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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wilhour v. Wilhour (9/6/2013) sp-6821

Wilhour v. Wilhour (9/6/2013) sp-6821

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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JOSHUA C. WILHOUR,                                        )  

                                                          )    Supreme Court No. S-14764  

                           Appellant,                     )  

                                                          )    Superior Court No. 3PA-10-03157 CI  

         v.                                               )  

                                                          )    O P I N I O N  

JACQUELINE S. WILHOUR,                                    )  

                                                          )   No. 6821 - September 6, 2013  

                           Appellee.                      )  


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


                  Judicial District, Palmer, Gregory Heath, Judge.  

                  Appearances: David A. Golter, Golter & Logsdon, P.C.,  for  


                  Appellant.  Notice of nonparticipation filed by Kenneth J.  

                  Goldman,   Law   Offices   of   Kenneth   J.   Goldman,   P.C.,  

                  Anchorage, for Appellee.  

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


                  Bolger, Justices.   

                  MAASSEN, Justice.  


                  After relocating in order to share custody of his son, Joshua Wilhour moved  


for a modification of child support based on both this new custody arrangement and a  


reduction in his income.  Joshua and his former wife, Jacqueline Wilhour, each alleged  


that the other was voluntarily unemployed or underemployed.  The court modified child  


support, basing its calculation of Joshua's income on what he had earned before his  

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move.  Joshua appeals the court's order.  He challenges the court's denial of his request  


for  an  evidentiary  hearing;  its  findings  on  whether  the  parties  were  voluntarily  

unemployed   or   underemployed;   and   its   selection   of   an   effective   date   for   the  


modification.  We remand for an evidentiary  hearing and for reconsideration of the  


effective date.  


                    Joshua and Jacqueline Wilhour had a son, born in 2002. They lived in  

Healy until August 2010, when the couple separated and Jacqueline moved to Wasilla  


with  their  son.    She  filed  for  divorce  soon  after.    The  superior  court  issued  a  child  


custody decree in November 2011, awarding joint legal custody and granting Jacqueline  

primary physical custody.  Joshua's monthly child support obligation was set at $992.15.  


                    Joshua  moved  for  reconsideration,  asking  that  the  court  allow  for  an  


automatic reversion to joint physical custody if he moved from Healy to the Matanuska- 


Susitna Valley.  The court granted Joshua's request, ordering "that in the event that  

Joshua relocates to the Mat-Su Valley on or before February 23, 2012, physical custody  


shall revert to an alternating weekly schedule."  

                     Joshua relocated to the Valley before this deadline and on February 29,  

2012, moved to modify child support, arguing that the change in custody resulting from  


his move constituted a substantial change in circumstances.  He also contended that the  

move caused a significant reduction in his income, because he had quit his job in Healy  


with the Matanuska Telephone Association (MTA).  In his accompanying affidavit,  

Joshua  stated  that  he  had  recently  signed  up  with  the  International  Brotherhood  of  

Electrical Workers (IBEW) and expected to begin seasonal work in a few months.  He  


estimated, however, that his annual income from union work would be $40,000, less than  

what  he  had  been  earning  with  the  MTA  in  Healy.    He  also  attested  that  he  had  


                                                             -2-                                                        6821

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increasingly painful arthritis in one knee, making it more difficult for him to do his  

former work as a lineman.  He concluded that he "would still like to work full time for  


MTA if [he could] find a position that does not put such a strain on [his] knee" but that  


he  intended  to  do  seasonal  work  through  the  IBEW  "for  the  time  being,  as  this  is  


currently the best and surest prospect [he has] for stable employment."  

                    Jacqueline         filed     a    limited      opposition         to    Joshua's         motion.          She  

acknowledged that a modification of child support was warranted due to the change in  


custody, but she argued that Joshua was voluntarily unemployed, that his union work had  


the potential for income on par with what he had been making in Healy, and that his  

reduction in income was therefore only temporary.   She asked that child support be  


determined using Joshua's previous income.  She asserted that she was only "recently  


.  .  .  getting  back  into  the  job  market"  herself  but  had  yet  to  make  any  "substantial  


income," as shown by an attached W-2 from the Matanuska-Susitna Borough School  

District.    In  Joshua's  reply,  he  asked  that  the  court  hold  an  evidentiary  hearing  to  


determine both parties' incomes and whether either of them was voluntarily unemployed  


or underemployed.  

                    The superior court did not grant Joshua's request for an evidentiary hearing.  

It did, however, grant the motion to modify, taking into account the change in custody  


but using Joshua's previous income to calculate support. The court made these findings:  


                               Joshua  indicates  that  his  reduction  in   income  is  


                    temporary   as   he   is   currently   seeking   full   time   work  


                    equivalent to his previous wages. Additionally, the reduction  


                    in income was the result of a voluntary, planned move to the  


                    Mat-Su Valley.  Jacqueline has recently been getting back  


                    into  the  job  market  but  she  does  not  currently  earn  a  


                    substantial income; her ability to provide support is limited.  

                    The assets the parties have are involved in active litigation  


                                                                -3-                                                         6821

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                   and  cannot  be  used  to  provide  support.                Joshua's  future  


                   earning capability is consistent with his previous wages.  

The court adopted Jacqueline's calculations for both parties' incomes, setting Joshua's  


obligation of support at $717.39 per month.  The court selected April 1, 2012, as the  


effective date of the modification.  

                  Joshua  appeals,  challenging  the  superior  court's  failure  to  hold  an  

evidentiary hearing, its findings as to the parties' underemployment, and the order's  

effective date.  


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

support orders."1  

                          We review a trial court's determination of whether to modify child  


support  for  an  abuse  of  discretion.2  

                                                       We  use  the  clearly  erroneous  standard  when  

                                     3                                                                4 

reviewing factual findings,  including findings regarding a party's income,  imputation 


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

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

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

         3        Bennett   v.  Bennett ,   6  P.3d  724,  726  (Alaska  2000)  (citing  Dodson  v.  

Dodson , 955 P.2d 902, 905 (Alaska 1998)).  

         4        Koller v. Reft , 71 P.3d 800, 804 (Alaska 2003) (citing Routh v. Andreassen,  


19 P.3d 593, 595 (Alaska 2001)).  

                                                          -4-                                                   6821

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               5                                                6  

of income,  and voluntary underemployment.     We use our independent judgment in  

deciding whether the superior court erred in not holding an evidentiary hearing.7  



         A.	       The  Superior  Court  Erred  In  Declining  To  Hold  An  Evidentiary  


                  Alaska Civil Rule 90.3 provides for the modification of child support orders  


                                                                                                   A hearing is not  

when there has been a showing of a material change in circumstances. 

                                                                             9  "[G]eneralized allegations of  

required when there is no genuine issue of material fact.  


factual issues that other record evidence convincingly refutes" do not create genuine  


issues of material fact.10  Joshua contends that there are several factual issues that warrant  


an evidentiary hearing in this case.  


                   He argues first that there is a factual dispute as to whether his reduction in  

income   is   indeed   temporary.      To   warrant   modification,   a   material   change   in  

                                                                                                                11  The  

circumstances "ordinarily must be more or less permanent rather than temporary." 

superior court found that "Joshua indicates that his reduction in income is temporary as  


         5         Ward v. Urling, 167 P.3d 48, 52 (Alaska 2007) (citing Dunn v. Dunn , 952  

P.2d 268, 270 (Alaska 1998)).  

         6        See id. (citing Robinson v. Robinson ,  961 P.2d 1000, 1004 (Alaska 1998)).  

         7        Routh ,  19 P.3d at 595 (citing  Adrian v. Adrian , 838 P.2d 808, 811 (Alaska  


         8        Alaska R. Civ. P. 90.3(h)(1).  

         9        See Epperson v. Epperson, 835 P.2d 451, 453 (Alaska 1992).  

         10       Acevedo v. Burley , 944 P.2d 473, 4                75 (Alaska 1997) (internal quotation  

marks omitted) (quoting Epperson , 835 P.2d at 453 n.4).  

         11       Hill  v. Bloom,  235 P.3d 215, 218 (Alaska 2010) (quoting Patch v. Patch ,  

760 P.2d 526, 529 (Alaska 1988)) (internal quotation marks omitted).  

                                                          -5-	                                                   6821

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he is currently seeking full time work equivalent to his previous wages."  But Joshua  


never indicated that he was likely to find work that paid as well as his job in Healy.  He  


stated in his affidavit that he had attempted to transfer to a comparable position with  


MTA in the Mat-Su Valley but was told that no such position was available.  While he  


still hoped to find a full-time position with MTA consistent with his physical limitations,  


"the best and surest prospect [he had] for stable employment" was seasonal work through  


the IBEW.   Joshua estimated that this seasonal union work would provide an annual  


income of approximately $40,000, basing this estimate on his annual earnings of $35,000  


while working through the union in 1999.   Jacqueline did not present any evidence  


contradicting these assertions.  She simply argued that "it is clear that [as an] IBEW  


union  worker,  if  [Joshua]  chooses  to  have  employment,  [he]  will  be  able  to  obtain  


employment consistent with his previous income."  But by explaining in his affidavit  

why he expects that his future income is likely to be considerably less than what he was  


earning in Healy, Joshua raised a genuine factual dispute as to whether his reduction in  

income is temporary.  

                     Joshua also contends there is a genuine factual dispute about the amount  


of Jacqueline's income.  He does not offer conflicting evidence, instead arguing that the  


evidence she submitted did not provide the court with a sufficient basis on which her  


income could be determined.  Along with her limited opposition to Joshua's motion to  

modify  custody,  Jacqueline  submitted  an  unsigned  Shared  Custody  Child  Support  


Calculation  worksheet,  a  2011  W-2  from  the  school  district,  and  a  Child  Support  


Services Division calculator print-out.  Joshua points out that the W-2, which displays  


only Jacqueline's total income for 2011, does not show whether the amount was earned  


throughout the year or in just a portion of it, and he argues that this document by itself  

is not proof of Jacqueline's earning potential.   

                                                                -6-                                                          6821

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                     Civil  Rule  90.3  requires  that  each  parent  involved  in  a  child  support  

proceeding "provide the court with an income statement under oath" along with verifying  


"documentation of current and  past income," which "might include paystubs, employer  



statements, or copies of federal tax returns."                           "In determining earning capacity for Rule  


90.3 purposes, the court has discretion, on the evidence before it, to choose the best  



indicator of . . . future earning capacity."                        However, "trial courts must take all evidence  


necessary to accurately reflect the parties' economic reality."                                       We agree with Joshua  


that there was an issue of fact as to Jacqueline's income that her limited submissions did  


not resolve.  The superior court on remand should take whatever additional evidence is  

necessary to ensure that it has an accurate picture of Jacqueline's potential income as  

well as Joshua's.  


                     The superior court does not appear to have based its modification order on  


a finding that either parent was underemployed.  Though observing that Joshua's move  

to the Valley was "voluntary [and] planned," the court found that his reduction in income  


was merely temporary and thus did not by itself justify a change in support.  As for  

           12        Alaska R. Civ. P. 90.3 cmt. VIII.A.                         "The commentary, prepared by the     

Child Support Guidelines Committee, has not been adopted or approved by this court."                                

Marine v. Marine , 957 P.2d 314, 316 n.5 (Alaska 1998).  However, "[we] often rel[y]  

upon the commentary for guidance in child support matters."  Bunn v. House , 934 P.2d  


753, 755 n.7 (Alaska 1997) (citing Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992);  


Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991)).  



                     Renfro v. Renfro , 848 P.2d 830, 833 (Alaska 1993) (quoting Coghill, 836  


P.2d at 926) (internal quotation marks omitted); see also Byers v. Ovitt, 133 P.3d 676,  

682 (Alaska 2006) (finding that superior court was within its discretion in imputing  

income based on estimated expenses where party had submitted varying and incomplete  


versions of tax returns).  

           14        Routh v. Andreassen , 19 P.3d 593, 595 (Alaska 2001) (quoting Adrian v.  

Adrian , 838 P.2d 808, 811 (Alaska 1992)) (internal quotation marks omitted).  

                                                                   -7-                                                            6821

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Jacqueline, the court apparently decided that she was employed to her potential, which     

at   the  time  was  "limited."    The  court   on   remand   may   have  to   address  the  parties'  

allegations that the other is underemployed.  We note that the potential rather than actual  


income of an underemployed parent may be used in the calculation of child support only  


                                                                                                         "In  determining  

if  the  parent  is  "voluntarily  and  unreasonably"  underemployed. 

whether to modify child support following a voluntary employment change, a trial court  

should consider the nature of and the reason for the change, and determine whether a  


modification  is  warranted  under  all  the  circumstances."                              An  important  part  of  the  

calculus is "the extent to which the children will ultimately benefit from the change."17  


All else being equal, the fact that a parent voluntarily leaves a better-paying job in order  


to be closer to a child and share the child's custody should rarely weigh against that  


parent in determining whether a reduction in child support is warranted.  

          B.	       The   Superior   Court   Erred   In   Setting   The   Effective   Date   Of  



                    Joshua argues that the superior court erred in setting the effective date of  

modification  as  April  1, 2012, instead of March 1, 2012, the first day of the month  


following the date he served the motion for modification.  We have stated a preference  


for using the date the motion was served as the effective date, holding that "the superior  


court should exercise its discretion in selecting a different effective date only if it finds  


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

          16        Maloney v. Maloney , 969 P.2d 1148, 1151 (Alaska 1998).

          17        Richardson v. Kohlin , 175 P.3d 43, 48-49 (Alaska 2008) (quoting Alaska

R. Civ. P. 90.3 cmt. III.C).  

                                                              -8-                                                           6821  

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good cause for doing so."    The reasons for this preference include that "child support  

reflects the child's current needs"; "child support is both based on and paid out of the  

obligor's current income"; and "service of the motion gives the opposing party both fair  

warning that support may change and an opportunity to reassess, even before the court  


rules, the correct amount of support," thus "minimiz[ing] prejudice when relief is granted  


effective as of the service date."               In  Tillmon v. Tillmon, we remanded the case where  

the superior court had selected, without explanation, an effective date several months  

                                                 20  In this case Joshua filed his motion to modify child  

after the service date of the motion.                                                                    


support on February 29, 2012, and served the motion by mail the same day.                                       Yet the  


superior court set the effective date as April 1, 2012.  As in Tillmon, the superior court  


did not explain why it chose an effective date that was later than the date of service.  On  


remand, the superior court should set the effective date as March 1, 2012, or explain why  


a later date is appropriate.  


                   We VACATE the superior court's child support modification order and  

REMAND for an evidentiary hearing consistent with this opinion and for reconsideration  

of the order's effective date.  

          18       Boone v. Boone , 960 P.2d 579, 585 (Alaska 1998).  

          19       Id . at 585-86.  

         20        189 P.3d 1022, 1030 (Alaska 2008).  

         21        "Service by mail is complete upon mailing."  Alaska R. Civ. P. 5(b).  

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