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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Richardson v. Kohlin (01/18/2008) sp-6225

Richardson v. Kohlin (01/18/2008) sp-6225, 175 P3d 43

     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,


) Supreme Court No. S- 12217
Appellant, )
) Superior Court No.
v. ) 3AN-96-01960 CI
Appellee. ) No. 6225 - January 18, 2008
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Philip R. Volland, Judge.

          Appearances: Michael B. Logue, Gorton, Logue,
          &  Graper,  Anchorage,  for  Appellant.   Ann
          DeArmond, Sterling & DeArmond, P.C., Wasilla,
          for Appellee.

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

          CARPENETI, Justice.

          After being laid off from a high paying job as an  IBEW
journeyman electrician in Anchorage, a non-custodial father moved
to  the  Pacific Northwest.  There, despite months of  trying  to
find  work in Oregon and Washington, he was unable to secure work
as  an  electrician.  He then sought to modify the child  support
order that the court had entered shortly after his move which had
been  based  on his prior income.  The superior court  determined
that the fathers new income as a full-time non-union site-service
technician  in  Washington  represented  a  material  change   in
circumstances.   The  court also determined  that  child  support
should  not  be based on the fathers potential income working  in
Alaska because, considering the totality of the circumstances, he
was  not unreasonably underemployed.  Because the superior  court
correctly determined that there had been a material change in the
fathers  circumstances, and because there was an  adequate  basis
for  the  superior court not to impute income,  we  affirm  these
decisions of the superior court.
     A.   Facts
          Sharen  Richardson  and  Kenneth  Kohlin  divorced   in
October  1996.  They are the parents of a daughter  born  in  May
1994.   In the years since the divorce, custody and support  have
been modified numerous times.  In the spring of 2004 Kenneth  was
living  in Anchorage, where Sharen also lives.  Kenneth, a member
of  the  IBEW union, was employed as a journeyman electrician  by
Alcan  Electric and worked on the Anchorage airport project.   At
that  time Kenneth made around thirty-one dollars per hour.   His
May  2004  financial  affidavit to the court  reflected  a  gross
annual  income  of  $68,886 and a net income  for  child  support
purposes of $48,225.
          While  Kenneth was in Anchorage he had physical custody
of  his  daughter  forty-one percent of the  time.   The  custody
battles between Kenneth and Sharen in advance of fall 2004 proved
quite  contentious, including an ex parte domestic violence order
that  Sharen obtained against Kenneth on their daughters  behalf.
Both   parents   acknowledged  that  the  custody  disputes   and
transitions were hard on their daughter.
          During  the  summer of 2004 Kenneth  learned  that  the
airport job was coming to an end and that he would be subject  to
a  reduction  in  force.  He was later laid  off  from  the  job.
Despite  his  knowledge  of  his  tenuous  employment  situation,
Kenneth  purchased a home in Anchorage in September 2004.   Then,
in   October  2004,  Kenneth  moved  to  the  Pacific  Northwest.
Kenneths  stated  reason for relocating in the Pacific  Northwest
was  to be closer to family.  Kenneth also testified that he left
Alaska  because  things  got ugly with regard  to  child  custody
          In   November  2004  child  support  and  custody  were
modified to reflect the fact that Kenneth had decided to move out
of  Alaska  and was relinquishing the forty-one percent  physical
custody  relationship he had previously been allotted in exchange
for  some  weeks  of visitation.  The November order  included  a
paragraph  requesting updated financial affidavits  so  that  the
court could calculate new support obligations in accordance  with
Rule 90.3.  Kenneth filed a motion with the court requesting that
his  May 2004 financial affidavit based upon his employment  with
Alcan   Electric   be  used  in  calculating  his   new   support
obligations.  Kenneth attested that he believed he would be  able
to  meet his obligation through savings until he found new  work.
Thus,  despite the fact that Kenneth was unemployed  and   living
out  of  state at the time of the November 2004 order, his  child
support  obligations  were set at $804 based  upon  his  previous
          Once  in the Pacific Northwest, Kenneth looked for work
in  several different towns in Washington and Oregon.   He  filed
the necessary paperwork to obtain his reciprocal Washington state
electrician license; he also took and passed the exam  to  become
certified in Oregon.  Kenneth inquired at various locals  of  the
union  for work, but was placed on book two rather than book  one
because of his newcomer status, which meant that he had very  low
priority  for  union  jobs.1  Kenneth ended up  taking  non-union
construction work as a carpenter in Oregon in March 2005, earning
seventeen  dollars an hour.  He held that job until  August  2005
when  he  took a job with a wind technology company in Washington
where  he saw greater opportunity for advancement.  That job  too
paid  Kenneth  seventeen  dollars an  hour,  as  a  site  service
technician, but it also guaranteed him a forty hour work week and
offered him the opportunity to eventually earn twenty-two dollars
an hour.
          Kenneth  acknowledged that the job situation in  Alaska
is  clearly superior to that in Washington.  In Alaska, there  is
typically a two-month turnaround between jobs.  In one full  year
in  Washington,  on  the  other hand, he  had  received  no  IBEW
employment  and  had  barely gained any seniority  in  the  union
hiring list.  He testified that although he knew he would  be  at
the  bottom  of the list in a new place, he had not realized  how
difficult it would be to find work, because in Anchorage  workers
moved up the books quickly.  Had he been able to secure IBEW work
in  Washington  he  could have expected pay  around  twenty-eight
dollars  per hour.  While in Washington, Kenneth actively pursued
higher-paying  work,  including  regularly  paying   IBEW   dues,
attending   meetings,  and  signing  the  books   to   show   his
availability for work.
     B.   Proceedings
          A.   In February 2005 Kenneth filed a motion to modify child
support,  claiming  that his gross annual income  was  below  the
federal  poverty level for a family of three.  Before his  motion
was  ripe  for decision, Kenneth advised the court  that  he  had
secured full-time employment and would be modifying his financial
affidavit.   In April 2005 Kenneth filed a motion  to  amend  his
motion  to  modify child support to reflect an annual  income  of
$25,428.   He  claimed  that  this  was  a  material  change   in
circumstances  from  the May 2004 financial  situation  that  the
court  had  used  to  determine his existing support  obligation.
That  May  2004 financial affidavit had reflected a gross  annual
income of $68,886 and a net income for child support purposes  of
          A  hearing  was  held in October 2005  before  Superior
Court Judge Philip R. Volland.  In a written order dated December
1,  2005,  Judge Volland reduced Kenneths monthly  child  support
from  $804  a  month to $477 a month as of March  1,  2005  after
finding that he was not unreasonably underemployed.2
          Sharen  appeals  this  determination  on  two  grounds.
First, she argues that because Kenneth was already unemployed and
out-of-state in November 2004 when the court modified  the  child
support order to reflect Kenneths relinquishment of custody,  the
superior  court  erred as a matter of law in finding  a  material
change in circumstance at the time of the February 2005 motion to
          modify.  Second, Sharen argues that the superior court abused its
discretion  in  finding  that Kenneth  was  not  voluntarily  and
unreasonably underemployed.
          In  deciding  whether to modify child  support  orders,
trial courts have broad discretion.3  We review a decision by the
superior court to modify child support for an abuse of discretion
and only overturn a decision when, based on a review of the whole
record,  we are left with a definite and firm conviction  that  a
mistake  has  been  made.4 On the other hand, whether  the  trial
court  applied  the proper legal standard in determining  that  a
change  of  material circumstances occurred is an  issue  of  law
which we review de novo.5  We review the factual findings made by
the superior court under the clearly erroneous standard.6
     A.   The  Superior Court Did Not Err in Finding  a  Material
          Change  in Circumstances Warranting a Review  of  Child
          Sharen  argues  that because Kenneth was unemployed  at
the  time  of the November 2004 child support order,  a  material
change in circumstances did not occur by the time of the February
2005  motion  to  modify.   Kenneth contends  that  Rule  90.3(h)
defines  material  change  in  circumstances  by  comparing   the
outstanding child support order with what support would be  under
up-to-date  Rule 90.3 calculations.  Kenneth also argues  that  a
change  of  circumstances  occurred  subsequent  to  the  hearing
because he failed to find work as anticipated.
          Civil  Rule 90.3(h) allows for modification of a  child
support   award   upon  a  showing  of  a  material   change   of
circumstances . . . . A material change of circumstances will  be
presumed if support as calculated under this rule is more than 15
percent greater or less than the outstanding support order.
          Because  the existing order was for $804 per month  and
Rule  90.3 calculations using Kenneths new income resulted in  an
order  of  $477  per month,7 the superior court  found  that  the
reduction   forty  percent  of the award   signified  a  material
change  in  circumstances.  Sharen argues  that  this  change  of
circumstance did not occur after the November 2004 support  order
because  Kenneth  was  unemployed before November  2004.   Sharen
cites Burrell v. Burrell8 for the proposition that the change  in
circumstance must be subsequent to the original order in order to
be  considered.   In Burrell the court needed to  determine  when
alimony  payments had last been calculated by the court in  order
to  determine  whether  there  had  been  a  material  change  of
circumstances  since  that time.9  The court  quoted  an  earlier
child support case which held that [g]enerally, the rule is  that
a  modification  of  a support order may be obtained  only  where
there has been a material and substantial change in circumstances
occurring  subsequent to the original order.10  However,  Burrell
and  the  case  that it relied upon, Curley, are  distinguishable
from  the  present situation because in this case no prior  order
evaluated   the  circumstances  presented  in  the   motion   for
modification.   The  November order for  child  support  did  not
address   or   appear  to  contemplate  the  issue  of   Kenneths
          unemployment, and instead simply requested updated financial
affidavits.  Moreover,  a  change  in  circumstance   did   occur
subsequent to the November order  namely, Kenneth discovered that
it  was much harder to find work in the Pacific Northwest than he
had anticipated.
          The  November  2004  court order  provided  that  child
support,  which  needed to be changed at that  time  due  to  the
change  in  custody,  would  be modified  on  the  basis  of  new
financial affidavits and calculated in accordance with Rule 90.3.11
Kenneth  filed  a notice stating that for the purposes  of  child
support  he would rely on his May 2004 financial affidavit  which
reported  a  total income of $68,886 and a net income  for  child
support  purposes  of $48,225.  Kenneth later stated  under  oath
that  he  had fully anticipated and expected that [he]  would  be
able  to  sustain  child support payments based on  [his]  Alaska
employment wages out of [his] savings account until [he] was able
to find work again.
          The fact that Kenneth consented to the courts use of an
out-of-date  financial  affidavit  which  resulted  in  a  higher
presumptive  child  support  payment  is  not  equivalent  to  an
agreement to deviate from Rule 90.3.12  To the contrary, we  have
held  that  parents  going through what appear  to  be  temporary
periods of unemployment can be expected to maintain their support
obligation by using assets,13 and that ordinarily support  should
not  be modified for temporary reductions in income.14  Thus,  it
was reasonable for both Kenneth and the court to rely on the out-
of-date  affidavit  and  to expect that Kenneth  could  meet  his
obligations  with  his  savings in  the  interim.   When  Kenneth
discovered  that  employment was more difficult  to  obtain  than
expected he filed a motion to modify child support, at that point
using the discrepancy between the existing support order and  the
Rule  90.3  formula.  This approach is consistent with Rule  90.3
and Alaska case law.
          There  is  a tension in our case law between a  bar  on
retroactive  modification  and  a  desire  to  prevent   repeated
modification  for every twist and turn in an individuals  income.
Thus, parties are encouraged to make a motion for modification as
soon as their income changes,15 but it is not expected that every
temporary  change  will produce a motion  to  modify.16   Kenneth
struck  the  proper  balance here by not seeking  a  modification
based  upon  what  he  anticipated to be a  temporary  period  of
unemployment,  but  by  moving to modify when  that  unemployment
proved   more   intractable.   We  conclude  that   under   these
circumstances  the superior court did not err  in  utilizing  the
presumptive  Rule  90.3(h)(1)  test  for  a  material  change  in
     B.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Declining To Calculate Child Support Based on  Kenneths
          Potential Income.
          The superior court declined Sharens request to base its
child support order on Kenneths potential income under Civil Rule
90.3(a)(4).  Civil Rule 90.3(a)(4) reads in pertinent  part:  The
court may calculate child support based on a determination of the
potential income of a parent who voluntarily and unreasonably  is
          unemployed or underemployed.  The superior court found that
Kenneths   underemployment  was  reasonable  in  light   of   the
legitimate  reasons  for  his move and his  diligent  job  search
efforts.    Sharen  appeals  the  determination   that   Kenneths
underemployment was reasonable.
          We  have held that in cases involving the imputation of
income  the trial court should consider the nature of the changes
[in  income]  and the reason for the changes, and then  determine
whether under all the circumstances a modification is warranted.17
Sufficient factual findings are required for imputing  income  or
declining  to  impute  income.18  When  a  parent  is  seeking  a
modification of support due to a change in employment  the  court
should  consider the extent to which the children will ultimately
benefit from the change.19  None of the Alaska case law speaks to
a change in circumstance exactly analogous to this one, where the
obligor  was  attempting (and failing) to find work  in  his  old
profession in a much tighter job market following a move.
          We  conclude that the superior court properly  examined
the totality of the circumstances here.  The court noted Kenneths
extensive  attempts  to  find  high-paying  work  in  Oregon  and
Washington.   The court noted that Kenneth has sought  employment
to the best of his ability, that he actively registered with IBEW
Local  112,  that  he  had  changed  jobs  for  better  pay   and
opportunity, and presently works full-time.  The court found that
under such circumstances Kenneths underemployment was reasonable.
          Sharen   argues   that  Kenneths  efforts   to   secure
employment  were  unreasonable because the move itself  was  ill-
considered  and impulsive.  Sharen notes that because  the  tight
employment market in the Oregon and Washington area existed   for
some  time,  Kenneth could have learned of it with a  few  simple
phone  calls ahead of time.  Instead, Kenneth bought a  house  in
Anchorage in September, opted to move away in October,  and  only
then  discovered  how difficult it would be to find  work  as  an
electrician in Oregon or Washington.
          While  Sharens points do highlight initial mistakes  in
planning  on  Kenneths part, they do not diminish  the  diligence
with  which Kenneth attempted to find work once arriving  in  the
Pacific  Northwest  or the reasonableness of Kenneths  choice  to
leave the state.  The court noted that Kenneths decision to  move
was  not  unreasonable  (and thus it would  be  inappropriate  to
impute  income)  because Kenneth had legitimate reasons  for  the
move,  including a desire to be closer to his family and his  new
wifes  family.   The court also noted that the  parties  daughter
might  benefit  from  Kenneths move through  the  opportunity  to
better  know her extended family and through diminished  conflict
between Kenneth and Sharen.
          Sharen argues that because their daughter suffers  from
Kenneths  move,  the  court  erred in  finding  the  move  to  be
reasonable.   Sharen also argues that the court did not  consider
the  increased burden that diminished support would place on  her
and   her   child.    However,  the  superior  court   explicitly
acknowledged this concern in noting that its change would lead to
a  forty percent reduction in support and nonetheless found  that
the  totality  of circumstances warranted the change.   Moreover,
          there is support in the record for the courts note that their
child  might  benefit  from  Kenneths move  because  the  custody
disputes  subsequently  decreased.  The record  is  replete  with
acrimonious   motions   alleging  violations   of   the   custody
agreements.   Kenneth testified at the hearing that  one  of  the
reasons  for his move was that things just got ugly in  Anchorage
regarding  custody issues.  Both parents acknowledged at  various
points in the record that such disputes had a negative impact  on
their  daughter.   And Sharens counsel at the hearing  seemed  to
concede  that  the disputes may have diminished with  Kenneth  in
another state.20  In sum, there was adequate support in the record
for the courts finding on this point.
          Ultimately,  there  is  nothing to  indicate  that  the
superior  court  abused its discretion in finding  that  Kenneths
underemployment  was reasonable.  Sharen argues that  the  courts
factual findings do not find support in the record.  However,  as
noted,   the  record  contained  ample  support  for  the  courts
findings.   The court also gave great weight to Kenneths  efforts
to  find  work, the fact that he was working full time,  and  his
active  pursuit of higher paying work which places this  case  in
contrast  to  many  other  cases in  which  we  have  upheld  the
imputation of income.21
          The  court  evaluated the totality of the circumstances
before  determining that Kenneths underemployment was reasonable.
Because the courts factual findings are not clearly erroneous and
because  its  weighing  of  the  issues  was  not  an  abuse   of
discretion, we affirm.
          Because  Kenneths unexpected inability to  find  a  new
high-paying  job despite diligent effort represented  a  material
change    in    circumstances   and   because   his    subsequent
underemployment  was  not unreasonable, we  AFFIRM  the  superior
courts modification of child support.

     1     Placement  within  the books determines  priority  for
receiving new union jobs.  Long-term residents are placed in book
one  and  have priority over the travelers who move into an  area
seeking  work  and  are placed in book two.   Within  each  book,
workers are ranked based on how long they have been on the  books
without a long term job.

     2     The  support  order on appeal covers the  period  from
March  1,  2005  through September 1, 2006, at  which  point  the
superior court again modified Kenneths child support based on his
new job.

     3    Olmstead v. Ziegler, 42 P.3d 1102, 1104 (Alaska 2002).

     4     Id.  (quoting  Schuyler v. Briner, 13  P.3d  738,  741
(Alaska 2000)).

     5    See Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003).

     6    Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998).

     7     The  superior court first noted that Rule  90.3  would
result  in a support order of $446 per month but then decided  to
disallow  Kenneths  temporary Oregon state  tax  deduction,  thus
resulting in a Rule 90.3 calculation of $477.  The court used the
$446 number in its calculations for the fifteen percent threshold
test,  but  even using the courts eventual numbers the difference
between  the  calculations for Kenneths May 2004 income  and  his
September 2005 income still exceeded forty percent.

     8    696 P.2d 157 (Alaska 1984).

     9    Id. at 161.

     10     Id.  (quoting  Curley v. Curley, 588  P.2d  289,  291
(Alaska 1979)).

     11      Judge Vollands November 22, 2004 order stated: Child
support will be modified according to Rule 90.3, Alaska Rules  of
Civil Procedure, and the modification shall be effective November
1,  2004. [T]he parties shall each submit an updated DR-305 Child
Support  Guidelines Affidavit, within 30 days of the issuance  of
this  order.  However, it appears that Kenneths October 20,  2004
Notice  Regarding Plaintiffs DR-305 anticipated the courts  order
and  requested  the  court use his May 2004  financial  affidavit
based  on  his Alaska employment.  The superior court interpreted
this  paragraph to mean that the parties anticipated a change  in
child  support, but within the context of the filings that change
was  most likely referring to the necessary modification  due  to
the  change  in  custody, rather than to additional modifications
due to change in Kenneths employment.

     12     In  such circumstances, we have held that the fifteen
percent rule of Civil Rule 90.3 is inapplicable.  See Flannery v.
Flannery, 950 P.2d 126, 132 (Alaska 1997).

     13    Patch v. Patch, 760 P.2d 526, 530 (Alaska 1988).

     14    Id.

     15     For  example,  Form DR-301 Order for Modification  of
Child  Support instructs:  It is very important to ask the  court
[to  change this order] as soon as a change occurs because  child
support cannot be changed retroactively . . . .

     16    See Patch, 760 P.2d at 530 (We agree . . . that a trial
court  should  be  reluctant to modify child support  obligations
when the obligors loss of income appears only temporary.).

     17     Olmstead v. Ziegler, 42 P.3d 1102, 1105 (Alaska 2002)
(internal quotation omitted).

     18    See Bird v. Starkey, 914 P.2d 1246, 1249 (Alaska 1996)
(holding that trial court must make sufficient findings  of  fact
so  that a reviewing court may clearly understand the grounds  on
which the lower court reached its decision); Nass v. Seaton,  904
P.2d  412, 419 (Alaska 1995) (remanding for sufficiently detailed
factual  findings which disclose courts methodology  as  well  as
factual basis for determining income level to be imputed); Pattee
v.  Pattee, 744 P.2d 658, 662 (Alaska 1987) (remanding to inquire
into  why  father has become a student, how long  he  anticipates
being  unemployed,  and  what  his  eventual  career  goals  are)
overruled by Nass, 904 P.2d at 416 n.7, on other grounds.

     19     Alaska R. Civ. P. 90.3 cmt. III.C., cited in OConnell
v. Christenson, 75 P.3d 1037, 1039 (Alaska 2003).

     20     After arguing that Kenneth caused the earlier tension
by  moving  around frequently, Sharens counsel stated Maybe  [the
move to the Pacific Northwest], in fact, has reduced some tension
but  its  unfortunate the reduction of tension is a person  going
4,000 miles.

     21    See Olmstead, 42 P.3d at 1105 (upholding imputation of
income against father, a lawyer, who closed his office, failed to
keep regular business hours, and billed insufficient hours before
quitting the law and reentering the education system to train for
a  new  career);  Dunn v. Dunn, 952 P.2d 268, 271  (Alaska  1998)
(upholding imputation of income against unemployed former builder
who  claimed shoulder pain limited his work opportunities but was
actively  building his own house); Patch v. Patch, 760 P.2d  526,
530  (Alaska 1988) (upholding denial of modification where father
suffered temporary job loss due to suspended license).

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