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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
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| SHAREN RICHARDSON, | ) |
| ) Supreme Court No. S- 12217 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-96-01960 CI |
| ) | |
| KENNETH KOHLIN, | ) O P I N I O N |
| ) | |
| 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.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
disputes.
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
income.
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
$48,225.
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.
III. STANDARD OF REVIEW
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
IV. DISCUSSION
A. The Superior Court Did Not Err in Finding a Material
Change in Circumstances Warranting a Review of Child
Support.
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
circumstance.
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.
V. CONCLUSION
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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