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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Matthew Schwier v. Audrey Schwier, n/k/a Audrey Magee-Davey (8/9/2019) sp-7393

Matthew Schwier v. Audrey Schwier, n/k/a Audrey Magee-Davey (8/9/2019) sp-7393

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

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           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                           

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



MATTHEW  SCHWIER,                                                    )  

                                                                     )      Supreme  Court  No.  S-17138  

                                Appellant,                           )  

                                                                                                                                      

                                                                     )      Superior Court No. 3PA-15-02411 CI  

           v.                                                        )  

                                                                                                

                                                                     )      O P I N I O N  

                                                

AUDREY SCHWIER, n/k/a AUDREY                                         )
  

MAGEE-DAvEY,                                                         )                                          

                                                                           No. 7393 - August 9, 2019
  

                                                                     )  

                                Appellee.                            )  

                                                                     )  



                                                                                                              

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

                                                                                                       

                      Judicial District, Palmer, Jonathan A. Woodman, Judge.  



                                                                                                                   

                      Appearances:             Darryl  L.  Jones,  Law  Office  of  Darryl  L.  

                                                                                                        

                      Jones, Palmer, for Appellant.  No  appearance by Appellee  

                                    

                      Audrey Schwier.  



                                                                                                        

                      Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  

                                           

                      and Carney, Justices.  



                                         

                      CARNEY, Justice.  



I.         INTRODUCTION  



                                                                                                                                     

                      A father appeals the superior court's denial of his motion to modify child  



                                                                                                                                  

support.  He argues that his house arrest while awaiting trial on federal charges should  



                                                                                                                                        

be considered involuntary unemployment for purposes of calculating child support.  He  



                                                                                                                                     

also argues that remand is necessary for an evidentiary hearing and for the superior court  



                                                                                                                                   

to enter findings of fact and conclusions of law.  Because we conclude that the father  


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

made a prima facie showing of a substantial change in circumstances that would entitle                                                                                   



him to an evidentiary hearing, we remand to the superior court to conduct an evidentiary                                                                      



hearing.  



II.	          FACTS AND PROCEEDINGS           



              A.	           Facts  



                            Matthew   Schwier   and   Audrey Magee-Davey                                                       (formerly   Schwier)   were  



married in 2004 in Arizona.                                     They have two children,                                 born in 2006 and 2010.                                 In  



February 2016 the superior court granted their petition for dissolution of marriage and                                                                   



approved   their   parenting   agreement,   which   provided   for   shared  legal   custody   and  



                                                                                                                                                                          

alternating weeks of physical custody.  Audrey was ordered to pay child support based  



                                                                                                                                                                                   1  

                                                                                                                                                                                       

on the guidelines in Alaska Civil Rule 90.3, which governs child support calculations. 



In January 2017 Audrey moved to modify custody and support, and in April 2017 the  

                                                                                                                                                                               



court partially granted her motion on the record, awarding her sole legal custody but  

                                                                                                                                                                               



leaving in place the existing physical custody arrangement.  

                                                                                                                               



              B.	           Proceedings  



                                                                                                                                                                     

                            1.	           Child in Need of Aid case, federal criminal case, and interim  

                                                             

                                          support order  



                                                                                                                                                                                 

                            Shortly after the court issued its April 2017 custody order, the Office of  



                                                                                                                                                                           

Children's  Services  (OCS)  removed  the  children  from  Matthew's  home  and  filed  



                                                                                                                 2  

                                                                                                                                                               

                                                                                                                      The court granted  temporary  

emergency Child  in  Need  of Aid  (CINA)  petitions. 



              1             See   Alaska   R.   Civ.   P.   90.3(b)   (providing   guidelines  for  child   support  



awards when parents share physical custody).                                 



              2             See AS 47.10.142 (governing emergency custody); CINA Rule 6 (same).  

                                                                                                                                                                                       

The  petitions  were  apparently  based  upon  sexual  abuse  allegations  that  OCS  later  

                                                                                                                                                                           

determined were not substantiated.  

                                                                           



                                                                                        -2-	                                                                               7393
  


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                                                                                              3  

custody to OCS, which placed the children with Audrey.                                           



                                                                                                                                        

                      Shortly after the CINA proceedings began, Audrey moved to stay her child  



                                                                                                                                                 

 support obligation because the OCS placement had given her primary physical custody.  



                                                                                                                                       

In response Matthew filed an income affidavit along with recent pay stubs and his 2016  

                 4   The court granted Audrey's motion to stay her child support payments while  

                                                                                                                                       

tax return. 



the CINA cases were pending and ordered the parties to file updated income affidavits,  

                                                                                                                               



though it does not appear that either parent did.  In late August 2017 the court issued an  

                                                                                                                                            



interim child support order requiring Matthew to pay $2,422.05 per month.  The court  

                                                                                                                              



also ordered Audrey's January 2017 motion to modify custody and support to be held  

                                                                                                                  



in abeyance until the CINA cases either addressed custody or were dismissed.  

                                                                                                                                   



                      Apparently around the same time as the CINA proceedings began, a federal  

                                                                                                                                    



grand jury began investigating allegations that Matthew had committed federal crimes.  

                                                                                                                                                 



The grand jury returned an indictment in September, charging him with a number of  

                                                                                                                                            



federal offenses.  By at least September 2017 the federal court had ordered Matthew's  

                                                                                                                



house arrest as a pretrial release condition. Shortly afterward Matthew resigned from his  

                                                                                                                                           



job as a law enforcement officer for the Chickaloon Tribal Police Department.  

                                                                                                                                    



           3          See  AS 47.10.142; CINA Rule 6(b).                   



           4          Civil Rule 90.3(e)(1) requires parents to report income and deductions for  

                                                                                                                                           

child support purposes:  

                                          



                       [E]ach parent in a court proceeding at which child support is  

                                                                                                                       

                      involved must file a statement under oath which states the  

                                                                                                                    

                      parent's adjusted annual income and the components of this  

                                                                                                                    

                      income as provided in subparagraph (a)(1).  This statement  

                                                                                                          

                      must be filed with a party's initial pleading . . . , motion to  

                                                                                                                      

                      modify,  and  any  response  to  a  motion  to  modify.                                     The  

                                                                                                                  

                      statement must be accompanied by documentation verifying  

                                                                                                           

                      the income.  

                             



                                                                     -3-                                                               7393
  


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                                        2.                 Matthew's motions to modify support                                                             



                                                            a.                 November 2017 motion                                



                                        In  November   2017   Matthew   moved   to   modify   interim   child   support,  



arguing that his "house arrest pursuant to federal charges" had resulted in a "substantial                                                                                                                                  



reduction" in his income.                                                        He did not file a new income affidavit with his motion,                                                                                                 



attaching only a printout of an updated child support estimate. He stated that because he                                                                                                                                                                 



was not working, his only income was the $5,722 he expected to net from his rental                                                                                                                                                             



properties that year.                                        



                                        Audrey partially opposed Matthew's motion to modify support, pointing                                                                                                                           



out that he had not provided the required tax returns or other documents to support his                                                                                                                                                                 

                                                                   5   In late November Matthew replied that he had "fully explained  

claimed rental income.                                                                                                                                                                                                              



and documented" his rental income; he attached an affidavit itemizing expenses on his  

                                                                                                                                                                                                                                                        



rental properties as well as mortgage statements and invoices for those expenses.  

                                                                                                                                                                                                                                                  



                                        In Decemberthesuperiorcourt deniedMatthew's motion without prejudice  

                                                                                                                                                                                                                                      



based on the lack of documentation supporting modification.   The court found that  

                                                                                                                                                                                                                                                     



Matthewwas "relying heavily [on]predictions ofbusinessloss"that the court considered  

                                                                                                                                                                                                                                 



"speculative."  The court instead based its child support calculation on Matthew's May  

                                                                                                                                                                                                                                                   



2017 income affidavit and its accompanying documentation.  The court stated that his  

                                                                                                                                                                                                                       



failure  to  file  an  updated  affidavit  left  it  without  "sufficient  evidence  to  justify  

                                                                                                                                                                                                                                            



modification" or to "make informed calculations" of his income and support obligation.  

                                                                                                                                                                                                                                                                    



It also noted that Matthew had not addressed whether he was voluntarily or unreasonably  

                                                                                                                                                                                                                          



                    5                   See   Alaska R. Civ. P. 90.3(e)(1); Alaska R. Civ. P. 90.3 cmt. vIII(A)                                                                                                                         



("Suitable documentation of earnings might include paystubs, employer statements, or                                                                                                                                                                       

copies of federal tax returns.").                             



                                                                                                                            -4-                                                                                                                   7393
  


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

unemployed or whether his loss of income was temporary.                                                                            6  The court thus concluded           



that Matthew was "merely temporarily unemployed or underemployed while . . . under                                                                                                



house arrest" and that such temporary unemployment did not justify reducing child                                                                                                    



                  7  

support.   



                              In early January 2018 Matthew moved for reconsideration of the court's  

                                                                                                                                                                                 



denial of his motion to modify child support.  Audrey opposed, arguing that Matthew's  

                                                                                                                                                                        



reconsideration motion had confirmed the court's finding that he had failed to file an  

                                                                                                                                                                                           



updated income affidavit and that his unemployment should be considered temporary  

                                                                                                                                                                         



based on his own stated expectation that he would be acquitted on the federal charges.  

                                                                                                                                                                                                  



The court denied reconsideration in late January.  

                                                                                                               



                              In February 2018 the superior court granted Audrey sole legal and primary  

                                                                                                                                                                               



physical custody of the children and permitted her to move with them to Arizona.  The  

                                                                                                                                                                                       



court also issued a final child support order, apparently based on Matthew's May 2017  

                                                                                                                                                                                     



income affidavit, finding his adjusted annual income to be roughly $60,500 and ordering  

                                                                                                                                                                              



him to pay roughly $2,420 per month in child support.  

                                                                                                                           



                                            b.             May 2018 motion  

                                                                                    



                              In May 2018 Matthew again moved to modify child support.  He argued  

                                                                                                                                                                                 



that his house arrest was equivalent to incarceration; that "incarceration alone, regardless  

                                                                                                                                                                          



               6              See  Alaska R. Civ. P. 90.3(a)(4) (permitting court to award child support                                                                        



based on "potential income of a parent who voluntarily and unreasonably is unemployed                                                                                

or underemployed").   



               7              See Reilly v. Northrop, 314 P.3d 1206, 1214 (Alaska 2013) ("[N]ormally  

                                                                                                                                                                   

we will not modify child support due to temporary conditions."); Richardson v. Kohlin,  

                                                                                                                                                                                

 175 P.3d 43, 48 (Alaska 2008) ("[P]arents going through what appear to be temporary  

                                                                                                                                                                         

periods of unemployment can be expected to maintain their support obligation by using  

                                                                                                                                                                                    

assets[;] . . . ordinarily support should not be modified for temporary reductions in  

                                                                                                                                                                                           

income.").  



                                                                                             -5-                                                                                     7393
  


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

 of   length   or   permanency,"   was   a   substantial   change   in   circumstances  warranting  



modification; and that the court should consider him involuntarily unemployed and thus                                                                                                                                                                                                                             



not liable for the full amount of   child support ordered regardless of the circumstances                                                                                                                    



underlying his house arrest.                                                                             He filed an updated income affidavit along with mortgage                                                                                                                              



 statements from his rental properties and 2017 tax returns. The new affidavit showed an                                                                                                                                                                                                                                  



 adjusted   annual   income   of   $12,978.20   from   his   rental   properties   and   calculated   a  



monthly child support payment of about $292.                                                                                                                                    



                                                  Audrey opposed, arguing that there had been no change in circumstances                                                                                                                                                     



 since the February support order, as Matthew had already been under house arrest when                                                                                                                                                                                                                        



the court issued that order.  She also argued that he was not involuntarily unemployed  



because he could petition the federal court to amend his release conditions.                                                                                                                                                                                                                  Matthew  



replied,   arguing   that   the   federal   court   was   unlikely   to   modify  the   "stringent   bail  



 conditions" it had imposed and that he could not reasonably sell or liquidate any more                                                                                                                                                                                                                        



 assets to meet his child support obligations.                                                                                                                       



                                                  In June2018thesuperior court                                                                                    deniedMatthew's motion                                                                         to modify support  



without a hearing, stating only that "[b]ased on the pleadings of the parties, and this court                                                                                                                                                                                                                   



being otherwise fully advised," it would deny the motion to modify.                                                                                                                                                                                              



                                                  Matthew appeals; Audrey does not participate in the appeal.                                                                                                                                                                       



III.                      STANDARD OF REvIEW                                                  



                                                                                                                                                                                                                                                                                                                                8  

                                                  In general,"[w]ereviewan                                                                           awardof child                                         supportfor abuseofdiscretion."                                                                                             



But because "[w]e use our independent judgment to decide whether it was error not to  

                                                                                                                                                                                                                                                                                                                           

hold an evidentiary hearing,"9  we review de novo the question of "whether a moving  

                                                                                                                                                                                                                                                                                                 



                         8                         Geldermann v. Geldermann                                                                                 , 428 P.3d 477, 482 (Alaska 2018) (quoting                                                                                            



Limeres v. Limeres                                                      , 320 P.3d 291, 295 (Alaska 2014)).                                                                                                     



                         9                        Limeres v. Limeres, 367 P.3d 683, 686 (Alaska 2016) (quoting Routh v.  

                                                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                                                                 (continued...)  



                                                                                                                                                            -6-                                                                                                                                                 7393
  


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

party has made a prima facie showing sufficient to justify a custody or child support                                             



                                     10  

modification hearing."                                                       

                                          "[W]e 'will affirm a denial of a modification motion without  



                                                                                                                                          

a  hearing  if,  in  our  independent  judgment,  .  .  .  the  allegations  are  so  general  or  



                                                                                                                                       11  

                                                                                                                                      

conclusory . . . as to create no genuine issue of material fact requiring a hearing.' " 



Iv.        DISCUSSION  



                      Alaska Civil Rule 90.3 provides for modification of a child support award  

                                                                                                                                     

upon  a  showing  of  a  material  change  of  circumstances.12  

                                                                                                                                          

                                                                                                        A  material  change  of  



                                                                                                                                       

circumstances is presumed if the amount as calculated under the rule differs by at least  



                                                                                     13  

                                                                                                                                           

 15% from the existing amount of support ordered.                                         A court may deny a motion to  



                                                                                                                          

modify without a hearing if the facts alleged in the motion would not justify modification  



                                                                                                                                    

even if proved or if the allegations present no genuine issue of material fact that would  

                             14  But if the party seeking modification makes a prima facie showing  

                                                                                                                                 

                 

require a hearing. 

that a change of circumstances has occurred, a hearing is required.15  

                                                                                               



                      Rule 90.3 also requires each parent in a child support proceeding to "file  

                                                



a  statement  under  oath  which  states  the  parent's  adjusted  annual  income  and  the  

                                                                                                                                 



           9          (...continued)
  



                                                                              

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



           10         Id.  (quoting  Hill  v.  Bloom,  235  P.3d  215,  219  (Alaska  2010)).   



           11         Id.  (alterations  in  original)  (quoting  Hill,  235  P.3d  at  219).  



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



           13         Id.  



           14         See  Limeres,  367  P.3d  at  686.  



           15         See  Wilhour  v.  Wilhour,  308  P.3d  884,  888-89  (Alaska  2013)  (holding  that  



superior  court  erred  by  declining  to  hold  hearing on support modification  motion because  

genuine  issues  of  fact  existed).   



                                                                     -7-                                                              7393
  


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

components of this income"; a parent moving for modification must file this statement                                                



                                                                              16  

along with his or her initial motion to modify.                                                                                                

                                                                                  The rule requires that the statement "be  



                                                                                               17  

                                                                                

accompanied by documentation verifying the income." 



                                                                                                                                                  

                       Matthew argues that remand for a child support modification hearing is  



                                                                                                                                         

required because the superior court erred by denying his May 2018 motion to modify  



                                                                                                                                               

support "without comment and without findings of fact or conclusions of law."   He  



                                                                                                                                                  

argues that his motion presented sufficient evidence to establish a material change of  

                          18    He  contends  that  the  affidavits  and  documentation  he  provided  

circumstances.                                                                                                                       



demonstrated that his bail conditions were tantamount to incarceration and were long- 

                                                                                                                           



lasting   enough   to   be   more   than   temporary,   and   thus   constituted   involuntary  

                                                                                                                               

unemployment for purposes of Rule 90.3.19  

                                                                            



                       We agree that Matthew's May 2018 motion established a prima facie case  

                                                                                                                                              



for a change of circumstances.   His motion included an updated income affidavit as  

                                                                                                                                                 



required, reporting an adjusted annual income of just under $12,980, far lower than the  

                                                                                                                                                



$50,995  adjusted  annual  income  he  had  reported  in  May  2017.                                                      In  an  affidavit  

                                                                                                                                      



accompanying his reply to Audrey's opposition to his motion, he stated that his federal  

                                                                                                                                         



trial had been postponed to October 2018, much later than the March trial date that was  

                                                                                                                                               



scheduled when the court issued its February 2018 child support order.  It also appears  

                                                                                                                                        



that Matthew provided the superior court with a copy of his federal conditions of release,  

                                                                                                                                         



which  imposed  a  "24-hour-a-day  lock-down  at  [his]  residence"  except  for  court  

                                                                                                                                           



appointments and medical necessities.  Matthew also filed a partial transcript from his  

                                                                                                                                                



            16         Alaska R. Civ. P. 90.3(e)(1).                      



            17  

                              

                       Id.  



            18  

                                                              

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



            19  

                                                                                 

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



                                                                        -8-                                                                 7393
  


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

bail hearing, in which the federal court found that he would pose a threat to public safety                                                                                                                                                                                                           



if "released under any conditions," indicating that his house arrest would last at least                                                                                                                                                                                                                  



until his trial.                                   



                                                 Whether   or   not   this   evidence   would   have   been   sufficient   to  justify  



modifying child support, it is enough to establish a prima facie case of a change of                                                                                                                                                                                                                               



circumstances and thereforewas                                                                                       enough to entitle Matthewto                                                                             a hearing. Taken                                              together,  



the affidavits and supporting documentation indicated that his income had changed by                                                                                                                                                                                                                              



more than 15% and that the house arrest conditions preventing him from working were                                                                                                                                                                                                                       



likely to persist at least for some months.                                                                                                           It was therefore error for the superior court to                                                                                                              



deny his motion without a hearing.                                                            



                                                 We note that generally a change of circumstances is measured against the                                                                                                                                                                                       

                                                                                                                                                             20  and that in this case Matthew was already  

date of the most recent child support order,                                                                                                                                                                                                                                                    



under house arrest when the court issued its February 2018 order.  But where no prior  

                                                                     



order has considered the circumstances documented in the motion for modification, the  

                                                                                                                                                                                                                                                                                                                



court may examine those circumstances even if they existed at the time of the most recent  

                                                                                                                                                                                                                                                                                                     

order.21                            The  February  2018  order  made  no  mention  of  Matthew's  house  arrest,  

                                                                                                                                                                                                                                                                                                   



apparently relying instead on his 2017 tax returns to calculate income. Nor did the court  

                                                                                                                                                                                                                                                                                                         



make any findings that Matthew was unemployed, either voluntarily or involuntarily.  

                                                                                                                                                                                                                                                                                                                               



Rather, given its finding that Matthew's adjusted annual income was roughly $60,500,  

                                                                                                                                                                                                                                                                                           



the court seemed to assume that he was still working as a law enforcement officer or  

                                                                                                                                                                                                                                                                                                                   



                        20                       See Burrell v. Burrell                                                      , 696 P.2d 157, 161 (Alaska 1984) ("[A] modification                                                                                            



of a [child] support order may be obtained only where there has been a material and                                                                                                                                                                                                                          

substantial change in circumstances occurring subsequent to the original order." (second                                                                                                                                                                                                       

alteration in original) (quoting                                                                                Curley v. Curley                                              , 588 P.2d 289, 291 (Alaska 1979))).                                                                    



                        21                       See Richardson v. Kohlin, 175 P.3d 43, 47 (Alaska 2008) (noting that  

                                                                                                                                                                                                                                                                                                             

change in circumstances need not occur after earlier order so long as "no prior order  

                                                                                                                                                                                                                                                                                                       

evaluated the circumstances presented in the [subsequent] motion for modification").  

                                                                                                                                                                                                                                                              



                                                                                                                                                         -9-                                                                                                                                              7393
  


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

would be able to find comparable employment. The court did consider Matthew's claim                                                                                                                                                                                                                                                                       



that his house arrest prevented him from working when it denied his motion to modify                                                                                                                                                                                                                                                              



interim child support in December 2017.                                                                                                                                           However, the court's rejection of this claim                                                                                                                           



was based not on its merits but on a lack of documentation, and was without prejudice,                                                                                                                                                                                                                                                 



meaning that Matthew could re-file for modification.                                                                                                                                                                                          Thus, no previous order had                                                                                       



considered the merits of Matthew's motion. Furthermore, a change of circumstances did                                                                                                                                                                                                                                                                               



occur   subsequent   to   the   February   2018   order:     Matthew's   federal   trial   date   was  



postponed, substantially extending the duration of his house arrest.                                                                                                                                                                                                                           This, coupled with                                             



the other documentation he provided, was sufficient to entitle him to a hearing.                                                                                                                                                                                                                          



                                                         Because the superior court's June 2018 order contained no findings on                                                                                                                                                                                                



whether Matthew's house arrest was sufficiently restrictive to constitute involuntary                                                                                                                                                                                                                                         



unemployment, we express no opinion on the merits of this argument.                                                                                                                                                                                                                                            But we remind                       



the superior court that on remand it must make findings sufficient to support meaningful                                                                                                                                                                                                                                         

appellate review.                                                        22  



v.                           CONCLUSION  



                                                         Matthew's May 2018 motion to modify child support presented a prima  

                                                                                                                                                                                                                                                                                                                                                   



facie showing that a material change of circumstances had occurred.   We therefore  

                                                                                                                                                                                                                                                                                                                                         



REvERSE the superior court's denial of the May 2018 motion to modify child support  

                                                                                                                                                                                                                                                                                                                                                                                   



and  REMAND  for  an  evidentiary  hearing  to  determine  whether  modification  is  

                                                                                                                                                                                                                                                                                                                                                                       



warranted.  



                             22                          See id.                      at 48 ("Sufficient factual findings are required for imputing income                                                                                                                                                                                        



or declining                                        to imputeincome.");                                                                    Olmstead v. Ziegler                                                                 , 42 P.3d 1102, 1107 (Alaska 2002)                                                                                        

("The trial court is required to enter sufficiently detailed findings of fact to allow for                                                                                                                                                                                                                                                                          

meaningful appellate review.").                                                             



                                                                                                                                                                                -10-                                                                                                                                                                         7393
  

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