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Maloney v. Maloney (12/24/98), 969 P 2d 1148
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Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DONALITA G. MALONEY, )
) Supreme Court No. S-8067
Appellant, )
) Superior Court No.
v. ) 3AN-91-4162 CI
)
MICHAEL B. MALONEY, ) O P I N I O N
)
Appellee. ) [No. 5056 - December 24, 1998]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Michael L. Wolverton, Judge.
Appearances: G. R. Eschbacher, Anchorage, for
Appellant. Kenneth Kirk, Anchorage, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
EASTAUGH, Justice.
BRYNER, Justice, with whom FABE, Justice, joins,
dissenting.
I. INTRODUCTION
After voluntarily retiring from the military, Michael
Maloney moved to reduce his child support obligation. The superior
court granted his motion. We affirm. The superior court did not
clearly err in finding that Michael was not voluntarily
underemployed and that Donalita Maloney's income and Michael's
reduced support were sufficient to meet their child's needs; it
therefore did not abuse its discretion in reducing Michael's child
support obligation.
II. FACTS AND PROCEEDINGS
Donalita and Michael married in 1970. They have two
children, Michael, born in 1976, and Lisa, born in 1980. They
divorced in 1992. The superior court awarded Donalita sole
physical and legal custody of the children and ordered Michael to
pay child support calculated under Civil Rule 90.3. Michael was
then a major in the United States Air Force. He was transferred to
Hawaii after the divorce.
Michael retired from the Air Force as a lieutenant
colonel in November 1995, after twenty years of active service. He
was then forty-six years old, and was obligated to pay child
support for Lisa for three more years. In July 1996 Michael asked
the court to reduce his monthly child support obligation from
$936.89 to $248.20. He affied in support that he had retired from
the Air Force; that he now received net military retirement pay of
$1,092.57 monthly; that he had been actively seeking work but was
unable to obtain consistent employment; that he could not obtain
unemployment benefits; and that he was suffering from medical
problems. He later affied that it was "very unlikely"he would
have been able to continue in the military, that he would have been
referred to a Selective Early Retirement Board (SERB) (he claimed
such a referral would have been considered a "black mark"), and
that he had been told that he would likely be medically retired if
he did not otherwise retire. He affied that job applications he
had filled out asked whether he voluntarily or involuntarily
separated from the military, and that "I knew it would be better
for my career if I voluntarily retired."
Donalita opposed Michael's motion. She argued that
Michael should not have retired without first securing a new job,
that he made inadequate efforts to obtain reemployment, and that he
was seeking to transfer the financial burden of his new "relaxed
lifestyle"to Donalita and Lisa.
Superior Court Judge Michael L. Wolverton presided over
two hearings on Michael's motion to modify child support. In a
March 1997 order, the court found that Michael had voluntarily
retired "to protect and perhaps enhance his ability to secure
employment in the future,"and concluded that Michael was not
voluntarily underemployed. The court determined that Donalita's
income, together with Michael's reduced support contributions, was
sufficient to meet Lisa's needs, and held that Michael was entitled
to a reduction of child support. The court imputed monthly income
of $500 to Michael, based on the fact that Michael lived rent-free
in his wife's home following remarriage, and calculated his annual
net income to be $20,892. In April 1997 the court reduced child
support to $348.20 per month effective July 25, 1996, the date
Michael filed his reduction motion.
Donalita appeals.
III. DISCUSSION
A. Standard of Review
"A court's modification of a child support award 'will
not be overturned absent a finding of a clear abuse of
discretion.'"[Fn. 1] "We will disturb an award only if our review
of the entire record leaves us with a definite and firm conviction
that a mistake has been made."[Fn. 2] "[I]t is the function of
the trial court, not of this court, to judge witnesses' credibility
and to weigh conflicting evidence."[Fn. 3] "We review factual
findings for clear error."[Fn. 4]
B. Child Support Modification
Donalita asserts that the superior court abused its
discretion by finding that Michael was not voluntarily
underemployed and by reducing his child support obligation. She
argues that the superior court supported its decision with
conclusions that Michael would have been passed over for promotion
had he not retired voluntarily, that a person voluntarily retiring
has a better chance of securing equal or better civilian employment
than a person passed over for promotion, and that Michael
voluntarily retired to protect and perhaps enhance his ability to
secure employment in the future. She claims that the evidence does
not support these conclusions, and that it was speculative to
assume that he would ever go before a promotion board or a SERB.
She also argues that Michael provided insufficient evidence of his
medical problems, and that Michael had not made a good faith effort
to secure new employment.
Michael contends that the superior court appropriately
reduced his child support obligation after concluding that Michael
retired in order to improve his financial opportunities.
A final child support award may be modified only upon a
showing of a material change in circumstances. [Fn. 5] We have
considered several cases in which child support obligors sought
child support reductions based on their unemployment, and have
remanded to determine whether the unemployment was voluntary, [Fn.
6] or have concluded that even if the resignation was involuntary,
the trial court must consider all circumstances of change in
employment to determine whether reduction is warranted. [Fn. 7] We
have held in such cases that "a noncustodial parent who voluntarily
reduces his or her income should not automatically receive a
corresponding reduction in his or her child support obligation."
[Fn. 8] But we have also noted the "tension between locking an
obligor into a career and the burden that the obligor's career
change places on the custodial parent and the child."[Fn. 9] In
determining whether to modify child support following a voluntary
employment change, a trial court should consider the nature of and
the reason for the change, and determine whether a modification is
warranted under all the circumstances. [Fn. 10]
The superior court justified the modification on grounds
that (1) Michael might have been passed over for promotion due to
his disabilities, and (2) a person who retired voluntarily has a
better chance of securing civilian employment at a comparable or
higher wage than a person who had been passed over for promotion.
Evidence supported these conclusions. Richard May, a
retired Air Force colonel and Michael's former supervisor, affied
and testified that Michael's decision to retire was appropriate
under the circumstances. In his November 1996 affidavit, May
opined that Michael's decision to retire was logical:
[Michael received] a performance report with
negative comments in the narrative. . . . At this level, his
chances of being promoted would have been very low, after that
negative review. . . . [Michael] would probably not have been
promoted. . . . [T]here was a significant likelihood that
[Michael] would have been involuntarily separated from the Air
Force. In my opinion, it was a logical decision for him to
separate voluntarily from the Air Force, with the assumption that
it would have looked better on his resume to have voluntarily
retired after twenty years, than to have been forced into an
involuntary separation.
With respect to Michael's medical problems, May affied
that, "[i]t is my understanding that [Michael] has subsequently
been rated as 50% disabled by the Air Force. If that is the case,
then it is my opinion that the medical people would have insisted
he involuntarily retire."
May's testimony at the November 20, 1996, hearing offered
the same conclusion:
Based upon what I have seen of his military
career and without having a lot of knowledge about his private
situation, my opinion is that he would have had very little
opportunity or upward mobility and therefore, from a military
career standpoint, my advice would have been for him to retire
from the Air Force and to pursue a civilian career. . . . [H]e was
clearly not -- not likely, in my opinion, to be promoted. I think
there was reason for him, having seen the history of selective
reductions and so forth, to assume that he might be vulnerable and
it would be logical for someone to come to the conclusion, and I
might well do that myself, that if I retired at my own pace and
time and that it was known that I retired at my own pace and time
as opposed to being told to retire, then that would enhance my
employability and credibility on a job search even though the
official records would read the same in either case. Now, again,
that's conjecture on my part because there -- there were not
impending firm selective early retirement boards at that time, but
that was -- that would be the military advice that I would have
provided at the time.
Michael had testified concerning his medical condition,
his reasons for leaving the military, and his efforts to find work.
Given May's and Michael's testimony, the superior court's findings
are not clearly erroneous; the superior court did not abuse its
discretion in granting Michael's motion to modify child support
based on this evidence.
C. Consideration of Donalita's Ability to Provide for the
Child's Needs
Before reducing Michael's child support obligation, the
superior court found that Donalita's income, together with
Michael's reduced child support contribution, was sufficient to
meet Lisa's needs.
Donalita argues that, in so finding, the superior court
improperly shifted the burden to her to "establish [her] earning
capacity and demonstrate that it is insufficient with the proposed
reduced child support to meet the children's needs." She also
argues that there was insufficient evidence to support the finding
that reducing child support will not affect Donalita's ability to
provide for Lisa; to the contrary, Donalita affied that she had to
hold two jobs to support herself and Lisa while pursuing her
graduate degree.
We first conclude that the superior court did not abuse
its discretion by considering Donalita's income. Donalita
correctly observes that non-custodial parents should not be
relieved of their child support obligations simply because
custodial parents can afford to maintain their children. [Fn. 11]
But if a non-custodial obligor is potentially entitled to a
reduction in child support, a superior court must consider whether
the custodial parent will be able to provide for the child if the
court reduces the obligor's support obligation. [Fn. 12]
The critical issue, then, is when to inquire into the
custodial parent's income. The question of the custodial parent's
ability to provide for the child cannot be the primary question;
rather, it is a secondary question that should be reached only
after the obligor parent has already proven grounds for reducing
child support. The custodial parent's income becomes a relevant
factor when the court determines the child's needs after the non-
custodial parent has demonstrated changed circumstances.
There is no evidence that the superior court considered
Donalita's income to be the primary question and reduced Michael's
child support obligation simply because Donalita could provide for
Lisa. Rather, the superior court considered Donalita's income as
a secondary question only after Michael had demonstrated that his
child support obligation should be reduced. The superior court did
not abuse its discretion in considering whether Donalita (with
Michael's help) could provide for Lisa.
We next hold that the superior court did not err by
concluding that Donalita's income was sufficient to support Lisa
even if Michael's child support obligation was reduced. The court
noted that Donalita makes a "reasonably good living working full-
time." She also receives forty-four percent of Michael's military
retirement each month. Donalita has not shown that the court erred
in concluding that she can provide for Lisa.
D. Effective Date of Child Support Modification
Donalita argues that the superior court erred by reducing
the child support effective the date Michael filed his reduction
motion, July 25, 1996, instead of the date Michael's motion was
served on her (which we take to mean the date she received the
motion by mail). It appears Michael served the motion by mail on
July 25. "Service by mail is complete upon mailing."[Fn. 13]
We need not decide here whether the reduction should have
been effective July 25 or some other date, because Michael concedes
that the modification could not take effect until August 1, 1996,
when the August payment was due. [Fn. 14] The effective date
should therefore be August 1, 1996.
IV. CONCLUSION
Because the superior court did not abuse its discretion
when it reduced Michael's child support obligation, we AFFIRM.
Given Michael's concession, the reduction became effective August
1, 1996. BRYNER, Justice, with whom FABE, Justice, joins, dissenting.
In my view, the superior court abused its discretion in
granting Michael's motion to modify his support obligation.
The superior court found that Michael's decision to
retire at age forty-six was a financially reasonable career choice
because, "due to [Michael's] disabilities, had he not voluntarily
retired, in all likelihood, he would have been passed over for
promotion for the remainder of his career." The evidence that
Michael produced to support this finding is conjectural at best.
Michael had never before been passed over for promotion, no adverse
personnel action was pending against him when he decided to retire,
and no such action was ever threatened. Even if Michael accurately
foresaw the likelihood of being passed over for future military
promotion, he knew that he would be able to continue serving at his
current rank until his younger child reached the age of majority.
Moreover, though Michael might reasonably have feared that his
physical problems would jeopardize his chances to progress in the
military, he had no apparent reason to think that these problems
would not also impair his civilian earning capacity.
Giving due deference to the superior court's powers as a
factfinder, however, I would willingly assume that, despite the
speculative nature of the evidence, it did not abuse its discretion
in finding that Michael made a sound economic choice when he
decided to retire from the military. But the superior court failed
to carry this finding to its logical conclusion: the soundness of
Michael's choice is itself compelling proof that he needed no
decrease in his child support payment; for if Michael's military
retirement made economic sense, how could he complain that it
impaired his long-term earning capacity?
Michael insists that he can have it both ways: he wants
the court to find that he reasonably chose to retire because
retirement was financially advantageous; yet he also wants the
court to find that, having retired for financial advantage, he can
remain permanently unemployed because no one could expect a man
like him to find a job. Michael should not be allowed to tug at
opposite ends of the same stick. One finding or the other might
make sense, but together they are inconsistent.
Perhaps Michael could have reconciled this inconsistency
had he alleged that some unforeseen event occurred after he
retired, making it impossible for him to earn the income that he
had anticipated. But Michael's superior court pleadings asserted
no such unexpected change in circumstances. Michael asked the
court to reduce his child support payments because he had been
jobless since giving up his military career. Yet he was well aware
of the circumstances that limited his job prospects before he
decided to retire from the military: he certainly knew of his lack
of civilian job skills; he tested the job market while still in the
military and learned that it was not promising; and his failing
health was one of the primary factors that led him to fear that the
military would give him no future promotions. Having successfully
insisted that he had been economically prudent in giving up his
lucrative military career despite these circumstances, Michael
cannot invoke the same circumstances to claim that his civilian
earning capacity is now hopelessly impaired. The claim defies
logic.
The superior court failed to acknowledge or to account
for this internal tension in Michael's claim; indeed, by
uncritically accepting Michael's argument, the court perpetuated
the inconsistency. Instead of considering whether Michael's
current joblessness reflected a lasting change, the court merely
found that he was "conducting a job search"and was therefore not
voluntarily underemployed. It appears that the court simply
assumed that Michael's current unemployment was not a transitory
phenomenon and could be treated as a permanent condition for
purposes of modifying his existing support payments. Combining
this assumption with its acceptance of Michael's reasons for
retiring, the court came to the paradoxical conclusion that Michael
had been economically prudent in abandoning his military career for
a civilian job that he apparently had no foreseeable hope of
obtaining. Ironically, in reaching this conclusion, the court gave
Michael every incentive to remain permanently unemployed.
If Michael prudently chose to leave the military, as he
convinced the superior court that he did, then he should suffer
little difficulty in meeting his original support obligation; if he
rashly opted for a civilian life that makes paying support
inconvenient, then his child should not suffer the consequences of
his voluntary underemployment. Either way, I would find that the
superior court abused its discretion in reducing Michael's support
obligation. Accordingly, I DISSENT from this court's decision
affirming the superior court's order.
FOOTNOTES
Footnote 1:
Nass v. Seaton, 904 P.2d 412, 414 (Alaska 1995) (quoting
Eagley v. Eagley, 849 P.2d 777, 778 & n.1 (Alaska 1993)).
Footnote 2:
Id. (quotation omitted).
Footnote 3:
Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska
1988).
Footnote 4:
Harrelson v. Harrelson, 932 P.2d 247, 252 n.6 (Alaska 1997)
(citing State, Dep't of Revenue v. Merriouns, 894 P.2d 623, 625
(Alaska 1995)).
Footnote 5:
See Alaska R. Civ. P. 90.3(h)(1).
Footnote 6:
See Vokacek v. Vokacek, 933 P.2d 544, 549 (Alaska 1997).
Footnote 7:
See Patch v. Patch, 760 P.2d 526, 529 (Alaska 1988).
Footnote 8:
Nass, 904 P.2d at 418 (citing Pattee v. Pattee, 744 P.2d 658,
662 (Alaska 1987)).
Footnote 9:
Pugil v. Cogar, 811 P.2d 1062, 1066 (Alaska 1991).
Footnote 10:
See Nass, 904 P.2d at 418.
Footnote 11:
See Alaska R. Civ. P. 90.3 cmt. II ("[A]t least in the sole or
primary custodial situation, the contribution of one parent does
not affect the obligation of the other parent.").
Footnote 12:
See Alaska R. Civ. P. 90.3 cmt. I.B ("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."); see also Dewey v. Dewey, 886 P.2d 623, 629 (Alaska 1994)
("The court must consider both the needs of the children as well as
the needs and financial abilities of both parents.").
Footnote 13:
Alaska R. Civ. P. 5(b).
Footnote 14:
We note, however, our recent discussion of this point in Boone
v. Boone, 960 P.2d 579 (Alaska 1998). In Boone, we held that "the
motion service date should be the preferred effective date, and
that the superior court should exercise its discretion in selecting
a different effective date only if it finds good cause for doing
so." Id. at 585.
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