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CSSB 134(JUD): "An Act relating to child support awards; and repealing Rule 90.3, Alaska Rules of Civil Procedure."

00                       CS FOR SENATE BILL NO. 134(JUD)                                                                   
01 "An Act relating to child support awards; and repealing Rule 90.3, Alaska Rules of Civil                                
02 Procedure."                                                                                                             
03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
04    * Section 1.  AS 25 is amended by adding a new chapter to read:                                                    
05                     Chapter 28. Child Support Awards.                                                                 
06            Sec. 25.28.010. Guidelines; primary physical custody. (a) A tribunal shall                                 
07       calculate a child support award in a case in which one parent is awarded primary                                  
08       physical custody as an amount equal to the adjusted annual income of the noncustodial                             
09       parent multiplied by a percentage specified in (b) of this section.                                               
10            (b)  To calculate the child support award, the tribunal shall multiply the                                   
11       noncustodial parent's adjusted annual income by the following percentages:                                        
12                 (1)  20 percent for one child;                                                                          
13                 (2)  27 percent for two children;                                                                       
14                 (3)  33 percent for three children; and                                                                 
01                 (4)  an additional three percent for each additional child.                                             
02            (c)  The tribunal may allow the obligor parent to reduce child support                                       
03       payments by up to 75 percent for a period in which the obligor parent has extended                                
04       visitation of more than 27 consecutive days. The order must specify the amount of the                             
05       reduction that is allowable if the extended visitation is exercised.                                              
06            (d)  The tribunal may calculate child support based on a determination of the                                
07       potential income of a parent who voluntarily and unreasonably is unemployed or                                    
08       underemployed. A determination of potential income may not be made for a parent                                   
09       who is physically or mentally incapacitated, or who is caring for a child under two                               
10       years of age to whom the parents owe a joint legal responsibility. Potential income                               
11       shall be based on the parent's work history, qualifications, and job opportunities. The                           
12       tribunal also may impute potential income for nonincome producing or low income                                   
13       producing assets.                                                                                                 
14            (e)  In this section, "adjusted annual income" means the parent's total income                               
15       from all sources less                                                                                             
16                 (1)  mandatory deductions, including                                                                    
17                      (A)  federal, state, and local income tax;                                                         
18                      (B)  social security tax or the equivalent contribution to an                                      
19            alternate plan established by a public employer, and self-employment tax;                                    
20                      (C)  Medicare tax;                                                                                 
21                      (D)  mandatory union dues;                                                                         
22                      (E)  mandatory contributions to a retirement or pension plan;                                      
23                 (2)  voluntary contributions to a retirement or pension plan or account                                 
24       in which the earnings are tax-free or tax-deferred, except that the total amount of these                         
25       voluntary contributions plus any mandatory contributions under (1)(E) of this                                     
26       subsection may not exceed 7.5 percent of the parent's gross wages and self-                                       
27       employment income;                                                                                                
28                 (3)  child support and alimony payments arising from previous                                           
29       relationships that are required by another tribunal and actually paid;                                            
30                 (4)  child support for children from prior relationships living with the                                
31       parent, calculated by using the formula under this chapter; and                                                   
01                 (5)  work-related child care expenses for the child who is the subject of                               
02       the child support order.                                                                                          
03            Sec. 25.28.020. Guidelines; shared, divided, and hybrid custody awards.                                    
04       (a) The tribunal shall calculate shared, divided, and hybrid physical custody awards as                           
05       provided in this section.                                                                                         
06            (b)  The tribunal shall calculate a child support award in a case in which the                               
07       parents are awarded shared physical custody by                                                                    
08                 (1)  calculating the annual amount each parent would pay to the other                                   
09       parent under AS 25.28.010 assuming the other parent had primary custody; in this                                  
10       calculation, the income limit in AS 25.28.030(c) and the minimum support amount in                                
11       AS 25.28.030(d) apply;                                                                                            
12                 (2)  multiplying the amount determined under (1) of this subsection for                                 
13       each parent by the percentage of time the other parent has physical custody of the                                
14       child; however, if the tribunal finds that the percentage of time each parent will have                           
15       physical custody does not accurately reflect the ratio of funds each parent will directly                         
16       spend on supporting the child, the tribunal shall vary this percentage to reflect its                             
17       findings;                                                                                                         
18                 (3)  determining which parent has the greater amount under (2) of this                                  
19       subsection; the parent with the greater amount under (2) of this subsection is the                                
20       obligor parent, and the annual award is equal to the difference between the two                                   
21       amounts under (2) of this subsection multiplied by 1.5; however, if this amount is                                
22       greater than the amount of support calculated under AS 25.28.010 assuming the                                     
23       obligor parent has primary custody, the annual support is the amount calculated under                             
24       AS 25.28.010.                                                                                                     
25            (c)  The child support award for shared custody under (b) of this section must                               
26       be paid in 12 equal monthly installments, except that if                                                          
27                 (1)  shared custody is based on the obligor parent's having physical                                    
28       custody for periods of 30 consecutive days or more, the total annual award may be                                 
29       paid in equal installments over those months in which the obligor parent does not have                            
30       physical custody; or                                                                                              
31                 (2)  the obligor parent's income is seasonal, the tribunal may order                                    
01       unequal monthly support payments as provided in AS 25.28.030(g) and (h).                                          
02            (d)  The child support order must state that failure to exercise sufficient                                  
03       physical custody to qualify for shared physical custody under (b) or (c) of this section                          
04       is grounds for modification of the child support order. Denial of visitation by the                               
05       custodial parent is not cause to increase a child support award.                                                  
06            (e)  The tribunal shall                                                                                      
07                 (1)  calculate a child support award in a case in which the parents are                                 
08       awarded divided custody by determining the amount each parent would pay to the                                    
09       other parent for support of a child for whom that parent has primary physical custody                             
10       under AS 25.28.010, taking into account the income limit in AS 25.28.030(c) and the                               
11       minimum support amount in AS 25.28.030(d), and offsetting those amounts; and                                      
12                 (2)  consider whether the amount determined under (1) of this                                           
13       subsection should be varied under AS 25.28.030(b).                                                                
14            (f)  The tribunal shall                                                                                      
15                 (1)  calculate a child support award in a case in which the parents are                                 
16       awarded hybrid custody by                                                                                         
17                      (A)  applying AS 25.28.010, taking into account the income                                         
18            limit in AS 25.28.030(c) and the minimum support amount in                                                   
19            AS 25.28.030(d), to determine support for a child in the primary physical                                    
20            custody of each parent;                                                                                      
21                      (B)  applying (b) of this section to determine support for a child                                 
22            in the shared physical custody of the parents;                                                               
23                      (C)  adjusting pro rata the percentages provided in                                                
24            AS 25.28.010(b) based on the number of children to which each type of                                        
25            custody applies; and                                                                                         
26                      (D)  combining the amounts to determine the net obligation; and                                    
27                 (2)  consider whether the amount determined under (1) of this                                           
28       subsection should be varied under AS 25.28.030(b).                                                                
29            Sec. 25.28.030. Exceptions to support awards. (a) Notwithstanding the                                      
30       requirements in AS 25.28.010 and 25.28.020, the tribunal may vary the award for the                               
31       reasons stated in this section.                                                                                   
01            (b)  The tribunal may vary the child support award as calculated under the                                   
02       other provisions of this chapter for good cause on proof by clear and convincing                                  
03       evidence that manifest injustice would result if the support award were not varied. The                           
04       tribunal shall specify in writing the reason for the variation, the amount of support that                        
05       would have been required but for the variation, and the estimated value of any                                    
06       property conveyed instead of support calculated under the other provisions of this                                
07       chapter. Good cause may include a finding that unusual circumstances exist that                                   
08       require variation of the award in order to award an amount of support that is just and                            
09       proper for the parties to contribute toward the nurture and education of their children.                          
10       The tribunal shall consider the custodial parent's income in this determination.                                  
11            (c)  The calculation for primary physical custody under AS 25.28.010 does not                                
12       apply to the extent that the parent has an adjusted annual income of more than                                    
13       $105,000. The tribunal may make an additional award only if it is just and proper,                                
14       taking into account the needs of the child, the standard of living of the child, and the                          
15       extent to which that standard should reflect the supporting parent's ability to pay.                              
16            (d)  Except as provided in AS 25.28.010(c) and 25.28.020, the minimum child                                  
17       support amount that may be ordered is $50 a month or $600 a year.                                                 
18            (e)  In addition to ordering a parent to pay child support as calculated under                               
19       this chapter, the tribunal may, in appropriate circumstances and when the parents are                             
20       minors as described in (f) of this section, order one or more grandparents of a child to                          
21       pay child support to an appropriate person in an amount determined by the tribunal to                             
22       serve the best interests of the child; however, the amount may not exceed the lesser of                           
23                 (1)  a proportionate share of the amount required to provide care in a                                  
24       supervised setting to the grandchild, as determined by the tribunal; or                                           
25                 (2)  the amount that would have been awarded if the child's parents had                                 
26       the incomes of the child's grandparents and AS 25.28.010 and 25.28.020 were applied.                              
27            (f)  An order under (e) of this section may be issued only with respect to a                                 
28       child whose parents are both minors, and the order terminates when either parent                                  
29       becomes 18 years of age. The tribunal shall specify in writing the reasons it considers                           
30       it to be appropriate to order a grandparent to pay child support under this subsection                            
31       and the factors considered in setting the amount of the child support award. In this                              
01       subsection, "grandparent" means the natural or adoptive parent of the minor parent.                               
02            (g)  If the noncustodial parent's income is seasonal, the tribunal may order that                            
03       the annual support amount be paid in unequal monthly payments, with higher                                        
04       payments during the months the parent expects to receive higher income and lower                                  
05       payments in other months; the tribunal may not make an unequal payment order unless                               
06                 (1)  the tribunal finds that the burden of budgeting for periods of                                     
07       unequal income should be placed on the obligee rather than the obligor; and                                       
08                 (2)  the obligee agrees.                                                                                
09            (h)  An order of the tribunal for unequal payments under (g) of this section                                 
10       must specify the annual support amount, the average monthly support amount, and the                               
11       amount due for each month. The order must provide that variations from the average                                
12       monthly amount begin with monthly payments in excess of the average monthly                                       
13       amount so that a deficit situation cannot occur. Until the excess payments begin, the                             
14       tribunal shall order payment of the average monthly amount.                                                       
15            Sec. 25.28.040. Health care expenses. (a) The tribunal shall include in the                                
16       order coverage of the child's health care needs and require health insurance for the                              
17       child if insurance is available to either parent or both parents at a reasonable cost. The                        
18       tribunal shall consider whether the child is eligible for services through the Indian                             
19       Health Service, any other entity, or other insurance coverage before ordering either                              
20       parent or both parents to provide health care coverage through insurance, cash medical                            
21       support, or other means. The tribunal shall find that health insurance is available only                          
22       if the dependent child has reasonable geographic access to the covered services or the                            
23       insurance includes the coverage of transportation needed for the services.                                        
24            (b)  The tribunal shall allocate equally the cost of insurance between the                                   
25       parents unless the tribunal orders otherwise for good cause. An obligor's child support                           
26       obligation shall be decreased by the amount of the obligee's portion of health                                    
27       insurance payments ordered by the tribunal and actually paid by the obligor. The                                  
28       tribunal shall increase a child support award by the obligor's portion of health                                  
29       insurance if the obligee is ordered to, and actually does, obtain and pay for insurance.                          
30            (c)  The cost of insurance is the cost attributable to the child for whom support                            
31       is paid. If the cost to the employee of covering the employee alone is the same as the                            
01       cost to the employee of covering the employee and dependents, then there is no                                    
02       additional cost to the employee for adding the child and no portion of the cost of                                
03       coverage may be allocated to the child. If dependent coverage can be added for a                                  
04       single cost, rather than for each dependent, and the dependent coverage covers                                    
05       dependents in addition to the child subject to the order, the cost of the dependent                               
06       coverage shall be allocated equally among the dependents covered. If there is reason                              
07       to believe that there is an incremental cost to the employee for insuring dependents but                          
08       evidence of that incremental cost is unavailable, the cost of insurance is determined by                          
09       dividing the total cost of coverage by the number of family members covered and                                   
10       multiplying that amount by the number of children subject to the order.                                           
11            (d)  The tribunal shall allocate equally between the parties the cost of                                     
12       reasonable health care expenses not covered by insurance unless the tribunal orders                               
13       otherwise for good cause. A party shall reimburse the other party for the party's share                           
14       of the uncovered health care expenses within 30 days after receipt of the bill for the                            
15       health care, payment verification, and, if applicable, a health insurance statement                               
16       indicating what portion of the cost is uncovered. The tribunal shall allocate the                                 
17       reasonable, uncovered health care expenses exceeding $5,000 in a calendar year based                              
18       on the parties' relative financial circumstances when the expenses occur.                                         
19            (e)  For the purpose of establishing a monthly support obligation for health                                 
20       care expenses, a court shall find that the cost of cash medical support or private health                         
21       insurance is reasonable under this section if the cost to the responsible parent does not                         
22       exceed five percent of the responsible parent's gross income. In calculating the                                  
23       percentage for purposes of health insurance coverage, the cost is the cost of adding the                          
24       dependent child to the existing insurance coverage or the difference between self-only                            
25       and family coverage.                                                                                              
26            (f)  In this section,                                                                                        
27                 (1)  "cash medical support" means an amount ordered to be paid toward                                   
28       the cost of health insurance provided by a public entity or by another parent through                             
29       employment or otherwise, or for other health care expenses not covered by insurance;                              
30                 (2)  "health care expenses" includes medical, dental, vision, and mental                                
31       health counseling expenses.                                                                                       
01            Sec. 25.28.050. Child support affidavit and documentation. (a) Subject to                                  
02       the confidentiality requirements of Rule 90.1(f), Alaska Rules of Civil Procedure, each                           
03       parent in a proceeding of a tribunal at which child support is involved shall file a                              
04       statement under oath, accompanied by documentation verifying the statement, that                                  
05       states the parent's adjusted annual income and the components of adjusted annual                                  
06       income as described in AS 25.28.010(e). This statement and documentation must be                                  
07       filed with a party's initial pleading in superior court, including the dissolution petition,                      
08       divorce complaint or answer, motion to modify, and any response to a motion to                                    
09       modify. The documents must be redacted to delete social security numbers and to                                   
10       provide only partial financial account information as provided in Rule 90.1(f), Alaska                            
11       Rules of Civil Procedure. The statement must state whether the parent has access to                               
12       health insurance for the children and, if so, the additional cost to the parent of the                            
13       children's health insurance.                                                                                      
14            (b)  While there is an ongoing monthly support obligation, each party shall                                  
15       provide to the other party, within 30 days after a written request, documents such as                             
16       tax returns and pay stubs showing the party's income for the prior calendar year. The                             
17       party making the request shall provide documentation of the party's annual income for                             
18       the same period at the time the request is made. A request under this section may not                             
19       be made more than once a year. This section does not preclude discovery under the                                 
20       Alaska Rules of Civil Procedure.                                                                                  
21            (c)  Unless the information has already been provided to the tribunal under                                  
22       Rule 90.1(f), Alaska Rules of Civil Procedure, a statement under (a) of this section                              
23       must be accompanied by a confidential information sheet as described in Rule 90.1,                                
24       Alaska Rules of Civil Procedure. Once a complete confidential information sheet has                               
25       been submitted to the tribunal listing names, dates of birth, and social security                                 
26       numbers as required, the parties shall omit or redact social security numbers from                                
27       documents subsequently filed in the action unless otherwise ordered by the tribunal.                              
28            (d)  The tribunal may withhold or assess costs or attorney fees for a violation                              
29       of this section as the circumstances and discouragement of like conduct in the future                             
30       may require. Costs and attorney fees may be imposed on offending attorneys or                                     
31       parties.                                                                                                          
01            Sec. 25.28.060. Travel expenses. After determining an award of child support                               
02       under this chapter, the court shall allocate between the parties reasonable travel                                
03       expenses that are necessary to exercise visitation as may be just and proper for the                              
04       parties to contribute.                                                                                            
05            Sec. 25.28.070. Modification; defense against arrearages. (a) A tribunal may                               
06       modify a final child support award on a showing of a material change of                                           
07       circumstances as provided by state law. A material change of circumstances shall be                               
08       presumed if support as calculated under this chapter is more than 15 percent greater or                           
09       less than the outstanding support order. An award may be modified to require cash                                 
10       medical support regardless of whether insurance is available to either parent if neither                          
11       parent has purchased health insurance. In this subsection, support includes health                                
12       insurance payments or monthly cash medical support made under AS 25.28.040.                                       
13            (b)  A tribunal may not modify a child support arrearage retroactively, except                               
14       as authorized by AS 25.27.166(d). A modification that is effective on or after the date                           
15       that a motion for modification, or a notice of petition for modification by the child                             
16       support services agency, is served on the opposing party is not considered a retroactive                          
17       modification.                                                                                                     
18            (c)  The tribunal may find that a parent and a parent's assignee are precluded                               
19       from collecting arrearages for support of a child that accumulated during a time period                           
20       exceeding nine months for which the parent agreed or acquiesced to the obligor                                    
21       exercising primary custody of the child. A finding that preclusion is a defense must be                           
22       based on clear and convincing evidence.                                                                           
23            Sec. 25.28.080. Third-party custody. (a) When the state, or another third                                  
24       party entitled to child support, has custody of all children of a parent, the parent's                            
25       support obligation to the third party is an amount equal to the adjusted annual income                            
26       of the parent multiplied by the percentage specified in AS 25.28.010(b). If the third                             
27       party has custody of some but not all children, the parent's support obligation to the                            
28       third party is an amount equal to the adjusted annual income of the parent, multiplied                            
29       by the percentage specified in AS 25.28.010(b) for the total number of the parent's                               
30       children, multiplied by the number of the parent's children in third-party custody,                               
31       divided by the total number of the parent's children. In this subsection, the number of                           
01       the parent's children includes only children of the parent who live with the parent, are                          
02       substantially supported by the parent, or are in custody of the third party entitled to                           
03       support.                                                                                                          
04            (b)  If, in addition to a support obligation to a third party, one or both parents                           
05       retain primary or shared physical custody of at least one of their children, the support                          
06       obligation between the parents is calculated under the other provisions of this chapter,                          
07       without consideration of the third-party custodian or any children in the custody of the                          
08       third-party custodian, except that the percentage in AS 25.28.010(b) must be adjusted                             
09       pro rata for the number of children in the primary custody of a parent, or shared                                 
10       custody of the parents, compared to the total number of children. After that calculation                          
11       is completed, any support owed may be offset with support owed to a third-party                                   
12       custodian under (a) of this section in order to minimize transactions.                                            
13            Sec. 25.28.090. Support order forms. All court orders for payment or                                     
14       modification of child support shall be entered on a form developed by the                                         
15       administrative director of the court. A party may lodge a duplicate of the tribunal form                          
16       produced by a laser printer or similar device. A device may also print, in a contrasting                          
17       typestyle equivalent to that produced by a typewriter, text that otherwise would have                             
18       been entered by a typewriter or word processor. A party or attorney who lodges a                                  
19       duplicate certifies by lodging the duplicate that it is identical to the current version of                       
20       the court form.                                                                                                   
21            Sec. 25.28.100. Dependent tax deduction. The court may allocate the                                        
22       dependent tax deduction for each child between the parties as is just and proper and in                           
23       the child's best interests. The allocation must be consistent with AS 25.24.152 and                               
24       federal law.                                                                                                      
25            Sec. 25.28.300. Definitions. In this chapter,                                                              
26                 (1)  "child support" and "child support obligation" have the meaning                                    
27       given "duty of support" in AS 25.27.900;                                                                          
28                 (2)  "divided custody" means that one parent has primary physical                                       
29       custody of one or more children of the relationship and the other parent has primary                              
30       custody of one or more other children of the relationship, and the parents do not share                           
31       physical custody of any of their children;                                                                        
01                 (3)  "hybrid custody" means that at least one parent has primary                                        
02       physical custody of one or more children of the relationship, and the parents have                                
03       shared physical custody of at least one child of the relationship;                                                
04                 (4)  "primary physical custody" or "primary custody" means that a child                                 
05       resides with the other parent for a period, specified in the custody order, of less than                          
06       30 percent of the year;                                                                                           
07                 (5)  "shared physical custody" or "shared custody" means that a child                                   
08       resides with one parent for a period, specified in writing in the custody order, of at                            
09       least 30 percent but not more than 70 percent of the year, regardless of the status of                            
10       legal custody;                                                                                                    
11                 (6)  "tribunal" means the superior court or the child support services                                  
12       agency created in AS 25.27.010.                                                                                   
13    * Sec. 2. AS 47.10.120(a) is amended to read:                                                                      
14            (a)  When a child in need of aid is committed under this chapter, the court or                               
15       the child support services agency created in AS 25.27.010 shall, after giving the parent                          
16       a reasonable opportunity to be heard, require that the parent pay to the department in a                          
17       manner that the court or the child support services agency directs a sum to cover in                              
18       full or in part the maintenance and care of the child. The support obligation shall be                            
19       calculated under AS 25.28 [RULE 90.3(i) OF THE ALASKA RULES OF CIVIL                                          
20       PROCEDURE].                                                                                                       
21    * Sec. 3. AS 47.12.230(a) is amended to read:                                                                      
22            (a)  When a delinquent minor is committed under this chapter, the court or the                               
23       child support services agency created in AS 25.27.010 shall, after giving the parent a                            
24       reasonable opportunity to be heard, require that the parent pay to the department in a                            
25       manner that the court or the child support services agency directs a sum to cover in                              
26       full or in part the maintenance and care of the minor. The support obligation shall be                            
27       calculated under AS 25.28 [RULE 90.3(i) OF THE ALASKA RULES OF CIVIL                                          
28       PROCEDURE].                                                                                                       
29    * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to                          
30 read:                                                                                                                   
31       REPEAL OF COURT RULE. Rule 90.3, Alaska Rules of Civil Procedure, is repealed.                                    
01    * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to                          
02 read:                                                                                                                   
03       NONAPPLICABILITY OF TWO-THIRDS VOTE REQUIREMENT. Because the                                                      
04 rule repealed in sec. 4 of this Act is a substantive rule rather than a rule of practice or                             
05 procedure, the repeal of the rule takes effect even if sec. 4 of this Act does not receive the                          
06 two-thirds majority vote of each house required by art. IV, sec. 15, Constitution of the State of                       
07 Alaska.