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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Olmstead v. Ziegler (03/08/2002) sp-5543

Olmstead v. Ziegler (03/08/2002) sp-5543

     Notice:   This opinion is subject to 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


WILLIAM E. OLMSTEAD,          )
                              )    Supreme Court No. S-9481
             Appellant,            )
                              )    Superior Court No.
     v.                       )    1JU-94-306 CI
                              )
ELIZABETH A. ZIEGLER,         )    O P I N I O N
                              )
              Appellee.              )    [No. 5543  -  March  8,
2002]
________________________________)



          Appeal  from the Superior Court of the  State
          of  Alaska,  First Judicial District, Juneau,
          Michael A. Thompson, Judge.

          Appearances:   William E. Olmstead,  pro  se,
          Juneau, Appellant.  Elizabeth A. Ziegler, pro
          se, Juneau, Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Bryner,  Justices.  [Carpeneti,
          Justice, not participating.]

          FABE, Chief Justice.


I.   INTRODUCTION

          This is an appeal from the denial of a motion to modify

child  support.   Under  the  trial courts  original  order,  the

parties  shared  custody of their child and  neither  paid  child

support  to  the  other.   The  trial  court  determined  that  a

modification  of  child  support was not  warranted  because  the

father,  William Olmstead, was voluntarily underemployed and  his

earning  capacity had not changed.  We conclude the  trial  court

did   not   err   in   finding  that  Olmstead  was   voluntarily

underemployed, and we affirm the denial of the motion  to  modify

child support.

II.  FACTS AND PROCEEDINGS

     A.   Factual History

          William  Olmstead  and  Elizabeth  Ziegler  married  in

August 1989.  Their only child, Lauren, was born in January 1990.

They  divorced in December 1994.  The parties, both of  whom  are

attorneys,   entered  into  a  settlement  agreement   that   was

incorporated into the divorce decree.  The agreement provided for

joint  legal and physical custody of their daughter and specified

that  neither  party  would  pay  child  support  to  the  other.

However,  Olmstead  did agree to pay for their daughters  daycare

and  education  expenses.   Their  daughter  no  longer  requires

constant  daycare, and she now attends public schools.   Olmstead

estimates  that  he spends approximately $80 per month  on  child

care.

          At  the  time  of the divorce, the parties submitted  a

child  support  affidavit,  as  required  by  Alaska  Civil  Rule

90.3(3).   Olmsteads  estimated  1994  annual  gross  income  was

$53,000 and Zieglers was $25,000.  Zieglers estimate proved to be

high,  as  she  actually earned $16,753  in  1994.   Ziegler  was

subsequently hired as an attorney with the firm of Baxter,  Bruce

&   Brand   in   Juneau,  where  her  annual   income   increased

significantly.  In 1998, she earned $53,761.

          In  August 1996 Olmsteads law partner of several years,

Patrick  Conheady, left the partnership.  Conheady  claimed  that

Olmstead was unproductive and frequently played card games on his

computer  instead  of working on his cases.   Olmstead  became  a

solo  practitioner.  While he sought other positions and  applied

for  several  state  jobs,  he  was  apparently  unsuccessful  in

obtaining   other   employment.    Olmsteads   income   decreased

significantly during this period.  In 1996 his income dropped  to

$10,157.  In 1998 he earned $13,075.

          In   March  1999  Olmstead  informed  his  friends  and

colleagues  in  Juneau that he would be leaving the  practice  of

law,  as he had decided to go back to school to become a teacher.

In  order to make ends meet in the meantime, he offered his legal

research and writing services to other attorneys.   Olmstead  has

since remarried.  Ziegler remains single.

     B.   Procedural History

          On  June 3, 1999, Olmstead filed a motion for an  order

modifying  child support under Civil Rule 90.3.  On  October  28,

1999, the trial court denied Olmsteads motion for modification of

child  support,  noting  that  Olmstead  had  not  provided   the

necessary  income  verification documents.   Olmstead  moved  for

reconsideration, and on November 16, 1999, the trial court issued

an   order   simultaneously  granting   Olmsteads   request   for

reconsideration and denying his motion to modify  child  support.

The  trial  court found that, although their financial situations

may  have  changed,  the  parties still possessed  equal  earning

capacities.   The  trial  court  also  reasoned  that,   although

Olmstead  was  free to change careers, he was not entitled  to  a

modification of child support:  [Olmstead] has elected  to  learn

new things for a while, and perhaps take on a new career.   He is

free to do so, but under our case law [Ziegler] and the child are

not expected to finance these choices.  Olmstead appeals.

III. STANDARD OF REVIEW

          Trial  courts have broad discretion in deciding whether

to modify child support orders.1  A trial courts determination of

whether  to  modify child support will be reviewed for  abuse  of

discretion.2   An  abuse of discretion occurs when,  based  on  a

review of the whole record, we are left with a definite and  firm

conviction  that  a mistake has been made.3  Under  Alaska  Civil

Rule  52(a),4 factual findings will not be set aside unless  they

are clearly erroneous.5

IV.  DISCUSSION

     A.   The  Trial  Court Did Not Err in Finding that  Olmstead
          Was Voluntarily Underemployed.
          
          Olmstead claims that the court erred in finding that he

was   voluntarily  underemployed  and  contends  that  the  court

improperly relied upon his decision to change careers  in  making

that  finding.   Olmstead points out that he did not  ask  for  a

modification of child support based upon his income as a  student

or  teacher.  Rather, he requested a modification based  entirely

upon  his earnings while he was a practicing attorney.   He  thus

claims  that it was improper for the trial court to rely  on  his

career  change  when he did not make it a basis for  his  motion.

Olmstead  adds  that  he made a mistake  by  choosing  law  as  a

profession,  and  that he lacks the personality traits  necessary

for  success in the field.  He claims that he was not capable  of

even  moderate  success  as  a solo practitioner,  and  no  other

options were available to him.

          Ziegler counters that Olmsteads lack of success in  law

and  subsequent move to teaching are the results of his voluntary

actions.   She  points  to  the fact that  Olmsteads  former  law

partner left the partnership because Olmstead had greatly reduced

his  productivity.  Olmstead apparently began to scale  back  his

practice  as  early  as  February  of  1998.   He  cancelled  his

advertisement  in  the yellow pages and did not maintain  regular

business hours.  Ziegler suggests that Olmstead instead spent his

time  running marathons and remodeling his home.  She claims that

this  evidence  shows  Olmstead  voluntarily  withdrew  from  the

practice of law.  Ziegler relies upon Pattee v. Pattee, in  which

we reversed the reduction of a child support award to accommodate

the  fathers  decision to become a student.6  She  contends  that

this case should follow Pattees mandate that the custodial parent

should  not be forced to finance the noncustodial parents  career

change.7

          The  trial  court concluded that Olmsteads decision  to

quit the private practice of law and undertake training for a new

career  cannot be viewed as anything but a voluntary move on  his

part.   The  court found that Olmsteads career change constituted

          voluntary underemployment.  The trial court also concluded that

Olmsteads underemployment was unreasonable:

          This  record  can only support  a  conclusion

          that  [Olmstead] was merely unhappy with  the

          private  practice  of  law  and  .  .  .  has

          withdrawn  from it.  There is  no  foundation

          from  which to conclude that [Olmstead] could

          not  earn  exactly what [Ziegler]  now  earns

          from  law  practice, if not more,  should  he

          have  found himself willing to so  apply  his

          skills  and  experience. . . .   Further,  it

          does not appear reasonable for [Olmstead]  to

          reenter the education system to train  for  a

          position that is less remunerative than  that

          his    current   education   and   experience

          justifies.  No moral criticism of [Olmsteads]

          lifestyle  change is intended, but the  Court

          will  not shift any of the consequent  burden

          to the narrow shoulders of this child.

          Voluntarily  reducing ones income  may  not  justify  a

modification  of child support.8  Determining whether  or  not  a

parent   is   voluntarily  and  unreasonably   underemployed   is

essentially a question of fact.9  The trial court should consider

the  nature  of the changes and the reasons for the changes,  and

then  .  .  .  determine whether under all  the  circumstances  a

modification  is  warranted.10   A  trial  court  may  find  that

underemployment is voluntary even if the obligor  acted  in  good

faith.11

          We conclude that the trial court did not err in finding

that  Olmstead  was  voluntarily and unreasonably  underemployed.

The  evidence  before the trial court established  that  Olmstead

took many steps, including closing his office and failing to keep

regular  business hours, that demonstrated his intent to downsize

his  practice.  He also significantly reduced his workload hoping

          to obtain a job with the Department of Transportation.  In

addition, the record contains an affidavit from Olmsteads  former

partner,  Conheady,  recounting his difficulties  with  Olmsteads

lack   of  productivity:   Conheady  states  that  he  left   the

partnership  because Olmstead was not producing  enough  billable

hours.  While Olmstead has repeatedly stated that he was simply a

failure at law and was not capable of earning the average lawyers

salary,  he  has  provided scant support for his assertions.   In

addition,  Olmsteads claims that he was unable to make  a  living

practicing  law are undermined by the fact that at  one  time  he

made over $53,000 a year.

          Despite  Olmsteads assertions to the contrary,  it  was

permissible  for  the  trial court to consider  Olmsteads  career

change  in  determining the issue of voluntary  and  unreasonable

underemployment.   In  its  order,  the  trial  court   addressed

Olmsteads career change, remarking that while Olmstead  was  free

to  change  jobs,  Ziegler and their daughter  did  not  have  to

finance  that  choice.   The  trial  court  is  not  limited   to

consideration  of  the  facts  and  circumstances  that  Olmstead

chooses.  We have stated that the trial court should consider the

nature  of  changes  in income, as well as the  reasons  for  the

changes, and then determine whether under all the circumstances a

modification  is  warranted.12  That  includes  Olmsteads  career

change.

          Moreover,  Part III.C of the commentary to  Civil  Rule

90.3  recognizes that [w]hen a parent makes a career change, this

consideration  should include the extent to  which  the  children

will ultimately benefit from the change.  Thus, it is appropriate

for  the trial court to consider not only the career change,  but

also  its  potential  impact on the child.   Since  Olmstead  has

failed  to  prove any benefit to the child from his  decision  to

downsize his practice and change careers, the trial court did not

err  in finding that a modification is not warranted.  It was not

error  for  the  trial  court to have  found  that  Olmstead  was

          voluntarily and unreasonably underemployed, nor did the court err

by considering Olmsteads career change.

     B.    The  Trial  Court Did Not Err in Its Earning  Capacity

Determination.

          In  a corollary argument, Olmstead also claims that the

trial   courts  determination  of  earning  capacity  is  clearly

erroneous and requires reversal.  Olmstead contends that evidence

of  his earnings while working as a solo practitioner contradicts

the  courts suggestion that he could have made more had he  tried

harder.   He adds that he is unsuccessful on his own because  his

personality  [makes]  it  very  difficult  for  him  to   develop

business.   Olmstead  maintains that  there  is  no  evidence  to

support the trial courts conclusion that his earning capacity was

equal to or greater than Zieglers.

          However, the record supports the trial courts view that

Olmstead  was not working at his full capacity.  The trial  court

remarked  that  [t]here is no foundation from which  to  conclude

that  [Olmstead] could not earn exactly what [Ziegler] now  earns

from  law  practice,  if not more, should he have  found  himself

willing  to  apply his skills and experience.   The  trial  court

added  that  the parties earning power was the same as  when  the

original settlement agreement was signed.  The trial court  based

its  view  of  Olmsteads  earning capacity  on  his  actual  past

earnings as well as on other factors discussed above.

          The  trial  court  had  before  it  ample  evidence  of

Olmsteads  work  history, qualifications, and job  opportunities.

Although Olmstead would prefer that the trial court calculate his

potential income based only on three years of his earnings of his

own  choosing,  the  trial  court properly  considered  Olmsteads

qualifications as an attorney with substantial experience.13  The

record also contains evidence that Olmstead at one time made over

$50,000  per  year while practicing law.  Implicit in  the  trial

courts  evaluation of Olmsteads earning capacity is its rejection

of   his  claims  that  he  is  simply  not  a  successful   solo

          practitioner.  Also included in the record are Alaska Department

of  Labor  statistics stating that the average  income  for  male

attorneys in Alaska is $65,811.

          In  sum,  the trial courts determination that  Olmstead

had  the  capacity  to  earn as much as Ziegler  is  not  clearly

erroneous.   There  is adequate support in the  record  for  this

conclusion,  and  the  trial  court  did  not  commit  error   by

considering  factors other than Olmsteads recent  earnings  as  a

solo practitioner.

     C.   The Trial Court Did Not Err in Failing to Make Findings
          and    Set   Forth   Calculations   to   Support    Its
          Determination.
          
          Olmstead  next  argues that the trial court  failed  to

enter  explicit findings about earning capacity and to provide  a

basis for this court to review the determination. Olmstead claims

that  the  trial  courts failure to provide any  calculations  is

fatal and that remand is required.  Ziegler responds that it  was

unnecessary  for the trial court to provide calculations  because

the parties share custody.

          Given their equal earning capacities, child support  is

a  wash.14   The  trial court is required to  enter  sufficiently

detailed  findings  of  fact to allow  for  meaningful  appellate

review.15  Here the trial court adequately supported its decision

that  the  parties had equal earning power.  Moreover, the  cases

relied upon by Olmstead are not applicable to this situation  the

trial courts findings on earning capacity are sufficient.16

V.   CONCLUSION

          The  trial court did not err when it found Olmstead  to

be  voluntarily underemployed.  Furthermore, the trial court  did

not  err when it determined that no modification of child support

was warranted.  Therefore, the decision of the superior court  is

AFFIRMED.

_______________________________
     1    Patch v.  Patch, 760 P.2d 526, 529 (Alaska 1988).

     2    Schuyler v.  Briner, 13 P.3d 738, 741 (Alaska 2000).

     3     Id. (quoting State, Dept of Revenue v. Pealatere,  996
P.2d 84, 86 (Alaska 2000)).

     4     Civil  Rule 52(a) provides in part: Findings  of  fact
shall  not be set aside unless clearly erroneous, and due  regard
shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.

     5    Nass v.  Seaton, 904 P.2d 412, 414 (Alaska 1995).

6     744  P.2d  658  (Alaska 1987), overruled on  other  grounds
by Nass v.  Seaton, 904 P.2d 412, 416 n.7 (Alaska 1995).

     7    See id.

8      Robinson   v.  Robinson,  961  P.2d  1000,  1004   (Alaska
1998).

     9    See Vokacek, 933 P.2d 544, 549 (Alaska 1997).

     10   Id.

     11   Robinson, 961 P.2d at 1004.

12    Pattee,  744  P.2d  at  662  (quoting  In  re  Marriage  of
Rome, 621 P.2d 1090, 1092 (Mont. 1981)).

13   Olmstead graduated from law school in 1984.

     14    See  Civil  Rule 90.3(b); Civil Rule  90.3  Commentary
III.C.

     15   Nass v.  Seaton, 904 P.2d 412, 418-19, 419 n.13 (Alaska
1995).

     16    For  example, in Beard v. Morris, we remanded  to  the
trial  court  for  findings on how the  trial  court  valued  the
military-provided housing at issue.  956 P.2d 418, 420-21 (Alaska
1998).  Unlike Beard, the trial court in this case made it  quite
clear how it valued Olmsteads earning capacity; it considered  it
to  be  at  least  the same as Zieglers  $54,000.   As  explained
above, that finding is not clearly erroneous.  Similarly, in Nass
v.  Seaton,  we  required the trial court to  enter  sufficiently
detailed findings of fact which disclose its methodology, as well
as  the  factual basis, for its determination of the  appropriate
imputed potential income level for the obligor-parent.  904  P.2d
at  419.   The  trial court in this case did outline the  factual
basis  for its determination that these two experienced attorneys
had equal earning capacities.