Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Petrilla v. Petrilla (7/19/2013) sp-6799

Petrilla v. Petrilla (7/19/2013) sp-6799

        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, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



BRIAN D. PETRILLA,                             ) 

                                               )       Supreme Court No. S-14926 

                        Appellant,             ) 

                                               )       Superior Court No. 3AN-01-08216 CI 

        v.                                     ) 

                                               )       O P I N I O N 

ROXANA N. PETRILLA,                            ) 

                                               )       No. 6799 - July 19, 2013 

                        Appellee.              ) 

                                               ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Eric A. Aarseth, Judge. 



                Appearances: Brian D. Petrilla, pro se, Henderson, Nevada, 

                Appellant.   Roxana N. Petrilla, pro se, Anchorage, Appellee. 



                Before:   Fabe, Chief Justice, Winfree, Maassen, and Bolger, 

                Justices. [Stowers, Justice, not participating.] 



                FABE, Chief Justice. 



I.      INTRODUCTION 



                After a father left his job with the State of Alaska and moved to Nevada, 



leaving the mother with primary physical custody of their daughter, the child's mother 



filed a motion to modify child support.         The superior court ordered a modification and 



imputed income to the father under Alaska Civil Rule 90.3(a)(4) after concluding that 



the father appeared unmotivated to find employment because he was apparently content 


----------------------- Page 2-----------------------

to collect unemployment benefits.          The superior court also expressed concern that the 



father had not sufficiently planned for how he would meet his child support obligations 



in the event that he could not find work in Nevada. The father subsequently found a state 



job in Nevada that paid substantially less than his imputed income, and he moved to 



modify and reduce his child support obligation.            The superior court denied the father's 



request and the father now appeals, arguing that the superior court abused its discretion 



in imputing income, erred in the amount that it imputed, and abused its discretion in 



denying his motion to modify his child support obligation. Because we conclude that the 



superior court did not provide a sufficient factual basis for its denial of the father's 



motion to modify child support, we vacate the superior court's order denying the father's 



request   to   modify   and   remand   this   case   for   further   proceedings   consistent   with   this 



opinion. 



II.     FACTS AND PROCEEDINGS 



                Brian Petrilla and Roxana Petrilla were divorced in October 2001.                They 



agreed to jointly share legal and physical custody of their daughter.             This arrangement 



continued until August 2011 when the child started living exclusively with Roxana. 



                In the fall of 2011 Brian began making plans to move with his new wife, 



their six-year-old daughter, and his in-laws to Henderson, Nevada to be closer to Brian's 



mother and terminally ill father who lived in Tucson, Arizona. 



                On January 17, 2012, Roxana filed a petition in the superior court to modify 



custody in which she sought sole legal and primary physical custody of their daughter. 



Roxana also sought to modify the parties' child support arrangement so that Brian would 

pay child support.1 



        1       Under the terms of a 2010 child support modification order, Roxana paid 



Brian $37 each month. 



                                                  -2-                                              6799 


----------------------- Page 3-----------------------

                On February 1 Brian resigned from his position as a juvenile probation 



officer with the State of Alaska and moved to Nevada.                 Roxana subsequently filed a 



motion to impute Brian's income from 2011 for the purpose of calculating child support. 



Roxana argued that Brian had the capacity to earn at least $58,984.50, the amount of his 



gross wages from the State of Alaska for 2011. 



                Brian did not oppose Roxana's child custody request but he opposed her 



request to impute income.  Although he was not working, Brian argued that he was not 



voluntarily or unreasonably unemployed and that imputation of potential income under 

Alaska Civil Rule 90.3 was therefore improper.2  He contended that there was good cause 



for his family to relocate so that they could be closer to his ailing father, and he argued 



that   his   child   support   obligation   should   instead   be   calculated   based   on   his   "current 



[u]nemployment [i]nsurance . . . with the understanding that [he would] immediately 



provide [his] new income information upon gaining employment in the State of Nevada." 



                The   superior   court   scheduled   an   evidentiary   hearing   for   May   31.       In 



anticipation of the hearing, Brian filed an employment status update in the superior court 



that detailed his job search efforts. 



                Both   parties   testified   at   the   May   31   hearing. Roxana   argued   that   the 



superior   court   should   impute   Brian's   Alaska   wages.       She   contended   that   her   own 



research demonstrated that there were jobs open in Nevada with salaries comparable to 



what Brian had earned in Alaska.  She also argued that Brian had unreasonably delayed 



        2       Rule 90.3(a)(4) provides, in relevant part, that "[t]he court may calculate 



child    support   based    on  a  determination     of  the   potential   income    of  a  parent   who 

voluntarily and unreasonably is unemployed or underemployed. . . .                   Potential income 

will be based upon the parent's work history, qualifications, and job opportunities." 

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



                                                   -3-                                             6799
 


----------------------- Page 4-----------------------

finding a new job and that he should have taken steps to plan   for   his child support 



obligation in advance of the move. 



                 Brian testified that he voluntarily quit this job as a juvenile probation officer 



so that he could move to Nevada with his new wife, their daughter, and his in-laws to be 



closer to his parents in Arizona.  Brian testified that he had not worked since arriving in 



Nevada.       He also testified that nobody in his household was employed, and that the 



household's income was based   solely on his and his wife's unemployment benefits, 



which would end in July and August, respectively. 



                 Brian testified that he had planned to provide child support for his daughter 



in Alaska from his savings until he got a job, but that the job search had taken longer 



than   he   anticipated.    He   noted   that   he   had   submitted   an   application   for   a   juvenile 



probation   officer   position   with   the   State   of   Nevada   before   he   left   Alaska   and   had 



believed he had a good chance of getting that job but that he "didn't make the cut." 



Brian   testified   that since   arriving   in   Nevada   he   had   limited   his   job   search   to   public 



service jobs and had not applied to retail or food service positions even though these jobs 



were available.   He explained that his plan was to apply to higher-paying public service 



jobs while he had unemployment benefits and then to apply to lower-paying service 



industry jobs after his unemployment benefits expired in July.  He also testified that he 



had hoped to find a job comparable to what he had in Alaska and that he applied for 



"everything that [he] qualified for," but that salaries in Nevada were "significantly less" 



than in Alaska. 



                 Brian contended that he did not meet the minimum qualifications for many 



of the jobs Roxana identified in her research, including   those paying over $45,000, 



because he did not have a bachelor's degree.              He also maintained that competition for 



lower-paying        public   service    jobs   was    high.   But     Brian   noted    that  he   had   the 



qualifications for all of the jobs listed on his employment status update, even those that 



                                                    -4-                                              6799
 


----------------------- Page 5-----------------------

advertised      for  candidates     with   bachelor's     degrees,   because     the  positions    allowed 



applicants to substitute relevant work experience for advanced education. 



                 The   superior   court   acknowledged   that   "there   is   certainly   a   period   of 



transition time when having unemployment income would be necessary" to off-set the 



cost of an out-of-state move. But it also expressed confusion as to why Brian would "use 



all   of   [his]   unemployment   insurance   before   .   .   .   seriously   looking   for   a   job."  The 



superior court explained that it appeared that Brian was comfortable with the $3,000 per 



month in unemployment benefits that he and his wife received, and that Brian seemed 



to have "no motivation to get out there and earn more." 



                 The superior court ordered a modification of Brian and Roxana's standing 



child   support   order,   but   it   declined   to   impute   a   salary   equivalent   to   Brian's   Alaska 



wages,   stating   that   it   would   "have   to   find   that   [Brian]   was   moving   or   voluntarily 



underemploying himself," which it did not find to be the case. Instead, the superior court 



ordered that during the period of September 1, 2011 to January 30, 2012, Brian's child 



support     should    be   calculated    based    on   his  annual     income     of  $58,000     from    his 



employment with the State of Alaska. The superior court then ordered that Brian's child 



support for the period of February 1, 2012 to June 30, 2012 should be calculated based 



upon his unemployment income of $1,576 per month.                      Finally, as of July 1, 2012, the 



superior court imputed to Brian an annual income of $44,387, "based on his training, 



education, and qualifications."   This amount represented the annual salary of a juvenile 



probation officer with the State of Nevada.   The superior court explained that it chose to 



impute income in part based on "the lack of planning on [Brian's] part." 



                 The    superior    court   issued   its  written   order   on   June   5,  2012.    Brian 



submitted a motion for reconsideration on June 11.                  He contended   that the amounts 



ordered did not correspond to the superior court's verbal order from the May 31 hearing. 



                                                    -5-                                               6799
 


----------------------- Page 6-----------------------

On June 26, 2012, the superior court issued a new child support order, which reflected 



the time periods and support amounts ordered at the May 31 hearing. 



                On June 30 Brian submitted a motion to modify child support based on new 



employment.        He included a letter from the State of Nevada, Division of Welfare and 



Supportive   Services,   offering   him   the   position   of   family   services   specialist   with   an 



anticipated start date of July 23.      Brian also attached the job announcement listing the 



"approximate annual salary" for the position at "$33,199.20 to 48,462.48."                    Roxana 



opposed Brian's motion to modify child support. She argued that Brian had not provided 



pay stubs or a tax return to verify his new income.           The superior court denied Brian's 



motion     as  premature,    concluding     that  "[t]he  modification     cannot   and   will  not  be 



considered until the plaintiff can provide pay stubs and any other income information to 



be considered by the court.       The court will not issue an anticipatory order." 



                On September 14 Brian submitted a second motion for modification of 



child support based on new employment income.                  He reiterated his request that the 



superior court calculate his child support using his actual salary of $33,072, rather than 



the   imputed   income   of   $44,387.    Brian   included   a   letter   from   the   State   of   Nevada, 



confirming that he had   worked as a family services specialist with the agency since 



July 23 and that his gross base pay was $636 per week.              Brian also provided pay stubs 



dating back to his start date of July 23. 



                On October 9 the superior court denied Brian's request to modify child 



support based on his new employment and income.                 The superior court reasoned that 



Brian had 



                waited   until   the   court   imputed   a   higher   income   than   his 

                unemployment to go get a job.          Clearly he could have been 

                earning more than twice his unemployment income had he 



                                                  -6-                                            6799
 


----------------------- Page 7-----------------------

                made the effort.      Based on the evidence presented [at] the 

                hearing on May 31, 2012, the court declines to reconsider or 

                modify      its   early   finding    regarding     [Brian's]     earning 

                capability. 



                Brian   now   appeals   two   primary   issues,   arguing   that   the   superior   court 



abused its discretion by imputing his income at $44,387 and that the superior court 



abused its discretion in denying his motion to modify child support after he demonstrated 



a material change in circumstances, specifically that he had secured new employment at 



a salary substantially less than the imputed amount.             Roxana argues that Brian has the 



education and qualifications to seek and obtain a higher-paying job and therefore the 



superior court did not err or abuse its discretion in imputing Brian's income at $44,387 



and denying his motion to modify. 



III.    STANDARD OF REVIEW 



                "Trial courts have broad discretion in deciding whether to modify child 

support   orders."3    We   review   a   trial   court's   determination   whether   to   modify   child 



support   for   abuse   of   discretion.4  A   trial   court's   decision   to   impute   income   is   also 



reviewed for abuse of discretion.5        We will find an abuse of discretion when a review of 



the record as a whole leaves us with a "definite and firm conviction . . . that a mistake has 



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



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



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



        5       Helen   S.K.   v.   Samuel   M.K. ,   288   P.3d   463,   473   (Alaska   2012)   (citing 



O'Connell v. Christenson, 75 P.3d 1037, 1039 (Alaska 2003)). 



                                                   -7-                                             6799
 


----------------------- Page 8-----------------------

been made."6     A trial court's determination of the amount of a party's "imputed income 



is a factual finding that we review for clear error."7 



IV.	    DISCUSSION 



        A.	     Brian     Failed   To   File  A   Timely    Appeal   Of    The    Superior    Court's 

                June 26, 2012 Child Support Order And Initial Imputation Of Income. 



                Brian first contends that there was no basis for the superior court to impute 



income     to  him   because    he  was   not   voluntarily   and   unreasonably     unemployed       or 



underemployed.  He also argues that the superior court erred in imputing  income at the 



amount   of   $44,387.     Brian   did   not   appeal   the   superior   court's   June   26,   2012   order 



imputing income.   Instead, on June 30, he moved to modify the child support award on 



the basis that he had found employment working for the State of Nevada as a family 



services specialist.  He requested that his adjusted income be based on his actual salary 



rather than the imputed   amount.        He has appealed the October 9, 2012 denial of his 

motion to modify.  Having elected to forgo a timely appeal of the June 26, 2012 order,8 



he   cannot   challenge    that   order  now    in  the  context   of  an  appeal   of  the  denial   of 



modification. 



        6	      Beaudoin v. Beaudoin , 24 P.3d 523, 526 (Alaska 2001) (quoting Kowalski 



v. Kowalski , 806 P.2d 1368, 1370 (Alaska 1991)) (internal quotation marks omitted). 



        7       Helen S.K. , 288 P.3d at 473 (citing Sawicki v. Haxby, 186 P.3d 546, 550 



(Alaska 2008)). 



        8       Alaska Appellate Rule 204(a)(1) requires notice of appeal to be filed within 



30 days of the date shown on the clerk's certificate of distribution on the order being 

appealed. The clerk's certificate of distribution for the June 26, 2012 child support order 

was dated June 27, 2012.        Brian therefore had 30 days from June 27 to file a notice of 

appeal, but he did not file this appeal until October 17, 2012, more than 100 days after 

the date shown on the clerk's certificate of distribution. 



                                                  -8-	                                           6799
 


----------------------- Page 9-----------------------

        B.	     The Superior Court Did Not Provide A Sufficient Factual Basis For Its 

                Decision To Deny Brian's Motion To Modify Child Support. 



                On June 29, 2012, just three days after the superior court entered its June 26 



order imputing income of $44,387 to Brian, Brian received a firm job offer to work as 



a family services specialist for the State of Nevada.            Brian's salary for that position is 



$33,072.    On June 30, 2012, Brian moved to modify the superior court's child support 



order entered on June 26, 2012, requesting that the superior court base his child support 



obligation   on   the   salary   for   his   recently   obtained   employment   and   not   the   imputed 



amount of $44,387.        The superior court's order denying Brian's request to modify his 



child support obligation to reflect the actual income of his new position was based on the 



superior court's view that Brian waited until the superior court imputed income before 



seriously seeking a new job.         Moreover, the superior court declined to reconsider or 



modify its earlier finding regarding Brian's earning capacity in light of his actual income 

in   his   new   position.  Brian   argues   that   the   superior   court   abused   its   discretion9 in 



declining to modify his child support obligation after he submitted verification of this 



new Nevada employment and the required salary information. 



                In   effect,   the   superior   court   concluded   that   Brian   was   voluntarily   and 



unreasonably underemployed even after he secured full-time employment as a family 



services specialist for the State of Nevada.   The superior court seemed to have based this 



conclusion   on   the   ground   that   Brian   delayed   finding   a   job   until   his   unemployment 



benefits expired and income was imputed to Brian.                  But the superior court made no 



        9       Brian argues that the superior court's decision not to modify child support 



should be reviewed de novo.          But we have previously held that trial courts have broad 

discretion in deciding whether to modify child support orders.                Richardson v. Kohlin , 

175 P.3d 43, 46 (Alaska 2008) (citing Olmstead, 42 P.3d at 1104).                   And we review a 

decision by the superior court to modify child support for an abuse of discretion.   Id. 



                                                   -9-	                                            6799
 


----------------------- Page 10-----------------------

express finding that Brian was capable of earning more than his new job paid,10 that 



higher-paying jobs were available to Brian in Nevada,11 or that Brian took a position 



paying   less   than   what   was   available.12   Brian   now   argues   that   paying   child   support 



calculated on his imputed income creates an undue hardship on his family in Nevada and 



that he would have to earn a salary of approximately $59,000 with the State of Nevada 

to "justify" his monthly support obligation of $627.13 



        10       See Olmstead, 42 P.3d at 1105 (concluding that the record supported the 



trial court's view that the father was not working at his full capacity after he "took many 

steps,   including   closing   his   office   and   failing   to   keep   regular   business   hours   that 

demonstrated his intent to downsize his practice"); see also Nass v. Seaton , 904 P.2d 

412, 417-18 (Alaska 1995) (holding that the superior court did not err in finding a father 

voluntarily and unreasonably underemployed where the father acknowledged that there 

was machinist work available to him, but he did not advertise and chose to keep "a low 

profile"); Pugil v. Cogar , 811 P.2d 1062, 1066-67 (Alaska 1991) (concluding that the 

trial  court   did   not   err  in  finding  that   the  father   "has   the  capacity"    to  work    as  a 

commercial fisherman in the summer in Alaska while also pursuing higher education out 

of state). 



        11       See    O'Connell      v.  Christenson,     75   P.3d    1037,   1041     (Alaska    2003) 



(remanding to the trial court for additional findings after concluding that "it is not clear 

that employment opportunities exist in Anchorage" that would pay the father's imputed 

income). 



        12       See Sawicki, 186 P.3d at 550-51 (concluding that the trial court did not err 



in deciding that it was unreasonable for the mother to leave a position paying twice as 

much   as   her   new   salary);  see   also   Pugil,   811   P.2d   at   1066-67   (concluding   that   the 

superior court did not abuse its discretion in imputing income to a father who left a 

lucrative commercial fishing career to pursue a lower-paying job in welding). 



        13       Brian reports his child support obligation as $697 in his briefing.                  This 



figure omits a health insurance adjustment, which brings his monthly obligation to $627. 



                                                   -10-                                              6799
 


----------------------- Page 11-----------------------

                Alaska Civil Rule 90.3(h)(1) allows for modification of a child support 

award "upon a showing of a material change in circumstances."14  We have held on many 



occasions that the trial court must provide sufficient factual findings to enable appellate 

review.15    For   example,   in   O'Connell   v.   Christenson,   the   superior   court   imputed   a 



father's income at $40,000 after it noted that the father "might earn 'about 20,000 a year' 



if he worked at McDonald[']s and that he was capable of doing work substantially more 

remunerative than that."16        The superior court concluded that "minimally [the father] 



could be expected to earn $40,000, if he put himself on the job market" and that this 

income was "at the very low end of what could be expected."17               We concluded that these 



findings were insufficient to allow our review because "[o]ther than the reference to the 



possibility of [the father's] employment in the fast food industry and [a] statement that 



it   would   'approach   things   in   the   traditional   manner,'   the   court   did   not   provide   any 

rationale for its decision as to the amount of imputed income."18               We also noted that it 



was "not clear that employment opportunities exist in Anchorage that would pay twice 



        14      The parties do not dispute that there was a material change in circumstances 



when Brian secured his new employment with the State of Nevada. 



        15      See Richardson v. Kohlin, 175 P.3d 43, 48 (Alaska 2008); see also Bird v. 



Starkey, 914 P.2d 1246, 1249 (Alaska 1996) (holding that the 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 , 904 P.2d at 419 (remanding for 

sufficiently detailed factual findings which disclose the trial court's methodology as well 

as factual basis for determining the income level to be imputed). 



        16      75 P.3d at 1041. 



        17      Id. (internal quotation marks omitted). 



        18      Id. 



                                                  -11-                                             6799
 


----------------------- Page 12-----------------------

[the estimated annual income of a food service worker]."19  On remand, we instructed the 



superior court to impute income to the father "in an amount supported by appropriate 



findings     as  to  [the  father's]    physical   abilities   and   qualifications,    the   employment 

opportunities available to him, and what he should earn from them."20 



                 We conclude in this case that the superior court did not provide a sufficient 



factual basis for its denial of Brian's motion to modify child support.  Brian received his 



job offer from the State of Nevada on June 29, 2012.  Although Brian may have delayed 



starting his job search, the superior court presumably took this into consideration when 



it   calculated   Brian's   child   support   obligation   for   the   period   of   February   1,   2012   to 



June   30,   2012   using   his   unemployment   benefits.       And   Brian   applied   for   the   family 



services specialist position on April 14, 2012 and took a qualification exam for the job 



on May 8, 2012.        Thus Brian had to wait six weeks before he was offered the position. 



But it is unclear from the superior court's decision how Brian's delay in searching for 



work between February and April 2012 affects the question whether his current job and 



its salary accurately reflect Brian's earning potential.  As was the case in O'Connell, the 



superior court did not make any specific findings as to the employment opportunities 



available to Brian at the time he moved to modify child support to reflect his actual, 



rather than imputed, income.           And the record before us does not reflect the availability 



of   employment   opportunities   in   Nevada   that   would   have   paid   Brian   more   than   the 

position he secured.21 



         19      Id. 



         20      Id. 



         21      We also note that at the May 31 hearing the superior court determined that 



Brian "may have to work one or two jobs" to meet his imputed income level.                               But 

Brian's position as a family services specialist with the State of Nevada is similar in 

                                                                                           (continued...) 



                                                    -12-                                              6799
 


----------------------- Page 13-----------------------

              The superior court based its decision to deny modification on the testimony 



at the May 31, 2012 hearing.      But at that time, Brian reported to the superior court that 



he had applied for and was denied the juvenile probation officer position with the State 



of Nevada, and that he had applied for and was waiting for a response from the State of 



Nevada on the family services specialist position that he ultimately accepted.  Brian also 



testified at the May 31 hearing that he had applied to "everything that [he] qualified for," 



but that salaries in Nevada were "significantly less" than in Alaska, and that competition 



for jobs was high.   In light of the record, and the lack of factual findings in the superior 



court's order as to alternative, more lucrative job opportunities available to Brian at the 



time he moved to modify, we remand this case to the superior court for more detailed 



factual findings. 



              Brian also argues that he would have to earn over $59,000 to realistically 



account for his monthly support obligation of $627 based on furloughs and retirement 



contributions mandated for employees of the State of Nevada. Brian and Roxana dispute 



whether Brian should be allowed to deduct mandatory retirement contributions, health 



insurance, and furlough days from his child support obligation.        Because the superior 



court denied Brian's motion to modify child support without reaching the question of 

these proposed deductions, this issue is not properly before us.22   On remand we assume 



       21(...continued) 



many respects to his former position as a juvenile probation officer with the State of 

Alaska.   Both are full-time, professional, public service jobs.       Although the starting 

salary for a family services specialist in Nevada is less than that of a juvenile probation 

officer in Alaska, without evidence that Brian declined other higher-paying jobs, we are 

not persuaded that Brian should be expected to find a second night job to supplement his 

income under the facts of this case. 



       22     See Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006) ("[C]ourts should 



not resolve abstract questions or issue advisory opinions." (quoting Trustees for Alaska 

                                                                               (continued...) 



                                            -13-                                        6799
 


----------------------- Page 14-----------------------

that the superior court will consider whether these deductions fall within the guidelines 



of Rule 90.3. 



V.      CONCLUSION 



               We VACATE the superior court's order denying Brian's request to modify 



child   support   and   REMAND   this   case   to   the   superior   court   for   further   proceedings 



consistent with this opinion. 



        22(...continued) 



v. State, 736 P.2d 324, 327 (Alaska 1987)) (internal quotation marks omitted)). 



                                                -14-                                            6799 

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC