SB 46: "An Act relating to child support awards made by a court; and repealing Rule 90.3, Alaska Rules of Civil Procedure."
00 SENATE BILL NO. 46 01 "An Act relating to child support awards made by a court; and repealing Rule 90.3, 02 Alaska Rules of Civil 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 by a Court. 06 Sec. 25.28.010. Guidelines; primary physical custody. (a) The court 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 court 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 court may allow the obligor parent to reduce child support payments 03 by up to 75 percent for a period in which the obligor parent has extended visitation of 04 more than 27 consecutive days. The order must specify the amount of the reduction 05 that is allowable if the extended visitation is exercised. 06 (d) The court 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 court 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 other court or administrative proceedings and 30 actually paid; 31 (4) child support for children from prior relationships living with the
01 parent, calculated by using the formula under this chapter; and 02 (5) work-related child care expenses for the child who is the subject of 03 the child support order. 04 Sec. 25.28.020. Guidelines; shared, divided, and hybrid custody awards. 05 (a) The court shall calculate shared, divided, and hybrid physical custody awards as 06 provided in this section. 07 (b) The court shall calculate a child support award in a case in which the 08 parents are awarded shared physical custody by 09 (1) calculating the annual amount each parent would pay to the other 10 parent under AS 25.28.010 assuming the other parent had primary custody; in this 11 calculation, the income limit in AS 25.28.030(c) and the minimum support amount in 12 AS 25.28.030(d) apply; 13 (2) multiplying the amount determined under (1) of this subsection for 14 each parent by the percentage of time the other parent has physical custody of the 15 child; however, if the court finds that the percentage of time each parent will have 16 physical custody does not accurately reflect the ratio of funds each parent will directly 17 spend on supporting the child, the court shall vary this percentage to reflect its 18 findings; 19 (3) determining which parent has the greater amount under (2) of this 20 subsection; the parent with the greater amount under (2) of this subsection is the 21 obligor parent, and the annual award is equal to the difference between the two 22 amounts under (2) of this subsection multiplied by 1.5; however, if this amount is 23 greater than the amount of support calculated under AS 25.28.010 assuming the 24 obligor parent has primary custody, the annual support is the amount calculated under 25 AS 25.28.010. 26 (c) The child support award for shared custody under (b) of this section must 27 be paid in 12 equal monthly installments, except that if 28 (1) shared custody is based on the obligor parent's having physical 29 custody for periods of 30 consecutive days or more, the total annual award may be 30 paid in equal installments over those months in which the obligor parent does not have 31 physical custody; or
01 (2) the obligor parent's income is seasonal, the court may order 02 unequal monthly support payments as provided in AS 25.28.030(g) and (h). 03 (d) The child support order must state that failure to exercise sufficient 04 physical custody to qualify for shared physical custody under (b) or (c) of this section 05 is grounds for modification of the child support order. Denial of visitation by the 06 custodial parent is not cause to increase a child support award. 07 (e) The court shall 08 (1) calculate a child support award in a case in which the parents are 09 awarded divided custody by determining the amount each parent would pay to the 10 other parent for support of a child for whom that parent has primary physical custody 11 under AS 25.28.010, taking into account the income limit in AS 25.28.030(c) and the 12 minimum support amount in AS 25.28.030(d), and offsetting those amounts; and 13 (2) consider whether the amount determined under (1) of this 14 subsection should be varied under AS 25.28.030(b). 15 (f) The court shall 16 (1) calculate a child support award in a case in which the parents are 17 awarded hybrid custody by 18 (A) applying AS 25.28.010, taking into account the income 19 limit in AS 25.28.030(c) and the minimum support amount in 20 AS 25.28.030(d), to determine support for a child in the primary physical 21 custody of each parent; 22 (B) applying (b) of this section to determine support for a child 23 in the shared physical custody of the parents; 24 (C) adjusting pro rata the percentages provided in 25 AS 25.28.010(b) based on the number of children to which each type of 26 custody applies; and 27 (D) combining the amounts to determine the net obligation; and 28 (2) consider whether the amount determined under (1) of this 29 subsection should be varied under AS 25.28.030(b). 30 Sec. 25.28.030. Exceptions to support awards. (a) Notwithstanding the 31 requirements in AS 25.28.010 and 25.28.020, the court may vary the award for the
01 reasons stated in this section. 02 (b) The court may vary the child support award as calculated under the other 03 provisions of this chapter for good cause on proof by clear and convincing evidence 04 that manifest injustice would result if the support award were not varied. The court 05 shall specify in writing the reason for the variation, the amount of support that would 06 have been required but for the variation, and the estimated value of any property 07 conveyed instead of support calculated under the other provisions of this chapter. 08 Good cause may include a finding that unusual circumstances exist that require 09 variation of the award in order to award an amount of support that is just and proper 10 for the parties to contribute toward the nurture and education of their children. The 11 court shall consider the custodial parent's income in this determination. 12 (c) The calculation for primary physical custody under AS 25.28.010 does not 13 apply to the extent that the parent has an adjusted annual income over $100,000. The 14 court may make an additional award only if it is just and proper, taking into account 15 the needs of the child, the standard of living of the child, and the extent to which that 16 standard should reflect the supporting parent's ability to pay. 17 (d) Except as provided in AS 25.28.010(c) and 25.28.020, the minimum child 18 support amount that may be ordered is $50 a month or $600 a year. 19 (e) In addition to ordering a parent to pay child support as calculated under 20 this chapter, the court may, in appropriate circumstances and when the parents are 21 minors as described in (f) of this section, order one or more grandparents of a child to 22 pay child support to an appropriate person in an amount determined by the court to 23 serve the best interests of the child; however, the amount may not exceed the lesser of 24 (1) a proportionate share of the amount required to provide care in a 25 supervised setting to the grandchild, as determined by the court; or 26 (2) the amount that would have been awarded if the child's parents had 27 the incomes of the child's grandparents and AS 25.28.010 and 25.28.020 were applied. 28 (f) An order under (e) of this section may be issued only with respect to a 29 child whose parents are both minors, and the order terminates when either parent 30 becomes 18 years of age. The court shall specify in writing the reasons it considers it 31 to be appropriate to order a grandparent to pay child support under this subsection and
01 the factors considered in setting the amount of the child support award. In this 02 subsection, "grandparent" means the natural or adoptive parent of the minor parent. 03 (g) If the noncustodial parent's income is seasonal, the court may order that 04 the annual support amount be paid in unequal monthly payments, with higher 05 payments during the months the parent expects to receive higher income and lower 06 payments in other months; the court may not make an unequal payment order unless 07 (1) the court finds that the burden of budgeting for periods of unequal 08 income should be placed on the obligee rather than the obligor; and 09 (2) the obligee agrees. 10 (h) A court order for unequal payments under (g) of this section must specify 11 the annual support amount, the average monthly support amount, and the amount due 12 for each month. The order must provide that variations from the average monthly 13 amount begin with monthly payments in excess of the average monthly amount so that 14 a deficit situation cannot occur. Until the excess payments begin, the court shall order 15 payment of the average monthly amount. 16 Sec. 25.28.040. Health care expenses. (a) The court shall include in the order 17 coverage of the child's health care needs and require health insurance for the child if 18 insurance is available to either parent at a reasonable cost. The court shall consider 19 whether the child is eligible for services through the Indian Health Service, any other 20 entity, or other insurance coverage before ordering the obligor to provide health care 21 coverage through insurance or other means. The court shall allocate equally the cost of 22 insurance between the parties unless the court orders otherwise for good cause. An 23 obligor's child support obligation shall be decreased by the amount of the obligee's 24 portion of health insurance payments ordered by the court and actually paid by the 25 obligor. 26 (b) The court shall increase a child support award by the obligor's portion of 27 health insurance if the obligee is ordered to, and actually does, obtain and pay for 28 insurance. The cost of insurance is the cost attributable to the child for whom support 29 is paid. If the cost to the employee of covering the employee alone is the same as the 30 cost to the employee of covering the employee and dependents, then there is no 31 additional cost to the employee for adding the child and no portion of the cost of
01 coverage may be allocated to the child. If dependent coverage can be added for a 02 single cost, rather than for each dependent, and the dependent coverage covers 03 dependents in addition to the child subject to the order, the cost of the dependent 04 coverage shall be allocated equally among the dependents covered. If there is reason 05 to believe that there is an incremental cost to the employee for insuring dependents but 06 evidence of that incremental cost is unavailable, the cost of insurance is determined by 07 dividing the total cost of coverage by the number of family members covered and 08 multiplying that amount by the number of children subject to the order. 09 (c) The court shall allocate equally between the parties the cost of reasonable 10 health care expenses not covered by insurance unless the court orders otherwise for 11 good cause. A party shall reimburse the other party for the party's share of the 12 uncovered health care expenses within 30 days after receipt of the bill for the health 13 care, payment verification, and, if applicable, a health insurance statement indicating 14 what portion of the cost is uncovered. The court shall allocate the reasonable, 15 uncovered health care expenses exceeding $5,000 in a calendar year based on the 16 parties' relative financial circumstances when the expenses occur. 17 (d) In this section, "health care expenses" means medical, dental, vision, and 18 mental health counseling expenses. 19 Sec. 25.28.050. Child support affidavit and documentation. (a) Subject to 20 the confidentiality requirements of Rule 90.1(f), Alaska Rules of Civil Procedure, each 21 parent in a court proceeding at which child support is involved shall file a statement 22 under oath that states the parent's adjusted annual income and the components of 23 adjusted annual income as described in AS 25.28.010(e). This statement must be filed 24 with a party's initial pleading, including the dissolution petition, divorce complaint or 25 answer, motion to modify, and any response to a motion to modify, and must be 26 accompanied by documentation verifying the income. The documents must be 27 redacted to delete social security numbers and to provide only partial financial account 28 information as provided in Rule 90.1(f), Alaska Rules of Civil Procedure. The 29 statement must state whether the parent has access to health insurance for the children 30 and, if so, the additional cost to the parent of the children's health insurance. 31 (b) While there is an ongoing monthly support obligation, each party shall
01 provide to the other party, within 30 days after a written request, documents such as 02 tax returns and pay stubs showing the party's income for the prior calendar year. The 03 party making the request shall provide documentation of the party's annual income for 04 the same period at the time the request is made. A request under this section may not 05 be made more than once a year. This section does not preclude discovery under the 06 Alaska Rules of Civil Procedure. 07 (c) Unless the information has already been provided to the court under Rule 08 90.1(f), Alaska Rules of Civil Procedure, a statement under (a) of this section must be 09 accompanied by a confidential information sheet as described in Rule 90.1, Alaska 10 Rules of Civil Procedure. Once a complete confidential information sheet has been 11 submitted to the court listing names, dates of birth, and social security numbers as 12 required, the parties shall omit or redact social security numbers from documents 13 subsequently filed in the action unless otherwise ordered by the court. 14 (d) The court may withhold or assess costs or attorney fees for a violation of 15 this section as the circumstances and discouragement of like conduct in the future may 16 require. Costs and attorney fees may be imposed on offending attorneys or parties. 17 Sec. 25.28.060. Travel expenses. After determining an award of child support 18 under this chapter, the court shall allocate between the parties reasonable travel 19 expenses that are necessary to exercise visitation as may be just and proper for the 20 parties to contribute. 21 Sec. 25.28.070. Modification; defense against arrearages. (a) A court may 22 modify a final child support award on a showing of a material change of 23 circumstances as provided by state law. A material change of circumstances shall be 24 presumed if support as calculated under this chapter is more than 15 percent greater or 25 less than the outstanding support order. For purposes of this subsection, support 26 includes health insurance payments made under AS 25.28.040. 27 (b) A court may not modify a child support arrearage retroactively, except as 28 authorized by AS 25.27.166(d). A modification that is effective on or after the date 29 that a motion for modification, or a notice of petition for modification by the child 30 support services agency, is served on the opposing party is not considered a retroactive 31 modification.
01 (c) The court may find that a parent and a parent's assignee are precluded from 02 collecting arrearages for support of a child that accumulated during a time period 03 exceeding nine months for which the parent agreed or acquiesced to the obligor 04 exercising primary custody of the child. A finding that preclusion is a defense must be 05 based on clear and convincing evidence. 06 Sec. 25.28.080. Third-party custody. (a) When the state, or another third 07 party entitled to child support, has custody of all children of a parent, the parent's 08 support obligation to the third party is an amount equal to the adjusted annual income 09 of the parent multiplied by the percentage specified in AS 25.28.010(b). If the third 10 party has custody of some but not all children, the parent's support obligation to the 11 third party is an amount equal to the adjusted annual income of the parent, multiplied 12 by the percentage specified in AS 25.28.010(b) for the total number of the parent's 13 children, multiplied by the number of the parent's children in third-party custody, 14 divided by the total number of the parent's children. For purposes of this subsection, 15 the number of the parent's children includes only children of the parent who live with 16 the parent, are substantially supported by the parent, or are in custody of the third 17 party entitled to support. 18 (b) If, in addition to a support obligation to a third party, one or both parents 19 retain primary or shared physical custody of at least one of their children, the support 20 obligation between the parents is calculated under the other provisions of this chapter, 21 without consideration of the third-party custodian or any children in the custody of the 22 third-party custodian, except that the percentage in AS 25.28.010(b) must be adjusted 23 pro rata for the number of children in the primary custody of a parent, or shared 24 custody of the parents, compared to the total number of children. After that calculation 25 is completed, any support owed may be offset with support owed to a third-party 26 custodian under (a) of this section in order to minimize transactions. 27 Sec. 25.28.090. Support order forms. All orders for payment or modification 28 of child support shall be entered on a form developed by the administrative director of 29 the court. A party may lodge a duplicate of the court form produced by a laser printer 30 or similar device. A device may also print, in a contrasting typestyle equivalent to that 31 produced by a typewriter, text that otherwise would have been entered by a typewriter
01 or word processor. A party or attorney who lodges a duplicate certifies by lodging the 02 duplicate that it is identical to the current version of the court form. 03 Sec. 25.28.100. Dependent tax deduction. The court may allocate the 04 dependent tax deduction for each child between the parties as is just and proper and in 05 the child's best interests. The allocation must be consistent with AS 25.24.152 and 06 federal law. 07 Sec. 25.28.300. Definitions. In this chapter, 08 (1) "divided custody" means that one parent has primary physical 09 custody of one or more children of the relationship and the other parent has primary 10 custody of one or more other children of the relationship, and the parents do not share 11 physical custody of any of their children; 12 (2) "hybrid custody" means that at least one parent has primary 13 physical custody of one or more children of the relationship, and the parents have 14 shared physical custody of at least one child of the relationship; 15 (3) "primary physical custody" or "primary custody" means that a child 16 resides with the other parent for a period, specified in the custody order, of less than 17 30 percent of the year; 18 (4) "shared physical custody" or "shared custody" means that a child 19 resides with one parent for a period, specified in writing in the custody order, of at 20 least 30 percent but not more than 70 percent of the year, regardless of the status of 21 legal custody. 22 * Sec. 2. AS 47.10.120(a) is amended to read: 23 (a) When a child in need of aid is committed under this chapter, the court or 24 the child support services agency created in AS 25.27.010 shall, after giving the parent 25 a reasonable opportunity to be heard, require that the parent pay to the department in a 26 manner that the court or the child support services agency directs a sum to cover in 27 full or in part the maintenance and care of the child. The support obligation shall be 28 calculated under AS 25.28 [RULE 90.3(i) OF THE ALASKA RULES OF CIVIL 29 PROCEDURE]. 30 * Sec. 3. AS 47.12.230(a) is amended to read: 31 (a) When a delinquent minor is committed under this chapter, the court or the
01 child support services agency created in AS 25.27.010 shall, after giving the parent a 02 reasonable opportunity to be heard, require that the parent pay to the department in a 03 manner that the court or the child support services agency directs a sum to cover in 04 full or in part the maintenance and care of the minor. The support obligation shall be 05 calculated under AS 25.28 [RULE 90.3(i) OF THE ALASKA RULES OF CIVIL 06 PROCEDURE]. 07 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 08 read: 09 REPEAL OF COURT RULE. Rule 90.3, Alaska Rules of Civil Procedure, is repealed. 10 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 11 read: 12 NON-APPLICABILITY OF TWO-THIRDS VOTE REQUIREMENT. Because the 13 rule repealed in sec. 4 of this Act is a substantive rule rather than a rule of practice or 14 procedure, the repeal of the rule takes effect even if sec. 4 of this Act does not receive the 15 two-thirds majority vote of each house required by art. IV, sec. 15, Constitution of the State of 16 Alaska.