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. Reilly v. Northrup (12/20/2013) sp-6859

Reilly v. Northrup (12/20/2013) sp-6859

        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  



MICHAEL S. REILLY,                                  )  

                                                    )       Supreme Court No. S-14642  

                 Appellant,                         )  

                                                    )       Superior Court No. 3AN-03-08806 CI  

         v.                                         )  

                                                    )       O P I N I O N  

JAIME M. NORTHROP and                               )  

STATE OF ALASKA,                                    )       No. 6859 - December 20, 2013  

DEPARTMENT OF REVENUE,                              )  

CHILD SUPPORT SERVICES                              )  

DIVISION,                                           )  

                                                    )  

                 Appellees.                         )  

                                                    )  



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

                                                               

                 Judicial District, Anchorage, Mark Rindner, Judge.  



                 Appearances:  Michael  S.  Reilly,  pro  se,  Butte,  Montana,  

                 Appellant.  Jaime  M.  Northrop,  pro  se,  Wasilla,  Appellee.  

                 Glenn M. Gustafson, Assistant Attorney General, Anchorage,  

                 and  Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  

                 Appellee State of Alaska.  



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

                              

                 Bolger, Justices.  



                 STOWERS, Justice.  


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

I.        INTRODUCTION
  

                    Michael Reilly and Jaime Vinette1 engaged in a non-marital relationship  



                                                                         2  

                                                                              Reilly  subsequently  ceased  to  be  

which  resulted  in  the  birth  of  their  son  Barlow. 



employed in Alaska and moved to Butte, Montana, where he worked part time repairing         



and renting out homes and managing a bar.  Vinette has custody of Barlow during the   



school year, and Reilly has custody for six weeks during the summer.  



                                                          

                    Reilly moved to have his child support modified to reflect the fact that his  



income had fallen.  Vinette countered that he was voluntarily underemployed.  Reilly  



                                                                                      

claimed that he could not work a full-time job because of his obligations to his special  



needs  daughter  from  another  relationship,  the  poor  job  market  in  his  area,  and  his  



                                                                            

medical conditions.  The superior court found that Reilly could work full time and that  



he was voluntarily and unreasonably underemployed.  The court did not find credible  



Reilly's testimony regarding the various reasons he alleged that prevented him from  



                                                                                    

working.  The superior court imputed income to Reilly based on the average wage in  



                                                           

southwestern Montana for career paths the court believed Reilly would be qualified to  



pursue. 



                     Reilly appeals, arguing that the imputation of income was improper, the  



                                                                                                                        

amount to be imputed was calculated incorrectly, and the superior court erred  in its  



written child support order by not including a visitation credit for his summers with  



                                                                                                                

Barlow.  We affirm the superior court's findings and orders, except that we remand the  



child support order for a correction of a minor omission of visitation credit.  



          1         At the time this case began, Jaime Vinette's name was Jaime Northrop.  She  



has since married and now goes by Jaime Vinette.  



          2         Pseudonyms are used for the children to protect their privacy.  



                                                             -2-                                                           6859  


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

      

II.       FACTS AND PROCEEDINGS
  



          A.        Facts  



                    Michael Reilly and Jaime Vinette engaged in a temporary, non-marital  



                              

relationship which resulted in the birth of Barlow in February 2003.  The relationship  



                            

had ended by the time of Barlow's birth.  At the time, both Reilly and Vinette lived in  



                                              

Anchorage.    Reilly  worked  as  a  "measurement  while  drilling  engineer"  earning  



approximately  $66,000  per  year.    Based  on  this  income,  Reilly's  child  support  was  



                                                                                

originally set at $897 per month.  His engineering job required working on a rig for three  



                                                                                                               

months at a time.  According to Reilly, he was working 13 hours a day, seven days a  



week, on a 45-day-on, ten-day-off schedule.  



                    In  2004  Reilly  moved  to  Butte,  Montana.    He  initially  worked  as  a  



                                                                                          

handyman at a trailer park and repaired a home to rent out.  In 2005 Reilly worked for  



a short time for the Montana Department of Transportation as a civil engineer.  The  



                                                                                                  

reason Reilly lost this job is unclear; he claims he could not pass a test required for the  



position, while Vinette argues that it was a temporary position to begin with.  



                                                                                                       

                    Reilly petitioned for a modification of his child support in 2004 and 2005.  



                                                                

The court granted the second petition and adjusted Reilly's support obligation down to  

$487 per month based on his income working for the State of Montana.3  



                                                                                                                   

                    After Reilly stopped working for the state, he started managing two rental  



properties which he owned; he also repaired other properties he owned to sell.  He used  



                                           

loans from his parents and a bank to buy a bar, which he managed and at which he  



                                                              

bartended one night a week. The bar was only open four nights a week, and he described  



                                                                                                 

it as being unprofitable.  Reilly claimed he used proceeds from his rental units to stay  



          3  

                                                                                                     

                    This figure was later further adjusted down to  $442  due to a change in  

Barlow's healthcare premiums.  



                                                              -3-                                                            6859  


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

current on the bar's mortgage.  He had not applied for an engineering job, or any other  



type of job, since 2008.  



                                         

                    While living in Montana, Reilly had a second child.  His daughter Nancy  



                   

was born in 2007.  Reilly lived with the child's mother for a time, but they separated in  



                                                    

2011.  At the time of the superior court hearing, Reilly had full-time custody of Nancy.  



                                                                                            

He also had custody of  Barlow for six weeks each summer.  Both children have special  



                                                      

needs due to behavioral disorders.  Nancy has been diagnosed with bipolar disorder and  



Barlow has been diagnosed with attention deficit hyperactive disorder (ADHD), although  



                                                          

he may have bipolar disorder as well.  The parties testified that Nancy has been rejected  



                                                                                                     

by many daycare facilities due to her behavioral problems.  Before Reilly assumed full- 



                                     

time custody of Nancy, Nancy's mother was forced to drop out of nursing school and  



was  fired  from  several  jobs  due  to  difficulty  finding  daycare  for  Nancy.    Nancy  is  



                                                                    

currently in therapy, and Reilly testified he must spend a significant amount of time  



                                                

caring for her and taking her to various medical appointments.  Nancy attends a special,  



government-run daycare for behaviorally challenged children from 10:00 a.m. through  



                                                                                                    

2:00 p.m.  She receives behavioral counseling three times a week through a non-profit  



                                            

called AWARE. The parties testified that taking care of Barlow is also a "full-time job"  



and  that  "[Vinette]  has  a  lot  of  trouble  with  [Barlow]  too  because  he's  got  similar  



problems."  



                    Reilly testified his only income was from his rental properties.  He managed  



                                     

and  repaired  five  units from  which  he  earned  approximately  $13,000  per  year.    He  



testified he worked about five to ten hours a week repairing his rental units and ten hours  



a week at the bar.  In total, Reilly claimed he worked about 20 hours a week.  



          B.        Proceedings  



                                                                    

                    In July 2011 Reilly petitioned again for a reduction in his child support.  



                                                                        

He argued his child support should be based on the $13,023 he made from his rentals in  



                                                               -4-                                                         6859
  


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

                                                       

2010,  and  he  submitted  his  2010  tax  returns  to  the  Alaska  Child  Support  Services  



Division (CSSD).  CSSD recalculated his child support obligation based on the 2010 tax  



                                                                         

returns  and  issued  a  calculation  showing  that  Reilly's  support  obligation  should  be  



                                           

lowered to $210 per month.  Though initially CSSD petitioned the superior court to order  



                                                                                                            

this reduction, CSSD took the position at the evidentiary hearing that Reilly should be  



                                     

working  full  time  and  did  not  oppose  the  court  imputing  income  to  him.    Vinette  



                                                                                                      

responded to CSSD's petition to modify support by asserting that Reilly was not being  



truthful about his income and that he was voluntarily underemployed.  



                    The  superior  court  held  a  hearing  to  determine  Reilly's  child  support  



                                                                                                             

obligations.    Reilly  testified  that  he  was  unable  to  work  full  time  because  of  his  



                                                                                                            

responsibilities caring for Nancy's special needs.  He also alleged that he cannot hold a  



                                                                            

full-time job because he has Crohn's disease and an undiagnosed mental condition that  



prevents him from "work[ing] in a structured environment" or "work[ing] for [other]  



people."  



                                                                                                              

                    In oral rulings the superior court found Reilly's testimony regarding these  



                                                                                                  

explanations to  be dubious and  unsubstantiated, and  it found  Reilly was voluntarily  



                                                                                                              

underemployed.   However, due to the length of time since Reilly had last worked in  



engineering, the court decided not to impute income based on an engineer's salary.  



                                                                                                         

Instead, the court ordered CSSD to determine the average salary for a first-year college  



                                                                                                         

graduate in Butte, Montana. The court granted Reilly's request for a visitation credit for  



the six weeks he has custody of Barlow in the summer and ordered Reilly and Vinette  



                                                                                                                   

to share the cost of Barlow's transportation for the summer visits. The court ordered that  



                                                                      

Reilly's visitation credit be 50% of his child support for the time during which he has  



                                                                                                            

Barlow, but he is only to receive visitation credit if he is current on his child support by  



May 15 of each year.  



                                                                -5-                                                         6859
  


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

                                            

                    In response to the superior court's order, CSSD determined that the U.S.  



                                                                                    

Department of Labor does not compile labor statistics specifically for Butte, Montana,  



                                                                                           

so instead CSSD relied on statistics for the entire southwest Montana region.  CSSD also  



                                                                                               

could not find income statistics based on a general education or experience level, so it  



employed  statistics  based  on  career  field.    CSSD  determined  the  closest  match  for  



Reilly's career field is "construction and extraction occupations."  CSSD rejected the  



                                                                       

second-closest match, "building and grounds cleaning and maintenance occupations,"  



                                                                                                                  

because this field does not include specialities that require a college degree and many of  



                                                                                               

the occupations in this field pay barely above minimum wage. In contrast, "construction  



                        

and extraction occupations" includes a mix of fields that require a college degree and  



                                                                         

fields  that  do  not.           CSSD  recommended  to  the  court  that  the  average  wage  for  



"construction and extraction occupations," $19.22 per hour  or  $39,977 per year, be  



                                          

imputed to Reilly and that he pay $526 per month in child support based on this figure.  



                                                                                                       

                    The superior court adopted CSSD's recommendation and issued a written  



order requiring Reilly to pay $526 per month.  However, the order failed to include the  



                                 

50% visitation credit and shared travel expenses which the court had included in its oral  



rulings.  



                                                           

                    Reilly appeals from the superior court's decision on several points.  He  



                                                                                                            

argues that the superior court should not have imputed income to him, that it calculated  



the imputed income based on impermissible evidence, and that it erred by failing to  

include the visitation credit in its final written order.4  



          4         Reilly also asserted in his "Statement of issues presented for review" that     



the superior court's decision was biased and based on the court's personal feelings.                                            As  

Reilly provided no argument on this point and did not mention it again in his brief, this  

argument is abandoned.  See Wetzler v. Wetzler, 570 P.2d 741, 742 n.2 (Alaska 1977)  

(stating that we "will consider as abandoned questions set forth in the Points but not  

                    

                                                                                                                (continued...)  



                                                                -6-                                                         6859
  


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

III.      STANDARD OF REVIEW
  



                                            

                    We  "review[]  modifications  of  child  support  orders  under  an  abuse  of  



                                                                           

discretion standard.  An abuse of discretion will be found only if, based on the record as  



a whole this court is left with a definite and firm conviction that a mistake has been  



           5  

made."     "Trial  courts  are  granted  broad  discretion  in  fashioning  child  support  



                          6  

                                                                          

determinations."   We review under an abuse of discretion standard the court's decision  



to impute income; we use a clearly erroneous standard for the decision regarding the  



                                            7  

                                                               

amount of income to impute.                   Assessing whether a parent is voluntarily underemployed  

is a question of fact, and we review factual findings for clear error.8  



          4          (...continued)  



argued in . . . [the] brief").  



          5         Robinson v. Robinson , 961 P.2d 1000, 1002 (Alaska 1998) (citations and                      



internal quotations omitted).  



          6          Ward v. Urling, 167 P.3d 48, 52 (Alaska 2007).  



          7  

                                                  

                    See Helen S.K. v. Samuel M.K. , 288 P.3d 463, 473 (Alaska 2012) ("We  

review  the  superior  court's  decision  to  impute  income  for  abuse  of  discretion.  The  

superior court's 'determination of an obligor's imputed income is a factual finding that  

                                                      

we review for clear error.' "); Sawicki v. Haxby, 186 P.3d 546, 551 (Alaska 2008) ("The  

                                                                                                

superior court did not abuse its discretion when it denied Annie's motion to reduce her  

                                                                  

child support payments.  Finally, it was not clearly erroneous for the court to impute  

                                                                                                              

income of $52,000 to Annie."); Shepherd v. Haralovich, 170, P.3d 643, 647 (Alaska  

2007) ("[I]t would not have been an abuse of discretion to impute some investment  

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



          8  

                                      

                    Robinson , 961 P.2d at 1004 (citing Vokacek v. Vokacek, 933 P.2d 544, 549  

(Alaska 1997)).  



                                                                -7-                                                          6859
  


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

IV.	        DISCUSSION  



            A.	         The  Superior  Court  Had  No  Obligation  To  Accept  CSSD's  Initial  

                        Calculation.  



                        Reilly contends that the superior court "did not take into consideration  

                                                                                                   



CSSD's information, research and findings pursuant to [Alaska] [C]ivil [R]ule 90.3."  



He  argues  that  "CSSD  followed  the  civil  rules  and  laws  governing  [Alaska]  child  



support" and that the superior court erred when it ignored CSSD's recommendation that  



                                                                                                                                    

Reilly's  child  support  be  reduced.                              However,  CSSD  only  calculated  Reilly's  child  



                                                                                                                             

support  obligation  based  on  the  tax  returns  Reilly  submitted,  and  thereafter  Vinette  



                                                                                                                                   

objected  on  the  grounds  of  voluntary  underemployment.                                                    CSSD  did  not  make  any  



findings  or  determination  whether  Reilly  was  voluntarily  underemployed.    It  is  the  



                                                                                                                                      

court's responsibility to determine what the facts are and to determine what the law  



requires.  Once the issue of Reilly's alleged underemployment became contested, it was  



solely for the court to find the facts and to issue an appropriate child support order.  



                                                                                                             

CSSD has no decision-making role to play in these judicial functions, and the court has  

no obligation to accept CSSD's initial calculation.9  



            B.	         The Superior Court's Decision To Impute Income To Reilly Was Not                                   

                        An Abuse Of Discretion.  



                        Reilly argues that the superior court erred in finding that he was voluntarily       



underemployed.  Under Civil Rule 90.3(a)(4), income can be imputed to a parent when   



the court finds the parent voluntarily underemployed:  



            9            See Alaska R. Civ. P. 90.3, which contains no requirement that the superior   



court follow CSSD's recommendation.  See McDonald v. Trihub, 173 P.3d 416, 422-23  

(Alaska 2007) (finding that a superior court order declining to follow a CSSD child  

                            

support calculation was not an impermissible retroactive modification of child support  

because the CSSD order had not yet gone into effect).  



                                                                            -8-	                                                                    6859
  


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

                   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.  A determination of potential income may  

                                                                                       

                   not  be  made  for  a  parent  who  is  physically  or  mentally  

                                        

                   incapacitated, or who is caring for a child under two years of  

                                                                       

                   age  to  whom  the  parents  owe  a  joint  legal  responsibility.  

                   Potential  income  will  be  based  upon  the  parent's  work  

                                                                    

                   history, qualifications, and job opportunities.  



In deciding whether to impute income, the superior court should consider the totality of  

                                                                                                              



                          10  

the circumstances.                                                        

                              The court must make specific findings that the underemployment  

is both voluntary and unreasonable.11  



                   The  court  may  find  that  underemployment  is  voluntary  even  if  the  



                                                     12  

                                                                                                 

underemployment  is  in  good  faith.                      A  parent  can  be  found  to  be  voluntarily  



underemployed if he "has engaged in 'voluntary conduct for the purpose of becoming  



or remaining unemployed' or underemployed.  The key inquiry is whether the lack of  

employment  is  the  result  of  'economic  factors'  or  of  'purely  personal  choices.'  "13  



                                                                                                    

"[T]he  relevant  inquiry  under  Civil  Rule  90.3  is  simply  whether  a  parent's  current  



          10       Kestner v. Clark , 182 P.3d 1117, 1122 (Alaska 2008) (citing Alaska R. Civ.  



P. 90.3 cmt. III.C).  



          11       Barlow v. Thompson , 221 P.3d 998, 1003 (Alaska 2009).  



          12       Robinson v. Robinson , 961 P.2d 1000,1004 (Alaska 1998) (citing Kowalski  



v. Kowalski, 806 P.2d 1368, 1371 (Alaska 1991)).  



          13       Nunley v. State, Dep't of Rev., Child Support Enforcement Div. ,  99 P.3d  



7, 11 (Alaska 2004) (quoting Bendixen v. Bendixen , 962 P.2d 170, 172 (Alaska 1998);  

Vokacek v. Vokacek, 933 P.2d 544, 549 (Alaska 1997)).  



                                                           -9-                                                     6859
  


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

                                                                                                                           

situation and earnings reflect a voluntary and unreasonable decision to earn less than the  

parent is capable of earning."14  



                     The court must also find that the unemployment or underemployment is  



                      15  

                                                                                              

unreasonable.             "The court must consider the 'totality of the circumstances' in deciding  



                                                                                 16 

                                                                                     Factors the superior court should  

whether an obligor is unreasonably underemployed." 



                                                                                                                   

consider  include  "whether  the  obligor's  reduced  income  is  temporary,  whether  the  



change is 'the result of economic factors or of purely personal choices,' the children's  



                                                                                      17  

needs,  and  the  parents'  needs  and  financial  abilities."                               Even  if  the  decision  to  be  



                                                                         

unemployed is legitimately in the best interest of the parent's subsequent family, it can  



still  be  unreasonable  in  light  of  the  parent's  paramount  duty  to  support  all  of  his  

children.18  



                                                                  

                     The superior court's finding that Reilly chose to be underemployed, even  



                                                                              19  

if he could work, is amply supported by the record.                               However, Reilly contends that his  



                                                                                                   

underemployment is not voluntary because three circumstances each individually make  



                                                                                                                       

it impossible for him to hold a full-time job:  (1) his medical conditions; (2) the fact he  



could  not  find  full-time  employment  when  he  last  sought  it;  and  (3)  his  daughter's  



          14        Id. at 12.  



          15         Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008) (citing Alaska R. Civ.         



P. 90.3(a)(4)).  



          16        Id. (citing Alaska R. Civ. P. 90.3 cmt. III.C).  



          17         Sawicki, 186 P.3d at 550 (citations omitted).  



          18         Kestner v. Clark , 182 P.3d 1117, 1123 (Alaska 2008).  



          19  

                                                                                  

                     Reilly made the following statements: "Me and my children cannot work  

                                                            

in [a] structured environment," and "I will never get a full-time job . . . . But you know,  

                                                                   

this is what I'm going to do for the rest of my life.  I'm going to - you know, I'm not  

going to work full time."  



                                                                -10-                                                          6859
  


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

                                                                       

special needs.  Reilly bears the burden of proof in demonstrating that these circumstances  



                                                                                                                                  20  

                                                                                   

truly prevent him from working, and he must show that they are extreme circumstances. 



                                                                                                                     

                     1.	       The superior court did not clearly err in finding that Reilly can  

                              work full time despite his medical conditions.  



                                                                                  

                    Reilly argues that he has "major medical issues that hinder him from getting  



                                                                          

a larger income."  He claims the superior court "ignored" the fact that he has a broken  



ankle and Crohn's disease.  



                                                                                               

                    Reilly mentioned his broken ankle for the first time in his Statement of  



                                                                                                        

Points on Appeal.  He did not mention his ankle in the superior  court, either in his  



                                                                                                           

briefing or during the hearing.  We "will not consider on appeal new arguments which  



                                                                                    

(1) 'depend on new or controverted facts,' (2) are not closely related to the appellant's  



arguments at trial, and (3) could not have been gleaned from the pleadings, unless the  



                                                             21  

new issue raised establishes plain error."                       Reilly's broken ankle was not closely related  



                                                                           

to his arguments at trial, nor could this fact have been gleaned from the pleadings.  The  



                                                                                                                       

new broken-ankle issue also does not establish plain error.  A broken ankle is usually a  



temporary condition, and normally we will not modify child support due to temporary  



                 22  

                                                                                                

conditions.          Thus, even if Reilly had raised the broken-ankle argument in the superior  



court, it is unlikely it would have been grounds for a modification.  



          20	       Kestner , 182 P.3d at 1123.  



          21        Krossa v. All Alaskan Seafoods, Inc ., 37 P.3d 411, 418-19 (Alaska 2001)   



(quoting Arnett v. Baskous , 856 P.2d 790, 791 n.1 (Alaska 1993)).  



          22        See  Patch v. Patch,  760 P.2d 526, 530 (Alaska 1988) ("[A] trial court  

                            

should be reluctant to modify child support obligations when the obligor's loss of income  

                                                                                   

appears only temporary."); see also Richardson v. Kohlin, 175 P.3d 43, 48 (Alaska 2008)  

                                                       

("[W]e 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, and  

that ordinarily support should not be modified for temporary reductions in income.").  



                                                               -11-	                                                        6859
  


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

                                                                                                          

                    The superior court did consider Reilly's Crohn's disease.  The court asked  



Reilly whether he had any documentation from his doctor or other evidence that his  



Crohn's disease prevented him from working full time.  Reilly admitted that he had not  



submitted any documentation.  



                                                                                                              

                    The  court  found  that  Reilly  had  a  diagnosed  medical  disease  that  



"apparently flares up when there's stress, [and] can be controlled by medications, some  



                                           

of which he takes and some of which he doesn't."  However, the court concluded that it  



              

had "no evidence that [Crohn's disease] precludes him from working full time." These  



findings accurately reflect the testimony of the witnesses.  Thus, the court considered  



Reilly's testimony concerning his disease but simply did not find credible his claim that  



                                                            23  

                                                                                                                  

the disease prevented him from working.                          The superior court's finding was not clearly  



erroneous.  



                                                                                                                  

                    2.	       The superior court did not clearly err in finding that Reilly can  

                              work full time.  



                                                       

                    Reilly next argues that the superior court did not consider the fact he was  



                                             

unable to obtain employment when he last applied at the Montana job service.  However,  



the court's findings show it did consider this fact.  Reilly testified he had tried but failed  



                                                                                    

to find engineering work through Montana's job service and through other avenues.  The  



court acknowledged this testimony by deciding that, given the passage of time since  



                                                                       

Reilly last held an engineering job, he could not be expected to find one now.  Moreover,  



                                                               

Reilly admitted he had not looked for any full-time jobs besides engineering jobs.  Thus,  



                           

the court did not ignore his testimony when it found he could obtain a full-time, non- 



          23  

                           

                    See McLaren v. McLaren , 268 P.3d 323, 331 (Alaska 2012) ("It is the  

                                                                             

function of the trial court, not the reviewing court, to judge the credibility of witnesses  

and to weigh conflicting evidence.").  



                                                             -12-	                                                           6859  


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

                                                                                    

engineering-related job.  The court's decision to impute income despite Reilly's previous  



inability to find work was not clearly erroneous.  



                                                                                                                     

                    3.	        The superior court did not clearly err in finding that Reilly can  

                               work full time despite Nancy's special needs.  



                    Finally, Reilly argues the superior court erred in finding that he can work  



                                                                               

full  time  even  though  he  has  to  care  for  Nancy,  his  four-year-old  daughter  from  a  



                                                                                         

subsequent relationship who has special needs due to her behavioral problems.  Reilly  



                                                                

and Vinette both offered testimony about the severity of Nancy's behavioral issues and  



                                                           

the difficulty of finding her daycare.  Reilly explained that he must spend a significant  



amount of time taking Nancy to appointments with doctors, counselors, and psychiatrists,  



and that it would be impossible to work a full-time job around Nancy's schedule.  



                     Subsequent  children  normally  cannot  diminish  a  parent's  obligation  to  



                                        24  

provide for prior children.                 As the commentary to Civil Rule 90.3 explains:  



                    A parent with a support obligation may have other children  

                    living with him or her who were born or adopted after the  

                     support obligation arose. The existence of such "subsequent"  

                                                                   

                    children, even if the obligor has a legal obligation to support  

                                                                                                 

                    these children, will not generally constitute good cause to  

                    vary  the  guidelines.    However,  the  circumstances  of  a  

                                    

                    particular        case      involving         subsequent           children        might  

                    constitute   unusual   circumstances   justifying   variation   of  

                     support.  The court should reduce child support if the failure  

                    to do so would cause substantial hardship to the "subsequent"  

                                                     

                                  [  ] 

                    children. 25
 



                                                                          

  We adopted this principle in Kestner v. Clark , where we held that:
  



          24        Kestner , 182 P.3d at 1122-23.  



          25        Alaska R. Civ. P. 90.3 cmt. VI(B)(2) "Subsequent Children."                                    Though we  



have not officially adopted the commentary to the Rules of Civil Procedure, we do rely           

on it for guidance.           See  Caldwell v. State, 105 P.3d 570, 573 n.6 (Alaska 2005) (citing  

Eagley v. Eagley , 849 P.2d 777, 779 (Alaska 1993)).  



                                                               -13-	                                                        6859
  


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

                    Parents  have  a  paramount  duty  to  support  their  children.  

                    New obligations incurred after the birth of the parent's first  

                                                                                          

                    child  do  not  diminish  that  duty.  .  .  .    [A]  rule  relieving  a  

                                        

                    parent of his obligation to support a prior child because of the  

                                                                                                     

                    birth of a subsequent child would "quite literally allow . . .  

                                                     

                    the  non-custodial  parent  to  sire  himself  out  of  his  child  

                    support obligation."  Because of the significance of a parent's  

                                                                    

                    duty to meet his or her child support obligations, we prioritize  

                                                      

                    fulfillment of that duty over even "legitimate" decisions to be  

                                                              

                                                                                    [26] 

                    voluntarily unemployed or underemployed.  



                                                                                                              

                    A parent with subsequent children can be relieved of the duty to support his  



prior-born child only "under the most extreme circumstances":  the parent wishing to  



                                                        

escape imputed income must prove imputed income resulting in an increase in child  

support which would "cause substantial hardship to [his] subsequent children."27                                          The  



burden of proof is on the parent to show that working full time would create a substantial  



               

hardship  for  the  subsequent  child  and  that  the  situation  presents  an  extreme  special  

need.28  



                    During the hearing, Reilly made no differentiation between the burdens  



                                     

imposed by Nancy and Barlow, stating, "I mean, my son is special needs too, . . . we  



                                                                          

have learning disorders," and "I know [Vinette] has a lot of trouble with my son too  



because  he's got similar problems  and it's difficult on all of us." (Emphasis added.)  



Reilly testified that "it's just like - my son and my daughter. We can't work under  



structured - under structure."  



          26        Kestner , 182 P.3d at 1122-23 (quoting Bailey v. Bailey , 724 So. 2d 335, 339  



(Miss. 1998)).  



          27        Id. at 1123.
  



          28        Id.
  



                                                             -14-                                                        6859
  


----------------------- Page 15-----------------------

                       The court asked Vinette, "Can you compare the circumstances of [Nancy]  



in what your circumstances are with [Barlow]?"                                      She answered, "They are very similar."   



                                                                          

When the court asked Reilly if he thought taking care of Barlow was a full-time job, he  



answered, "Yeah, it is."                   When asked by Vinette why it is that she can work full time and           



take care of Barlow while he cannot work full time and take care of Nancy, Reilly's  



answer was that "well some people (indiscernible) better than others. . . . [W]ell, why  



                                                                    

you have a better job than me, why - why is there people homeless on the streets, you  



know?"  



                                                     

                       Further, Barlow may have bipolar disorder, like Nancy.  Vinette testified  



                                                           

that "currently, my son has gone through an evaluation to help determine what may be  



wrong  with  him  .  .  .  .    His  doctor  believes  that  he  is  bipolar,  but  we  wanted  more  



information before he was officially diagnosed with that."  She explained that Barlow  



                                                                                                       

is on medication for his ADHD, but the medication does not alleviate his behavioral  



                                                                                                                        

problems, suggesting that he may have additional mental disorders.  Vinette also stated  



                                        

that  the  two  children  are  similar  enough  that  she  and  Nancy's  mother  discuss  the  



                                                                                             

problems they see with Barlow and Nancy to "figure out what might be wrong with our  



children."  



                       The superior court recognized in its findings that Nancy has special needs.  



                                                                                                      

However, the court did not find credible Reilly's testimony that Nancy's medical or other  



                                                                                                                      

special needs prevent him from working full time, and it decided that Reilly had not  



provided adequate evidence to support his claim.  The court explained:  



                        [Reilly] claims that it's necessary for him to [work only 20  

                       hours  a  week]  because  of  his  obligations  to  his  daughter,  

                                      

                       making it impossible for him to work full time.  But I would  

                                                                    

                       find that [Vinette] is able to do work full time and manage the  

                                                                                                  

                       needs of her similarly special needs son at the same time and  

                       I see no reason why Reilly can't do that as well.  



                                                                        -15-                                                                  6859
  


----------------------- Page 16-----------------------

                                                                              

It was permissible for the superior court to compare Nancy's special needs with Barlow's  



special needs - the parents themselves essentially equated the children's levels of need  



                                                

and attention - and it was not error for the court to find under these circumstances that  



                     

Reilly could work full time while providing for Nancy's special needs, just as Vinette  



worked full time and provided for Barlow's special needs.  



                                                                                   

                    The superior court acknowledged that it was imposing a hardship, noting  



                                                                                  

that "[Reilly] could work a full-time job, . . . it would be certainly difficult, but it would  



                                                                                                                   

be no more difficult than it is for [Vinette]."  The court concluded that it was possible for  

Reilly to work a full-time job while "managing [Nancy's] needs."29  



                                                                     

                    Reilly bore the burden of proof that his circumstance was a "most extreme  



                                                                                                      

circumstance" and that Nancy would suffer a substantial hardship if he worked full time.  



                                                                                               

The superior court weighed Reilly's testimony but did not find it credible.  The court did  

not clearly err by finding that Reilly had not met this burden.30  



                                                                                                            

                    To summarize, the factual findings made by the superior court that Reilly  



was voluntarily and unreasonably underemployed are supported by the record and are  



not clearly erroneous.  The superior court did not abuse its discretion in deciding to  



impute income to Reilly.  



          29        Reilly  did  not  present  any  of  Nancy's  medical  records  or  counseling  



records.  The only evidence he presented regarding the severity of her issues was his and  

                                                                                                                          

Vinette's testimony.  



          30        It appears that in the course of seeking to obtain a fuller view of the parties'  

                                                                  

circumstances, the court, like the parties themselves, asked for hearsay information.  The  

                                                                                              

parties were pro se and probably did not understand they could have objected.  It is true  

                                                                                                                        

that unobjected hearsay can be considered by the court.  See Cassell v. State, 645 P.2d  

                                                                                                                      

219, 221 (Alaska App. 1982).  But under some circumstances, it may be unfair for a trial  

court to elicit hearsay on which it intends to rely.  It is not clear in this case that the court  

                                       

actually relied on any of the hearsay in making its findings or reaching its conclusions.  

                                                                         



                                                              -16-                                                         6859
  


----------------------- Page 17-----------------------

           C.        The Superior Court Correctly Calculated Reilly's Imputed Income.  

                



                     Reilly also argues that the superior court did not correctly calculate his  

                                                                 



imputed  income.    He  contends  that  the  court  determined  his  income  based  on  

               



"assumptions" instead of following the standard formula in Civil Rule 90.3 and that the  



                                                                                                                                      31  

                                                                                  

court should have used his educational background to determine the imputed income. 



                     We review the superior court's determination of the amount of income to  

                                              



                                   32  

impute for clear error.                "A trial court is required to make specific findings to support  



                                                                                            33  

                                                                                                "Rule 90.3(a)(4) does not  

a determination of adjusted income under Civil Rule 90.3."  



                                                                                                              

rigorously command pursuit of maximum earnings.  The rule's more modest objective  



                                                                               

is to give courts broad discretion to impute income based on realistic estimates of earning  



                 34  

potential."          We have observed that "[a]n important reason - if not the chief reason -  



                                                                                                                  

for imputing income to a voluntarily underemployed parent is to goad the parent into full  



employment by attaching an unpleasant consequence (a mounting child support debt or,  



in  certain  cases  of  shared  custody,  a  reduced  child  support  payment)  to  continued  



               35  

                                                                                                                

inaction."          Generally speaking, "[a] trial court is granted discretion to choose 'the best  



          31         Reilly asserts that "the [supreme court] should review the question of why                 



[Reilly's]  child  support  increased  based  on  an  occupational  code  not  related  to  his  

educational  background."    This  is  an  odd  argument  because  Reilly's  educational  

background  is  in  engineering  and  using  an  engineering-based  occupational  code  to  

impute income to him would result in imputing more income than the superior court  

ultimately decided to impute.  



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



          33         Koller v. Reft , 71 P.3d 800, 805 (Alaska 2003).  



           34        Beaudoin v. Beaudoin , 24 P.3d 523, 530 (Alaska 2001).  



           35        Id .  



                                                                 -17-                                                           6859
  


----------------------- Page 18-----------------------

indicator of . . . future earning capacity' and to 'impute income based upon 'the most  

complete evidence before it.' "36 



                                                        

                    If a parent's educational background is not the best indicator of his earning  



                                                                              37  

                                                                                   Here, the superior court made  

capacity, the superior court can rely on other evidence.  



                           

a specific finding that Reilly's educational background was not a fair indicator of his  



income potential, noting that:  



                   I  do  not  believe  at  this  time,  given  that  the  last  time  he  

                                                                                         

                   worked  an  engineering  job,  it's  appropriate  to  base  his  

                   voluntarily  unemployment  salary  based  on  an  engineer's  

                   earning capacity, particularly with the limited information  

                   about in the economy as it exists today, which is not great  

                   around the country.  



It was neither clear error nor an abuse of discretion for the superior court to impute  

                               



income  based  on  an  occupational  code  that  is  closely  related  to  Reilly's  current  



occupation and circumstances rather than his educational background. We also note that  

                                                                                                      



the superior court did consider that Reilly had a college degree; that was the rationale for  

                                                   



imputing income based on the average salary for a first-year college graduate.  



                   The superior court ultimately agreed with CSSD's advice that the average  



income of workers in "construction and extraction occupations" in southwest Montana  



                                                                                                      

(as reported by the U.S. Department of Labor) was the best indicator of Reilly's potential  



income.  The court explained that several of the sub-specialities included in "construction  



                                                         

and extraction occupations" are similar to Reilly's work repairing and renovating houses  



          36        Ward v. Urling, 167 P.3d 48, 55 (Alaska 2007) (quoting                            Virgin v. Virgin,  



990 P.2d 1040, 1049 (Alaska 1999);                   Byers v. Ovitt , 133 P.3d 676, 682 (Alaska 2006));  

see also  Koller , 71 P.3d at 805.  



          37        Ward, 167 P.3d at 55.  



                                                            -18-                                                         6859  


----------------------- Page 19-----------------------

he then sells or leases.38  The court's approach is the type of approach we have instructed  



                                                                                         39  

                                                                                             Thus, the court did not  

the superior courts to use when determining imputed income. 



clearly err in determining Reilly's imputed income.  Furthermore, the court's decision  



                                                                                                                

to not impute to Reilly an engineering salary and instead impute a much lower salary was  



fair and reasonable.  



          D.	       The Superior Court's Oral Visitation Credit Was Permissible, But The  

                    Credit Was Omitted From The Final Order.  



                                                                              

                   Reilly contests the superior court's oral decision to award him only a 50%  



                                              

visitation credit for the months that Barlow spends with him in the summer.  According  



     

to Civil Rule 90.3(a)(3):  "The court may allow the obligor parent to reduce child support  



payments  by  up  to  75%  for  any  period  in  which  the  obligor  parent  has  extended  



visitation  of  over  27  consecutive  days.    The  order  must  specify  the  amount  of  the  



reduction."  (Emphasis added.)  The superior court has discretion regarding when to  



                                                                               40  

                                                                                   The superior court must show  

credit the obligor parent and how much credit to give. 



it considered the issue whether to grant the credit, and it must expressly make findings  

                                                                                            



                             41  

regarding the issue.             Reilly is incorrect when  he  argues that the visitation credit is  

                                                                             



"required by Alaska state law."  The law does not require the superior court to award the  

                                                                                                      



credit.  



          38       Examples  of  sub-specialities  included  in  "construction  and  extraction  



occupations" that seem to be closely related to Reilly's current work include "carpenter,"  

                                                                               

"construction  laborer,"  "electrician,"  "painter[],  construction  and  maintenance,"  and  

                                                                                                   

"construction and building inspector."  



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



          40       Renfro v. Renfro , 848 P.2d 830, 832 (Alaska 1993).  



          41	      Id.  



                                                            -19-	                                                      6859
  


----------------------- Page 20-----------------------

                                                                                                    

                    Here, the superior court clearly considered the issue. The court questioned  



                                                                                                      

Vinette and Reilly about whether they believed a summer visitation credit would be fair.  



                     

Both parties agreed a visitation credit would be fair, but Vinette mentioned she must  



                                                                                         

continue paying Barlow's Alaska daycare expenses during his visit to Montana in order  



                                                                     

to hold his place.  The court commented that it would likely not award a full reduction  



                                                                   

in child support, rather the credit would be between 50% and 75%, so she would still  



receive some support for the daycare payments.  



                    The superior court's oral ruling granted Reilly a 50% visitation credit and  



provided that the parties would share the cost of Barlow's travel, but only if Reilly is  



                                                           

current  on  his  child  support  by  May  15  of  each  year.    The  court  did  not  abuse  its  



                                                                         

discretion by awarding a 50% credit, which was reasonable considering that Reilly does  



not have Barlow for a full summer.  



                                                                                              

                    However, Reilly is correct that the superior court erred by not including the  



visitation credit in its final written order.  The parties agree the visitation credit was  



                                                          

omitted from the written order.  Thus, we remand this issue to the superior court so that  



it can correct this omission.  



          E.	       Reilly's  Argument  That  His  Child  Support  Cannot  Be  Increased  

                    Because Neither Party Requested An Increase Is Without Merit.  



                    Reilly finally argues that "[t]he [superior] court erred in increasing the child  



             

support  even  though  the  [a]ppellee  did  not  ask  [for]  or  want  the  increase."    This  



argument appears to be based on the fact that Vinette did not file a motion to increase  



Reilly's child support.  But she did not have to file  a  motion; instead, she opposed  



                                                                                                 

Reilly's motion to modify his child support downward, arguing that he should actually  



                                                      

pay more child support because he was "voluntarily unemployed."  During the hearing  



                                                                                                        

she again stated that she did not think Reilly's child support should reflect his current  



                                                              -20-	                                                        6859
  


----------------------- Page 21-----------------------

employment situation.  Reilly's argument that his child support obligation cannot be  



increased because neither party requested an increase is without merit.  



V.      CONCLUSION  



                 We AFFIRM the decision of the superior court in all respects, except that  



                                             

we REMAND the superior court's child support order so that the court can correct the  



inadvertent omission of the visitation credit in its written order.  



                                                   -21-                                              6859
  

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