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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sharpe v. Sharpe (1/8/2016) sp-7074

Sharpe v. Sharpe (1/8/2016) sp-7074

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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                                        



JOLENE  SHARPE  n/k/a  LYON,                                     )  

                                                                 )          Supreme  Court  No.  S-15262  

                                 Appellant,                      )  

                                                                                                                                       

                                                                 )          Superior Court No. 3AN-11-10036 CI  

           v.                                                    )  

                                                                                                 

                                                                 )          O P I N I O N  

               

JYZYK SHARPE,                                                    )  

                                                                                                                  

                                                                 )          No. 7074 - January 8, 2016  

                                 Appellee.                       )  

                                                                  

_______________________________ )  



                                                                                                               

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

                                                                                                

                      Judicial District, Anchorage, Andrew Guidi, Judge.
  



                                                                                                     

                      Appearances:  Darryl  L.  Thompson,  Darryl  L.  Thompson,
  

                                                                                                         

                      P.C., Anchorage, for Appellant. No appearance by Appellee.
  



                                                                                                                   

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

                                    

                      Bolger, Justices.
  



                                         

                      BOLGER, Justice.
  

                                                        

                      WINFREE, Justice, dissenting.
  

                                                         

                      STOWERS, Justice, dissenting.
  



I.         INTRODUCTION  



                                                                                                                                        

                      A non-custodial parent moved to modify a child support order after she quit  



                                                                                                                                               

her job  in Anchorage, moved to a remote village, and adopted a subsistence lifestyle.  



                                                                                                                                        

Although the parent acknowledged that she was voluntarily unemployed, she argued that  


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

her decision was reasonable in light of her cultural, spiritual, and religious needs.                                                                                                                        The  



superior court disagreed and denied the motion.                                                      



                                  The parent appeals, arguing that the superior court gave inadequate weight                                                                                            



to her cultural and religious needs and that the child support order violates her right to                                                                                                            



the   free   exercise   of   her   religion.     But   the   superior   court   adequately   considered   all  



relevant factors in deciding not to modify the child support order.                                                                                                       And there was no                        



plain error in the court's failure to anticipate the free exercise claim, which the parent                                                                                                               



raises for the first time on appeal.                                                    Therefore, we affirm the judgment of the superior                                                           



court.  



II.              FACTS AND PROCEEDINGS                

                                                                1  and Jyzyk Sharpe divorced in July 2012.  The superior court  

                                 Jolene Lyon                                                                                                                                                                



awarded Jyzyk primary physical custody of the parties' only child and ordered Jolene to  

                                                                                                                                                                                                                    



pay Jyzyk $1,507.00 per month in child support.  

                                                                                                                             



                                 Jolene is a Yup'ik Eskimo who was raised in Nome and has family ties to  

                                                                                                                                                                                                                    



the native village of Stebbins.  When the child support order was issued, Jolene was  

                                                                                                                                                                                                               



"living  in  Anchorage,  working  at  Alyeska  Pipeline Service  Company,  and  earning  

                                                                                                                                                                                                     



approximately [$]120,000 a year."  In April 2013, she left Anchorage and took up a  

                                                                                                                                                                                                                     



subsistence lifestyle in Stebbins.  

                                                                                   



                                  Soon after relocating to Stebbins, Jolene moved to modify the child support  

                                                                                                                                                                                                      



order.  She alleged that she was "no longer employed," that she was "a full time stay at  

                                                                                                                                                                                                                    

                                      2  and that her only income was her annual Permanent Fund Dividend.  

home mother,"                                                                                                                                                                                                              

                



                 1               Jolene was known as Jolene Sharpe until the parties divorced.                                                                                                  To avoid   



confusion, we refer to both parties by their first names.                                                              



                 2  

                                                                                                                                                                                                            

                                 Although Jolene did not have primary custody of the parties' daughter when  

                                                                                                                                                                                                                      

she moved to modify the child support order, Jolene was caring for another child from a  

                                                                                                                                                                                       (continued...)  



                                                                                                         -2-                                                                                                7074
  


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

These   developments,   she   argued,   constituted   a   material   change   in   circumstances  



warranting a modification of the child support order. She requested that the court reduce                                                                                                                                                                                                                                                                                                                            



her monthly child support payment to $50 per month, the minimum allowed under                                                                                                                                                                                                                                                                                                                                          



Alaska Civil Rule 90.3(c)(3).                                                                                                                          



                                                                    Jyzyk opposed the motion, arguing that modification of the child support                                                                                                                                                                                                                                                                    



order    was    not   warranted    because    Jolene    was    "voluntarily    and    unreasonabl[y]  



unemployed."   Although he acknowledged that Jolene was entitled to quit her job and  



move to a remote community, he argued that the parties' "ten year old daughter . . .                                                                                                                                                                                                                                                                                                                                                    



 should not be required to fund [Jolene's] lifestyle choice."                                                                                                                                                                                                                                               



                                                                    The superior court held a motion hearing in July 2013. During the hearing,                                                                                                                                                                                                                                                                



Jolene   testified   about   her   life   in   Stebbins   and   the   benefits   she   derived   from   her  



 subsistence lifestyle.                                                                                    She expressed her desire to expose the parties' child to traditional                                                                                                                                                                                                                   



life in Stebbins.                                                                           And  she said that living in Stebbins, a dry community, provided                                                                                                                                                                                                                                           



reprieve from an alcohol abuse issue she had experienced during her marriage.                                                                                                                                                                                                                                                                                                                                      



                                                                    Jyzyk also testified at the hearing.                                                                                                                                       He expressed his belief that the parties'                                                                                                                         



child would benefit from receiving child support from Jolene at its existing amount and                                                                                                                                                                                                                                                                                                                                             



noted that these monthly payments "helped with everything [including] rent, groceries,                                                                                                                                                                                                                                                                                                              



 [and] clothes."                                                              Jyzyk testified that "[i]n a dream world [he] would bring [the parties'                                                                                                                                                                                                                                                           



child] to Kotzebue [in the area where he was raised] and raise her on the river," but he                                                                                                                                                                                                                                                                                                                                                  



recognized that financial constraints prevented him from prudently fulfilling this dream.                                                                                                                                                                                                                                                                                                                                                                   



                                                                    After the hearing the superior court denied Jolene's motion.                                                                                                                                                                                                                                                  Although the   



court   acknowledged   that   "[Jolene]    is  finding   sort   of   a   spiritual   awakening   or  



reconnecting with Native dance, Native culture, [and] subsistence lifestyle" and that life                                                                                                                                                                                                                                                                                                                                            



(...continued)  

 separate relationship.  

                                                                                                             



                                                                                                                                                                                                                     -3-                                                                                                                                                                                                                              7074  


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

in Stebbins is "rehabilitative for her," it concluded: "[G]iven [Jolene's] background and                                                                                             



her previous earnings I do not agree that . . . she does not have any income capacity                                                                                      



simply because she chose to relocate to the village of Stebbins and earn nothing . . . ."                                                                                                      



                                 3  

Jolene appeals.                      



III.           STANDARD OF REVIEW  

                                                        



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

                                                                                                                                                                                  

support orders."4  

                                                                                                                                                                                         

                                         "We review an award of child support, including a modification to  



                                                                                               5  

                                                                                                                                                                                        

such an award, for abuse of discretion . . . ."                                                    "A superior court abuses its discretion by  



                                                                                                                                                                           

making a decision that is arbitrary, capricious, manifestly unreasonable, or . . . stem[s]  



                                                            6  

                                                                                                                                                                       

from an improper motive."                                        "We use the clearly erroneous standard when reviewing  



                                                                                                                          

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

                                                                           7  Factual findings "are clearly erroneous when, 'after  

                                                                                                                                                                                  

and voluntary underemployment." 



reviewing the record as a whole, [we are] left with a definite and firm conviction that a  

                                                                                                                                                                                           



               3  

                             Jyzyk did not participate in this appeal.                             

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

                                                                                                                                                                                         

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

                                                                                            



               5  

                                                                                                                                     

                             Swaney v. Granger, 297 P.3d 132, 136 (Alaska 2013).  



               6  

                                                                                                                                                                             

                             Morris v. Horn , 219 P.3d 198, 203-04 (Alaska 2009) (alterations in original)  

                                                                                                                                                                         

(quoting Collins v. Arctic Builders, 957 P.2d 980, 981 (Alaska 1998) (internal quotation  

               

marks omitted)).  



               7  

                                                                                                                                                                                               

                              Wilhour v. Wilhour, 308 P.3d 884, 887 (Alaska 2013) (footnotes omitted).  



                                                                                           -4-                                                                                    7074
  


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

                                             8  

                                                We review the superior court's interpretation of the civil                              

mistake has been made.' " 



        9                                               10  

rules                                                             

           and the Alaska Constitution                      de novo.  



IV.	       DISCUSSION  



                                                                                                                                           

           A.	        The Superior Court Properly Considered The Financial Impact Of  

                                                                                                                           

                      Jolene's Decision To  Move To Stebbins And Adopt A Subsistence  

                                                      

                      Lifestyle On Her Child.  



                                                                                                                                            

                      Jolene argues that it was an abuse of discretion to deny her motion to  



                                                                                                                                           

modify the child support order. In particular, she argues that it was unreasonable for the  



                                                                                                                                       

superior court "to direct nearly total focus on [her] past income history and ignore other  



                                                                                                                                         

important factors," including the burden of the child support obligation on her free  



                                                                                                                                  

exercise of religion and the ameliorative effect of a subsistence lifestyle on her struggle  



                        

with alcohol.  



                                                                                                                         

                      When one parent takes primary physical custody of a child after divorce,  



                                                                                                                                    

the non-custodial parent is required to pay child support "equal to the adjusted annual  



                                                                                                                      11  

                                                                                                                                           

income of the non-custodial parent multiplied by"aspecified percentage.                                                  Although the  



                                                                                                                                  12  

                                                                                                                                      

"adjusted annual income"istypicallycalculated using theparent'sactual income,                                                        under  



                                                                                                                                             

Alaska  Civil  Rule  90.3(a)(4)  "[t]he  court  may  calculate  child  support  based  on  a  



                                                                        

determination of the potential income of a parent who voluntarily and unreasonably is  



                                                                                                                                  

unemployed or underemployed."  "Potential income will be based upon the parent's  



           8          Bennett  v.  Bennett ,  6  P.3d  724,  726  (Alaska  2000)  (quoting  Marine  v.  



Marine ,  957  P.2d  314,  316  (Alaska   1998)).  



           9  

                       Wolff  v.  Cunningham,   187  P.3d  479,  482  (Alaska  2008).  



            10  

                                                                                                                               

                      Glover v. State, Dep't of Transp., 175 P.3d  1240, 1245 (Alaska 2008).  



           11             Alaska  R.  Civ.  P.  90.3(a).   The  percentage  varies  according  to  the  number  



of  children  the  parties  have.   Alaska  R.  Civ.  P.  90.3(a)(2).  



           12         See  Alaska  R.  Civ.  P.  90.3(a)(1).  



                                                                     -5-	                                                             7074
  


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

                                                                                                  13  

work history, qualifications, and job opportunities."                                                  As we have noted, the aim of                         



Alaska Civil Rule 90.3(a)(4) "is to give courts                                      broad discretion               to impute income based            



on   realistic   estimates   of   earning   potential   in   cases   of   voluntary   and  unreasonable  

unemployment or underemployment."                                      14  



                         Jolene conceded that she was voluntarily unemployed. Therefore, the only  

                                                                                                                                                        



issue at the hearing was whether her decision to be unemployed was unreasonable.  The  

                                                                                                                                                         



superior court concluded that it was.  

                                                                     



                         In  determining  whether  a  parent  is  "unreasonably"  unemployed,  the  

                                                                                                                                                         



superior court must look to the totality of the circumstances, including "such factors as  

                                                                                                                                                            



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 needs, and the parents'  

                                                                                                                                                 

                                                      15   But "[b]ecause of the significance of a parent's duty to  

needs and financial abilities."                                                                                                                              

                                     



meet his or her child support obligations, we prioritize fulfillment of that duty over even  

                                                                                                                                                       

                                                                                                                                  16   And we have  

legitimate decisions to be voluntarily unemployed or underemployed."                                                                                   

                                                                                                   



consistently recognized that, when a child support obligor makes a career change for  

                                                                                                                                                          



            13  

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



            14  

                                                                                                                                              

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

added).  



            15  

                                                                                                                                                

                         Sawicki  v.  Haxby,  186  P.3d  546,  550  (Alaska  2008)  (citations  omitted)  

                                                

(internal quotation marks omitted).  



            16  

                                                                                                                                               

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

                                                                                                                                                            

marks  omitted);  see  also  id.  ("[A]  parent  should  not  be  relieved  of  the  obligation  to  

                                                                                                                                            

support his or her children except under the most extreme circumstances.").  



                                                                             -6-                                                                      7074
  


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

personal reasons, the superior court should consider the financial impact of this decision                                                                                            

on the child.                17  



                               In Pattee v. Pattee, our first case considering imputed income, the non- 

                                                                                                                                                                                              



custodial parent quit his job at a bar in Anchorage and moved to Washington to enroll  

                                                                                                                                                                                      

in Tacoma Community College.18  We rejected the notion that a voluntary career change  

                                                                                                                                                                                         



should require an automatic reduction in child support:  

                                                                                                             



                               On the one hand, we do not believe that an obligor-parent  

                                                                                                                                        

                               should be "locked in" to a particular job or field during the  

                                                                                                                                                                   

                               minority                 of       his         or        her         children                when             accepting                  a  

                                                                                                                                                                    

                               lower-paying position may ultimately result in personal or  

                                                                                                                                                                     

                               professional advancement. On the other hand, the children of  

                                                                                                                                                                      

                               the marriage and the custodial parent should not be forced to  

                                                                                                                                                                      

                               finance the noncustodial parent's career change.  We believe  

                                                                                                                                                          

                               that the better rule is that stated by the Montana Supreme  

                                                                                                                                                     

                               Court: "[T]he judge [is] to consider the nature of the changes  

                                                                                                                                                        

                               and  the  reasons  for  the  changes,  and  then  to  determine  

                                                                                                                                                  

                               whether,  under  all  the  circumstances,  a  modification  is  

                                                                                                                                                                     

                               warranted."[19]  



                17              See, e.g.          ,  Richardson v. Kohlin                            , 175 P.3d 43, 48-49 (Alaska 2008) ("When                                        



a parent is seeking a modification of support due to a change in employment the court                                                                                                        

should   consider   'the   extent   to   which   the   children   will   ultimately   benefit   from   the  

change.' " (quoting Alaska R. Civ. P. 90.3 cmt. III.C));                                                                     Dunn v. Dunn                    , 952 P.2d 268, 270                 

(Alaska 1998) ("When determining the potential income of the obligor parent, the trial                                                                                                          

court must also balance                                   the needs of the dependent children                                                   against the needs of the                          

obligor for a career change." (Emphasis added.)).                                                                   



                18  

                                                                                                                                                                                                   

                               744 P.2d 658, 659 (Alaska 1987), overruled on other grounds by Nass v.  

                                                                       

Seaton, 904 P.2d 412 (Alaska 1995).  



                19  

                                                                                                                                    

                               Id . at 662 (alterations in original) (citations omitted).  



                                                                                                 -7-                                                                                         7074
  


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

We remanded the case to allow the trial court to examine the reasons for the father's                                                         

unemployment and establish an appropriate child support obligation.                                                         20  



                        The foregoing quote recognizes that a child support obligor should not be  

                                                                                                                                                        



"locked in" to a particular career.  But this language is in a sentence that implies that a  

                                                                                                                                                          



career changemust be supported by a"lower-paying position"thatwill"ultimately result  

                                                                                                                                                   



in personal or professional advancement."  And this sentiment is immediately followed  

                                                                                                                                            



by the observation that "the children . . . and the custodial parent should not be forced  

                                                                                         



to finance the noncustodial parent's career change."   Thus the financial impact of a  

                                                                                                                                                          



career change on the obligor's children has always been regarded as an important factor  

                                                                                                                                                  



when a trial court examines whether voluntary unemployment is reasonable.  

                                                                                                                      



                        A few years after the Pattee decision, we applied the same rationale to a  

                                                                                                                                                          



case where the child support obligor had moved from Alaska to El Paso, Texas to study  

                                                                                                                                                  

engineering.21  

                                                                                                                                                     

                            The obligor testified that he decided to change careers because he was  



                                                                                                                                                         22  

                                                                                                                                                              

" 'burned out' on fishing [his prior career] and wanted a safer, less strenuous career." 



The trial court commended the obligor's pursuit of further education but noted that his  

                                                                                                                                                       



plan to enroll as a part-time student and to work as a part-time welder "is not completely  

                                                                                                                                        



realistic" because he could pursue his education while working as part-time fisherman  

                                                                                                                         

to fulfill his child support obligation.23                               The trial court imputed income to the obligor  

                                                                                                                                               



            20          Id .   



            21  

                                                                                                           

                        Pugil v. Cogar , 811 P.2d 1062, 1064 (Alaska 1991).  



            22          Id .  

                               



            23          Id . at 1064-66.  

                                   



                                                                           -8-                                                                     7074
  


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

based on his previous employment in Alaska as a welder and commercial fisherman                                                              



                                                                                                                                                   24  

rather than on his prospective earnings as a welder in El Paso, and we affirmed.                                                                       



                                                                                                                                                  

                         Similarly, in Olmstead v. Ziegler we considered the case of a child support  



                                                                                                                                                  25  

                                                                                                                                                         

obligor who left the practice of law and returned to school to become a teacher.                                                                        The  



                                                                                                                                                 

superior court concluded that it was unreasonable for the obligor "to train for a position  



                                                                                                                                                             26  

                                                                                                                                                                  

that is  less remunerative than that his current education and experience justifies." 



                                                                                                                                                          

Though  it  expressed  "[n]o  moral  criticism  of  [the  obligor's]  lifestyle  change,"  the  



                                                                                                                                                    

superior  court was unwilling to "shift any of the consequent burden [of the career  



                                                                                       27  

                                                                                                                                                   

change] to the narrow shoulders of [the] child."                                             We affirmed, noting that the obligor  



                                                                                                                                     28  

                                                                                                                           

had failed to demonstrate that his career change would benefit his child. 



                                                                                                                                                      

                         In recent cases, we have repeatedly stated that the "relevant inquiry" when  



                                                                                                                                              

imputing income is "whether a parent's current situation and earnings reflect a voluntary  



                                                                                                                                            29  

                                                                                                                                                           

and unreasonable decision to earn less than the parent is capable of earning."                                                                   And the  



                                                                                                                                                 

commentary toAlaskaCivilRule90.3 specifically requires the superior court to examine  



                                                                                                                                                    

the financial impact on the child in deciding whether to impute income: "When a parent  



                                                                                                                                                   

makes a career change, [the totality of the circumstances] consideration should include  



            24          Id .  at   1065-67.  



            25           42  P.3d   1102,   1103-04  (Alaska  2002).  



            26          Id .  at   1105.  



            27          Id .  



            28  

                                    

                        Id . at  1105-06.  



            29  

                                                                                                                                                             

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

                                                                                                                                                          

State, Dep't of Rev., Child Support Enforcement Div ., 99 P.3d 7, 1 1 (Alaska 2004)); see  

                                                                                                                                                         

also Mallory D. v. Malcolm D ., 309 P.3d 845, 849 (Alaska 2013);  Ward v.  Urling, 167  

                                                                                           

P.3d 48, 55 (Alaska 2007); Beaudoin , 24 P.3d at 528.  



                                                                             -9-                                                                      7074
  


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

                                                                                                                                            30  

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



implies that a court may consider the financial impact of a career change on a child,                                                                           



because the amount of child support inevitably affects the child's well-being.                                                                              



                           There    are    certainly    cases    where    we    have    affirmed   child    support  

                                                                                                                                                               31    But  

modifications when a career change was partly motivated by personal factors.                                                                                         



these cases simply illustrate that the superior court has a wide range of discretion when  

                                                                                                                                                                  



addressing this issue.   The fact that some cases have treated relocation decisions as  

                                                                                                                                                                        



reasonable does not free the superior court from the obligation to consider the financial  

                                                                                                                                                           



impact of a career change on the obligor's child.  Jolene does not cite any cases where  

                                                                                                                                                                 



we have held that the consideration of this impact was an abuse of discretion.  

                                                                                                                                                            



                           In this case, Jolene moved to Stebbins and adopted a subsistence lifestyle  

                                                                                                                                                             



without any intention of seeking employment to meet her child support obligation.  In  

                                                                                                                                                 



support of her request for reduction of her child support obligation, she specifically  

                                                                                                                                                     



stated that she had "no intention to return to the work force."  The record thus supports  

                                                                                                                                                            



the superior court's conclusion that Jolene's decision to leave her employment and move  

                                                                                                                                                                  



to Stebbins would have an unreasonable financial impact on the resources available to  

                                                                                                                                                                         



care for her daughter.  

                                             



                           The dissent argues  that when a court imputes income after an obligor  

                                                                                                                                                              



relocates, the reasonableness of the obligor's decision to relocate must be analyzed prior  

                                                                                                                                                                   



             30            Alaska R. Civ. P. 90.3 cmt. III.C (emphasis added).                                    



             31  

                                                                                                                                                               

                           See Wilhour v. Wilhour, 308 P.3d 884, 889 (Alaska 2013) ("[T]he fact  

                                                                                                                                                                  

that a parent voluntarily leaves a better-paying job in order to be closer to a child and  

                                                                                                                                       

share the child's custody should rarely weigh against that parent in determining  

                                                                                                                                                               

whether a reduction in child support is warranted."); Richardson v. Kohlin , 175 P.3d  

                                                                                                                                                                       

43, 49 (Alaska 2008) (noting that the obligor's desire to be closer to his family was a  

                                                                                                                              

legitimate reason for a move that caused the obligor to become underemployed).  

               



                                                                                  -10-                                                                            7074
  


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

to and separately from the reasonableness of the obligor's unemployment.                                                                                                                                                            It contends   



that once the decision to relocate is found reasonable, imputed income must be based on                                                                                                                                                                         



the obligor's new place of residence rather than former residence. The dissent concludes                                                                                                                                                  



that the trial court should have found Jolene's decision to move to Stebbins reasonable                                                                                                                                                



and erred in imputing Jolene's income based on her former job in Anchorage rather than                                                                                                                                                                     



her employment opportunities in Stebbins.                                                             



                                         As   the   dissent   recognizes,   neither   Rule   90.3(a)(4)   nor   Child   Support  



 Services Division regulations say anything "about considering the reasonableness of a                                                                                                                                                                              



parent's decision to relocate" prior to and separately from the reasonableness of the                                                                                                                                                                        

                                                                              32   And the cases upon which the dissent relies also do not  

obligor's unemployment.                                                                                                                                                                                                                                      



provide support for this contention.  Rather these cases demonstrate that the obligor's  

                                                                                                                                                                                                                   



reason for moving is simply one of the several factors courts may consider in deciding  

                                                                                                                                                                                                                                             

whether an obligor is unreasonably unemployed.33  

                                                                                                                                                            



                                         In  Richardson  v.  Kohlin,  contrary  to  the  dissent's  claim,  we  did  not  

                                                                                                                                                                                                                                                            



separately analyze the reasonableness of the obligor's move from the reasonableness of  

                                                                                                                                                                                                                                                                 

his underemployment.34                                                         Rather we affirmed the superior court's consideration of the  

                                                                                                                                                                                                                                                              

move's purpose as part of its totality of the circumstances analysis.35                                                                                                                                           Moreover, unlike  

                                                                                                                                                                                                                                                    



the present case, the obligor in Richardson actively sought employment in the Pacific  

                                                                                                                                                                                                                                                  



                    32                   Dissent at 24.                                                



                    33  

                                                                                                                                                                                                                                                          

                                         See  Alaska  R.  Civ.  P.  90.3  cmt.  III.C  (directing  courts  to  consider  "the  

                                                                                                                                                                                        

totality of the circumstances" in deciding whether to impute income).  



                    34  

                                                                             

                                         175 P.3d at 43.  



                    35  

                                                                                                                                                                                                                                     

                                         See             id.            at          48            ("The                  superior                        court                 found                  that              [the              obligor's]  

                                                                                                                                                                                                                                                               

underemployment was reasonable in light of the legitimate reasons for his move and his  

                                                                                                                                                   

diligent job search efforts." (Emphasis added.)).  



                                                                                                                              -11-                                                                                                                       7074
  


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

                                                                                                                         

Northwest after he was laid off from his job in Anchorage, a fact we found particularly  

salient.36  



                     In declining to impute income based on the obligor's income in Alaska, we  

                                                                                                                                       



repeatedly emphasized  the obligor's "diligen[t]" and "extensive attempts to find high- 

                                                                                                                                   

paying work in [his new location]."37   We lauded the trial court for giving "great weight  

                                                                                                                                 



to [the obligor's] efforts to find work, the fact that he was [currently] working full time,  

                                                                                                                                    



and  his  active  pursuit  of  higher  paying  work,"  and  we  noted  that  these  efforts  

                                                                                                                                

distinguished the case from cases in which we have upheld the imputation of income.38  

                                                                                                                                             



No such diligent efforts to find work are present in the case now before us.  In contrast,  

                                                                                                                              



as Jolene testified, she has not applied for any jobs in Stebbins and "ha[s] no intention  

                                                                                        



to return to the workforce."  

                                              



                      The dissent also relies on Petrilla v. Petrilla, but that case did not involve  

                                                                                                                                

a review of the superior court's decision to impute income.39  In Petrilla, after the obligor  

                                                                                                                                



moved from Alaska to Nevada and failed to find work, the superior court issued a  

                                                                                                                                         



modified child support order imputing income to the obligor based on his potential  

                                                                                                                             

income in Nevada.40   Neither party timely appealed that order.41   Rather the obligor then  

                                                                                                                                     



           36  

                     Id .  at  45.   



           37        Id . at 49.  

                                      



           38  

                     Id .  



           39  

                     See dissent at 26-28, 36, 41 & n.58 (citing Petrilla v. Petrilla , 305 P.3d  

                                                                                                                                

302 (Alaska 2013)).  

                                  



           40        Petrilla , 305 P.3d at 305.  

                                                                

            



           41        Id . at 306  ("Having elected to forgo a timely appeal of the  [child support  

                                                                                                                               

order imputing income], [the obligor] cannot challenge that order now in the context  

                                                                                                                            

of an appeal of the denial of modification." (Citation omitted.)).  

                                                                                                        



                                                                  -12-                                                             7074
  


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

found a job that paid less than the imputed income estimate and then moved to modify                                                            



                                                                                                             42  

the post-relocation support order to reflect his actual income.                                                                                     

                                                                                                                  After the superior court  



                                                                         43  

                                                         

denied his request, the obligor appealed. 



                                                                                                                                                 

                        On appeal we recognized that, because the obligor did not file a timely  



                                                                                                                                                 

appeal of the superior court's decision to impute income, the obligor could no longer  

                                            44    Thus the sole issue before us in Petrilla  was whether the  

                                                                                                                                                       

challenge that decision. 



superior court should have modified the support order to reflect the obligor's actual  

                                                                                                                                                  



rather than imputed salary.  Petrilla is not applicable to the case before us now.  The  

                                                                                                                                                      



issue here is whether the superior court should have modified Jolene's support order,  

                                                                                                                                                  



which was issued before Jolene moved and based on her actual income in Anchorage,  

                                                                                            



to reflect her post-relocation circumstances.  Unlike Petrilla, here we do not consider  

                                                                                                                                             



whether the superior court should have modified an imputed support order that was  

                                                                                                                                                      



issued after the obligor relocated.  

                                            

                                                                                                                                     45   Similar  to  

                        The  dissent  also  misunderstands  our  decision  in  Sawicki.                                                                  

                                                                                                                      



Petrilla, in Sawicki we considered a child support order that the superior court issued  

                                                                                                                                                  

after the obligor relocated to Indiana to take a new job.46                                             When the obligor voluntarily  

                                                                                                                                         



left her new job for a lower-paying job, she asked the court to modify the order, but the  

                                                                                                                                                        

court declined to do so.47  Thus on appeal we considered whether the obligor was entitled  

                                                                                                                                                



             42  

                        Id . at 305.  

                                            



             43  

                        Id . at 305, 308-09.  

                                            



             44  

                        Id . at 306.  

                                            



             45         See dissent at 40 (citing Sawicki v. Haxby, 186 P.3d 546 (Alaska 2008)).  

                                                                                                                                              



             46         See Sawicki, 186 P.3d at 547.  

                                                                                

            



           47           Id .  



                                                                           -13-                                                                    7074
  


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

                                                                                                                                                             48  

to a reduction in child support based on her voluntary change in employment.                                                                                      The  



reasonableness   of   her   move   from   Alaska   to   Indiana   was   not   at   issue   because   the  



challenged child support order postdated that move.                                        



                           The dissent also draws support fromour                                        Moeller-Prokosch  line of cases for                           



its   contention   that   the   reasonableness   of   an   obligor's   decision   to   relocate   must   be  

                                                                                                                                                        49   Yet the  

considered separately from and prior to the reasonableness of unemployment.                                                                                           



Moeller-Prokosch cases do not lend such support because they consider child custody  

                                                  



in light of a custodial parent's decision to relocate, not child support obligations when  

                                                                                                                                                                 



a non-custodial parent decides to relocate.  These two issues - child custody and child  

                                                                                                                                                                  



support - have distinct considerations and courts accordingly analyze them differently.  

                                                                                                                                                      



                           In making custody determinations courts must apply the best interests of  

                                                                                                                                                      

the child analysis.50                    When a custodial parent seeks to relocate with the child, the court  

                                                                                                                                                                  



must analyze the reasonableness of the relocation decision to ascertain whether the move  

                                                                                                                                                                 



has illegitimate motives, such as a desire to prevent contact between the child and the  

                                                                                                                                                                      

non-custodial parent.51  If the court finds such illegitimate motives, it must consider them  

                                                                                                                                                                  



           48              See id      .   



              49  

                                                                                     

                           See  dissent at 24 n.9 (citing Moeller-Prokosch v. Prokosch (Moeller I)                                                                        ,  

27 P.3d 314 (Alaska 2001), and  

                                                              Moeller-Prokosch v. Prokosch                                 (Moeller  II), 53 P.3d 152                

(Alaska 2002)).   



              50  

                                   

                           AS 25.24.150(c).  



              51  

                                                                             

                           See Moeller I, 27 P.3d at 316.  



                                                                                  -14-                                                                           7074
  


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

                                                                           52  

in its best interests of the child analysis.                                    If not, the court cannot hold the parent's                    

decision to relocate against the parent when determining custody.                                                      53  



                        In contrast, when calculating child support courts do not conduct a best  

                                                                                                                                                     



interests of the child analysis. Rather the non-custodial parent's child support obligation  

                                                                                                                                           



is based on a statutorily prescribed percentage of their actual or imputed annual income,  

                                                                                                                                               

as mandated by court rule.54                         Thus while the Moeller-Prokosch cases do require courts  

                                                                                                                                                  



to consider whether a parent's decision to relocate is reasonable in custody cases, this  

                                                                                                                                                       



requirement is inapplicable to child support determinations.  

                                                                                                              



                        The dissent also argues that imputing income based on a non-custodial  

                                                                                                                                    



parent's job in a prior place of residence produces an asymmetry with the custodial  

                                                                                                                                            



parent's "absolute right to  change  careers, take a lower-paying job, . . . quit work  

                                                                                                                                                   



altogether[,  or]  perhaps  even  .  .  .  move  to  another  geographic  location  with  the  

                                                                                                                                                       

children."55            But this "absolute right" of the custodial parent exists only in theory, as  

                                                                                                                                                         



demonstrated by Jyzyk's testimony that "in a dream world" he would move back to his  

                                                                                                                                                        



Native village with his daughter but "finances" prevented him from doing so.  Contrary  

                                                                                                                                             



to the dissent's claim, custodial parents do not possess any such "absolute freedom" -  

                                                                                                                                                         

their child's needs constrain their actions.56                                   Further, Jolene's decision to exercise her  

                                                                                                                                                       



           52           See id     .  



            53  

                                                                        

                        See Moeller II , 53 P.3d at  155.  



            54  

                        Alaska  R.  Civ.  P.  90.3.   



            55          Dissent at 42.  

                                            



            56          See  Rego  v.  Rego,  259  P.3d  447,  451-52,  455-57  (Alaska  2011)  (upholding  



a  decision,  based  on  the  best  interests  of  the  child  analysis,  that  forced  a  custodial  father  

to  choose  between  remaining  in  Alaska  and  retaining  custody  of  his  child  or  relocating  

to  New  Jersey,  as  planned,  and  losing  custody).   Contrary  to  the  dissent's  interpretation,  

                                                                                                                                     (continued...)  



                                                                           -15-                                                                    7074
  


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

freedom to move restricts Jyzyk's freedom to do the same. While the dissent argues that                                                                                          



our decision "effectively order[s] where a non-custodial parent must live and what                                                                                           

                                                                        57 it fails to recognize that its preferred outcome would  

specific job that parent must hold,"                                                                                                                                       



have the same limiting effect on the custodial parent, and consequently the child.  

                                                                                                                                                                 



              B.	            The Superior Court Adequately Considered Jolene's Religious And  

                                                                                                                                                                              

                             Cultural Needs.  

                                                  



                            Jolene argues that the superior court "direct[ed] nearly total focus on [her]  

                                                                                                                                                                              



past income history" and gave short shrift to Jolene's religious and cultural needs.  It is  

                                                                                                                                                                                     



true that "the parents' needs" is one of the factors the superior court must consider in  

                                                                                                                                                                                    

evaluating the totality of the circumstances.58  

                                                                                                                                                                 

                                                                                                      But the superior court did adequately  



                                                                                                                                                                                 

consider Jolene's needs, and after considering these needs it found that they did not  



                                                                                                                                                    

outweigh other concerns, including her daughter's need for financial support:  



                                                                                                                                

                             [Jolene] finds that [living in Stebbins] is sort of rehabilitative  

                                                                                                                                                      

                             for her from the standpoint of her eliminating . . . some of the  

                                                                                                                                         

                            poisons of urban life. . . .  She is finding sort of a spiritual  

                                                                                                                                             

                            reawakening  or  reconnecting  with  Native  dance,  Native  

                                                                                                                                                        

                             culture, subsistence lifestyle, all of which is . . . admirable in  

                                                                   

                             an abstract sense.  



(...continued)  

we   do   seriously   consider   the   right   to   relocate   -   in  the   context   of   the   applicable  

framework.   See id                    . at 456 ("A parent's decision to relocate . . . changes the best interests                                                     

calculus."); dissent at 24 & n.9, 42 & n.63.                                                But, as we explained in                           Rego, "[t]he               chance  

that the superior court's decision will influence [a custodial parent's] decision to move  

                                                                                                                                                                             

does not justify reversing the superior court's order."  

                                                                                                               259 P.3d            at 456. Custody and child                  

support orders may force parents, custodial and non-custodial alike, to make difficult                                                                                 

decisions.  



             57  

                                                   

                            Dissent at 42.  



             58  

                                                                                                                              

                            Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008).  



                                                                                        -16-	                                                                                7074
  


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

                                                                                                    Then again . . . she effectively is . . . taking a vacation                                                                                                                                                              

                                                                   from the financial responsibilities that she assumed when she                                                                                                                                                                                                                            

                                                                   had a child, and the result of her not working and providing                                                                                                                                                                                            

                                                                   financial assistance is that it's going to impose . . . a greater                                                                                                                                                                                                

                                                                  burden on [Jyzyk], but, more importantly, it's going to have                                                                                                                                                                                                                       

                                                                   an impact over time on the opportunities . . . and resources                                                                                                                                                                                            

                                                                   that are available to take care of [the parties' daughter].                                                                                                                                                                     



                                                                                                    Now, I don't know whether it's realistic to continue                                                                                                                                                                        

                                                                   child   support   at   [$]120,000   a   year,   .   .   .   but   given   her  

                                                                  background and her previous earnings I do not agree that it                                                                                                                                                                                                                                        

                                                                   should be that she does not have any income capacity simply                                                                                                                                                                                                            

                                                                  because she chose to relocate to the village of Stebbins and                                                                                                                                                                                                                            

                                                                   earn nothing . . . .                                                   



                                                                                                     . . . .  



                                                                                                     . . .  I do find it a difficult choice in this case because  

                                                                    [Jolene] does seem to derive some very valid benefits from                                                                                                                                                                                                                     

                                                                  being in Stebbins, and I'm sure that for the summers [her                                                                                                                                                                                                                            

                                                                   daughter] derives some benefits there, too, but then there's                                                                                                                                                                                                          

                                                                   the other nine months of the year when [the parties' daughter]                                                                                                                                                                                            

                                                                   lives in Anchorage and she'd be getting $50 a month, if that,                                                                                                                                                                                                                       

                                                                   instead of . . . $1500 a month, which could go a long way                                                                                                                                                                                                                           

                                                                   toward   providing   for   necessities   and  also   toward   .   .   .  

                                                                  providing for her future needs, educational needs, and to help                                                                                                                                                                                                                       

                                                                   give her a good start in life.                                                                                                             



                                                                   The   record   thus   reflects   that   the   superior   court   adequately   considered  



Jolene's   personal   needs   when   it   determined  that  her   voluntary   unemployment   was  

unreasonable.59  



                                 59                                 Jolene   also   argues   that,   "because   this   case   involves   a   choice   made   on  



cultural and religious grounds - a choice protected by the free exercise clause of the                                                                                                                                                                                                                                                                                                                                         

Alaska Constitution, . . . a higher standard should be required to show that her decision                                                                                                                                                                                                                                                                                                            

was unreasonable under the circumstances."  But she does not cite any cases to support                                                                                                                                                                                                                                                    

the proposition that a totality                                                                                                                       of the circumstances test should                                                                                                                                        give special weight to                                                                                

religious concerns.                                                                            Jolene's religious rights are more appropriately addressed through a                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                                                                                                                                              (continued...)  



                                                                                                                                                                                                              -17-                                                                                                                                                                                                     7074
  


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

                     Despite   this   consideration,   the   dissent   worries   that   the   superior   court  



                                                                    60  

"trivialize[s] Alaska Natives' way of life"                                                                                

                                                                        and "devalues Alaska Natives' cultural,  

                                                                                                                              61  Yet  

                                                                                                                                    

                                                                                                                

spiritual, and religious connections to their villagesand their subsistence lifestyle." 



in reality the dissent's desired outcome would have enormous financial implications for  

                                                                                                                                    



Alaska Native children.   "The primary purpose of Rule 90.3 is to ensure that child  

                                                                                                                                



support orders are adequate to meet the needs of children, subject to the ability of parents  

                                                                                                                              

to  pay."62         Granting  either  parent  absolute  freedom  to  exit  the  workforce  would  

                                                                                                                              



undermine this purpose.  

                         



           C.	       There  Was  No  Plain  Error  In  The  Superior  Court's  Failure  To  

                                                                                                                                   

                     Address Jolene's Free Exercise Claim Sua Sponte.  

                                                                                             



                     Jolene argues that the child support order burdens her right to the free  

                                                                                                                                  



exercise of her religion under the Alaska Constitution because it effectively requires her  

                                                                                                                                    



to abandon her Native religious and cultural heritage and maintain a stressful job in  

                                                                                                                                     



Anchorage. She argues that the superior court abused its discretion by failing to address  

                                                                                                                             



this undue burden on her religious practice.  

                                                                      



                     The Alaska Constitution provides that "[n]o law shall be made respecting  

                                                                                                                         

an establishment of religion, or prohibiting the free exercise thereof."63  

                                                                                                                           

                                                                                                                      A person's  



                                                                                                                                   

conduct is protected by the Free Exercise Clause if (1) "a religion is involved, the  



                                                                                                                           

conduct in question is religiously based, and the [person] is sincere in his or her religious  



(...continued)
  

separate  free  exercise  claim,  which  we  consider  next.
   



           60  

                     Dissent  at  33.  



           61  

                     Dissent  at  44.  



           62        Alaska  R.  Civ.  P.  90.3  cmt.I.B.  



           63        Alaska  Const.  art.  I,     4.  



                                                                 -18-	                                                          7074
  


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

belief";   and (2) "the conduct poses . . . [no] substantial threat to public safety, peace or                                                                                                                                   



order," and "there are [no] competing governmental interests that are of the highest order                                                                                                                               

and are not otherwise served."                                                   64  



                                                                                                                                                                                                                        

                                    Jolene never argued before the superior court that the child support order  



                                                                                                                                                                                                                           

should be modified because the existing order infringes her freedom of religion.  Her  



                                                                                                                                                                                                                

motion to modify child support did not mention the Alaska Constitution's Free Exercise  



                                                                                                                                                                                                                 

Clause.                   And  although  she  testified  at  the  hearing  about  her  spiritual  and  cultural  



                                                                                                                                                                                                                        

connections to life in Stebbins and the religious character of Eskimo dancing, she never  



                                                                                                                                                                                                                       

invoked  the  Alaska  Constitution  or  otherwise  argued  that  the  child  support  order  



                                                                                                                                                                                                                           

burdened her Native religious practices.  Therefore, Jolene's free exercise claim was  



                                                                                                                                                                                                            65  

                                                                                                                                                                                               

never considered by the superior court, and we review it for plain error only. 



                                   Although  Jolene  presented  ample  testimony  at  the  hearing  about  her  

                                                                                                                                                                                                                            



subsistence lifestyle and the benefits she obtains from living in Stebbins, her testimony  

                                                                                                                                                                                                            



did not focus on whether her decision to move to Stebbins was motivated by religious  

                                                                                                                                                                          

belief, whether her alleged religious beliefs were sincere,66   or whether her religious  

                                                                                                                                                                                                              



exercise would have been burdened had she remained in Anchorage and continued to  

                                                                                                                                                                                                                                 



                  64               Larson   v.   Cooper ,   90   P.3d   125,   131   (Alaska   2004)   (alteration   omitted)  



(internal quotation marks omitted).                                  



                  65               See David S. v. State, Dep't of Health & Soc. Servs., 270 P.3d 767, 774  

                                                                                                                                                                                                                            

(Alaska  2012).                              Plain  error  "exists  where  an  obvious  mistake  has  been  made  which  

                                                                                                                                                                                                                     

creates a high likelihood that injustice has resulted."  

                                                                                                                                            Id. (quoting  D.J. v. P.C., 36 P.3d   

663, 668 (Alaska 2001)) (internal quotation marks omitted).                                                                             



                  66                Jolene represents that the superior court said it "had no reason to question                                                                                                



her sincerity."                         But the court merely noted: "I don't question . . . your sincerity and . . .                                                                                                              

the value you place in reconnecting with [your] . . . Native and historical . . . cultural . .                                                                                                                                     

. roots . . . ."                   The court expressed no opinion about Jolene's                                                                                religious beliefs                           .  



                                                                                                              -19-                                                                                                       7074
  


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

                                                                                                       67  

work for Alyeska                                                                                                or sought employment in Stebbins. Without being presented with                                                                                                                                                                                                                                                                                                    



evidence and argument about these key questions, the superior court did not make an                                                                                                                                                                                                                                                                                                                                                                                                          



obvious mistake in failing to address the free exercise issue sua sponte.                                                                                                                                                                                                                                                                                                                                         And even if the                                                          



court had anticipated Jolene's free exercise claim, it could not have evaluated the merits                                                                                                                                                                                                                                                                                                                                                                               



of the claim using only the evidence elicited at the hearing.                                                                                                                                                                                                                                                                                 We conclude that there was                                                                                                              



no plain error in the superior court's failure to address Jolene's free exercise claim.                                                                                                                                                                                                                                                                                                                                                               



V.                                     CONCLUSION  



                                                                            The judgment of the superior court is AFFIRMED.                                                                                                                                                                        



                                              67                            For example, Jolene testified that when she lived in Anchorage, although                                                                                                                                                                                                                                                                                                      



 she was "weather-bound" there for "a couple years,"                                                                                                                                                                                                                                                  she would travel to Stebbins "every                                                                                                                              

February/March   to   come   to   the   potlatch,"   and   that   she   "came   [to   Stebbins]   every  

opportunity [she and members of her family] knew that there was going to be Eskimo                                                                                                                                                                                                                                                                                                                                                                              

dancing."  



                                                                                                                                                                                                                                            -20-                                                                                                                                                                                                                                  7074
  


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

                                 

STOWERS, Justice, dissenting.  



                                                                                                                               

                    I join in that part of Justice Winfree's dissent that would remand to the  



                                                                                                                              

superior court to reconsider the issues of (1) the legitimacy of the mother's move and  



                                                                                                                  

(2)thevoluntary unemployment analysis, which shouldinstead focus on heremployment  



                                                                                                                               

opportunities in Stebbins. However, I disagree to the extent the dissent suggests that the  



                                                                                        

mother may have a valid Free Exercise of religion claim.  The mother's claim that she  



                                                                                                  

wishes  to  move  to  a  place  because  that  place  enhances  her  cultural  and  spiritual  



                                                                                                                       

experience is, in my judgment, fairly conclusory and insufficient to state a Free Exercise  



                                                                                                                           

claim.  I particularly find this to be the case because the mother failed to mention, much  



                                                                                                                               

less argue the applicability of, the Free Exercise clause before the trial court.  Were the  



                                                                                                                             

case to be remanded for further proceedings, the mother of course could make a Free  



                                                                                          

Exercise claim and seek to admit evidence in support of it.  



                                                              -21-                                                         7074
  


----------------------- Page 22-----------------------

WINFREE, Justice, dissenting.                                                                                     



                                                                            I respectfully disagree with today's decision affirming the superior court's                                                                                                                                                                                                                                                                                                          



 denial of Jolene Lyon's motion to modify her child support obligation.                                                                                                                                                                                                                                                                                                                                                      In my view:                                



 (1) it was clearly erroneous to find Jolene's move to Stebbins unreasonable; (2) it was                                                                                                                                                                                                                                                                                                                                                           



legal error to conflate the reasonableness of Jolene's relocation to Stebbins with the                                                                                                                                                                                                                                                                                                                                                                                                



reasonableness of her unemployment in Stebbins; (3) there was an insufficient factual                                                                                                                                                                                                                                                                                                                                                                             



basis to support a finding that Jolene was unreasonably unemployed in Stebbins; (4) it                                                                                                                                                                                                                                                                                                                                                                                                           



was an abuse of discretion not to consider all the required factors when determining                                                                                                                                                                                                                                                                                                                                               



whether   Jolene   is   unreasonably   unemployed;   and   (5)   it   was   clearly   erroneous   to  



 determine that Jolene could reasonably continue to earn $120,000 annually, whether in                                                                                                                                                                                                                                                                                                                                                                                                        

                                                                                                                                                    1   The reasons behind Jolene's move to Stebbins are far more  

Anchorage or in Stebbins.                                                                                                                                                                                                                                                                                                                                                                                                                                                   



 compelling - certainly not less compelling - than parental moves found reasonable in  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



                                      1                                     I believe the standards of review applicable to this case are as follows:                                                                                                                                                                                                                                                                                                                                                          



Whether a substantial change of circumstances has occurred to allow consideration of                                                                                                                                                                                                                                                                                                                                                                                                         

 child support modification is a question of law.                                                                                                                                                                                                                                 See Bagby v. Bagby                                                                                                        , 250 P.3d 1127,                                            

  1128 (Alaska 2011);                                                                                                   see also                                           Alaska R. Civ. P. 90.3(h)(1) (allowing modification of                                                                                                                                                                                                                                                           

 child support "upon a showing of a material                                                                                                                                                                                                                                   change of circumstances" and setting                                                                                                                                              

presumption of a material change of circumstances if new financial situation would lead                                                                                                                                                                                                                                                                                                                                                                                           

to more than a 15% change in support). Whether a parent's relocation is for a legitimate                                                                                                                                                                                                                                                                                                                                                  

reason is a question of fact reviewed for clear error.                                                                                                                                                                                                                                            Cf. Richardson v. Kohlin                                                                                                                         , 175 P.3d                   

43, 49-50 (Alaska 2008) (affirming factual finding that father's move was for legitimate                                                                                                                                                                                                                                                                                                                                                         

purpose).   Whether a parent is voluntarily and unreasonably unemployed are questions                                                                                                                                                                                                                                                                                                                                                              

 of fact reviewed for clear error.                                                                                                                                                         See Reilly v. Northrop                                                                                                                   , 314 P.3d 1206, 1212, 1216                                                                                                            

 (Alaska   2013)  ("The   factual   findings   .   .   .   that   [the   father]   was   voluntarily   and  

unreasonably   underemployed   are   supported  by  the   record   and   are   not   clearly  

 erroneous."). Courts have broad discretion in deciding whether to modify child support                                                                                                                                                                                                                                                                                                                                                                        

 and whether to impute income,                                                                                                                                                           see id.                                    at 1212, but "[s]ufficent factual findings are                                                                                                                                                                                                    

required for imputing . . . or declining to impute income."                                                                                                                                                                                                                                                                             Richardson, 175 P.3d at 48.                                                                                                                                            

The calculation of imputed income is a question of fact reviewed for clear error.                                                                                                                                                                                                                                                                                                                                                                                 Reilly,  

 314 P.3d at 1212 & n.7.                                                                                         



                                                                                                                                                                                                                                          -22-                                                                                                                                                                                                                                 7074
  


----------------------- Page 23-----------------------

prior cases, and in those prior cases the parent's imputed income, if any, was determined                                                                                                                                       



by employment opportunities in the new location, not the old location. Accordingly the                                                                                                                                                                  



 superior court should have focused on Jolene's employment opportunities in Stebbins.                                                                                                                                                                               



I would remand for further proceedings to determine whether Jolene is unreasonably                                                                                                                                      



unemployedbased on her overall circumstances in Stebbins,taking                                                                                                                                    into account Jolene's  



Free Exercise argument.                    



                                        Alaska Civil Rule 90.3(a)(4) permits a court to impute income when a                                                                                                                                                 



parent "voluntarily and unreasonably is unemployed or underemployed."                                                                                                                                                        In deciding  



whether a parent is unreasonably unemployed, the court must evaluate all of the parent's                                                                                                                                                 

                                            2     If the court decides to impute income to a parent, the rule requires the  

circumstances.                                                                                                                                                                                                                                          



court to consider "the parent's work history, qualifications, and job opportunities," as  

                                                                                                                                                                                                                                                          

well as potential income from existing assets.3   Child Support Services Division (CSSD)  

                                                                                                                                                                                                                                          

regulations about voluntary and unreasonable unemployment echo Rule 90.3(a)(4),4 but  

                                                                                                                                                                                                                                                        



more specifically require CSSD to consider "the parent's . . . job opportunities in the  

                                                                                                                                                                                                                                                       

area where the parent physically resides" when determining imputed income.5                                                                                                                                                                          The  

                                                                                                                                                                                                                                                   



regulations also provide that "if a parent makes a career change, the agency will consider  

                                                                                                                                                                                                                                        



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



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



                    3                   AlaskaR. Civ. P. 90.3(a)(4); O'Connellv. Christenson,75 P.3d 1037, 1041  

                                                                                                                                                                                                                                                   

(Alaska 2003).  See also Horne v. Touhakis, 356 P.3d 280, 284 (Alaska 2015) (noting  

                                                                                                                                                                  

lack of specific findings to support income imputation order and directing superior court  

                                                                                                                                                                                                                                                  

to make findings on "the four factors enumerated in Rule 90.3(a)(4))");  Gonzalez v.  

                                                                                                                                                                                                                                                           

Bernal, No. S-12784, 2009 WL 1039846, at *2 (Alaska Apr. 15, 2009) (reversing  

                                                                                                                                                                                                                                  

 superior court order imputing income to parent because court did not make "a more  

                                                                                                                                                                                                                                                 

 specific inquiry into her actual present ability to earn" the amount of imputed income).  

                                                                                                                                                                                                                                      



                    4                    15 Alaska Administrative Code (AAC) 125.060(a) (2013).  

                                                                                                                                                                                                 



                    5                    15 AAC 125.020(b) (emphasis added).  

                                                                                                                                      



                                                                                                                           -23-                                                                                                                   7074
  


----------------------- Page 24-----------------------

                                                                                                                                                       6  

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



CSSD permits a parent to request that an order to withhold and deliver be modified based                                                                                  



on hardship when the obligor parent "                                              lives a subsistence life style without any local                                        

opportunity for employment                                 ."7  



                            Rule 90.3(a)(4) says nothing about considering the reasonableness of a  

                                                                                                                                                                                   

parent's decision to relocate, nor do CSSD's regulations.8  

                                                                                                                         But our case law reflects that  

                                                                                                                                                                              



the  reasonableness  of  a  move  is  considered  separately  from  the  reasonableness  of  

                                                                                                                                                                                



unemployment, and that once a relocation decision is determined legitimate - i.e.,  

                                                                                                                                                                             



reasonable - the parent's imputed or actual income is evaluated in the context of the  

                                                                                                                                                                               

new location, not the old location.9  This case law is consistent with the CSSD regulation,  

                                                                                                                                                               



              6              15 AAC 125.060(c);                          accord  Alaska R. Civ. P. 90.3 cmt. III.C;                                                see also   



Richardson, 175                    P.3dat 49(discussing                         superior court'sfindings regardingparent'smove                                             

outside of Alaska and potential benefits for child despite 40% decrease in child support).                                                                         



              7              15 AAC 125.550(a), (b)(5) (emphasis added).  

                                                                                                             



              8             See Alaska R. Civ. P. 90.3(a)(4); 15 AAC 125.010-.900 (2015).  

                                                                                                                                                   



              9             See Petrilla v. Petrilla, 305 P.3d 302, 307-08 (Alaska 2013) (focusing upon  

                                                                                                                                                                           

availability of employment for father in new location when determining whether income  

                                                                                                                                                                       

could be  imputed  to  him);  Richardson,  175 P.3d  at  49-50  (affirming  child  support  

                                                                                                                                                                     

modification order based on lower income in new location).  In the analogous context  

                                                                                                                                 

of child custody modification due to a parent's relocation, we have directed courts to  

                                                                                                                                                                                 

conduct a similar analysis:  If a parent's intent to relocate is not legitimate - i.e., the  

                                                                                                                                                                      

parent is primarily motivated by a desire to make visitation more difficult - then that  

illegitimate   intent   and  motivation   may   be   held   against   the   relocating   parent   when  

determining  the  child's  best  interests.   See  Moeller-Prokosch  v.  Prokosch,  27  P.3d  314,  

316   (Alaska   2001).    But   if   the   intended   relocation   is   legitimate, the   relocation   itself  

cannot  be  held  against  the  relocating  parent.   Moeller-Prokosch  v.  Prokosch,   53  P.3d  

 152,   155   (Alaska   2002).    As  we   noted   in  Rego   v.  Rego,   259   P.3d 447,   454   (Alaska  

2011),   "we   take   seriously   the   alleged   infringement   on  a   custodial   parent's   right   to  

relocate."  



                                                                                      -24-                                                                                 7074
  


----------------------- Page 25-----------------------

noted above, requiring consideration of imputed income in the economy "where the                                                                             

parent physically resides."                       10  



                         In Richardson v. Kohlin we addressed child support modification when a  

                                                                                                                                                                 



non-custodial father relocated outside of Alaska and the mother requested imputation of  

                                                                                                                                                               

income based on the father's previous Alaska income.11                                                     The father was an Anchorage  

                                                                                                                                              



union worker who decided to move to the Pacific Northwest to be closer to his and his  

                                                                                                                                                              

new wife's families and to avoid continual custody disputes with the mother.12  

                                                                                                                                                           The  



mother argued that the father's move "was ill-considered and impulsive" and that their  

                                                                                                                                                          

child would suffer from the move because of diminished support.13  

                                                                                                                                                         

                                                                                                                                The superior court  



                                                                                                                                                         

found the reasons for the father's move legitimate; found potential benefits to the child,  



                                                                                                                                                               

including "the opportunity to better know her extended family" and the possibility of  



                                                                                                                                          

diminished conflict between her parents; and determined that it would be inappropriate  



                                  14  

                    

to impute income. 



                                                                                                                                                     

                         On appeal we affirmed the superior court's factual finding that the father's  



                                                                 15  

                                                                                                                                                               

move was for a legitimate purpose.                                    We then considered whether the court "abused its  

                                                                                                                                          16  We upheld  

                                                                                                                                                      

discretion" in "finding" that the father's underemployment was reasonable. 



             10           15 AAC 125.020(b).
     



             11          See   175 P.3d at 44-45, 48-50.
            



             12          Id . at 44, 49.
  

                                            



             13          Id . at 49.
  

                                     



             14          Id .
  



             15          Id . at 48-50.  

                                     



             16          Id.  at  49-50.              This  seems  to  be  the  incorrect  standard  of  review.                                               A  

                                                                                                                                                               

                                                                                                                                         (continued...)  



                                                                             -25-                                                                        7074
  


----------------------- Page 26-----------------------

the   court's   finding   that,   in   light   of   the   father's   efforts   to   find   work,   his   full-time  



employment,             and       his     active      pursuit        of    higher-paying             work,       the     father's  

"underemployment"   was   reasonable.17  

                                                                                                                                

                                                                  Although  our  Richardson  opinion  is  not  



                                                                                                                                

particularly clear, I understand the ultimate ruling to be that:  (1) because the move was  



                                                                                                                           

legitimate, there was no basis to impute income based on the father's prior Alaska  



                                                                                                                              

income  level,  and  (2)  because  the  father  was  making  reasonable  efforts  to  find  



                                                                                                                                  

appropriate work in his new location, there was no basis to impute income based on  



                                        

income levels at the new location.  



                                                                                                                                 

                     In Petrilla v. Petrilla parents were in a joint custody arrangement until the  



                                                                                                                                 

father decided to relocate to Nevada with his new wife and daughter to be closer to his  



                                                                                    18  

                                                                                                                                    

parents, one of whom was terminally ill, in Arizona.                                     The father quit his job as a  



                                                                                                                        

juvenile  probation  officer  with  the  State  of  Alaska  and  for  some  time  received  



                                                                                                    19  

                                                                                                                           

unemployment benefits while looking for similar work in Nevada.                                         The mother moved  



                                                                                                                       

to modify custody and support before the father's move, and after the move requested  



                                                                                                 20  

                                                                                                                                 

that the court impute income to him based on his Alaska income.                                      The father agreed the  



                                                                                                                       

mother should have sole legal and primary physical custody of their child, but disagreed  



           16(...continued)  



                                                                                                                                 

determination that underemployment is reasonable is a factual finding, and our use of the  

                                                                                                                                  

term "finding" should have directed us to the proper "clearly erroneous" standard of  

                                                                                                                            

review.  See, e.g., Reilly v. Northrop, 314 P.3d 1206, 1216 (Alaska 2013) ("[T]he factual  

                                                                       

findings made by the superior court that [the father] was voluntarily and unreasonably  

                                                                                                   

underemployed are supported by the record and are not clearly erroneous.").  



           17        Richardson, 175 P.3d at 49-50.  

                                                            



           18        305 P.3d 302, 303 (Alaska 2013).  

                                                                



           19        Id . at 303-05.  

                               



           20        Id . at 303-04.  

                               



                                                                -26-                                                         7074
  


----------------------- Page 27-----------------------

with the mother's contention that his child support payment should be based on his                                                                

 former Alaska income.                   21  

                                                                                                                                                  

                                              The superior court rejected the mother's argument that the  



                                                                                                                                                  

 father's  support  obligation  should  be  based  solely  on  his  prior  Alaska  income  -  



                                                                                                                        

 appearing to state that it could not find the move itself to be voluntary underemployment  



                                                                                                                                                  

- and based the obligation on his Alaska income during the time he actually worked for  



                                                                                                                                                   

the State, then on his unemployment benefit income for five months, and thereafter on  



                                                                                                                                                

what he could reasonably earn if he obtained a juvenile probation officer position with  

                                    22   The father then filed a new motion to modify the court's final  

                                                                                                                                               

the State of Nevada. 



calculation of his child support obligation, asserting that he had obtained a job with the  

                                                                                                                                                  



 State of Nevada as a family services specialist and that his income would be around  

                                                                                                                                           



 $33,000 rather than the nearly $44,500 figure the court had imputed to him as a Nevada  

                                                                                                                                          

juvenile probation officer.23                      The court denied the motion.24  

                                                                                        



                        On  appeal  we  concluded  that  the  superior  court  had  not  provided  a  

                                                                                                                                                    

 sufficient  factual  basis  to  support  its  denial  of  the  father's  modification  motion,25  

                                                                                                                                      



 specifically noting that the court "made no express finding that [the father] was capable  

                                                                                                                                          



of earning more than his new job paid, that higher-paying jobs were available to [the  

                                                                                                                                                



 father]  in  Nevada,  or  that  [the  father]  took  a  position  paying  less  than  what  was  

                                                                                                                                                



            21         Id .  



            22         Id.  at  305.    



            23         Id .  



            24         Id .  



            25         Id.  at  306-08;  see  also  Richardson  v.  Kohlin,  175  P.3d  43,  48  (Alaska  2008)  



 ("Sufficient   factual   findings   are  required   for  imputing  income  or  declining to  impute  

income.").  



                                                                        -27-                                                                  7074
  


----------------------- Page 28-----------------------

                   26  

available."             We also stated:              "[T]he record before us does not reflect the availability of                                      



employment opportunities in Nevada that would have paid [the father] more than the                                                                   

position he secured."                27  

                                                                                                                                                  

                                          Rejecting the court's position that the father "may have to work  



                                                                                                                                             

one or two jobs" to meet his imputed income level, we remanded for more detailed  

findings.28  



                                                                                                                                                  

                        Now to the facts of this case.  Jolene is half Yup'ik Eskimo, and her tribal  



                                                                                                                                                   

affiliation is with Stebbins Community Association.  Jolene's Yup'ik mother was born  



                                                                                                                                                      

and raised in Stebbins, about 120 miles from Nome.  Jolene was born in Anchorage but  



                                                                                                                                                  

raised in Stebbins and Nome.   Jyzyk is an Alaska Native from the Kotzebue area,  



                                                                               

although the record does not reflect a tribal affiliation.  



                                                                                                                                                     

                        Jolene and Jyzyk married in December 2002 in Nome. Their daughter was  



                                                                                                                                           

born  in  Anchorage  in  June  2002.                                She  is  an  enrolled  tribal  member  of  Stebbins  



                                               

Community Association.  



                                                                                                                                                

                        Jyzyk filed for divorce in August 2011.  In September Jolene and Jyzyk  



                                                                                                                                                   

stipulated to equal shared custody, with the parties alternating custody on a weekly basis  



                                                                                                                                          

but limiting their contact to writings only.  Based primarily on her roughly $120,000  



                                                                                                                                                 

annual salary at Alyeska Pipeline Service Company, Jolene was ordered to pay Jyzyk  



                                                                                                   

approximately $885 monthly as interim child support.  



                                                                                                                                                     

                        The record is clear that Jolene and Jyzyk's post-separation relationship was  



                                                                                                                                     

contentious  from  the  start.                         Soon  after  their  stipulated  order  barring  non-written  



                                                                                                                                               

communication and expressly barring each from the other's residence, Jolene moved  



            26          Petrilla, 305 P.3d at 307 (footnotes omitted).                   



            27          Id.  at 308.         



            28  

                                               

                        Id. at 308 & n.21.  



                                                                          -28-                                                                    7074
  


----------------------- Page 29-----------------------

                                                                                                                          

(unsuccessfully) to bifurcate the proceedings with the early entry of a divorce decree,  



                                                                                                                            

stating that the post-separation period was "fairly volatile" and that she and Jyzyk could  



                                                                                                                           

"reap psychological benefits and a calming effect" from the early decree.  Both before  



                                                                                                                                  

and after the divorce trial the parties engaged in mutual motion practice for orders to  



                          

show cause and sanctions.  



                                                                                                                             

                    In February 2012 the court entered a new preliminary and then a final  



                                                                                                                             

interim custody  modification  order  giving  Jyzyk  primary  physical  custody  of  their  



                                                                                                                        

daughter, restricting Jolene to limited supervised visitation, and directing that Jolene's  



                                                                                                              

support obligation be modified accordingly.  This change arose from an alcohol-related  



                                                                                                                               

incident of violence at Jolene's residence while the then nine-year-old daughter was  



                                                                                   

present.  Jyzyk contended that Jolene began drinking heavily in early 2010; according  



                                                                                                                                

to other documents in the record, this was a few months after Jolene began working for  



                                                                                                                         

Alyeska.  As part of the court's final interim order, Jolene and Jyzyk were each ordered  



                                     

to "undergo an alcohol assessment."  



                                                                                                                               

                    By  the  time  of  the  July  2012  divorce  trial  Jolene  had  undergone  her  



                                                                                                                                  

required alcohol assessment.  Jyzyk successfully argued at trial for sole legal custody of  



                                                                                                                               

their daughter because of conflict and inability to communicate with Jolene. Jolene was  



                                                                                                                                      

granted continued supervised visitation consistent with the final February interim order.  



                                                                                                                                

The court ordered that when Jolene completed the recommendations associated with her  



                                                                                                                                

alcohol assessment, the requirement that visitation be supervised would be lifted.  Of  



                                        

final note with respect to child custody, the court recognized Jyzyk's concerns - and  



                                                                                                                             

expressed its own - about Jolene's boyfriend, B.J., a childhood friend of hers from  



                                                                                                                                  

Stebbins with whom she reconnected in 2011.  B.J. was one of the persons involved in  



                                                                                                                                 

the February alcohol-related incident, but the court ordered that B.J.'s "presence in  



                                                                                                                                

[Jolene's] life would not preclude [Jolene's] receipt of unsupervised visitation."  At the  



                                                               -29-                                                         7074
  


----------------------- Page 30-----------------------

conclusion of                                                    the divorce                                            proceedings Jolene was ordered to pay $1,507 monthly in child                                                                                                                                                                                                                    



 support.   



                                                                Also relevant to the issue before us is a small portion of the superior court's                                                                                                                                                                                                                                                



property division at the time of divorce. The court first recognized that Jolene had a non-                                                                                                                                                                                                                                                                                                          



marital interest in her mother's restricted Native allotment property in the Nome area.                                                                                                                                                                                                                                                                                                                                              



The court next ordered that Jolene and Jyzyk would "continue to co-own, [as] joint                                                                                                                                                                                                                                                                                                                       



tenants in common, a Nome-area lot" to be held or disposed of by mutual agreement.                                                                                                                                                                                                                                                                                  



                                                                 The superior court's decision was issued in late July. In                                                                                                                                                                                                           mid-August Jolene  



 submitted a certificate of completion for her out-patient alcohol treatment program. She                                                                                                                                                                                                                                                                                                                    



 sought, but Jyzyk opposed, implementation of an unsupervised visitation schedule.                                                                                                                                                                                                                                                                                                                               At  



an   early   November   evidentiary   hearing   the   court   approved   a   visitation   agreement  



reached by the parties, including a provision that Jolene not have unsupervised visitation                                                                                                                                                                                                                                                                                          



with B.J. present until B.J. submitted his own certification from an alcohol treatment                                                                                                                                                                                                                                                                                            



program.   B.J.'s certificate of completion of an out-patient treatment program was filed                                                                                                                                                                                                                                                                                                                 



a week later.                       



                                                                 In February 2013 Jolene and B.J. had a son.                                                                                                                                                                       In late April Jolene, B.J., and                                                                                             



their son moved to Stebbins, where they lived together in a small four-plex apartment.                                                                                                                                                                                                                                                                                                                                               



B.J.  began working in Stebbins to support the family, while Jolene stayed home with                                                                                                                                                                                                                                                                                                                      



their   son   and   immersed   herself   in   Yup'ik   cultural   and   religious   activities   and   a  



 subsistence lifestyle.   



                                                                 Contending that her new child and relocation to Stebbins constituted a                                                                                                                                                                                                                                                                                  



change of circumstances warranting modification of her child support obligation, Jolene                                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                                                                                                                                                                     29              Jyzyk  

moved to reduce her child support to the minimum $50 monthly payment.                                                                                                                                                                                                                                                                                                                          



                                29  

                                                                                                                                                                                                                                                                                                                                                                                           

                                                                See Alaska R. Civ. P. 90.3(h)(1) (allowing modification of child support  

                                                                                                                                                                                                                                                                                                                                                                 (continued...)  



                                                                                                                                                                                                       -30-                                                                                                                                                                                                                    7074  


----------------------- Page 31-----------------------

opposed the motion, arguing that Jolene was voluntarily and unreasonably unemployed,                                                                                                                                                                                                                                                                                                               



that she should not have quit her Anchorage job with Alyeska, and that her child support                                                                                                                                                                                                                                                                                                                                        



obligation should remain unchanged.                                                                                                                                                                          Jolene replied that she had "made a cultural,                                                                                                                                                               



religious and spiritual decision to move to her home village of Stebbins" - a decision                                                                                                                                                                                                                                                                                                                              



"she had always intended to make when the opportunity presented itself" - and that a                                                                                                                                                                                                                                                                                                                                                                             



modification of child support was warranted.                                                                                                                                        



                                                                       The superior court ordered a hearing, expressly recognizing the religious                                                                                                                                                                                                                                                                        



underpinning  of   Jolene's   modification   motion   by   quoting   her   reply   memorandum  



 statement that her decision to move to Stebbins was "cultural, religious and spiritual."                                                                                                                                                                                                                                                                                                                                                                                 



The court noted that Jolene conceded her unemployment was voluntary, and that it                                                                                                                                                                                                                                                                                                                                                                              



therefore had to determine whether Jolene's unemployment was unreasonable and, if so,                                                                                                                                                                                                                                                                                                                                                            



whether it should impute income to her when determining her child support obligation.                                                                                                                                                                                                                                                                                                                         



                                                                      At the hearing Jolene testified at some length about her cultural, religious,                                                                                                                                                                                                                                                                  



and spiritual ties to Stebbins.                                                                                                                         As noted above, Jolene's mother is a Yup'ik Eskimo born                                                                                                                                                                                                                                



and raised in Stebbins; Jolene is half Yup'ik Eskimo and was raised in Nome and                                                                                                                                                                                                                                                                                                                                                                   



 Stebbins. Like Jolene, her daughter is an enrolled tribal member of Stebbins Community                                                                                                                                                                                                                                                                                                                  



Association.   B.J. also is from Stebbins, and Jolene and B.J. want their son to grow up                                                                                                                                                                                                                                                                                                                                                                 



in the village and "know[] where he comes from and who his people are." Jolene always                                                                                                                                                                                                                                                                                                                                              



dreamed of living in the area, and she and Jyzyk had purchased the lot in Nome with that                                                                                                                                                                                                                                                                                                                                                            



intent.   Jolene stated that her "roots" brought her back to Stebbins and that Stebbins "is                                                                                                                                                                                                                                                                                                                                                             



the   cornerstone   of   [her]   spiritual   connection,   [her]   cultural   connection,   [and   her]  



 subsistence lifestyle." Her                                                                                                              "family history[]and                                                                                          [her]relatives                                                            [are]all                                  from[Stebbins]."                                                                              



                                   29(...continued)  



                                                                                                                                                                                                                                                                                                                                                                                    

"upon  a showing of a material change of circumstances" and setting presumption of  

                                                                                                                                                                                                                                                                                                                                                                                                                                                

 such a change if new financial situation would lead to a variation in support of more than  

                                                                                                                                                                                                                                                                                                                                                                                                                   

  15%); Alaska R. Civ. P. 90.3(c)(3) (setting general minimum monthly child support).  



                                                                                                                                                                                                                          -31-                                                                                                                                                                                                                7074
  


----------------------- Page 32-----------------------

                                                                                                                              

Jolene reconnected with these roots in 2004 when she brought her daughter there and  



                                                                                                                            

participated in her "first traditional dance with [her] daughter, [her] mom, and [her]  



                                                                                                                              

brother and his son" and returned in later years for the "yuraq" (Eskimo dancing) and  



                                                                                                                          

Yup'ik Eskimo lifestyle.  Jolene wanted her daughter to be brought up in Alaska Native  



                                                      

culture and experience village life.  



                                                                                                                   

                    After relocating, Jolene became "completely immersed in the subsistence  



                                                                                                                           

lifestyle [in Stebbins]" and participated in Eskimo dancing as much as she could. Jolene  



                                                                                                                      

"learned that Eskimo dancing was -traditionally before Christianity came [to Stebbins]  



                                                                                                                            

- was [the Yup'ik Eskimo] religion" and she has "found that Eskimo dancing is very,  



                                                                                                                                     

very spiritual and healing in making a connection with our [Yup'ik Eskimo] ancestors."  



                                                                                                                               

Stebbins is a "dry" community, also one of the main reasons she left Anchorage for  



                                                                                                                               

Stebbins.  In terms of dealing with sobriety, she was "so much . . . happier" living the  



                                                                                                                                     

subsistence lifestyle in Stebbins, and she found life in Stebbins "spiritually healing."  



                                                                                                                               

Jolene also explained that to "fully embrace" the spiritual aspects of Eskimo dancing and  



                                                                                                                 

to participate fully in subsistence activities, it was important to live in her village.  



                                                                                                                            

                    During its own questioning of Jolene, the superior court stated: "I've heard  



                                                                                                                                 

your testimony and I don't question . . . your sincerity and . . . the value you place in  



                                                                                                                                  

reconnecting with [your] . . . Native and historical cultural . . . roots . . . ."  But when it  



                                                                                                                       

came time to determine whether Jolene's move to Stebbins was for a legitimate purpose,  



                                                                                                                  

the court characterized her decision as only "admirable in an abstract sense," "essentially  



                                                                                                                     

taking a retreat from reality," and "a lovely dream."  The court posited the following  



hypothetical:  



                                                                                                          

                    [I]f we change the facts in this case, just hypothetically, and  

                                                                                                         

                    I  had  a  person  who  -  non-Indian,  non-Native,  but  had  

                                                                                                         

                    decided that - one of the obligor parents had decided they  

                                                                                             

                    wanted to join an ashram in  India because it reawakened  

                                                                                                            

                    them spiritually and reconnected them and they wanted to go  



                                                              -32-                                                         7074
  


----------------------- Page 33-----------------------

                                       to a mountainous retreat, live a basic normal lifestyle and do                                                                                                         

                                       this,   and   essentially   withdraw   from   providing   financial  

                                       support,   I   would   have   a   hard   time   in   that   hypothetical  

                                       situation simply approving it, and I have the same difficulty                                                                                      

                                       in this case.       



                                       This hypothetical and the court's other unfortunate comparisons to joining                                                                                                                      



a monastery or going to a "Tibetan retreat" serve only to trivialize Alaska Natives' way                                                                                                                                                        



of life. Contrary to the superior court's analogy, Alaska Natives' cultural, religious, and                                                                                                                                                       



spiritual connection to their tribes, their lands, and their subsistence activities are a                                                                                                                                                               



normal way of life, not an escape from normal life.                                                                                                   Our legislature has recognized the                                                           

                                                                                                          30  and we likewise have recognized the importance  

spiritual nature of subsistence living,                                                                                                                                                                                    

of subsistence activities to Alaska Native cultural and social identity.31                                                                                                                                      We applied the  

                                                                                                                                                                                                                                                   

Free Exercise Clause32  in Frank v. State to exempt the taking of moose for Athabaskan  

                                                                                                                                                                                                                         



                   30                  See ch. 1,  1(a)(3), SSSLA 1992 (finding that customary and traditional                                                     



usesof fish andgame"areculturally, socially,spiritually,                                                                                                           and nutritionally important and   

provide a sense of identity for many subsistence users").                                                                                     



                   31                  See, e.g., Hammond v. N. Slope Borough, 645 P.2d 750, 754 (Alaska 1982)  

                                                                                                                                                                                                                                           

("The significance of subsistence activities is not limited to food gathering, but involves  

                                                                                                                                                                                                                                   

social and cultural identification of a traditional and unique lifestyle."); State v. Tanana  

                                                                                                                                                                                                                                      

 Valley Sportsmen's Ass'n, 583 P.2d 854, 859 n.18 (Alaska 1978) (discussing importance  

                                                                                                                                                                                                                            

of subsistence hunting to Alaska Natives and noting that "subsistence hunting is at the  

                                                                                                                                                                                                                                                   

core of the cultural tradition of many of these people").  

                                                                                                                                      



                   32                  Article I, section 4 of the Alaska Constitution protects an individual's right  

                                                                                                                                                                                                                                              

to practice a religion.  It provides:  "No law shall be made respecting an establishment  

                                                                                                                                                 

of religion, or prohibiting the free exercise thereof."  We have adopted a three-part test  

                                                                                                                                                                                                                                                  

that Alaska Free Exercise Clause claims must pass when seeking an exemption to a  

                                                                                                                                                                                                                                                        

facially neutral state law:   "(1) a religion is involved, (2) the conduct in question is  

                                                                                                                                                                                                                                                      

religiously based, and (3) the claimant is sincere in his/her religious belief."  Swanner  

                                                                                                                                                                                                                                 

v. Anchorage Equal Rights Comm'n , 874 P.2d 274, 281 (Alaska 1994) (citing Frank v.  

                                                                                                                                                                                                                                                       

State,  604  P.2d  1068,  1071  (Alaska  1979)).                                                                                                    If  these  elements  are  established,  

                                                                                                                                                                                                                        

                                                                                                                                                                                                                     (continued...)  



                                                                                                                        -33-                                                                                                                 7074
  


----------------------- Page 34-----------------------

funeral potlatches from State game regulations.                                                       33  Most recently, in  Phillip v. State  the  



court of appeals evaluated a Free Exercise claim related to subsistence fishing, where the                                                                                          



fishers asserted that "according to traditional Yup'ik belief, Ellam                                                                        Yua is the spirit of the                



universe, consisting of all things in a state of interconnectedness.  Ellam Yua provides                                                                                



the Yup'ik with the resources they need to survive, and the Yup'ik are expected to work                                                                                         

hard to harvest those resources."                                       34     The court of appeals ultimately decided that the  

                                                                                                                                                                                   



State's compelling interest in ensuring a healthy Kuskokwim River king salmon run  

                                                                                                                                                                                   

outweighed the Yup'ik subsistence fishers' religious rights.35  

                                                                                                                   



                             The fundamental flaw in the superior court's analysis is its conflation of the  

                                                                                                                                                                                    



legitimacy of Jolene's move with the reasonableness of her unemployment in Stebbins  

                                                                                                                                                                        



and the manner in which the court imputed income to Jolene:  "[T]he choice that I'm  

                                                                                                                                                                                  



presented with is between treating [Jolene] as having zero income or . . . having imputed  

                                                                                                                                                                         



to her the income that she had at Alyeska . . . ."  This was a false choice.  The questions  

                                                                                                                                                                      



that should have been posed and answered at the hearing were:  (1) whether Jolene's  

                                                                                                                                                                         



move to Stebbins was for legitimate reasons; (2) whether Jolene was in fact unreasonably  

                                                                                                                                                              



unemployed in Stebbins; and if so, (3) what level of income should have been imputed  

                                                                                                                                                                         



              32(...continued)  



                                                                                                                                                                   

"religiously impelled actions can be forbidden only where they pose some substantial  

                                                                                                                                                            

threat to public safety, peace or order, or where there are competing governmental  

                                                                                                                                                                                       

interests that are of the highest order and are not otherwise served." Frank, 604 P.2d at  

                                                                                                                                                                       

 1070, 1073-74(alterationsomitted)(citationomitted) (internal quotationmarks omitted);  

                                                                   

see also Swanner, 874 P.2d at 281.  



              33             604 P.2d at 1069-70.  

                                                       



              34             347 P.3d 128, 129, 131 (Alaska App. 2015).  

                                                                                                               



              35             See id. at 131, 135.  

                                                             



                                                                                         -34-                                                                                  7074
  


----------------------- Page 35-----------------------

to Jolene based on her work history, her qualifications, and her job opportunities                                                                                                                                                                                                     in  



                              36  

Stebbins.  



                                            The  court  found  that  Jolene's  decision  to  leave  her  employment  in  

                                                                                                                                                                                                                                                                                     



Anchorage  and  relocate  to  Stebbins  to  reconnect  with  her  cultural  roots  was  

                                                                                                                                                                                                                                                                              



unreasonable because Jolene had not "established that her situation in Anchorage was  



destructive or adverse to her" given that there was no evidence "that she suffered from  

                                                                                                                                                                                                                                                                              



mental illness or from some sort of emotional state or psychological state that she needed  

                                                                                                                                                                                                                                                                       



to leave the urban setting, that she needed medically or psychologically or spiritually to  

                                                                                                                                                                                                                                                                                        



leave Anchorage." But we never have required relocating parents to show that their prior  

                                                                                                                                                                                                                                                                              



locations were destructive to them or that they suffered from psychological conditions  

                                                                                                                                                                                                                                                           



or mental illnesses to justify their relocation. Moreover the court's statements are at odds  

                                                                                                                                                                                                                                                                               



with its earlier custody decisions favoring Jyzyk based on Jolene's alcohol issues and  

                                                                                                                                                                                                                                                                                  



with the evidence that Jolene's alcohol issues began shortly after she started working for  

                                                                                                                                                                                                                                                                                     

Alyeska.37                            To the extent the court today silently approves the superior court's reliance  

                                                                                                                                                                                                                                                                    



                      36                    Alaska R. Civ. P. 90.3(a)(4); 15 AAC 125.020(b) (requiring CSSD to                                                                                                                                                                         



impute income based on a "parent's past income, skills, work history, and education, and                                                                                                                                                                                           

the job opportunities                                               in the area where the parent physically resides                                                                                                        " (emphasis added));                    

see also Reilly v. Northrop                                                             , 314 P.3d 1206, 1210-12, 1217-18 (Alaska 2013) (affirming                                                                                                          

trial court order imputing income to obligor parent based on information from U.S.                                                                                                                                                                                            

Department of Labor for region where parent had relocated);                                                                                                                                                   Petrilla v. Petrilla                                           , 305   

P.3d 302, 306-08 (Alaska 2013) (reversing because of lack of information about job                                                                                                                                                                                                 

opportunities whereparent                                                               had relocated);                                  O'Connell v. Christenson                                                            , 75        P.3d 1037,1041   

(Alaska 2003) (remanding for specific factual findings supporting amount of imputed                                                                                                                                                                               

income, suggesting that trial court refer to Alaska Department of Labor statistics).                                                                                                                                                          



                      37                     Cf. AMERICAN  PSYCHIATRIC  ASS'N, D                                                                                        IAGNOSTIC  & S                                   TATISTICAL  MANUAL  

                                                        

          MENTAL DISORDERS, FOURTH EDITION, TEXT REVISION (DSM-IV-TR) 212 (4th ed.                                                                                                                                                                                                  

OF                                                                                                                                                                                                  

2000) (listing alcohol-related disorders including alcohol dependence and abuse).                                                                                                                                                                      



                                                                                                                                         -35-                                                                                                                                 7074
  


----------------------- Page 36-----------------------

on "no destructive situation" and "no mental illness" factors to decide that a relocation                                                                                                                                                                                                                                                                                                     



is not legitimate, I strongly disagree.                                                                                                    



                                                                    In my view, even without considering Jolene's express Free Exercise claim                                                                                                                                                                                                                                                                              



raised on appeal, her relocation to Stebbins was legitimate - to the extent the superior                                                                                                                                                                                                                                                                                                                    



court made a factual finding that Jolene's move to Stebbins was not legitimate, that                                                                                                                                                                                                                                                                                                                                              



finding is clearly erroneous. No evidence in the record suggests that Jolene's relocation                                                                                                                                                                                                                                                                                                           



to Stebbins was for the purpose of decreasing her child support obligation.                                                                                                                                                                                                                                                                                                                      The court   



told Jolene it had "heard [her] testimony and . . . [did not] question . . . [her] sincerity and                                                                                                                                                                                                                                                                                                                                    



 . . . the value [she] place[d] in reconnecting with [her] . . . cultural . . . roots . . . ."                                                                                                                                                                                                                                                                                                                                 The  



court also found that both Jolene and her daughter derived some benefit from Jolene's                                                                                    



move to Stebbins, and Jyzyk agreed that Jolene benefitted to some extent from the move.                                                                                                                                                                                                                                                                                                                                 



                                                                    Our case law is clear that moves outside of Alaska to be near other family                                                                                                                                                                                                                                                                       



members and to decrease conflict over custody issues are legitimate for purposes of                                                                                                                                                                                                                                                                                                                                                       

                                                                                                                              38             How can it not be legitimate for an Alaska Native living in  

modifying child support.                                                                                                                                                                                                                                                                                                                                                                                                                    



an urban center and having difficulty with sobriety to relocate to her own dry tribal  

                                                                                                                                                                                                                                                                                                                                                                                                                          



village where she has family, cultural, religious, and spiritual roots; where she can more  

                                                                                                                                                                                                                                                                                                                                                                                                                            



easily maintain sobriety; where she has property interests; where she can raise her  

                                                                                                                                                                                                                                                                                                                                                                                                                                    



children in their tribal culture; and where, incidentally, she can reduce conflict with her  

                                                                                                                                                                                                                                                                                                                                                                                                                                      



former spouse over custody and visitation issues? Our case law also is clear that children  

                                                                                                                                                                                                                                                                                                                                                                                                             



may benefit from being exposed to extended family members and decreased custodial  

                                                                                                                                                                                                                                                                                                                                                   



                                  38                                See Richardson v. Kohlin                                                                                                            , 175 P.3d 43, 49-50 (Alaska 2008) (affirming                                                                                                                                            



finding that move to be closer to other family members and decrease parental conflict                                                                                                                                                                                                                                                                                                                          

over child custody was legitimate);                                                                                                                                               cf. Petrilla                                            , 305 P.3d at 303, 305 (affirming without                                                                                                                            

questioning legitimacy of father's move to be closer to terminally ill parent).                                                                                                                                                                                                                                                                              



                                                                                                                                                                                                                  -36-                                                                                                                                                                                                         7074
  


----------------------- Page 37-----------------------

                                                         39  

conflict between parents.                                      Howwould AlaskaNativechildrennotsimilarly benefit from                                                                          



living, even part of the time, in their own tribal villages with extended family members,                                                                                          



and   from   the   ensuing   decreased   custodial   conflict  between   parents?    Under   the  



circumstances in                       Richardson  and  Petrilla  the decisions to relocate were legitimate; given                                                                            



Jolene's circumstances, I simply cannot fathom how her move to Stebbins is any less                                                                                                              



legitimate.  



                               The court relegates the reasonableness of Jolene's move to one of the                                                                                              



factors in the totality of circumstances test used to determine how much income should                                                                                                    



be imputed.  But the cases actually discussed by the court provide little support for its   



position.     In   Pattee   v.   Pattee   we   adopted   the   totality   of   the   circumstances  test   to  



determine whether                             child support should be reduced automatically after a voluntary                                                                      

                                                40    We reversed the superior court's decision setting a reduced rate  

reduction in income.                                                                                                                                                                             



                39             Richardson, 175 P.3d at 49-50.                            



                40             744 P.2d 658, 662 (Alaska 1987), overruled on other grounds by Nass v.  

                                                                                                                                                                                         

Seaton, 904 P.2d 412, 416 (Alaska 1995).  The totality of the circumstances test now is  

                                                                                                                                                                                                      

set out in the commentary to Rule 90.3:  

                                                                                 



                               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.  The court shall  

                                                                                                                                                                

                               consider the totality of the circumstances in deciding whether  

                                                                                                                                                         

                               to impute income. When a parent makes a career change, this  

                                                                                                                                                                   

                               consideration should include the extent to which the children  

                                                                                                                                                        

                                                                                                                                                                           (continued...)  



                                                                                                -37-                                                                                          7074
  


----------------------- Page 38-----------------------

because there was insufficient evidence about the parent's career change, and remanded                                              

for further findings.             41  

                                                                                                                                  

                                        Key to our decision was our determination that the parent had  



                                                                                                                                      

fraudulently conveyed an income-producing asset and was receiving rent-free housing,  

                                                                                                                     42    We made two  

                                                                                                                                             

a monthly allowance, and tuition assistance from family members. 



statements in Pattee relevant here:  "we do not believe that an obligor-parent should be  

                                                                                                                                                



 'locked  in'  to  a  particular  job  or  field  during  the  minority  of  [the]  children  when  

                                                                                                                                          



accepting a lower-paying position may ultimately result in personal or professional  

                                                                                                                               



advancement"; and "the children of the marriage and the custodial parent should not be  

                                                                                                                                                

forced to finance the noncustodial parent's career change."43   And we quoted a Montana  

                                                                                                                                     



case directing courts to "consider the nature of the changes and the reasons for the  

                                                                                                                                               



changes"  before  deciding  "whether,  under  all  the  circumstances,  a  modification  is  

                                                                                                                                                 

warranted."44  



                       The court says that Pattee 's statement about not locking a parent into a  

                                                                                                                                          



specific job or career does not apply here because "a career change must be supported  

                                                                                                                     



            40(...continued)  



                                                                                                                      

                       will ultimately benefit from the change.  The court also may  

                                                                                                                

                       impute  potential  income  for  non-income  or  low  income  

                                          

                       producing assets.  



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



            41         Pattee,  744  P.2d  at  662.   Child  support  initially  was  set  at  $1,200  monthly,  



reduced  by  stipulation  to  $700  monthly,  and  further  reduced  to  $326  monthly  after  trial.   

Id .  at  659,  662  n.7.  



            42         Id . at 659-62.  

                                  



            43         Id . at 662.  

                                  



            44         Id . (quoting In re Marriage of Rome v. Rome, 621 P.2d 1090, 1092 (Mont.  

                                                                                                                                         

 1981)) (internal quotation marks omitted).  

                                                          



                                                                      -38-                                                                 7074
  


----------------------- Page 39-----------------------

by a 'lower-paying position' that will 'ultimately result in personal or                                                               professional  

advancement.' "               45  

                                                                                                                                                        

                                    But the father in Pattee  did not have a lower-paying position; his  



                                                                                                                                                          

family was supporting him (and apparently helping him defraud his former wife) and he  

                                                                                                          46     There  was  considerable  

                                                                                                                                      

had  no  stated  plans  after  attending  community  college. 



evidence that the father willfully was trying to minimize his property and income to  

                                                                                                                                                          

avoid  paying  child  support,  suggesting  illegitimacy  of  purpose.47  

                                                                                                                               We  nonetheless  

                                                                                                                                        



adopted a balancing test, indicating that a court must consider not just the financial  

                                                                                                                                              



impact on the family, but also the reasons for and goals of a lifestyle change.  But under  

                                                                                                                                                    



the court's analysis today, there would have been no need to remand for further findings  

                                                                                                                                               



in Pattee - the order simply would have been reversed with instructions to reinstitute  

                                                                                                                                            



the original support obligation.  

                                      



                        Pugil v. Coger involved a parent who had worked as a commercial fisher  

                                                                                                                                                    



and welder but asked the court to set his child support obligation using estimated wages  

                                                                                                                                                   

he could earn as a welder in Texas, where he had moved and planned to go to school.48  

                                                                                                                                                                



The superior court set his child support obligation based on a several-year average of his  

                                                                                                                                                         

commercial fishing income.49  Weaffirmed, noting that thesuperior court had considered  

                                                                                                                                           



all relevant factors and that the parent "could both pursue his education and meet his  

                                                                                                                                                         



            45          Opinion at 8 (emphasis added).               



            46  

                                               

                        744 P.2d at 662.  



            47          Id . at 659-62.     



            48           811 P.2d 1062, 1064, 1066 (Alaska 1991).                          



            49  

                                    

                        Id . at 1064-65.  



                                                                           -39-                                                                     7074
  


----------------------- Page 40-----------------------

                                                                                                                                                                                                                                                  50  

 [support] obligation . . . by commercial fishing during one quarter of the year."                                                                                                                                                                       In  



short, we recognized that because of the seasonal nature of commercial fishing in Alaska,                                                                                                                                                   



the parent could meet his support obligation without completely disrupting his life                                                                                                                                                                    



change.   Pugil  does not translate to this case: Jolene cannot change her life if her support                                                                                                                                             



obligation continues to be based not on her life in Stebbins, but solely on one specific                                                                                                                                                  



full-time job in Anchorage - a job that she no longer has and that the superior court                                                                                                                                                             



could only speculate she could regain if she returned to Anchorage.                                                                                                    



                                        In   Olmstead   v.   Ziegler   both   parents  were   lawyers;   the   father   later  



downsized his practice to become a teacher and sought a reduced support obligation (not                                                                                                                                                               

                                                                                                                                                                                                                                               51   The  

based on teaching salaries but based solely on his reduced income as an attorney).                                                                                                                                                                    



superior court decided that the parents had equal earning capacities as lawyers and that  

                                                                                                                                                                                                                                                       

the father failed to support his contention "that he was simply a failure at law."52                                                                                                                                                                   We  

                                                                                                                                                                                                                                                      



affirmed, adding that the father had not "prove[d] any benefit to the child from his  

                                                                                                                                                                                                                                                        

decision  to  downsize  his  practice  and  change  careers."53                                                                                                                       In  contrast,  it  cannot  be  

                                                                                                                                                                                                                                                         



disputed that Jolene stated a cogent and legitimate rationale for her move to Stebbins and  

                                                                                                                                                                                                                                                       



that her move and life change have benefits for her daughter.  

                                                                                                                                                          

                                        In  Sawicki v. Haxby54   the superior court refused to  reduce  a mother's  

                                                                                                                                                                                                                                      



support obligation when she quit her first job after moving to Indiana and took a new job  

                                                                                                                                                                                                                                                        



                    50                 Id . at 1066.     



                    51  

                                                                                                                                       

                                        42 P.2d 1102, 1103-04 (Alaska 2002).  



                    52                 Id .at 1105.   



                    53                 Id.  at 1106.   



                    54  

                                                                                                          

                                         186 P.3d 546 (Alaska 2008).  



                                                                                                                           -40-                                                                                                                    7074
  


----------------------- Page 41-----------------------

                                             55  

paying half as much.                              We affirmed, stating that the superior court had considered the                                                                   



mother's "work history, prior income, qualifications, education, and reasons for leaving                                                                                   



her job" and identifying other "potentially relevant" factors - the temporary nature of                                                                                               



her reduced income and substantial assets available to her to meet her obligation while                                                                                       

                                                  56   The superior court did not impute income to the mother at the  

awaiting advancement.                                                                                                                                                               



maximum amount  she  had  previously  earned  in  Alaska,  but  rather  determined  she  

                                                                                                                                                                                  

realistically was capable of earning the amount from her most recent job in Indiana.57  

                                                                                                                                                                     

                                                                                                                                                                                            



                                                                                                                                                                                   

In contrast, here the superior court did not consider the Rule 90.3(a)(4) factors for  



                                                                                                                                                                                  

Jolene's earning capacity in Stebbins,  or even Anchorage - it simply decided that  



                                                                                                                                                                                     

because Jolene once earned $120,000 in Anchorage, her support obligation should be  



                     

based on that salary - despite having no evidence of what she could earn in Stebbins  



                                                                                                                         

or if she could regain the Alyeska job if she returned to Anchorage.  



                                                                                                                                                                    

                             Absent an illegitimate motive, we have not previously, even indirectly,  



                                                                                                                                                    58  

                                                                                                                                                                                   

penalized a parent for moving from one geographical area to another.                                                                                     Nor should we,  



                                                                                                                                     59  

                                                                                                                                                                             

for doing so certainly would implicate constitutional concerns.                                                                           And the goal of setting  



               55            Id .  at  547.  



               56            Id .  at  550-51.  



               57            Id .  at  548,  551.  



               58            Cf.  Petrilla  v.  Petrilla,  305  P.3d  302, 307-08 (Alaska  2013) (focusing on  



employment   availability   in   new   location   when   considering   income   imputation);  

Richardson v. Kohlin, 175  P.3d  43,  49-50  (Alaska  2008)  (affirming support modification  

based  on  lower  income  in  new  location).   



               59            Cf. Rego v. Rego, 259 P.3d 447, 454 (Alaska 2011) (stating, in custody  

                                                                                                                                                                         

modification context when custodial parent intended to relocate, that "we take seriously  

                                                                                                                                                                       

the alleged infringement on a custodial parent's right to relocate").  

                                                                                                                          



                                                                                         -41-                                                                                  7074
  


----------------------- Page 42-----------------------

                                                                                                                                            60  

support is to "arrive at an income figure reflective of economic reality,"                                                                      not maximum   



possible earnings:                    "Nothing in our law compels a party to earn the maximum possible                                                     

wage or face imputation [of income]."                                       61  



                           Today's  decision  not  only  flies  in  the  face  of  these  considerations,  it  

                                                                                                                                                                        



suggests that when setting a child support obligation neither a Native Alaskan's return  

                                                                                                                                                                



to her village nor a traditional Native Alaska subsistence lifestyle has a valid role.  The  

                                                                                                                                                                    



court's decision means that once a non-custodial Native Alaska parent participates in the  

                                                                                                                                                                      



cash economy of urban Alaska that parent may be unable to voluntarily return to a rural  

                                                                                                                                                                  



tribal  community  and  live  either  a  local  cash-economy  lifestyle,  a  culturally  and  

                                                                                                                                                                   



religiously based subsistence, non-cash, lifestyle, or even something in between.  And  

                                                                                                    



as a more general matter, why should a parent with primary physical custody have an  

                                                                                                                                                                       



absolute right to change careers, take a lower-paying job, or quit work altogether -  

                                                                                                                                                                       

perhaps even have the right to move to another geographic location with the children62  

                                                                                                                                                         



-while a non-custodial parent with a child support obligation does not have those rights  

                                                                                                                                                                 



even if the actions are legitimate and provide benefits to the child?  Why do we "take  

                                                                                                                                                                 



seriously" an alleged infringement only on a custodial parent's right to relocate, but not  

                                                                                                                                                                      

a non-custodial parent's right to relocate?63  In my view a court has no right to effectively  

                                                                                                                                                       



order where a non-custodial parent must live and what specific job that parent must hold.  

                                                                                                                                                                  



              60          McDonald v. Trihub                       , 173 P.3d 416, 427 (Alaska 2007) (quoting                                            Adrian v.   



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



              61           Ward  v.  Urling,  167  P.3d  48,  56  (Alaska  2007)  (citing  Beaudoin  v.  

                                                                                                                                                                       

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

                                                                                          



              62           See supra note 9.  

                                                          



              63           Cf. Rego, 259 P.3d at 454.  

                                                                       



                                                                                  -42-                                                                           7074
  


----------------------- Page 43-----------------------

                            The superior court disregarded the sparse evidence it had regarding the                                                     

Stebbins economy without asking for more,                                                    64  

                                                                                                                                                                                

                                                                                                 and completely ignored the question of  



                                                                                                                                                                                 65  

                                                                                                                                                                  

what Jolene could reasonably earn in Anchorage considering all of the relevant factors, 



including that she had only a high school education and no longer worked for Alyeska.  

                                                                                                                                                                                      



The court focused exclusively on Jolene's former employment and framed the issue as  

                                                                                                                                                                                



a "black and white" choice between setting support at $50 monthly or leaving child  

                                                                                                                                                                          



support  at  the  high  amount  set  in  the  decree  based  on  her  former  Alyeska  job  in  

                                                                                                                                                                                



Anchorage.  But the court acknowledged that Jolene might have to live in Anchorage to  

                                                                                                                                                                                 



work at her former job at Alyeska, and could only speculate whether she could return to  

                                                                                                                                                                                 



her old job even if she moved back to Anchorage.   Even assuming the court could  

                                                                                                                                                                        



properly  impute  income  to  Jolene  based  on  what  she  might  reasonably  earn  in  

                                                                                                                                                                               



Anchorage, the court failed to require evidence regarding Rule 90.3(a)(4)'s imputation  

                                                                                                                                                              



factors - including the fact that Jolene no longer works for Alyeska.  I would remand  

                                                                                                                                                                     



to  the  superior  court  for  further  proceedings  on  this  issue,  as  we  did  in  Horne  v.  

                                                                                                                                                                                



                   66                              67  

Touhakis                and Petrilla,                   because the record does not provide a sufficient basis for  

                                                                                                                                                                              



              64            See Petrilla             ,  305 P.3d at 307-08 & n.21 (noting lack of evidence that                                                             



"higher-paying   jobs   were   available   to   [the   father]   in   Nevada"   when   remanding);  

O'Connell v. Christensen                              , 75 P.3d 1037, 1041 (Alaska 2003) (remanding for further                                                       

findings because "it is not clear that employment opportunities exist in Anchorage,"                                                                     

where the father lived, that would pay the amount of income imputed to him).                                                                                        



              65            See supra note 3 and accompanying text.  

                                                                                                         



              66            356 P.3d 280, 284 (Alaska 2015)  (remanding and directing superior court  

                                                                                                                                                                          

to make findings based on all Rule 90.3(a)(4) factors).  

                                                                                                 



              67            305  P.3d  at  308  (remanding  for  further  findings  about  employment  

                                                                                                                                                         

opportunities available to parent in Nevada); see also Richardson v. Kohlin, 175 P.3d 43,  

                                                                                                                                                                              

48 (Alaska 2008) ("Sufficient factual findings are required for imputing . . . or declining  

                                                                                                                                                                 

                                                                                                                                                        (continued...)  



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determining whether Jolene is employable in Stebbins (or Anchorage) and, if so, how                                                                                                      

much income should be imputed to her considering all of the required factors.                                                                                                      68  

                                                                                                                                                                                        The  



                                                                                                                                                  69  

                                                                                                                                     

court should also take into account Jolene's Free Exercise claim. 



                              Today's decision has enormous negative implications.  It trivializes and  

                                                                                                                                                                                           



devalues Alaska Natives' cultural, spiritual, and religious connections to their villages  

                                                                                                     

and their subsistence lifestyle.70  

                                                                        It requires a non-custodial Native parent in rural Alaska  

                                                                                                                                                                                    



to pay child support based on what the parent could earn in urban Alaska regardless of  

                                                                                                                                                                                               



               67(...continued)  



                       

to impute income.").  



               68             See O'Connell, 75 P.3d at 1039-41;                                                see also Simone H. v. State, Dep't of             



Health & Soc. Servs., Office of Children's Servs., 320 P.3d 284, 287 (Alaska 2014)  

                                                                                                                                                                                     

("When applying a multi-factor test,                                                    '[t]he superior court abuses its discretion if it                                                      

considers improper factors . . . , fails to consider statutorily mandated factors, or assigns                                                                                      

disproportionate weight to some factors while ignoring others.' " (alterations in original)  

                                                                                                                                                                                

(quoting  Iverson v. Griffith                                , 180 P.3d 943, 945 (Alaska 2008)));                                             cf. Olmstead v. Ziegler                            ,  

42 P.3d 1102, 1106 (Alaska 2002) (observing that trial court had "ample evidence of [the                                                                                                   

parent's] work history, qualifications, and job opportunities" when imputing income).                                                                                         



               69             In two cases outside of Alaska where the obligor parents belonged to  

                                                                                                                                                                                              

religious sects that held property communally, the courts recognized that the parents'  

                                                                                                                                                                                 

religious beliefs should be considered, even though the parents still had an obligation to  

                                                                                                                                                                                               

support their children. See In re Marriage of Murphy, 574 N.W.2d 77, 79, 81-82 (Minn.  

                                                                                                                                                                                    

App. 1998); Hunt v. Hunt, 648 A.2d 843, 846, 851 (Vt. 1994). Unlike parents who have  

                                                                                                                                                                                         

argued that any imposition of a child support order would interfere with their religious  

                                                                                                                                                                                

beliefs, see, e.g., Hunt, 648 A.2d at 849 (noting that obligor parent objected to payment  

                                                                                                                                                                                

of  any  support),  Jolene  merely  asked  the  court  to  consider  her  religious  beliefs  in  

                                                                                                                                                                                              

assessing her situation; she agreed that she had a support obligation, requesting that the  

                                                                                                                                                                                            

court impose the minimum $50 monthly payment.  

                                                                                             



               70             Cf. 15 AAC 125.550(a), (b)(5) (permitting CSSD to modify withholding  

                                                                                                                                                                        

order when obligor parent "lives a subsistence lifestyle without any local opportunity for  

                                                                                                                                                                                             

employment").  



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                                                                                                                                                                                                                     71  

the legitimacy of choosing to live in rural Alaska,                                                                                                                                                                         effectively requiring a parent in a                                                                                                        



rural area to move to an urban area to maximize income and child support.                                                                                                                                                                                                                                               And finally,   



it infringes on constitutionally protected religious and privacy rights.                                                                                                                                                                                                



                                                        I dissent.   



                                 71  

                                                                                                                                                                                                                                                                                                                                                                

                                                         Cf. 15 AAC 125.020(b) (requiring CSSD to consider job opportunities "in  

                                                                                                                                                          

the area where the parent physically resides").  



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