In the case of Childs v. Childs, a mother and father of two minor children divorced in 2005. The mother was awarded sole legal and physical custody of the children and the father was ordered to pay child support. The father then joined the Army a year later.
Five years later, the mother filed a motion to modify the standing child support award, seeking to increase the father’s support obligation due to an increase in his income. The father did not respond to the motion to modify until the superior court informed him that it was prepared to award child support in the amount requested by the mother if the father did not file an opposition. The father then opposed the motion, arguing that the Servicemembers Civil Relief Act protected him from adverse civil actions because he was actively serving in the United States Army and contended that the mother had not properly served him with notice of the modification proceeding. Furthermore, he argued that the superior court should deduct the Basic Allowance for Housing that the father received as a servicemember from his income calculation. The superior court modified the parties’ child support award without holding a hearing, ordering the father to pay increased child support.
The father appealed, raising three challenges to the superior court’s decision. Upon careful consideration of the father’s arguments, the Supreme Court affirmed the Superior Court with respect to the father’s challenges as follows:
1. There was no violation of the Servicemembers Civil Relief Act. Numerous courts, including the United States Supreme Court, have concluded that a servicemember invoking a stay under the Act must make a showing that the servicemember’s rights or ability to present a defense would be materially affected by the servicemember’s military duties.A servicemember is not entitled to a stay simply by virtue of serving in the armed forces. Joshua Childs does not argue on appeal that his ability to participate in the child
support modification proceeding was materially affected by his military service.
2. Joshua’s due process rights were not violated because he had notice of the proceeding.
3. There were no disputed facts to a merit hearing. Joshua also argues that the superior court should have held an evidentiary hearing before ordering the modification of child support in this case and that failure to do so violated due process. Joshua maintains that he was “never given the opportunity to speak or be present at any hearing regarding child support.” But “[a] hearing is not required for all child support disputes.”21 And we have held that a hearing is not necessary if there is no genuine issue of material fact before the superior court.
4. The Superior Court’s Child Support Award Complied With The
Parental Income Guidelines In Alaska Civil Rule 90.3.
Joshua next argues that his Basic Allowance for Housing should not be
included in the calculation of his income for the purpose of determining his child support
obligation because the allowance is not reflected in his gross pay. Christina argues that
the superior court did not err in calculating Joshua’s child support obligation because
Civil Rule 90.3 includes military housing allowances within the definition of adjusted
annual income for the purpose of calculating child support.
Civil Rule 90.3 provides that a trial court must calculate a “parent’s total
income from all sources.” As we observed in Berkbigler v. Berkbigler, the question
whether a military housing allowance qualifies as income is expressly addressed by the
commentary to Civil Rule 90.3.25 Specifically, the commentary advises that income
includes “Armed Service Members base pay plus the obligor’s allowances for quarters, rations, COLA and specialty pay”26 and “perquisites or in-kind compensation to the
extent that they are significant and reduce living expenses, including but not limited to
employer provided housing (including military housing)
For more questions or concerns regarding paying child support while serving in the military, contact a Santa Ana child support lawyer today.