’s imputed income argument. 

A.	 The Superior Court Did Not Err In Using Michael’s Actual 2013 

Income To Calculate Child Support For The Following Year. 

1.	 Johanna’s argument for including the IRA withdrawal in 

Michael’s income is not barred. 

Michael first contends that Johanna is now barred from arguing that the 

IRA withdrawal should be included in his income, because she did not appeal the 

superior court’s 2013 child support modification order. This argument is based on the 

principles of res judicata and finality. He essentially argues that the trial court’s 2013 

order, which accepted Michael’s own income estimates and his non-inclusion of the 

lump-sum retirement withdrawal, constituted a final judgment on the question whether 

to include the lump-sum withdrawal in his income. Because Johanna did not appeal that 

order, he argues that Johanna cannot relitigate that issue. This argument fails for two 

reasons. 

First, Michael never contended in the superior court that Johanna is barred 

from litigating the issue of the IRA withdrawal, and thus he has waived that argument.18 

Second, the appropriate framework for analyzing a motion to modify child support is not 

18 See, e.g., Still v. Cunningham, 94 P.3d 1104, 1111 (Alaska 2004) (“Issues 

that are not raised in the superior court are waived and cannot be asserted on appeal as 

grounds for overturning a judgment.”). 

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res judicata but rather the changed circumstances doctrine under Civil Rule 90.3. As we 

have previously explained, “motions to modify child support, under Alaska law, do not 

technically raise res judicata concerns.”19 “This is so because a motion to modify is not 

a new action. It, rather, asks the court to re-open the final judgment in the same 

action.”20 But “the principle of finality is a sound one”21 even in this context, so we have 

held that “[t]here must be a material change of circumstances before a support order can 

be modified.”22 Our cases on this point reflect and interpret Rule 90.3(h)(1), which 

likewise provides that “[a] final child support award may be modified upon a showing 

of a material change of circumstances.” A material change of circumstances can arise 

from “certain fact changes occurring after the entry of a judgment” or from “certain 

changes in the law.”23 

Here, new information regarding Michael’s 2013 IRA withdrawal 

constituted changed factual circumstances. The record provides no indication that 

Johanna could have known the amount of Michael’s IRA withdrawal until she received 

his 2013 tax return — necessarily sometime after the close of calendar year 2013 — 

which showed that the withdrawal amounted to $50,000, and which she submitted with 

her 2014 motion to modify. Although the withdrawal itself happened before the 2013 

proceedings, and Michael briefly mentioned “a 1 time lump sum withdraw[a]l” in his 

2013 filings, Johanna could not be expected to move for modification based on the 

19 Bunn v. House, 934 P.2d 753, 757 (Alaska 1997). 

20 Id. at 757 n.12. 

21 Id. at 757. 

22 Id. at 758. 

23 Id. 

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retirement withdrawal until she received information about the amount of the 

withdrawal. Michael’s IRA withdrawal thus constituted a change in factual 

circumstances at the time that Johanna received full information about it.24 

Finally, the 2013 modification order did not expressly address the issue of 

Michael’s IRA withdrawal, nor did Michael provide any information about the amount 

of the withdrawal during those proceedings. So Johanna’s motion does not violate the 

principle of finality. Accordingly, even if Michael’s argument on this point had not been 

waived, Johanna would still be permitted to argue for the inclusion of his IRA 

withdrawal in his income in these proceedings. 

2.	 The superior court did not abuse its discretion in setting 

Michael’s 2014-2015 child support obligation. 

Michael does not contest the superior court’s conclusion that a withdrawal 

from a retirement account is properly considered income for purposes of child support. 

He concedes that the exclusion of the withdrawal from his 2013 affidavit was 

“incorrectly based on” his interpretation of Alaska Civil Rule 90.3. Instead, Michael 

argues on appeal that the court-ordered modification is erroneous because the timing of 

the income calculation was wrong. He contends that the superior court erred by using 

his 2013 income as the basis for his child support obligation in the following year, from 

mid-2014 through mid-2015. Becauseascertaining the proper time periodfor calculating 

24 As Johanna attested in her 2014 motion to modify, Michael’s 2013 tax 

return showed that his actual gross income for 2013 was $58,506. This amount was 

more than $40,000 greater than the predicted income of $8,991 on which the 2013 

modification order was based, equaling a 550% increase. This large increase clearly 

exceeds the 15% threshold for a presumed change in circumstances under 

Rule 90.3(h)(1). 

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support is a matter of applying the correct legal standard for a child support 

determination, we review the superior court’s decision de novo.25 

Michael’s core argument relies on the Commentary to Alaska Civil 

Rule 90.3. Section III.E of the Commentary, titled “Time Period for Calculating 

Income,” provides that courts should generally calculate child support based on the best 

possible approximation of the parent’s current income: 

Child support is calculated as a certain percentage of 

the income which will be earned when the support is to be 

paid. This determination will necessarily be somewhat 

speculative because the relevant income figure is expected 

future income. The court must examine all available 

evidence to make the best possible calculation. 

The determination of future income may be especially 

difficult when the obligor has had very erratic income in the 

past. In such a situation, the court may choose to average the 

obligor’s past income over several years. 

Taking this provision at face value, Michael argues that the superior court’s modification 

order “clearly contradicts” the provision because his 2013 income — on which the 

modification is based — is “unrepresentative of expected future income.” 

It is true that a literal reading of Comment III.E might suggest that child 

support payments must be calculated based on “expected future income.” But as we 

have previously explained, “[t]he commentary to Civil Rule 90.3 has not been officially 

adopted, but it can provide useful guidance in applying the rule.”26 We did cite 

Comment III.E in the somewhat analogous case of Swaney v. Granger, where we 

25 See Limeres v. Limeres, 320 P.3d 291, 295 (Alaska 2014) (citing Koller v. 

Reft, 71 P.3d 800, 804 (Alaska 2003)). 

26 Miller v. Clough, 165 P.3d 594, 599 n.10 (Alaska 2007) (citing Caldwell 

v. State, Dep’t of Revenue, Child Support Enf’t Div., 105 P.3d 570, 573 n.6 (Alaska 

2005)). 

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explained that “a child support award that is applicable to a past period should be based 

on a parent’s actual income for that period, while an ongoing award should be based on 

the income the parent is expected to receive during the period to which the award will 

apply.”27 But our holding in that case ultimately focused on the fact that the modification 

order was effective back to a date before the motion to modify had been filed, making 

it an impermissible retroactive modification under Rule 90.3(h)(2).28 Here, the superior 

court was careful notto modify Michael’s child supportobligation retroactively; it issued 

a prospective order effective the first day of the month after Johanna filed the motion to 

modify support.29 And the modification was not an “ongoing award”30 but was instead 

a one-year award that increased child support payments to reflect Michael’s significant 

one-year increase in income. So neither Swaney v. Granger nor Comment III.E dictates 

the outcome of this case. 

Injustice would result if child support calculations could never incorporate 

income information from the previous year. At the time of the 2013 proceedings, 

Johanna had no way of knowing the amount of Michael’s IRA withdrawal. Michael’s 

child support affidavit at that time simply mentioned “a 1 time lump sum withdraw[a]l 

from [his] retirement IRA” but did not specify an amount. Nothing in the record 

indicates that Johanna could have known the amount of the withdrawal until she received 

a copy of Michael’s 2013 tax return, which could not have happened until the beginning 

27 297 P.3d 132, 139 (Alaska 2013). 

28 Id. at 136. 

29 See Alaska R. Civ. P. 90.3(h)(2); see also Swaney, 297 P.3d at 136 

(“Modifications are allowed to the extent that they are ‘effective on or after the date that 

a motion for modification . . . is served on the opposing party.’ ” (alteration in original) 

(quoting Alaska R. Civ. P. 90.3(h)(2))). 

30 See Swaney, 297 P.3d at 139. 

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of 2014 at the earliest. Preventing modification in such a situation would diminish our 

policy of protecting a child’s independent interest in adequate child support.31 If one 

parent won the lottery and the other parent had no information about the amount of the 

winnings until the following year, it would be unjust for a court to conclude that the 

lottery winner could not be ordered to pay child support on the amount of his or her 

winnings. In such a case, as in the current case, justice requires that the previous year’s 

income be considered in setting child support for the following year even if it is a timelimited adjustment of child support for a one-time income event. 

In fact, a court’s refusal to consider the previous year’s income could 

actually create an incentive for parents to hide short-term increases in income until it is 

too late for the other parent to collect child support on that income. Here, Michael 

himself chose not to report the amount of his IRA withdrawal at the time of the 

2013 proceedings. If he had provided this information at the time, the superior court 

could have modified his support obligation accordingly, and it would not have later been 

necessary for the court to set Michael’s 2014 child support obligation based on his 2013 

income. But having chosen not to report the amount of his withdrawal in 2013, Michael 

may not argue that this income cannot factor into his child support obligation in 2014, 

the first year in which both Johanna and the superior court received information about 

the amount of the IRA withdrawal. 

Finally, thetrial court correctly observed that, inpractice, “[t]ypically child 

support is calculated one year late, because tax information is not available for any given 

year until after that year is completed.” And it is not unprecedented to order a one-year 

change in child support reflecting a temporary increase in a parent’s income. In 

31 See, e.g., Laughlin v. Laughlin, 229 P.3d 1002, 1006 (Alaska 2010) 

(emphasizing children’s “interest in adequate support independent of either parent’s 

interest”). 

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Brotherton v. State, for instance, we reviewed a child support determination following 

a property division that included a significant amount of interest paid in a single year.32 

There we held that it was appropriate to count the interest as part of the wife’s income 

for a single year but not beyond, essentially creating a similar one-year change in child 

support reflecting a unique income source in that year.33 Similarly, the Commentary to 

Civil Rule 90.3 explains that “a temporary, unforeseen, and involuntary reduction in 

income may justify a temporary reduction in support subject to the retroactivity 

provisions in Rule 90.3(h)(2),” despite the fact that “[a] temporary reduction in income 

normally will not justify an ongoing modification reducing child support.”34 The same 

logic applies to increases in income, so that a temporary increase in support would be 

justified under similar circumstances. Accordingly, under the specific circumstances in 

this case, we conclude that the superior court did not err in using Michael’s 2013 income 

as the basis for a one-year change in child support during the following year. 

Michael also argues, relatedly, that the amount of his child support 

obligation for August 2014 through July 2015 “exceeds the amount dictated by Civil 

Rule 90.3” when compared to his actual income for that period. Rule 90.3(a)(2) provides 

that when one parent has primary physical custody, “[t]he percentage by which the 

non-custodial parent’s adjusted income must be multiplied in order to calculate the child 

support award is . . . 27% . . . for two children.” When setting the amount of support, a 

trial court “presumptively does not abuse its discretion when it awards child support 

32 Brotherton v. State, Dep’t of Revenue, Child Support Servs. Div. ex rel. 

Brotherton, 201 P.3d 1206, 1211 (Alaska 2009). 

33 Id. at 1213. 

34 Alaska R. Civ. P. 90.3 cmt. X.A (emphasis added). 

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based on Civil Rule 90.3.”35 Here, because we have determined that it was permissible 

to use Michael’s 2013 income as the basis for his child support obligation the following 

year, the relevant inquiry is whether the amount of child support is appropriate compared 

to Michael’s 2013 income. The superior court hewed to this inquiry, stating that 

Michael’s child support obligation was determined by “the amount calculated 

under Rule 90.3” based on Michael’s gross income for 2013. The court explained that 

it began with Michael’s 2013 gross income of $58,506, subtracted the applicable 

deductions, and then applied the formula dictated by Rule 90.3. This yielded a monthly 

payment of $1,207 including health insurance costs. So because the superior court 

“award[ed] child support based on Civil Rule 90.3”36 using the appropriate baseline of 

Michael’s 2013 income, we conclude that the superior court did not abuse its discretion 

in setting the amount of Michael’s child support obligation for August 2014 through July 

2015. 

Michael also argues that his child support obligation “exceeds the 

maximum allowable amount under Alaska Child Support Services Division[] (CSSD) 

guidelines[] and the [f]ederal Consumer Credit Protection Act.” The guidelines Michael 

refers to are codified in Title 15, section 125.540 of the Alaska Administrative Code, 

which specifies the maximum amount that may be withheld from a paycheck for child 

support.37 But neither this section nor any other provision of the Administrative Code 

35 Coghill v. Coghill, 836 P.2d 921, 924 (Alaska 1992) (citing Alaska R. Civ. 

P. 90.3 cmt. VI); see Alaska R. Civ. P. 90.3 cmt. VI.A (“[T]he rule presumes that support 

calculated under 90.3(a) . . . does not result in manifest injustice.”). 

36 Coghill, 836 P.2d at 924. 

37 15 Alaska Administrative Code (AAC) 125.540 (2015); see also 

FREQUENTLY ASKED QUESTIONS ABOUT CHILD SUPPORT ENFORCEMENT SERVICES, 

(continued...) 

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creates an independent limit on the amount of a child support award.38 Instead, the code 

makes clear that the provisions of Civil Rule 90.3 govern the calculation of child 

support.39 Similarly, the relevant section of the federal Consumer Credit Protection Act 

deals exclusively with wage garnishment and has no bearing on the amount of child 

support that may be awarded by a court.40 So these provisions do not limit the amount 

of child support that Michael can be ordered to pay, and Michael does not contend that 

any amount has been withheld or garnished from his earnings. We therefore conclude 

that these provisions do not apply to the current case, and thus they do not alter our 

conclusion that the superior court did not err in calculating Michael’s child support 

obligation based on his 2013 income. 

B.	 It Was Plain Error To Decline To Consider The Imputed Income 

Claim That Johanna Clearly Raised In Her Motion. 

The second issue raised by the parties is whether the superior court erred 

by not considering Johanna’s claim for imputed income based on Michael’s earning 

potential.41 In her brief before this court, Johanna specifically asks the court to “impute 

additional income to Michael for being voluntarily and unreasonably underemployed.” 

37(...continued) 

http://www.csed.state.ak.us/faq/FAQ_Enforcement.aspx (explainingtheAdministrative 

Code provision). 

38 See 15 AAC 125.540. 

39 See 15 AAC 125.070. 

40 See 15 U.S.C. § 1673(b)(2)(B) (2012). 

41 In our case law on this issue, we have referred to these claims both as 

“imputed income” and “potential income” claims, echoing language from Civil 

Rule 90.3(a)(4). See, e.g., Horne v.Touhakis, 356 P.3d 280, 281(Alaska 2015) (referring 

to both “potential income” and “imputed income”); Ward v. Urling, 167 P.3d 48, 51 

(Alaska 2007) (same). We therefore use these two terms interchangeably here. 

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Johanna raises this issue in her statement of issues presented for review,42 as well as in 

the body and conclusion of her brief. In describing the relief she is seeking, Johanna 

clearly lays out her imputed income argument by asking the court to 

either (1) affirm or keep the Superior Court’s final judgment; 

or (2) impute additional income to Michael based on his 2012 

tax return and recalculate the amount of child support he 

should pay. This would force Michael to quit gaming the 

system and get a job worthy of his education and work 

history. Michael worked for the National Weather Service 

for about 22 years, with a parting salary of at least $93,302 

per year . . . , and he has a bachelor’s degree from the 

University of Arizona - Tucson. 

Johanna also cites the Commentary to Civil Rule 90.3, emphasizing the section titled 

“Potential Income” by underlining portions of its text that are identical to the 

corresponding potential income provision of Rule 90.3(a)(4). Although Johanna clearly 

raised this issue in her brief here, Michael elected not to file a reply addressing her 

imputed income argument. 

Johanna did not cross-appeal the superior court’s order, and generally a 

party who “fail[s] to file a cross-appeal waives the right to contest rulings below.”43 For 

a self-represented party, however, we have held that courts may on occasion relax 

procedural requirements if it is clear what the party is “obviously attempting to 

42 In her statement of the issues presented for review, Johanna contends that 

Michael should have been ordered “to pay an amount commensurate with his 2012 

income,” which would have required him “to get a job worthy of his skills and education 

in order to help support his daughters.” Although her statement of the issues seems to 

suggest that the superior court’s 2013 order erred in failing to impute additional income 

to Michael, Johanna later clarifies that she is also “hereby asking” for imputed income 

in the current proceedings. 

43 Peterson v. Ek, 93 P.3d 458, 467 (Alaska 2004). 

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accomplish.”44 And in her appellee’s brief here, Johanna clearly seeks review of the 

superior court’s failure to “order[] Michael to pay an amount commensurate with his 

2012 [pre-retirement] income.” Moreover, in the child support context, “[c]hildren have 

an interest in adequate support independent of either parent’s interest,”45 and thus neither 

parent can waive the children’s right to adequate support through a procedural failure. 

In the child support context, even where the parties have failed to raise a 

challenge to a child support agreement, we have determined that we have an independent 

duty to review the question whether the support order is permissible under Rule 90.3. 

We faced this situation in Laughlin v. Laughlin, where divorced parents disputed certain 

elements of a “children’s fund” that they had established in lieu of child support. Both 

parents seemingly agreed with the premise that they could establish such a fund to 

replace child support, and neither challenged the fund’s validity.46 But we addressed the 

question of the fund’s validity sua sponte. We recognized that our longstanding case law 

clearly established “that ‘parents may not make a child support agreement which is not 

subject to Rule 90.3.’ ”47 “Given this case law,” we concluded, “we must address 

whether the agreement to create a children’s fund in lieu of child support is permissible 

before considering [the appellant’s] argument” that challenged a specific element of the 

44 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987); see also Gilbert v. Nina 

Plaza Condo Ass’n, 64 P.3d 126, 129 (Alaska 2003). 

45 Laughlin v. Laughlin, 229 P.3d 1002, 1006 (Alaska 2010). 

46 Id. at 1003-05. 

47 Id. at 1004 (alterations omitted) (quoting Cox v. Cox, 776 P.2d 1045, 1048 

(1989)). 

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fund.48 We then explained that “[w]e review matters that were not raised below and not 

listed in a statement of points on appeal for plain error,” which “exists where ‘an obvious 

mistake has been made [that] creates a high likelihood that injustice has resulted.’ ”49 

In the current case, we have a similar duty to review the superior court’s 

decision not to consider Johanna’s argument that Michael was unreasonably and 

voluntarily unemployed and whether income should be imputed to Michael in setting the 

amount of child support. Our case law interpreting Civil Rule 90.3(a)(4) establishes that 

a child support award is properly “based upon a parent’s potential income if he or she 

is found to be voluntarily and unreasonably unemployed or underemployed.”50 And 

while in Laughlin neither party had raised the issue at all,51 here Johanna raised her 

imputed income argument both in the trial court and in her briefing before this court. So 

our obligation to consider this issue is even more apparent in this case than it was in 

Laughlin. In light of our case law on imputed income,52 and recognizing children’s 

independent interest in adequate child support,53 we consider whether the superior court 

erred in failing to address the imputed income claim that Johanna raised in her second 

motion to modify support. 

48 Id. at 1005. 

49 Id. (quoting In re Estate of Fields, 219 P.3d 995, 1011 (Alaska 2009)). 

50 Nunley v. State, Dep’t of Revenue, Child Support Enf’t Div., 99 P.3d 7, 11 

(Alaska 2004) (citing Alaska R. Civ. P. 90.3(a)(4); 15 AAC 125.020(b)); see also Dunn 

v. Dunn, 952 P.2d 268, 270 (Alaska 1998); Kowalski v. Kowalski, 806 P.2d 1368, 1370­

71 (Alaska 1991). 

51 Laughlin, 229 P.3d at 1004-05. 

52 See, e.g., Nunley, 99 P.3d at 11. 

53 See Laughlin, 229 P.3d at 1006. 

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Under Civil Rule 90.3(a)(4), titled “Potential Income,” a court may impute 

income “based on a determination of the potential income of a parent who voluntarily 

andunreasonably is unemployed or underemployed.” The rule specifies that “[p]otential 

income will be based upon the parent’s work history, qualifications, and job 

opportunities. The court also may impute potential income for non-income or low 

income producing assets.” Further, the Commentary to Rule 90.3 adds that “[t]he court 

shall consider the totality of the circumstances in deciding whether to impute income. 

When a parent makes a career change, this consideration should include the extent to 

which the children will ultimately benefit from the change.”54 We have repeatedly 

confirmed that imputation of income based on a parent’s potential earning level is proper 

under this provision of Rule 90.3, explaining that a “parent who voluntarily reduces his 

or her income should not automatically receive a corresponding reduction in his or her 

child support obligation.”55 Moreover, we have specifically held that the “potential 

income” provision applies to a parent who is nominally retired if the retirement was 

voluntary.56 

Herethesuperior courtacknowledgedthat it mightbeappropriateto impute 

income to Michael under Civil Rule 90.3(a)(4), but it found that “Johanna ha[d] not 

54 Alaska R. Civ. P. 90.3 cmt. III.C. 

55 Dunn, 952 P.2d at 270 (quoting Nass v. Seaton, 904 P.2d 412, 418 (Alaska 

1995)); see also Nunley, 99 P.3d at 11; Beaudoin v. Beaudoin, 24 P.3d 523, 527 (Alaska 

2001); Kowalski, 806 P.2d at 1370-71. 

56 See Dunn, 952 P.2d at 271 (upholding the superior court’s imputation of 

income to a parent who was “in his early fifties, had voluntarily retired,” and was still 

capable of working, as evidenced by his pastimes); Kowalski, 806 P.2d at 1371 n.5 

(explaining that “the trial court must consider the nature and reasons for an obligor 

parent’s unemployment” and citing cases from other jurisdictions where courts had 

imputed income to voluntarily retired parents). 

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asked the court to do so.” To the extent that the superior court recognized that Johanna 

had raised the issue of potential income, the court seemed to find that she had raised the 

issue for the first time in her reply, and it explained that “fairness precludes the court 

from considering arguments made for the first time in a reply brief.” Yet our review of 

Johanna’s pleadings reveals that she expressly raised an imputed income argument in her 

motion to modify child support and then reiterated that argument in her reply brief. 

In assessing whether a claim was adequately raised, “[w]e consider pro se 

pleadings liberally in an effort to determine what legal claims have been raised.”57 “This 

proposition reflects a policy against finding unintended waiver of claims in technically 

defective pleadings filed by pro se litigants.”58 We have cautioned that “even when a 

pro se litigant is involved, an argument is considered waived when the party ‘cites no 

authority and fails to provide a legal theory’ for his or her argument.”59 But we consider 

a claim to be raised when the “briefing was such that [the court] could discern [the 

party’s] legal arguments and [the opposing party] could reply to them.”60 In Peterson 

v. Ek, for instance, we concluded that the appellant had preserved his claims in a contract 

dispute because “we could discern his legal arguments” despite the fact that “he failed 

to cite legal authority for any of his arguments.”61 Essentially, the court’s primary 

57 Briggs v. City of Palmer, 333 P.3d 746, 747 (Alaska 2014) (quoting Toliver 

v. Alaska State Comm’n for Human Rights, 279 P.3d 619, 622 (Alaska 2012)). 

58 DeNardo v. Calista Corp., 111 P.3d 326, 330 (Alaska 2005) (citing Zok v. 

State, 903 P.2d 574, 576 n.2 (Alaska 1995)). 

59 Gilbert v. Sperbeck, 126 P.3d 1057, 1062 (Alaska 2005) (quoting Peterson 

v. Ek, 93 P.3d 458, 464 n.9 (Alaska 2004)). 

60 Peterson, 93 P.3d at 464 n.9. 

61 Id. 

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concern is that the pleader not be allowed “to unreasonably catch an unwary litigant.”62 

Here, Johanna’s motion to modify child support included an imputed 

income claim and specifically contended that Michael was voluntarily unemployed and 

could be earning a higher income. Her opening motion alleged that “[h]e ‘retired’ (quit) 

working at the National Weather Service voluntarily [in] late 2012 of his own accord.” 

She argued that “[h]is children should not suffer for that decision. He is only 49 years 

old, too young to retire, capable of working.” By using key words to allege that Michael 

had “quit . . . voluntarily” and was “capable of working,” Johanna’s motion contained 

the core elements of a claim for imputed income. Although she did not cite Civil 

Rule 90.3(a)(4), the language she used echoed the “voluntarily and unreasonably . . . 

unemployed” phrasing from the rule itself. Thus her language was sufficient to allow a 

court to understand that she was attempting to raise a claim for income imputation under 

the potential income provision of Rule 90.3(a)(4). Furthermore, Michael’s 2012 tax 

return — showing his earning potential — had been filed during the 2013 proceedings, 

so the superior court had access to the relevant information on which to base a 

calculation of imputed income. 

Indeed, in hisresponseto the motion to modify support, Michael responded 

directly to Johanna’s contentions about his voluntary unemployment by arguing that his 

“early retir[e]ment and move to Arizona [was] in the best interest of [his] physical and 

mental health, which in the long term, will be in the best int[e]rest of [his] daughters.” 

In her reply, Johanna in turn submitted an affidavit arguing that Michael’s voluntary 

unemployment was not in the best interest of the children by explaining that “Michael 

sold his house, quit his full-time job with excellent benefits, and moved over 2,200 miles 

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62 Gamble v. Northstore P’ship, 907 P.2d 477, 482 (Alaska 1995) (quoting 

Lopez v. U.S. Fid. & Guar. Co., 15 Alaska 633, 637 (D. Alaska 1955)). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

away from his daughters.” In her reply Johanna also reiterated that Michael could afford 

to pay more child support based on his earning potential, given that “[h]e has a 

bachelor’s degree,” and she suggested that he should “seek a job” to better support his 

children. Thus, Michael appeared able to “discern [Johanna’s] legal arguments and . . . 

reply to them”63 in his response brief, before Johanna responded to his assertions and 

reiterated her own arguments in her reply brief. So the fairness concern raised by the 

superior court, and the general rule that the court will not consider arguments raised for 

the first time in a reply brief, do not in fact present a problem here. To the contrary: 

Johannaadequatelyraisedan imputed incomeargument in her motion to modify support, 

and Michael replied to it in his response brief. Accordingly, we conclude that it was 

error to fail to consider Johanna’s imputed income claimunder Civil Rule 90.3(a)(4), and 

we remand for further proceedings on that issue. 

On remand, the superior court must consider whether Michael’s choices to 

retire early and not to seek work in Arizona were unreasonable and, if so, assess his 

potential income in determining the appropriate amount of child support under 

Rule 90.3.64 In considering this question, it is possible that imputing income to Michael 

will obviate the need to make a one-year child support calculation based on Michael’s 

2013 IRA withdrawal. If the superior court decides that imputed income is not 

appropriate under Rule 90.3(a)(4) after weighing the facts and arguments presented by 

the parties, then the superior court correctly based Michael’s 2014-2015 child support 

on his actual 2013 income, including the IRA withdrawal. 

63 Peterson, 93 P.3d at 464 n.9. 

64 See Alaska R. Civ. P. 90.3(a)(4). 

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V. CONCLUSION 

We AFFIRM the superior court’s use of Michael’s 2013 income as the 

basis of child support in the following year but REMAND this case to the superior court 

to consider whether additional income should be imputed to Michael based on his 

earning potential. 

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