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Bendixen v. Bendixen (8/7/98), 962 P 2d 170
Notice: This opinion is subject to formal 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.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL E. BENDIXEN, )
) Supreme Court No. S-7737
) Superior Court No.
v. ) 3SP-90-01 DR
BONITA J. BENDIXEN, ) O P I N I O N
Appellee. ) [No. 5016 - August 7, 1998]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: Kenneth C. Kirk, Esq., Anchor-
age, for Appellant. No appearance for
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
After being jailed on criminal charges, Michael Bendixen
moved to modify his child support payments, alleging a drop in
income. The superior court held that Bendixen's incarceration was
equivalent to voluntary unemployment. But serving jail time is
seldom a goal of criminal misconduct, and so is not identical to
purposeful unemployment; moreover, Alaska Civil Rule 90.3 imposes
the same payment requirement on all parents who cannot afford
support, even parents whose indigence stems from incarceration. We
I. FACTS AND PROCEEDINGS
Michael E. Bendixen and Bonita J. Bendixen (now Babcock)
divorced in July 1990; the court awarded Bonita custody of the
Bendixens' three children and ordered Michael to pay $1075.90 each
month in child support.
In December 1995 Michael moved to modify his support
payments, alleging that he was unemployed and could pay no more
than the minimum level of child support because he had been in jail
for the past nine months on felony charges. Michael hinted that a
conviction was imminent: "It appears I may have to go back to
prison in 1996, or [even] earlier."
In response to Michael's motion, Bonita informed the
court that she could not afford a lawyer but would turn the matter
over to the Child Support Enforcement Division; but CSED did not
subsequently participate in the case.
Superior Court Judge John Reese, likening incarceration
to voluntary unemployment, summarily denied Michael's motion:
"Incarceration is not considered a substantial change of
circumstances which would justify reduction in the obligation to
support one's children, as crimes are willful conduct, just as
voluntary unemployment is willful conduct."
Michael appeals this ruling.
II. THE SUPERIOR COURT ERRED IN SUMMARILY DENYING MICHAEL'S
MOTION ON THE GROUND THAT HIS INCARCERATION AMOUNTED TO VOLUNTARY
A. Standard of Review
The conclusion that incarceration is equivalent to
voluntary unemployment involves a legal issue that we review
without deference to the superior court's decision, adopting the
rule of law that is most persuasive in light of precedent, reason,
and policy. [Fn. 1]
B. Historical Perspective
Fourteen years ago, in Clemans v. Collins, [Fn. 2] we
concluded that parents who are rendered indigent by incarceration
generally should not be required to pay child support:
Where a non-custodial parent is imprisoned for
a crime other than nonsupport (or for civil contempt for failure to
pay the same) we believe the better rule should be that the parent
is not liable for such payments while incarcerated unless it is
affirmatively shown that he or she has income or assets to make
such payments. [Fn. 3]
Three years after deciding Clemans, however, we adopted
Rule 90.3, which sets out comprehensive guidelines for child
support awards. [Fn. 4] More recently, in Douglas v. State,
Department of Revenue, [Fn. 5] we held that Rule 90.3 supersedes
Clemans. [Fn. 6] We noted in Douglas that the explicit language of
Rule 90.3(c)(1) [Fn. 7] subjects every non-custodial parent to a
minimum support obligation of $50 per month, and we concluded that
even when an incarcerated parent is unable to afford any child
support at all, the court must order the parent to make the minimum
$50 monthly payment. [Fn. 8]
Our cases interpreting Rule 90.3 have also recognized
that, when courts calculate adjusted annual income for purposes of
determining child support payments, they may impute earnings to
non-custodial parents who are voluntarily unemployed or
underemployed. [Fn. 9] Although Rule 90.3 itself makes no mention
of voluntary unemployment, the commentary to the rule discusses the
problem and expressly endorses imputing income in certain
situations involving voluntary unemployment:
The court may calculate child support
based on a determination of the potential income of a parent who
voluntarily is unemployed or underemployed. A determination of
potential income may not be made for a parent who is physically or
mentally incapacitated, or who is caring for a child under two
years of age to whom the parents owe a joint legal responsibility.
Potential 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.
In view of Douglas's holding that Rule 90.3 supersedes
Clemans, and Rule 90.3's commentary encouraging courts to impute
earnings in cases involving voluntarily unemployed parents, the
permissibility of requiring incarcerated parents to pay child
support is once more open to question.
C. Reexamining the Status of Incarcerated Parents
The superior court reasoned that Michael's incarceration
for a crime was tantamount to voluntary unemployment because
"crimes are willful conduct, just as voluntary unemployment is
willful conduct." But the court's reasoning overlooks significant
differences between the willfulness involved in committing a crime
and that required to support a finding of voluntary under-
Not every voluntary act that has negative economic
consequences amounts to voluntary unemployment. The commentary to
Rule 90.3 strongly suggests that, to be considered voluntarily
unemployed, a parent must engage in voluntary conduct for the
purpose of becoming or remaining unemployed. Thus, the commentary
advises that the imputed earnings of voluntarily unemployed parents
should be based on their "potential income"and "job
opportunities."[Fn. 11] This wording obviously presupposes that
some prospect of earning income or some opportunity to find
employment actually exists.
Equating incarceration with voluntary unemployment thus
seems inconsistent with Rule 90.3's commentary. It also seems to
cut against the grain of our own case law. Although we have held
that Rule 90.3 supersedes Clemans, [Fn. 12] and so have
acknowledged the need to enforce the rule's express requirement of
minimal support payments when that requirement conflicts with that
decision, [Fn. 13] we have never specifically disavowed Clemans
itself; nor have we questioned its underlying policies. [Fn. 14]
To the contrary, just three years ago in A.H. v. W.P.,
[Fn. 15] we forbade imputing income to a parent who had no actual
earning capacity. [Fn. 16] Moreover, the previous year, when we
decided in Douglas that Rule 90.3 required an incarcerated parent
to pay $50 per month in child support regardless of her ability to
afford the payment, we specifically rejected an argument urging us
to treat incarcerated parents differently than other indigent
[T]he relevant question is not whether Douglas
has prospective sources of income from which to pay support, but
whether there is any basis in Rule 90.3 for treating indigent
incarcerated parents differently from other indigent parents who
are subject to the rule. We conclude that there is not. [Fn. 17]
Interpreting voluntary unemployment to include joblessness stemming
from incarceration would thus conflict not only with the spirit of
Clemans but also with our more recent decisions in A.H. and
These considerations lead us to conclude that the
superior court erred in refusing to modify Michael's child support
payments on the sole ground that his incarceration amounted to
voluntary unemployment. Although incarceration is often a
foreseeable consequence of criminal misconduct and all criminal
acts are in some sense voluntary, non-custodial parents who engage
in criminal misconduct seldom desire the enforced unemployment that
accompanies incarceration; nor can they alter their situation; and,
in stark contrast to parents who consciously choose to remain
unemployed, jailed parents rarely have any actual job prospects or
potential income. Equating incarceration to voluntary unemployment
would require us to ignore these significant, real-life distinc-
To be sure, before securing a reduction in child support
payments, Michael will have to prove that he has suffered more than
a temporary or insubstantial setback in earnings as a result of his
incarceration. [Fn. 18] And nothing precludes the superior court
from considering the circumstances surrounding Michael's
incarceration to the extent that they might contribute to a case-
specific finding of exceptional circumstances warranting departure
from Rule 90.3's child support guidelines. [Fn. 19] But here, as
in Douglas, Rule 90.3 provides no basis for automatically treating
incarcerated parents differently from other categories of indigent
parents who are subject to the same rule.
We therefore REVERSE the superior court's order denying
Michael's motion to modify his support obligation, and we REMAND
this case to the superior court with instructions that Michael be
given an opportunity for a hearing to substantiate his claim of a
reduced annual income resulting from his incarceration.
See Sauve v. Winfree, 907 P.2d 7, 9 (Alaska 1995); Karpuleon
v. Karpuleon, 881 P.2d 318, 320 n.3 (Alaska 1994).
679 P.2d 1041 (Alaska 1984).
Id. at 1041-42.
See Alaska Supreme Court Order 833 (effective August 1, 1987).
880 P.2d 113 (Alaska 1994).
See id. at 116.
Alaska Civil Rule 90.3(c)(1) provides, in relevant part:
(1) The court may vary the child support award
as calculated under the other provisions of this rule for good
cause . . . . Good cause may include a finding:
. . . .
(B) . . . that the parent with the child
support obligation has a gross income which is below the poverty
level as set forth in the Federal Register. However, a parent who
would be required to pay child support pursuant to paragraph (a) or
(b) must be ordered to pay a minimum child support amount of no
less than $50.00 per month except as provided in paragraphs (a)(3)
See Clemans, 880 P.2d at 115-16.
See, e.g., Nass v. Seaton, 904 P.2d 412, 417 (Alaska 1995);
Kowalski v. Kowalski, 806 P.2d 1368, 1371 (Alaska 1991); Pugil v.
Cogar, 811 P.2d 1062, 1066 (Alaska 1991).
Alaska R. Civ. P. 90.3 cmt. III. C.
Alaska R. Civ. P. 90.3 cmt. III. C.
See Douglas, 880 P.2d at 116.
Clemans did not expressly discuss the rationale underlying its
conclusion; instead it simply relied on Edmonds v. Edmonds, 633
P.2d 4 (Or. App. 1981), overruled by Willis v. Willis, 820 P.2d 858
(Or. App. 1991), rev'd, 840 P.2d 697 (Or. 1992). See Clemans, 679
P.2d at 1041. But one policy implicitly furthered by Clemans was
that of avoiding the accumulation of unrealistic debt, thereby
encouraging productive reintegration into society and resumption of
parental duties upon release from prison. Cf. Leasure v. Leasure,
549 A.2d 225, 227 (Pa. Super. 1988); Mooney v. Brennan, 848 P.2d
1020, 1024 (Mont. 1993) (Trieweiler, J., dissenting). Other courts
reaching the same conclusion as Clemans have advanced slightly
different rationales. See, e.g., Pierce v. Pierce, 412 N.W.2d 291,
293 (Mich. App. 1987) (reasoning that the continuation of child
support obligation would be an additional penalty upon one who has
already been penalized); Johnson v. O'Neill, 461 N.W.2d 507, 508
(Minn. App. 1990) (same); Leasure, 549 A.2d at 227 (reasoning that
a continued support obligation will not benefit children, since
they will not get the support they need when they need it). For
cases reaching contrary results, see, for example, Mooney, 848 P.2d
at 1022; Willis, 820 P.2d at 860, rev'd, 840 P.2d 697 (Or. 1992);
Noddin v. Noddin, 455 A.2d 1051, 1053 (N.H. 1983); Proctor v.
Proctor, 773 P.2d 1389, 1391 (Utah App. 1989) (all reasoning that
incarceration is akin to voluntary underemployment because the non-
custodial parents choose to engage in behavior that interferes with
their ability to pay child support).
896 P.2d 240 (Alaska 1995).
See id. at 245.
880 P.2d at 116.
See Patch v. Patch, 760 P.2d 526, 530 (Alaska 1988).
See Alaska R. Civ. P. 90.3(c)(1).