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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hope P. v. Flynn G. (9/4/2015) sp-7047

Hope P. v. Flynn G. (9/4/2015) sp-7047

         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  

                                                                                        

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                    THE SUPREME COURT OF THE STATE OF ALASKA  



HOPE P.,                                                )  

                                                        )         Supreme Court No. S-15675  

                            Appellant,                  )  

                                                        )         Superior Court No. 3PA-04-00372 CI  

         v.                                             )  

                                                        )  

                                                        )         O P I N I O N  

FLYNN G.,                                               )  

                                                        )         No. 7047 - September 4, 2015  

                            Appellee.                   )  

                                                        )  



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

                                                                                     

                   Judicial District, Palmer, Eric Smith, Judge.  



                   Appearances:  John Parsi, K&L Gates LLP, Anchorage, for  

                   Appellant.  Notice of nonparticipation filed by Appellee.  



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

                                                 

                   Bolger, Justices.   



                   MAASSEN, Justice.  



I.       INTRODUCTION  



                   At issue in this appeal are parents' motions to modify their existing child  

                                                                                                 



custody arrangement.  Without a hearing, the superior court denied the mother's motion  

                                                                                     



but granted the father's motion for a temporary modification; later, with the parties'  

       



agreement, the court made the temporary order permanent.  The mother argues on appeal  

                              



that she was entitled to evidentiary hearings.  She also appeals the superior court's denial  

       


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

of her request that income be imputed to the father for purposes of calculating his child         



support obligation.  We affirm the judgment of the superior court.  



II.         FACTS AND PROCEEDINGS  

                                                             1 are the parents of two minor children and have been  

                       Hope P. and Flynn G.                                                   



divorced since 2005.  By the terms of a November 2010 custody order, they had joint  



                                                                                                       

legal and shared physical custody on an alternating weekly schedule as long as they both  



lived in the same community.  



            A.          Custody Modification Motions  



                       In June 2012 Flynn resigned from his job after nine years as a journeyman  



                                                                                                               

telecommunications technician with the Matanuska Telephone Association (MTA).  He  



worked for Chugach Power in Anchorage until December 2012, then in April 2013 he  



entered  an  apprenticeship  program  to  become  an  inside  wireman  electrician.    The  



program takes about five years to complete.  It began with two months of classroom  



                                                                                                    

work; then, from June through October 2013, Flynn was employed on the North Slope.  



This temporary job required that he be out of town for four or five weeks at a time.  



                                                                                                              

Because the custody order granted Hope a right of first refusal, which she exercised, her  



custody time increased while Flynn was away working.  



                                                      

                       In August 2013 Hope moved for a permanent modification of physical  



                                                                                                               

custody  and  requested  an  evidentiary  hearing.    She  asserted  that  the  50/50  custody  



schedule provided by the 2010 order was no longer realistic given Flynn's apprenticeship  



and his job on the North Slope, that this was a substantial change in circumstances, and  



            1          Pseudonyms are used to protect the privacy of the family.  



                                                                        - 2 -                                                                       7047  


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

that  the  custody  order  should  be  modified  to  "accurately  reflect  the  parties'  current  

arrangement."2  



                                                                                        

                         In September 2013 Flynn filed his own motion to modify physical custody,  



                                                                                        

though he requested only a temporary change.  He alleged that he was having financial  



                                                                             

and logistical difficulties transporting the children to two different schools with different  



                                                                                                                                     

 start and end times.  He proposed that Hope have physical custody of the children during  



                                           

the school week, that  he have three weekends of visitation per month, and that this  



                             

 schedule be in place only during the 2013/14 school year, reverting to the alternating- 



week schedule in June 2014.   



                                                                                                                  

                         Hope agreed with Flynn's proposal that she have custody during the school  



                                                                  

year,  but  she  opposed  his  request  that  the  modification  be  only  temporary,  and  she  



                                                                                           3  

disagreed with the way he defined the weekends.   



                         The superior court ruled on the parties' modification motions in October  



                                                                           

2013.  It denied Hope's motion without holding an evidentiary hearing, reasoning that  



                                                                                                                                       

neither "the change in [Flynn's] work schedule" nor "the fact that [Flynn] ha[d] changed  



                                                                                                        

jobs itself" was a substantial change in circumstances. But the court granted Flynn's  



                                                                      

motion for a temporary modification, finding that "the difficulties of driving the children  



to school . . . is a change in circumstances."  The essential elements of the temporary  



                                                                                                                                             

order were that Hope would have physical custody of the children during the school  



                                                                         

week  and  Flynn  would  have  custody  three  weekends  out  of  every  four.    The  court  



             2           See AS 25.20.110(a) (stating that custody award "may be modified if the     



court determines that a change in circumstances requires the modification of the award     

and the modification is in the best interests of the child").  



             3           Flynn proposed that he have three weekends of visitation a month; Hope  



                                                    

proposed that he have two and a half (the half weekend ending at noon on Saturday).  

Flynn proposed that his weekend custody last until Monday morning; Hope proposed  

that it end Sunday evening.  



                                                                            - 3 -                                                                     7047
  


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

ordered that this temporary arrangement last until June 1, 2014, and that a hearing would                               



be set in the late spring or early summer "if necessary" to consider whether it would be   



appropriate to return to the week-on week-off schedule at that time.  



                        At  a  status  hearing  in  April  2014,  Flynn  said  that  he  would  accept  a  



                                                                                                                          

conversion of the temporary order into a permanent one if it would mean that he could  



                                                                                          

"avoid further custody litigation."  At that hearing and again at one in July, Hope agreed  



                                                                                                             

that the temporary order could be made permanent. The final child custody modification  



order, entered in August 2014, thus provides that Hope will have custody during the  



                                      

week and Flynn will have custody "three out of every four weekends, from Friday after  



school until Monday morning."  



            B.          Modification Of Child Support Order And Imputed Income  



                                                            

                        The  October  2013  temporary  custody  order  required  that  Flynn  file  a  



                                                                                                                             

proposed child support order.  Flynn's proposed order and supporting affidavit gave his  



                                                                                                                                               

total 2013 income as approximately $44,000.  This was a drop in income from that on  



                                                                  

which the preexisting child support order was based; that 2011 order showed that he  



earned $59,660 annually while working for MTA.   



                        Hope asked the court to impute income to Flynn based on his potential  



                4  

earnings.     She  contended  that  Flynn  had  become  voluntarily  and  unreasonably  



underemployed when he changed careers.  Her proposal, for $58,000 in imputed income,  



was based on Flynn's earnings averaged over his last five years with MTA.  She also  

                                                                           



contended that the order modifying child support should accurately reflect the superior  

                                             

court's October 2013 order that she have "primary physical custody."5  

                                                                                                                                



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



            5           Civil Rule 90.3 provides different calculations for child support obligations  



depending on whether one parent has "primary physical custody" or the parents have  

                                                                                                                                   (continued...)  



                                                                          - 4 -                                                                   7047
  


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

                        Flynn responded that his change in employment did not constitute voluntary  



underemployment.  He also disputed Hope's assertion that the superior court had granted  



                                         

her "primary physical custody" in the October 2013 temporary custody order, because  



                                                                                    

her custody time and his were 68% and 32% respectively, which by definition under  



                                                                                 6  

Civil Rule 90.3 is "shared physical custody."   



                                                                                                                             

                        The superior court referred the child support issues to a master, who held  



                                                                                                                    

an evidentiary hearing in February 2014.  Both parties testified.  Following the hearing  



                                                                         

the  master  issued  a  written  report  and  order  in  which  he  concluded  that  Flynn  was  



                                                                                                      

"voluntarily and unreasonably underemployed" and that he should be imputed an annual  



income "at his previous total income of $59,660."  The master reasoned that Flynn had  



                                                                                                                         

"no compelling reason" to leave MTA, that it was uncertain whether he could ever obtain  



employment  that  paid  as  well  or  better  than  his  job  at  MTA  had,  and  that  it  was  



                                                           

speculative  whether  his  career  move  would  ever  benefit  the  children.    The  master  



observed  that  the  apprenticeship  program  caused  Flynn  to  spend  less  time  with  the  



                                                                                                                 

children in the short term and reduced his ability to pay child support.  But the master  



                                                                                 

also agreed with Flynn's characterization of the parties' 68/32 custody arrangement as  



"shared custody" for purposes of the child support calculation.  



                        Both parties filed objections to the master's report.  Flynn challenged the  



                                                     

master's conclusion that his career change was unreasonable.  Hope again objected to  



                                                                                                                      

basing a child support calculation on shared custody, insisting  that she had primary  



            5(...continued)  



"shared, divided, [or] hybrid physical custody."  See Alaska R. Civ. P. 90.3(a)-(b).  



            6           The rule defines "shared physical custody" as "children resid[ing] with that   



parent for a period specified in writing in the custody order of at least 30, but no more   

than 70, percent of the year, regardless of the status of legal custody."  Alaska R. Civ.  

P. 90.3(f)(1).  



                                                                          - 5 -                                                                    7047
  


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

physical custody because of the wording of the October 2013 temporary order.  She  



                                                                  

contended that if the superior court "in fact modified the parties['] custody arrangement  



                                              

from 50/50 shared to 68/32[] shared, it did so despite [her] opposition . . . , and absent  



an evidentiary hearing."  



                    Having  reviewed  the  pleadings  and  listened  to  the  audio  record  of  the  



evidentiary hearing before the master, the superior court issued its order in July 2014.  



                                                                                    

Disagreeing with the master, it concluded that Flynn's decision to change jobs, though  



                                                                                   

voluntary,  was  "not  unreasonable  under  the  totality  of  circumstances."    Further,  in  



response to Hope's argument that she had been awarded primary physical custody, the  



                                                                                   

superior  court  clarified  that  it  had  "in  fact  ordered  68/32  custody  .  .  .  and  that  it  



inaccurately used the word 'primary' in identifying that custody in its October 30, 2013  



           7  

order."     It  determined  that  the  master  correctly  characterized  the  physical  custody  



                                                                                    

arrangement as "shared custody" for purposes of child support.  Finally, in response to  



                                                              

Hope's contention that the superior court should have held an evidentiary hearing before  



                                                                                    

modifying custody, the superior court observed that not only was the initial modification  



                                                                                                                

temporary,  but  it  was  consistent  with  the  parties'  agreement,  differing  only  on  the  



specifics of Flynn's weekend visitation.  It explained that Hope waived an evidentiary  



                                                                                              

hearing both because she did not ask for one on visitation, the only contested issue, and  



                                                                                                       

because she agreed on the record that the temporary order be made permanent without  



further proceedings.  The superior court accordingly calculated child support on a 68/32  



                                                                                    

shared custody basis, using incomes of approximately $44,000 and $27,000 for Flynn  



and Hope respectively.  



          7         See  Alaska  R.  Civ.  P.  90.3(f)(2)  ("A  parent  has  primary  physical  



custody . . . if the children reside with the other parent for a period specified in the  

                                                                   

custody order of less than 30 percent of the year.").  



                                                              - 6 -                                                        7047
  


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

                    On appeal Hope argues that the superior court erred by (1) denying her  



                                                                             

motion for modification of physical custody without an evidentiary hearing; (2) granting  



                                                                                               

Flynn's motion for temporary modification of physical custody, then converting it to a  



                                                                           

final order without an evidentiary hearing; and (3) refusing to impute income to Flynn  



for purposes of calculating child support.  



                   Flynn did not participate in this appeal.  



III.      STANDARDS OF REVIEW  



                                         

                    To  determine  "whether  a  party  is  entitled  to  a  hearing  on  a  motion  to  



modify custody, we review the record and arguments de novo to determine whether the  



                                                                                                                             8  

                                                                                                   

party alleged facts which, if true, demonstrate a substantial change in circumstances." 



We affirm the superior court's denial of a hearing "if, in our independent judgment, 'the  

                                                                              



facts alleged, even if proved, cannot warrant modification, or if the allegations are so  

                                                                                                     



general or conclusory, and so convincingly refuted by competent evidence, as to create  

                                                                                

no genuine issue of material fact requiring a hearing.' "9  



                    "We will not reverse a superior court's custody decision unless the court  

has abused its discretion or the controlling factual findings are clearly erroneous."10  "An  



abuse  of  discretion  exists  where  the  superior  court  'considered  improper  factors  in  



making its custody determination, failed to consider statutorily mandated factors, or  

assigned disproportionate weight to particular factors while ignoring others.' "11  



          8         Collier v. Harris, 261 P.3d 397, 405 (Alaska 2011).  



          9        Schuyler v. Briner, 13 P.3d 738, 741 (Alaska 2000) (quoting                           C.R.B. v. C.C.,  



959 P.2d 375, 378 (Alaska 1998)).  



          10       Iverson v. Griffith , 180 P.3d 943, 945 (Alaska 2008).  



          11       Ronny  M.  v.  Nanette  H.,  303  P.3d  392,  399  (Alaska  2013)  (quoting  



Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).  



                                                            - 7 -                                                      7047
  


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

                            

                                                                                                             

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



                        12  

impute income."              "The determination of imputed income is a finding of fact that we  



                                                         13  

                                                                                         

will overturn only if clearly erroneous."                    "A factual finding is clearly erroneous when  



a  review  of  the  record  leaves  the  court  with  a  definite  and  firm  conviction  that  the  

superior court has made a mistake."14  



IV.	      DISCUSSION  



          A.	      The Superior Court Did Not Err When It Denied Hope's Motion To  

                   Modify Custody Without Holding An Evidentiary Hearing.   



                                               

                   Before discussing the merits of Hope's arguments about custody, we note  



                                                 

that she does not challenge any of the particulars of the final custody modification order,  



which granted her physical custody during the week and Flynn physical custody three  



out of every four weekends.  Except for how Flynn's weekends were measured - which  

she  does  not  appear  to  challenge  on  appeal15   -  the  final  custody  order  reflects  



                                                                                                         

essentially what Hope herself was seeking as a permanent modification.  In short, Hope  



objects to the process while not taking issue with the result.  



          12       Reilly v. Northrop , 314 P.3d 1206, 1212 (Alaska 2013).  



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



          14       Graham R. v. Jane S., 334 P.3d 688, 692 (Alaska 2014) (quoting Ronny M.,  



303 P.3d at 399) (internal quotation marks omitted).   



          15       The final order defined Flynn's visitation weekends as "from Friday after  



school until Monday morning," whereas Hope had asked  that they end "on Sunday  

evening at 5 [p.m.]."  And the final order gave Flynn three weekends a month, whereas  

                                                    

Hope had asked that he be given two and a half (the half weekend ending at Saturday  

                                                                       

noon).  Hope also argued that Flynn was limited to three weekends a month regardless  

                                                                           

of whether a given month had five; the superior court labeled this contention as "almost  

                                                                                                              

frivolous" and clarified that Flynn was to receive three weekends out of every four.   



                                                           - 8 -	                                                    7047
  


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

                                                                                    

                   We read Hope's arguments as focused on the different treatment of parents  



                                                                                              

with "primary physical custody" and those with "shared physical custody" for purposes  



of calculating child support.  Hope apparently contends that a different process on the  



modification  motions  would  have  resulted  in  an  award  to  her  of  "primary  physical  



                                                                                                      

custody" and therefore higher child support payments from Flynn.  But since Hope does  



                                                                               

not provide any evidentiary support for the implication that a hearing could have resulted  



in Flynn receiving less than the 32% custody he was ultimately willing to accept, she  



gives us no basis on which to conclude that a reasonable result in this case could ever  



                                                                                                  

have been anything other than "shared custody" as defined in Civil Rule 90.3.  Hope's  

custody-related arguments are thus arguably moot,16 but we exercise our discretion to  



                              17  

address them briefly.              



                   Hope first contends that the superior court erred when it decided the 2013  



                                                                                         

cross-motions to modify custody without a hearing.  A motion to modify custody triggers  



                                                                                                          

a right to an evidentiary hearing only if the moving party "make[s] a prima facie showing  



                                                                                                          18  

                                                                                                               A change  

of a substantial change in circumstances affecting the children's welfare." 



in circumstances is unlikely to be substantial enough to "overcome our deep reluctance  



to  shuttle  children  back  and  forth  between  parents"  unless  the  change  affects  the  



          16       Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks , 48 P.3d  



1165, 1167 (Alaska 2002) ("A claim is moot if it is no longer a present, live controversy,  

                                                                         

and the party bringing the action would not be entitled to relief, even if it prevails.").  



          17       See  Clark  v.  State,  Dep't  of  Corr.,  156  P.3d  384,  387  (Alaska  2007)  



(describing  public  interest  exception  to  mootness  doctrine  but  concluding  that  "the  

determination of whether to review a moot issue is left to this court's discretion").  



          18       Schuyler v. Briner, 13 P.3d 738, 742 (Alaska 2000) (quoting Harrington  



v. Jordan , 984 P.2d 1, 3 (Alaska 1999)) (internal quotation marks omitted).  



                                                           - 9 -                                                     7047
  


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

                                                                                                   19  

children's welfare and "reflect[s] more than mere passage of time."                                    "Because family  



law strives to create stability for children, courts should not encourage unnecessary  



                                                                                                   

hearings in custody cases, and we will affirm the superior court's denial of a custody  



hearing when 'it is plain that the facts alleged in the moving papers, even if established,  



                                              20  

would not warrant a change.' "                    



                    Hope  based  her  modification  motion  on  the  change  in  Flynn's  work  



                                            

schedule when he left MTA  and entered the apprenticeship program, which entailed  



stints  of  work  on  the  North  Slope  that  would  "no  longer  permit[]  a  50/50  physical  



                                                                               

custody schedule."  Hope asked that the custody order be modified permanently to reflect  



the parties' actual arrangement.    



                                                                           

                    The superior court concluded that the change in Flynn's work schedule did  



"not  rise  to  the  level  of  a  [substantial]  change  in  circumstances"  because  it  "was  a  



                                                                                

temporary change that led to a temporary agreement between the parties, and [Flynn]  



                                                                                                          

should not be penalized because he made that agreement."  In support of this conclusion  



it cited Morino v. Swayman , in which we held that while "a de facto change with respect  



                                                                

to visitation of a child may be a change of circumstances for the purpose of modifying  



                                                                                                                

decreed visitation[,] . . . experimental changes lasting only a few months should not  



                                                       21  

qualify as a change in circumstances."                     We observed in Morino that "[c]ustodial parents  



                                                                                                          

should have the flexibility to experiment with new visitation schedules without fearing  



          19        C.R.B. v. C.C., 959 P.2d 375, 381 (Alaska 1998).  



          20        Schuyler, 13 P.3d at 742  (footnote omitted) (quoting Morino v. Swayman ,  



970 P.2d 426, 428 (Alaska 1999)).  



          21       Morino , 970 P.2d at 429.  



                                                            -  10 -                                                     7047
  


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

                                                                                                                     22  

that every temporary change could be the basis for modifying visitation."                                                In McLane  



v. Paul , adopting some language from Morino 's dissent, we observed that a failure "to                           



allow parents leeway to cooperate and experiment with custody" would, to the extent it       



discouraged parental agreement, "run[] counter to the goals of Alaska's family law and   

the needs of Alaska's children of divorce."23  



                      The superior court in this case observed both that the new custody schedule  

                                                                                                                 



was the product of parental agreement and that its duration was "entirely speculative":  

                                                                             



"[I]t is entirely unclear at this time what [Flynn's] work responsibilities might be once  

                                                                                                                     



he completes the [apprenticeship] program."  There is no dispute that the parties agreed  



                                                                 

to the new schedule, but Hope disputes that the change was temporary, noting that "the  



length of the temporary job change was at a minimum 4 months (more than a few) and  



potential[ly] 5 years (the length of the apprenticeship)."  



                                                                                                             

                      We have reviewed the allegations that were before the superior court at the  



                                                            

time it decided the motions without a hearing.  Hope's motion, filed in August 2013,  



                                                                                

alleged that Flynn's apprenticeship would require him to "be absent for extended periods  



                                                            

of time until he completes the 8,000 required hours."  In response, Flynn asserted that  



                                                                                                                    

his North Slope employment would end in October 2013 at the latest, at which point he  



would  attend  apprenticeship  classes  in  Anchorage  until  December,  then  look  for  



                                                                                                

employment through his union in the spring.  He asserted that the location of his new  



employment could not yet be known.  



                                                                                                                   

                      We agree with the superior court's conclusion that, based on both parties'  



allegations, the duration of their then-current arrangement was "entirely speculative":  



           22        Id.  



           23         189  P.3d  1039,  1043  (Alaska  2008)  (alteration  in  original)  (quoting  



Morino , 970 P.2d at 433 (Fabe, J., dissenting)).  



                                                                 -  11 -                                                           7047
  


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

                    

both agreed that it could last a few months or it could last much longer.  It would not  



                                                 

have  promoted  family  stability  or  consistency  of  scheduling  to  modify  the  existing  



custody  order  to  reflect  what  could,  in  a  few  months,  prove  to  have  been  only  a  



temporary   change   in   circumstances.      Given   also   the   parties'   agreement   to   an  



                                                                                          

experimental  arrangement  for  dealing  with  their  situation  and  the  policy  that  such  



                                                                

parental flexibility should be encouraged, the superior court did not err in concluding  



                                                                                             

that Hope had failed to make a prima facie case for a permanent modification of custody.  



          B.	       The Superior Court Did Not Err When It Granted Flynn's Temporary  

                    Motion To Modify Custody, Then Converted It To A Final Order.  



                                    

                    Hope also contends that the superior court erred when it granted Flynn's  



                                                                                     

temporary motion to modify custody, then converted the temporary order to a final and  



                                                                                                              

permanent one.  As noted above, the resulting schedule is largely the one both parties  



agreed  to.    But  Hope  contends  that  (1)  the  temporary  order  awarded  her  "primary  



physical custody"; (2) conversion of the temporary order to a permanent one was a  



custody  modification  that  occurred  "without  any  best  interest  findings  and  without  



                                                                                                   

adequate hearing" and is invalid; and therefore (3) the temporary order, awarding her  



"primary physical custody," is the only valid one.   



                    Hope's argument is without merit.  The superior court pointed out in its  



July 2014 order that its use of the term "primary physical custody" in the earlier order  



                       

for temporary modification was inaccurate, "since it was inconsistent with the actual  



                                                

custody that was awarded":  by legal definition, the 68/32 custody arrangement in this  



                                                            -  12 -	                                                    7047
  


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

                                                      24  

case was "shared physical custody."                        Hope does not explain why the superior court  

                                                                             

should be powerless to correct its misstatement.25  

                                                                            



                    Furthermore, the superior court's conversion of the temporary order to a  



                                                                                                            

permanent one was done with both parties' agreement.                                When granting the temporary  



                                                              

order, the court observed that it could not yet tell whether it would be appropriate for the  



                                              

parties to revert to their 50/50 alternating-week schedule "in June, once the school year  



is over," so it would hold a hearing on that issue, "if necessary, in late spring or early  



                               

summer."  A status hearing occurred in April 2014.  Flynn reported, through counsel,  



                     

that while he had wanted to revert to the alternating-week custody schedule, he would  



"accept  the  existing  order  as  a  final  order"  if  it  would  allow  him  to  "avoid  further  



                                                                                                                

custody litigation."  Hope agreed that the temporary order could be made final.  At a  



hearing in July, when the judge asked whether either party wanted to present additional  



evidence, both of them asked that he rule on the pleadings.  Flynn reiterated that he  



                                                                                                        

would not object if the interim custody order was made the final order; when his counsel  



proposed drafting the final order, Hope again agreed.  



                                                                                                 

                    Having expressly agreed to entry of the permanent custody order without  



                                            

an evidentiary hearing, Hope waived any right she might otherwise have had to a hearing  



                    26  

on that order.           



          24        Civil Rule 90.3(f)(1) defines "shared physical custody" as when the child   



lives with each parent at least 30% of the time; here, Flynn's three weekends out of every  

four added up to 32%.  



          25        See Donnybrook Bldg. Supply Co. v. Alaska Nat'l Bank of the North, 736  



P.2d 1147, 1148 n.2 (Alaska 1987) ("A trial court can correct its own mistakes before  

entry of judgment.").  



          26        See Corbin v. Corbin, 68 P.3d 1269, 1274 (Alaska 2003) (stating that  party  

                                                          

waives right to evidentiary hearing by failing to request one before court rules).  



                                                            -  13 -                                                      7047
  


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

                                                                                              

                                                                                                          

          C.	       The Superior Court's Decision Not To Impute Income To Flynn Was  

                    Not An Abuse Of Discretion.  



                                         

                    Hope argues that the superior court erred when it rejected the master's  



                                                                                                        

recommendation that an income of $59,660 be imputed to Flynn. Hope contends that the  



                                                                 

master "provided [a] deeper analysis of the totality of the circumstances and provide[d]  



                                             

a stronger basis for imputing income than not[]" and that the master was in "a better  



                                                                                      

position to assess credibility than the superior court."  But a master's recommendations  



        

and conclusions of law are not binding upon the superior court, which is permitted to  

"adopt . . . , modify . . . , [or] reject [the report] in whole or in part."27  



                                                                                                                

                    Whether a parent is unreasonably underemployed depends on the totality  



                               28  

of the circumstances.    When a parent voluntarily changes to a lower-paying job, the  



                                                                                                                     29  

                                                                                                                         This  

court must consider "the nature of the changes and the reasons for the changes." 



"totality" analysis addresses concerns with "locking in" a parent in a particular job or  



                                                                           

field, as well as concerns that the children or the other parent will be burdened with  

financing the career change.30  Accordingly, the totality analysis "include[s] such factors  



     

as  whether  the  [parent's]  reduced  income  is  temporary,  whether  the  change  [in  



employment]  is  the  result  of  economic  factors  or  of  purely  personal  choices,  the  



          27        Alaska R. Civ. P. 53(d)(2).  



          28        Reilly  v. Northrop, 314 P.3d 1206, 1213 (Alaska 2013).  



          29        Pattee v. Pattee ,  744 P.2d 658, 662 (Alaska 1987) (quoting In re Marriage  



of Rome v. Rome, 621 P.2d 1090, 1092 (Mont. 1981)), overruled on other grounds by  

Nass v. Seaton , 904 P.2d 412, 416 n.7 (Alaska 1995).  



          30        Pugil v. Cogar , 811 P.2d 1062, 1066 (Alaska 1991)  (citing Pattee , 744  



P.2d at 662) (  reasoning that  dilemma "   between locking an obligor i  nto a career and the  

burden that  the obligor's career change places on the custodial parent and the child" can  

be resolved by considering all relevant circumstances).  



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                                                                                                       31  

                                                                                        

children's needs, and the parents' needs and financial abilities."                                          Also to be considered  



                                                                                                                              32  

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



                                                                                               

                      The superior court in this case considered all the relevant factors and set out  



                                 33  

its  factual  findings.                 It  found  that  Flynn's  "decision  was  not  made  in  bad  faith  or  



motivated by a desire to reduce his child support"; that what motivated him instead was  



                                                      

that "his current career was at a dead end"; that Flynn expected ("but obviously cannot  



                                                                                       

guarantee") that he would eventually earn the same amount or more "once his training  



is  complete";  that  he  "has  actively  looked  for  and  found  employment  while  the  



[apprenticeship]   classes   are   not   in   session,   and   he   has   made   sure   to   collect  



                                                                                                       

unemployment while he [is] taking his classes," thus having "taken such steps as are  



possible  to  maximize  his  income  while  he  is  undergoing  his  training";  and  that  the  



                                               

"children have no particular needs" that will go unmet because of Flynn's career change,  



                                                    

and thus are not being asked to finance it.  None of these findings are clearly erroneous,  



                                                 

and on these facts we see no abuse of discretion in the superior court's decision not to  



impute income to Flynn for purposes of calculating child support.  



V.         CONCLUSION  



                      The orders of the superior court are AFFIRMED.  



           31         Barlow v. Thompson , 221 P.3d 998, 1003 (Alaska 2009) (quoting Sawicki  



v. Haxby , 186 P.3d 546, 550 (Alaska 2008)) (internal quotation marks omitted).  



           32         Olmstead v. Ziegler, 42 P.3d 1102, 1106 (Alaska 2002)  (quoting Alaska     



R. Civ. P. 90.3 cmt. III.C) (internal quotation marks omitted) ("Thus, it is appropriate for   

the trial court to consider not only the career change, but also its potential impact on the                                          

child.");  Richardson v. Kohlin , 175 P.3d 43, 48-49 (Alaska 2008) (quoting Alaska R.  

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



           33         The voluntariness of Flynn's job change is not disputed.  



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