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Hixson v. Sarkesian11/18/2005
No. 5958
Before: Bryner, Chief Justice, Matthews, Eastaugh, and Fabe, Justices.
[Carpeneti, Justice, not participating.]
I. INTRODUCTION
Elizabeth Hixson appeals the denial of her motion to modify the child support obligations of her ex-husband, Michael Sarkesian. Sarkesian lives and works in Switzerland. Hixson contends that a fluctuation in the exchange rate between Swiss francs and U.S. dollars constitutes a "material change in circumstances" for modification under Alaska Civil Rule 90.3(h)(1). Because we agree that the superior court needed to follow both the methodology specified in Rule 90.3(h)(1) and the same methodology it previously used to calculate support, we reverse and remand.
II. FACTS AND PROCEEDINGS
Elizabeth Hixson and Michael Sarkesian divorced in 1991; they had two children from the marriage. After an appeal of the divorce decree, the parties reached a settlement agreement in 1995 to set child and spousal support, and to resolve property distribution issues. The parties adopted the superior court's findings and conclusions on child support made before the appeal.
Sarkesian has lived in Switzerland since the divorce and is paid in Swiss francs. The superior court calculated support by converting Sarkesian's income in Swiss francs to dollars and multiplying his annual adjusted income in dollars by twenty-seven percent, the amount specified for support of two children in Rule 90.3(a)(2). Support was set at $2,138.80 per month.
In August 2000 Sarkesian moved to modify his child support because a decline in income reduced his support obligation by more than fifteen percent, satisfying the presumption for modification in Civil Rule 90.3(h)(1). The superior court agreed that his income was lower both because he no longer received bonuses and because of a "substantial" decline in the value of the franc as compared to the dollar. Hixson argued on appeal that the superior court erroneously applied Rule 90.3's income cap. We agreed Sarkesian was entitled to reduction in child support but concluded that support should be based on Sarkesian's actual income of $85,015.41, not on the income cap. On remand, the superior court set child support at $1,912.85 per month by converting Sarkesian's income in Swiss francs to dollars and multiplying his annual adjusted income by twenty-seven percent.
In 2003 Hixson moved to modify Sarkesian's child support, contending that fluctuations in the exchange rate would result in increasing Sarkesian's support obligation by more than fifteen percent, meeting the presumption for modification. The superior court denied the modification, concluding that even accepting Hixson's exchange rate of 1.33336 Swiss francs to the dollar, the benefit to Sarkesian led to only an eight percent increase in his support obligation. Hixson filed a motion to reconsider, which was denied. She appeals.
III. DISCUSSION
Hixson and Sarkesian agree that Sarkesian's income in Swiss francs is essentially unchanged since child support was last modified in 2001. Their dispute centers on whether and how fluctuations in the exchange rate should be assessed in determining whether to modify child support.
Civil Rule 90.3(h)(1) permits modifications of final child support awards upon a showing of a material change in circumstances. Moreover, " material change in circumstances will be presumed if support as calculated under this rule is more than 15 percent greater or less than the outstanding support order." Support awards are set based on a percentage of income approach. When one parent has primary custody of two minor children, support
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