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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sawicki v. Haxby (06/13/2008) sp-6272

Sawicki v. Haxby (06/13/2008) sp-6272, 186 P3d 546

     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

ANNIE E. SAWICKI, )
) Supreme Court No. S- 12447
Appellant, )
) Superior Court No. 3AN-99-3744 CI
v. )
) O P I N I O N
JOHN E. HAXBY, )
) No. 6272 June 13, 2008
Appellee. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:    Allison  Mendel,   Mendel   &
          Associates,    Anchorage,   for    Appellant.
          Kenneth  C.  Kirk, Kenneth Kirk & Associates,
          Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Carpeneti, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION
          Annie  Sawicki  moved  for a  reduction  of  her  child
support  payments  after she left one job and took  another  that
paid about half as much.  The superior court found that Annie was
voluntarily  and  unreasonably underemployed, imputed  her  prior
income  to her, and denied her motion.  We affirm.  Because  John
Haxby   made   out   a  prima  facie  showing   of   unreasonable
underemployment,  it was not error to require  Annie  to  produce
contrary  evidence.   Because the evidence does  not  demonstrate
that  it  was clear error to impute income to her, the court  did
not err in denying her reduction motion.1
II.  FACTS AND PROCEEDINGS
          Annie and John divorced in 1999.  They initially shared
          equal custody of their two children, but when Annie moved from
Alaska  to Indiana, John obtained primary physical custody.   The
children  live with John during the school year and  visit  Annie
during  the summer and school vacations.  Annie has the  children
for approximately twelve to fourteen weeks per year.
          The  superior  court issued the parties  present  child
support order in March 2004.  Annie was then Director of National
Development  at St. Marys College in Notre Dame, Indiana.   Based
on  Annies income from St. Marys, the court found that her  gross
annual income was $52,000 and set Annies support payment at  $838
per month.
          Annie  voluntarily left her St. Marys job in June 2005.
She  began  working  as  a senior area manager  in  the  business
development  department of a consulting firm called International
Profit Associates, Inc. (IPA) in August 2005.  She worked without
pay during a training period that lasted until mid-November 2005.
Annie  also worked as a part-time event staffer at University  of
Notre Dame sporting events, but the time commitment and pay  were
minimal.
          Alleging  a  reduction in her income, Annie  asked  the
court  in  December 2005 to reduce her child support  obligation.
Based  on  her 2005 income, Annie claimed that her monthly  child
support  payments should be reduced from $838 to  $427.16.   John
opposed,   arguing  that  she  failed  to  provide  an   adequate
explanation   for   her   change   in   jobs   or   documentation
substantiating  her  claim  that her decreased  income  warranted
reduced  support payments.  Annie replied that she quit  her  St.
Marys  job  because  it  required too much travel,  limiting  her
ability to be with the children when they visited.
            Both  parties  testified before a special  master  in
March   2006  after  filing  current,  notarized  Child   Support
Guidelines  affidavits.  Annie admitted that she had earned  over
$100,000  per  year as a drug company representative  in  Alaska.
She  testified that she quit her St. Marys job because  it  would
have required her to travel locally and nationally between fifty-
five  percent  and eighty percent of the time,2 interfering  with
her  ability  to see the children.  She stated that she  expected
her  income  from  her new job to increase  as  she  gained  more
experience and that her position afforded her the opportunity  to
earn promotions and raises.  Finally, she testified that she  was
studying  for  a  masters degree in business administration,  but
that she was probably two years away from getting the degree.
          After  the hearing, John moved to re-open the  evidence
because he claimed Annie perjured herself by testifying that  she
did  not  have a masters degree in education. He argued that  her
education had a direct bearing on her income-producing potential.
The  court  granted Johns motion, set another  hearing  for  June
2006,  and  ordered  Annie  to file a financial  declaration  and
documentation  supporting  her claim  that  she  traveled  eighty
percent of the time while working for St. Marys.
          Annie  claimed  that  documentation substantiating  her
assertion  that  she  traveled eighty percent  of  the  time  was
unavailable.  She explained that St. Marys had all of her  travel
records  and  tickets, that she did not keep any records  of  her
          own, and that St. Marys tracked only her mileage, not her travel
time.   Annies financial declaration showed that she had $507,000
in  assets including $82,000 in cash or cash accounts, $50,000 in
stocks and bonds, and $270,000 in a retirement or pension fund.
          At the June 2006 hearing conducted by the master, Annie
acknowledged  that  she had a masters degree in  education.   She
also admitted that she was not actually working towards a masters
degree  in business administration, but towards a certificate  in
executive  management.   She stated that  she  would  not  get  a
masters degree because the classes were not for credit.
          The master filed his report and his recommended rulings
in  July  2006.   He found that Annie failed to substantiate  her
testimony  about how much she traveled and that  her  March  2006
testimony contained conflicting evidence on that issue.  He  also
found  that she intentionally misled the court about her  masters
degree  in  education  and that it was difficult  to  accept  her
explanations.  The master recommended that the superior court (1)
deny  Annies  modification motion because he found that  she  was
unreasonably underemployed, and (2) award John fifty  percent  of
his  reasonable actual attorneys fees pertaining to  the  support
modification  motion:  thirty  percent  because  John   was   the
prevailing  party and an additional twenty percent  of  his  fees
because  Annie engaged in vexatious and bad faith  conduct.   The
superior  court  adopted the masters recommendations  and  denied
Annies request for reconsideration.
          Annie appeals.
III. DISCUSSION
     A.   Annies Motion To Modify Child Support
          1.   The burden of proof was properly on Annie.
          Annie  argues that the master incorrectly  imposed  the
burden  of  proof  on  her  to prove  she  was  not  unreasonably
underemployed.   She asserts that the burden of showing  a  prima
facie  case  of unreasonable underemployment should  have  rested
with John.  Annie claims that John failed to meet his prima facie
burden  because the only evidence of unreasonable underemployment
he  presented was testimony he elicited from Annie about her work
history, education, and why she changed jobs.  She posits that an
initial  showing  of  voluntary and unreasonable  underemployment
should require more.
          We  rule de novo in determining how the law applies  to
undisputed  facts.3  Annie relies on a footnote  in  Beaudoin  v.
Beaudoin in which we stated that the court should assume that the
obligors  earnings  accurately  reflect  reasonable  efforts   to
maintain employment at earning capacity when an obligor moves the
court  to  modify his or her child support payments.4   We  noted
that  the  court should depart from this assumption only  to  the
extent [the custodial parent] makes out a prima facie showing  of
voluntary and unreasonable underemployment.5
          Beaudoin  does  not  define  a  prima  facie  case   of
voluntary and unreasonable underemployment.6  We held there  that
the   father   made  out  a  prima  facie  case  of  unreasonable
underemployment simply by showing that the mother  opted  not  to
seek gainful employment even though she shared only one-third  of
the total responsibility for the childrens physical custody.7
          In accord with what we said in Beaudoin, John presented
more  than  adequate evidence to make out a prima facie  case  of
voluntary and unreasonable underemployment.  Annie concedes  that
she  voluntarily left her job at St. Marys.  John therefore  only
had to show that it was unreasonable for her to change jobs.   We
conclude  that  John met his prima facie burden by  showing  that
Annie   voluntarily  left  St.  Marys  to  take  a   job   paying
approximately  half what she earned before.   Johns  prima  facie
case is only bolstered by evidence that Annies reduced income may
be  temporary, that her work history and qualifications  indicate
she  could be making substantially more money, and that  she  had
significant liquid assets at her disposal from which  to  satisfy
her child support obligation.
          Annie also contends that the master improperly put  the
burden  on  her to show that she traveled eighty percent  of  the
time  while  working for St. Marys, and to show that she  sought,
but could not find, a better paying job or a job that enabled her
to  use  her  masters degree in education.  But all the  evidence
concerning  the  reasonableness of Annies employment  change  was
either in her control or far more available to her given that she
no  longer  resides in Alaska; the relevant evidence  would  have
been  available  to  her through her own records  or  exclusively
available to her through her employers records.  Because John met
his  initial  burden,  Annie was obliged to present  evidence  to
rebut  his  prima facie case.  Annie failed to do so.   Once  the
primary  custodian has made out a prima facie case  of  voluntary
          and unreasonable underemployment or unemployment the burden of
persuasion shifts to the obligor to rebut that claim. The  master
did  not  err in requiring Annie to present rebuttal evidence  to
show that she was not unreasonably underemployed.8
          2.   The  master did not apply the wrong legal standard
               or  make  inadequate findings in  concluding  that
               Annie was unreasonably underemployed.
               
          Annie  argues  that  the master did  not  consider  the
totality  of  the  circumstances or  make  adequate  findings  to
support  his  conclusion that she was unreasonably underemployed.
The   master   found  Annie  was  voluntarily  and   unreasonably
underemployed  in light of her past employment,  income  history,
and  educational background.  He also found that Annie ha[d]  not
proven that it was necessary for her to quit [her] St. Marys  job
because she had not substantiated the assertion that she traveled
between  fifty-five and eighty percent of the time.   Given  that
John had custody of the children for most of the year, the master
found  that it was unreasonable for Annie to leave her St.  Marys
job  to take an approximately forty-five percent pay cut at IPA.9
He  therefore  recommended that the superior  court  deny  Annies
motion.
          We  independently review whether the  trial  court  has
applied the correct legal standard in determining a child support
obligation.10  We review child support modifications for abuse of
discretion.11  We will find an abuse of discretion if we are left
with the definite and firm conviction on the whole record that  a
mistake  has been made.12  The trial courts determination  of  an
obligors  imputed income is a factual finding that we review  for
clear error.13
          The  trial  court may use an obligors potential  income
when  calculating a child support award if the  court  finds  the
obligor   is   voluntarily   and   unreasonably   unemployed   or
underemployed.14  It is appropriate to impute income to an obligor
if  a  parents  current  situation and  earnings  reflect  a  (1)
voluntary  and  (2) unreasonable decision to earn less  than  the
parent is capable of earning.15
          Annie  admits that she voluntarily left her job at  St.
Marys  College, where she earned $52,000 per year.  We  therefore
must decide only whether the trial court abused its discretion in
deciding  that it was unreasonable for Annie to take a  job  that
paid  half as much.  The court must consider the totality of  the
circumstances  in  deciding whether an  obligor  is  unreasonably
underemployed.16   These  include such  factors  as  whether  the
obligors reduced income is temporary,17 whether the change is the
result  of economic factors or of purely personal choices,18  the
childrens needs, and the parents needs and financial abilities.19
          Because the masters findings encompass the totality  of
the relevant circumstances, we conclude that it was not error  to
impute  income based on them.  The masters findings reflect  that
he  considered the parties custody arrangement, as well as Annies
work  history,  prior  income,  qualifications,  education,   and
reasons  for  leaving  her job.  These are  relevant  factors  in
determining   whether   an  obligor  is  currently   unreasonably
          underemployed.20  Although the master did not make findings on
several  issues  potentially relevant  to  the  totality  of  the
circumstances, such as the temporary nature of her reduced income
or  that  she  had substantial assets from which to  satisfy  her
obligation in the meantime, we are not left with the definite and
firm conviction that the superior court erred.   Our  independent
review  of  the  record supports the conclusion  that  Annie  was
voluntarily  and  unreasonably underemployed,  and  that  it  was
therefore  appropriate to impute income  to  her.   The  superior
court  did not abuse its discretion when it denied Annies  motion
to reduce her child support payments.
          Finally, it was not clearly erroneous for the court  to
impute  income  of $52,000 to Annie.  Potential  income  will  be
based  on  the  parents  work history,  qualifications,  and  job
opportunities.21  Given  Annies extensive  sales  experience  and
savings, it was not error to impute income to Annie at the salary
she recently earned  at St. Marys.
     B.   Attorneys Fees
          
          Annie  also  argues  that Johns  attorneys  fees  award
should be reversed, both because he should not have prevailed  on
the  motion to modify and because he materially misled the  court
about whether he had paid for the childrens health insurance  and
about  his  income.   Her first reason is unavailing,  given  our
conclusion that the superior court did not err in denying  Annies
motion  to  modify.   And  her second reason  is  not  adequately
briefed.22  We therefore affirm the attorneys fees award.
IV.  CONCLUSION
          We  AFFIRM the courts denial of Annies motion to modify
child support payments and the courts award of attorneys fees  to
John.   Given Johns concession at oral argument that  the  health
insurance  credit issue was erroneously resolved, we REVERSE  the
denial of Annies request for a health insurance credit and REMAND
for a determination of which party is entitled to a child support
credit for buying health insurance for the children.
_______________________________
     1     At  oral  argument John conceded  that  a  remand  was
appropriate  to determine whether he or Annie was entitled  to  a
child  support  credit  for  buying  health  insurance  for   the
children.  We therefore remand for reconsideration of that issue.

     2     Annie  variously testified that she traveled  for  St.
Marys  fifty-five percent, fifty-five to eighty  percent,  fifty-
five  to  sixty  percent, and eighty percent of  the  time.   She
explained in an affidavit that she traveled eighty percent of the
time.   She  defined travel as any time she left  the  St.  Marys
campus for work.

     3     Rusenstrom  v. Rusenstrom, 981 P.2d 558,  560  (Alaska
1999)  (applying  de novo review to denial of  motion  to  modify
child support).

     4     Beaudoin  v. Beaudoin, 24 P.3d 523, 531  n.26  (Alaska
2001).

     5    Id.

     6    It was unnecessary in Beaudoin to elaborate on what was
needed  to make out a prima facie case because we concluded  that
the  father in that case established a prima facie case.  Id.  at
530.

     7    Id. at 529-30.

     8     At oral argument before us, Annie argued that it would
be  appropriate to remand so that she may have the opportunity to
offer  rebuttal evidence.  The superior court presented her  with
the chance to rebut Johns prima facie case when it ordered her to
provide  evidence  to support her extensive travel  claims.   Her
failure to do so then forecloses a second opportunity.

     9     The master also properly considered Annies credibility
in  determining  that  her  travel obligations  did  not  justify
leaving that position. It is the trier of facts function to  make
credibility  determinations  and to weigh  conflicting  evidence.
Maloney v. Maloney, 969 P.2d 1148, 1150 (Alaska 1998).

     10    Beaudoin, 24 P.3d at 526.

     11    Byers v. Ovitt, 133 P.3d 676, 680 (Alaska 2006).

     12    Id.

     13    Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998); see also
Maloney, 969 P.2d at 1150.

     14     Alaska  R. Civ. P. 90.3(a)(4).  Civil Rule 90.3(h)(1)
permits a superior court to modify a child support award  if  the
movant shows a material change of circumstances that affects  the
movants  ability  to  pay has occurred.   A  material  change  of
circumstances is presumed if the support is more than 15  percent
greater  or less than the outstanding support order.   Annie  met
this  burden when she showed that her monthly payments  would  be
reduced  from $838 to $427.16 based on her 2005 income.  This  is
an approximately fifty-percent difference.

     15    Alaska R. Civ. P. 90.3(a)(4).

     16    Alaska R. Civ. P. 90.3 cmt. III.C (directing courts to
consider the totality of the circumstances in deciding whether to
impute income).

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

     18     Nunley v. State, Dept of Rev., 99 P.3d 7, 11  (Alaska
2004) (internal quotations omitted); Alaska R. Civ. P. 90.3  cmt.
X.A.

     19    Curley v. Curley, 588 P.2d 289, 292 (Alaska 1979); see
also Alaska R. Civ. P. 90.3 cmt. X.A.

     20     See  Beaudoin, 24 P.3d at 525 (remanding when  father
made  out  prima facie case of mothers unreasonable  unemployment
based on fact that she refused to seek gainful employment because
she  wanted  to be available for the children at all  times  even
though  she  had been employed in past and no longer had  primary
custody of children).

     21    Alaska R. Civ. P. 90.3(a)(4).

     22     Braun v. Alaska Commercial Fishing & Agric. Bank, 816
P.2d  140,  145 (Alaska 1991).  We note also that [a]ttention  to
the issue in a reply brief does not resuscitate it.  Id.

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