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Beaudoin v Beaudoin (06/15/2001) sp-5420
Beaudoin v Beaudoin (06/15/2001) sp-5420
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
MICHAEL A. BEAUDOIN, )
) Supreme Court No. S-8885/9324
Appellant, )
) Superior Court No.
v. ) 3PA-92-447 CI
)
GEORGIA R. BEAUDOIN, ) O P I N I O N
)
Appellee. ) [No. 5420 - June 15, 2001]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
Eric Smith, Judge.
Appearances: Peggy A. Roston, Law Office of
Peggy A. Roston, Anchorage, for Appellant. Georgia R. Beaudoin,
pro se, Wasilla.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Five years after dissolving their marriage, Georgia and
Michael Beaudoin modified their child custody agreement. Under the
original custody order Georgia had sole custody of the couple's
three children; as a full-time parent she did not have a job
outside the home. Under the new agreement Michael became the
primary custodian: he took sole custody of one child and shared
equal custody of the other two on an alternating-week schedule.
After the superior court approved this agreement, Michael moved for
an order establishing Georgia's support obligation. Contending
that Georgia was voluntarily underemployed, he asked the court to
impute Georgia's income based on her earning capacity. The court
denied these requests without an evidentiary hearing, ruling that,
since Georgia had never held a paying job and her situation
remained unchanged, the undisputed evidence failed to establish
voluntary underemployment. We reverse. Because Michael offered
evidence that Georgia was employable but chose not to work,
Michael's claim of voluntary underemployment required an
evidentiary hearing.
II. FACTS AND PROCEEDINGS
Michael and Georgia Beaudoin dissolved their marriage on
August 21, 1992. They initially agreed to joint legal and physical
custody of their three children Jason, Joshua, and Laura, [Fn. 1]
but in October 1993 modified the arrangement to give Georgia
primary physical custody of all three children. Over the next four
years -- from 1993 through 1997 -- Georgia acted as Joshua and
Laura's primary caregiver; Georgia was also Jason's primary
caregiver until he moved in with Michael in November 1996. During
this period, Georgia was involved in a relationship with a man
named Cleve Coyne. Although she and Coyne did not marry, Georgia
referred to Coyne as her husband; she and the children lived with
Coyne in his home, and together they acted as a family unit.
Georgia helped Coyne run a part-time, home-based landscaping and
snowplowing business, holding herself out to be a co-owner. But
despite her participation in this business, she intended to make
herself available to her children "at all times"and did not look
for employment outside the home.
In late 1997 Michael and Georgia reached a new custody
agreement. Under the new agreement, Michael took sole legal and
physical custody of their oldest son, Jason; Michael and Georgia
shared legal and physical custody of Joshua and Laura equally, on
a week-on, week-off basis. The parties agreed that child support
would be governed by the shared custody formula in Alaska Civil
Rule 90.3(b). The superior court approved the parties' agreement in
November 1997.
The following month, Michael moved for entry of a child
support order conforming to the new custody arrangement.
Specifically, he asked the court to calculate Georgia's support
obligation according to her earning capacity rather than her
earning history. Because Georgia was no longer the primary
custodial parent and because Michael now had sole custody of Jason
and shared custody of Joshua and Laura, Michael insisted that
Georgia's duty of support required her to seek suitable employment
or be treated as voluntarily underemployed.
In support of his claim that Georgia was capable of
gainful employment but was voluntarily underemployed, Michael
pointed out that Georgia's dissolution petition had listed her
occupation as salesperson and her annual gross income as $14,627,
that Georgia had admitted earning a $7,581 net annual income at the
time of the dissolution, that she had steadily worked without pay
in Coyne's business since the time of dissolution, that Coyne had
estimated that the work she performed for his business was worth at
least $7 per hour, that Georgia held herself out to be a co-owner
of the business, and that her friends described her as a
businesswoman who devoted substantial time to the business. In
addition, Michael submitted a report by a vocational counselor who
predicted, based on the type of work that Georgia reportedly
performed for Coyne, that she would be able to find work paying
around $15 to $16 per hour. Relying on this offer of evidence,
Michael requested a hearing to establish Georgia's earning
capacity.
Georgia opposed Michael's motion, stating that her only
recent job experience was helping Coyne with seasonal work for no
pay and that she did not believe herself capable of finding work
for "anywhere near $12.00 per hour on a full time basis." Georgia
insisted, moreover, that she had no intention of seeking
employment: "When the children were born, Michael and I jointly
agreed that I should be a full-time mom. I intend to continue to
make myself available for the children at all times." According to
Georgia, Michael's claim of voluntary underemployment simply
reflected resentment: "I believe Michael is jealous that I have so
much time to devote to the children. . . . I believe he is trying
to force me to work, because he has to."
After reviewing Alaska cases on voluntary
underemployment, the superior court denied Michael's request to
impute income to Georgia; the court also denied Michael's request
for a hearing. In the court's view, the undisputed facts precluded
a finding of voluntary underemployment; they established, as a
matter of law, that Georgia had a right to do "what she has been
doing"and had no duty to look for gainful employment:
[T]he key consideration as the court
understands the case law is whether there has been some change in
[Georgia's] circumstances that indicates that she is voluntarily
underemployed. [Michael] has pointed to no facts in dispute to
demonstrate any such change in circumstances. He does not dispute
that her primary focus is her children when they are with her, that
she has worked in the plowing and landscaping business since its
inception, or that her plan is to continue to work in the business
and to focus on her children. In short, there is no factual
dispute that [Georgia] is continuing to do what she has been doing.
In light of the fact that [Michael] has not presented any legal
argument or case law holding that a person who continues to do what
she has always been doing must have income imputed to her because
she might be able to find a paying job somewhere else, the court
concludes that there are no material facts in dispute as they
relate to the imputation of income.
Since there are no material facts in
dispute, no hearing is required.
After both parties moved for reconsideration, the court
reaffirmed its ruling, emphasizing its conclusion that Georgia's
loss of primary custody did not materially change her
circumstances:
The court believes that because [Georgia]
has the children every other week, her circumstances have not
materially changed for purposes of imputing income. While she has
some time to herself that she did not previously have, the fact
remains that she has decided to focus on the children during the
extensive period of time when she has them, which is precisely the
decision she has made ever since she had children.
The court further reasoned that imputing income to
Georgia would have the undesirable consequence of reducing the
overall amount of available child support payments.
Accordingly, the court issued a child support order
calculated on the assumption that Georgia would continue to focus
her life on the children and would not be gainfully employed. [Fn.
2] Michael appealed.
Several months later, Georgia terminated her relationship
with Coyne, moved out of his home, and began working part-time as
a waitress. Michael moved to modify the 1998 support order and
renewed his claim of voluntary underemployment, asking the court
impute income to Georgia based on full-time employment. After
considering several rounds of additional pleadings, the court
found that, even if it imputed full-time earnings to Georgia at her
current hourly wages, the resulting change to its 1998 child
support order would not meet Civil Rule 90.3's presumptive
threshold for modification. [Fn. 3] Accordingly, the court denied
Michael's motion. Michael then filed a new appeal, which we
consolidated with his first appeal for purposes of disposition.
III. DISCUSSION
A. Standard of Review
An award of child support is subject to reversal only if
the trial court abuses its discretion or applies an incorrect legal
standard. [Fn. 4] We will find an abuse of discretion when our
review of the record leaves us with a "definite and firm conviction
based on the record as a whole that a mistake has been made."[Fn.
5] Whether the trial court has applied the correct legal standard
in making its child support determination is a question of law that
we review independently. [Fn. 6] We also use independent review to
determine if the trial court erred in denying a motion for an
evidentiary hearing. [Fn. 7]
B. Michael's Request for a Hearing on His Claim of Voluntary
Underemployment Should Have Been Granted.
1. Michael made a prima facie showing of voluntary
underemployment.
Michael argues that the trial court erred by denying his
request for an evidentiary hearing to establish whether Georgia was
underemployed. Michael's right to a hearing is governed by well-
settled precedent. Because conflicting affidavits and exhibits
seldom provide a meaningful basis for resolving factual disputes,
[Fn. 8] we have recognized that evidentiary hearings on motions to
modify child support will generally be needed when the pleadings
raise genuine issues of material fact. [Fn. 9] In the present
case, then, the critical question is whether Michael raised genuine
issues of material fact concerning his claim that Georgia was
voluntarily underemployed.
Michael's underemployment claim arose from the parties'
1997 agreement to modify their existing custody agreement; the new
custody agreement, in turn, necessitated a reexamination of the
parties' child support obligations. Under the prior arrangement,
Georgia had primary physical custody of all three children. Upon
implementing the new agreement, however, Michael assumed primary
physical custody of Jason and shared custody of Joshua and Laura.
The change left Georgia with half-time custody of two children
instead of full-time custody of three children, thereby triggering
Rule 90.3(b)'s provisions governing shared and divided custody
situations and making it necessary to establish Georgia's child
support obligation.
At the time of the parties' agreement for modification of
custody, the commentary to Rule 90.3 provided that annual income
could be imputed to a parent for purposes of calculating child
support in cases of voluntary underemployment:
The court may calculate child support based on
a determination of the potential income of a parent who voluntarily
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 also may impute potential income
for non-income or low income producing assets.[ [Fn. 10]]
Relying on this provision, Michael argued that the court
should impute income to Georgia because she was no longer a full-
time custodian. Michael pointed out that she now owed the children
a duty of support while they were in his custody. He contended
that she therefore could not reasonably refuse to seek gainful
employment. In support of this argument, Michael offered evidence
indicating that Georgia had previously held a job, that she was
capable of obtaining gainful employment, and that she was actually
working without pay in Coyne's business.
In response, Georgia minimized the amount of time she
worked for Coyne's business and expressed doubts about her ability
to find a job outside the home. But she acknowledged that she had
not looked for another job and insisted that she had a right to
continue living as if she still had full-time custody of the
children: "When the children were born, Michael and I jointly
agreed that I should be a full-time mom. I intend to continue to
make myself available for the children at all times."
Considering Michael's proffered evidence of Georgia's
ability to find gainful employment and Georgia's stated intent to
continue being "a full-time mom"despite having only one-third of
the total custody time, we find that Michael raised a material
dispute on the issue of Georgia's voluntary underemployment. This
showing would normally suffice to require an evidentiary hearing.
2. The record does not conclusively preclude Michael's
claim.
In denying a hearing on voluntary underemployment,
however, the superior court found three reasons to reject Michael's
claim as a matter of law: (1) Alaska case law disfavors finding
voluntary underemployment absent a history of gainful employment;
(2) Michael failed to establish any change in Georgia's
circumstances to support a finding of voluntary underemployment;
and (3) a finding of voluntary underemployment would have the
damaging effect of reducing the amount of available child support.
Our consideration of these reasons leads us to conclude that they
do not support the court's decision to reject Michael's claim
without a hearing.
a. Alaska underemployment decisions do not bar
Michael's claim.
The superior court identified three situations in which
our case law has found voluntary underemployment. In Kowalski v.
Kowalski, we reviewed a finding of voluntary underemployment on the
part of a noncustodial father who had held various short-term
construction jobs before marrying but had failed to maintain
similar employment after marrying. [Fn. 11] Noting that the father
had failed to establish his current earning capacity or show that
his unemployment was involuntary, we affirmed the superior court's
finding. We emphasized that "[w]e will not relieve a noncustodial
parent from his child support obligations absent an affirmative
showing that the obligor parent cannot meet this obligation."[Fn.
12]
In Pugil v. Cogar, after divorcing, a noncustodial father
moved out of state where he planned to change to a lower-paying
occupation. [Fn. 13] We affirmed a decision to impute income based
on his history of earnings as a fisherman during the marriage,
finding that the trial court had correctly considered all relevant
circumstances in resolving the tension between locking the father
into an established career and burdening the mother and child with
his choice of a new, lower-paying career. [Fn. 14]
Finally, in Nass v. Seaton, we upheld a decision imputing
earnings to a noncustodial father who had a history of substantial
earnings during the marriage but had not fully advertised his
services after divorcing. [Fn. 15]
The superior court found a common thread uniting these
cases: "[P]rior to the litigation, the obligor had a clearly
defined track record of employment and earnings, but his employment
or wages changed in a manner that led the court to believe that the
reduction was voluntary." Concluding that "prior employment was a
critical element of the court's ability to determine whether the
obligor was voluntarily underemployed,"the court declined to
impute income to Georgia, who had no history of prior earnings.
But this ruling effectively converted a repeating fact
pattern into a "critical element"of voluntary underemployment.
Although prior employment can be an important factor in measuring
underemployment, [Fn. 16] our cases do not suggest that it is an
indispensable element. To the contrary, the relevant inquiry under
Civil Rule 90.3 is simply whether a parent's current situation and
earnings reflect a voluntary and unreasonable decision to earn less
than the parent is capable of earning. [Fn. 17] Civil Rule
90.3(a)(4) only bars a finding of voluntary underemployment in two
situations: when the underemployed parent "is physically or
mentally incapacitated"or "is caring for a child under two years
of age to whom the parents owe a joint legal responsibility."[Fn.
18] In all other situations, the rule and our case law
specifically require courts to consider the "totality of the
circumstances"to decide whether income should be imputed. [Fn. 19]
In summary, then, neither Rule 90.3 nor our case law
supports the superior court's threshold legal assumption that a
"track record of employment and earnings"is a "critical element"
in the absence of which there is "no baseline from which to measure
the extent to which [Georgia] [was] voluntarily underemployed."
The superior court also distinguished Georgia's situation
from that in Kowalski by pointing out that she was not a "non-
custodial parent"because, although one child lived full-time with
Michael, she shared equal custody of the parties' other two
children. But in addressing the issue of voluntary
underemployment, Civil Rule 90.3 does not distinguish between
situations involving primary custody and those involving shared or
divided custody. Subparagraph (a)(4) of Rule 90.3 expressly
addresses voluntary underemployment in the context of primary
custody situations. But this concept carries over to shared and
divided custody situations, since Rule 90.3(b)'s provisions
governing shared and divided custody require the court to begin its
child support determination by calculating the individual support
obligations of both parents under Rule 90.3(a). And while the bulk
of our voluntary underemployment cases deals with primary custody
situations, our discussion of the subject in those cases accords no
special significance to that form of custody. [Fn. 20]
b. Because the parties' new custody agreement
altered Georgia's duty of support, Michael did not need to prove
additional changes in circumstances affecting Georgia's employment.
Although it stopped short of holding that voluntary
underemployment can never be found in the absence of a showing of
prior gainful employment, the superior court declared that, without
such a showing, Michael needed to prove some comparable change in
Georgia's circumstances. Unless Michael showed that Georgia
"changed her employment or lifestyle,"the court reasoned, "the
fact that [she] might be able to find a paying job in lieu of
continuing to work in the family business and focusing on her
children when they are staying with her does not mean that she
thereby is voluntarily underemployed." To the contrary, "the
available facts indicate that she continues to do what she has
always done: to make the raising of her children her primary
focus. . . . There being no change, it is difficult to conclude
that [she] is voluntarily underemployed."
But the court's reasoning overlooks the crucial
significance of the parties' agreement to modify their existing
custody arrangement. By virtue of the 1997 custody agreement,
Georgia changed her parental role from that of a full-time
custodian of three children to that of a half-time custodian of
Laura, age 10, and Joshua, age 15. For his part, Michael undertook
to share equal custody of Laura and Joshua with Georgia and to
assume sole physical custody of Jason, age 17. This arrangement
necessarily lessened the demands on Georgia as a parent, because it
essentially made Michael responsible for two-thirds of the
children's total physical custody. Yet despite this change from
sole physical custody to one-third custody, Georgia insisted on
continuing to play her usual role as "a full-time mom,"denying any
intention to shift her efforts toward supporting the children while
they were in Michael's care.
Given these circumstances, we believe that Michael's
claim of voluntary and unreasonable underemployment was facially
plausible and should not have been rejected as a matter of law for
failure to establish a more direct change in Georgia's "employment
or lifestyle." Georgia's desire to continue in her accustomed role
is certainly understandable. But standing alone, it is not a self-
evidently reasonable basis for refusing to support her children
during their substantial time in Michael's care. [Fn. 21]
Moreover, the need for an evidentiary hearing was particularly
great because Michael offered substantial evidence indicating that
Georgia would be capable of earning significant wages.
Without further justification, then, Georgia's decision
not to look for employment outside the home, even though she shared
only one-third of the total responsibility for her children's
physical custody raised genuine issues of material fact as to
whether she was "voluntarily and unreasonably"underemployed. [Fn.
22]
c. The possibility that a finding of
underemployment might reduce Michael's child support payments to
Georgia did not justify summary denial of his motion.
The superior court identified one additional "final and
absolutely key other consideration"warranting summary rejection of
Michael's voluntary underemployment claim:
One might argue -- as [Michael] implicitly
does -- that a parent with week-on, week-off custody still has an
obligation to support her children and that she should not evade
that obligation by being voluntarily under employed. But in this
case, due to the manner in which child support is calculated,
imputation of income will actually reduce the support available to
the children. . . .
Imputation of income is an appropriate
course to take when a non-custodial parent, who bears the full
expense of child support, chooses not to work; for it ensures that
children will receive the financial support that that parent
ordinarily should be able to provide. But under the facts of this
case, imputation of income accomplishes the reverse result, for
[Georgia] is assumed to make money she actually is not making and
hence is not using to support the children. Rather, imputation of
income here can only reduce [Michael's] obligation, thereby
reducing the actual monetary support that the children will
receive.
This final reason for rejecting Michael's claim is
problematic. It assumes that an order imputing income to Georgia
would not encourage her to find a paying job. [Fn. 23] Yet this is
not a fair assumption. An important reason -- if not the chief
reason -- for imputing income to a voluntarily underemployed parent
is to goad the parent into full employment by attaching an
unpleasant consequence (a mounting child support debt or, in
certain cases of shared custody, a reduced child support payment)
to continued inaction. Indeed, in primary and shared custody
situations alike, an order imputing income often yields no tangible
benefits to the children unless and until it impels the
underemployed parent to find a job. To this extent, then, our rule
allowing courts to impute income in cases of voluntary
underemployment depends on the very premise that the superior court
rejected here -- the likelihood that an order imputing income to
Georgia would spur her to find a paying job.
3. Michael's claim must be remanded for an evidentiary
hearing.
Given our conclusion that Michael made a prima facie
showing of voluntary underemployment and that his claim could not
be rejected as a matter of law, we must vacate the superior court's
1998 child support order and remand this case for entry of a
modified order after an evidentiary hearing on Michael's claim. In
remanding for further proceedings, however, we emphasize the narrow
basis of our decision. We have recognized that Michael is entitled
to an evidentiary hearing because he has made out a prima facie
showing of voluntary underemployment. But we express no opinion as
to the ultimate validity of his claim. Nor do we attempt to define
the boundaries of underemployment. We leave these issues to the
superior court's sound discretion on remand.
We do think it important, however, to observe that Rule
90.3(a)(4) does not rigorously command pursuit of maximum earnings.
The rule's more modest objective is to give courts broad discretion
to impute income based on realistic estimates of earning potential
in cases of voluntary and unreasonable unemployment or
underemployment. We note that courts in other jurisdictions have
varied widely in interpreting and enforcing similar provisions.
[Fn. 24] In our view, the boundaries of Alaska's rule are best
left to be defined through case-by-case consideration based on the
totality of relevant circumstances. [Fn. 25]
We further note that our decision vacating the 1998 child
support order makes it unnecessary to address the issues arising on
appeal from the superior court's 1999 orders denying Michael's
second generation of modification motions. Since the superior
court will be able to base its reconsideration of the original
child support order on the parties' current circumstances and their
actual earnings since 1997, the intervening events of the second
appeal will necessarily be subsumed in the court's ruling on its
original order. [Fn. 26]
IV. CONCLUSION
The superior court's 1998 orders denying Michael's motion
for a hearing on voluntary underemployment and establishing his
child support obligation are VACATED. This case is REMANDED for
further proceedings as directed in this opinion.
FOOTNOTES
Footnote 1:
Jason was born on May 14, 1980; Joshua was born on January 17,
1982; and Laura was born on March 7, 1987.
Footnote 2:
Specifically, the court assigned Georgia the minimum monthly
payment of $50 -- an amount reflecting the assumption that
Georgia's adjusted annual income would fall below the federal
poverty guideline -- which resulted in Michael paying support of
$893 a month for two children. See Alaska R. Civ. P. 90.3(b)(1).
Footnote 3:
See Alaska R. Civ. P. 90.3(h)(1) (material change in
circumstances warranting modification of child support is presumed
if support calculated under Rule 90.3 would vary more than 15% from
the outstanding support order).
Footnote 4:
Sanders v. Sanders, 902 P.2d 310, 313 (Alaska 1995).
Footnote 5:
Kowalski v. Kowalski, 806 P.2d 1368, 1370 (Alaska 1991).
Footnote 6:
See Marine v. Marine, 957 P.2d 314, 316 (Alaska 1998).
Footnote 7:
See Acevedo v. Burley, 944 P.2d 473, 476 n.2 (Alaska 1997).
Footnote 8:
See Adrian v. Adrian, 838 P.2d 808, 812 (Alaska 1992).
Footnote 9:
Cf. Epperson v. Epperson, 835 P.2d 451, 453 (Alaska 1992).
Footnote 10:
Former Alaska R. Civ. P. 90.3 cmt. III.C at 226. In 1997 this
language appeared only in the commentary to Rule 90.3. It has
subsequently been embodied in the text of Rule 90.3 as subparagraph
(a)(4), and the rule's commentary has been revised to direct courts
to consider the "totality of the circumstances"in deciding whether
to impute income. See Alaska R. Civ. P. 90.3 cmt. III.C at 246.
Footnote 11:
806 P.2d 1368, 1370 & n.2 (Alaska 1991); see also Dunn v.
Dunn, 952 P.2d 268, 269, 271 (Alaska 1998) (affirming imputed
income for a noncustodial father who took early retirement shortly
after marriage and chose not to return to work after divorcing).
Footnote 12:
Kowalski, 806 P.2d at 1371; see also Pattee v. Pattee, 744
P.2d 658, 659, 662 (Alaska 1987), overruled on other grounds in
Nass v. Seaton, 904 P.2d 412 (Alaska 1995) (reversing trial court's
decision to base support obligation on father's actual income after
he quit work to become a student).
Footnote 13:
811 P.2d 1062, 1064 (Alaska 1991).
Footnote 14:
See id. at 1066-67. These circumstances included the needs of
the child; the ability of the custodial parent to meet those needs;
the father's work history as a commercial fisherman and welder; his
qualifications; his job opportunities; and his plans for education.
See id. at 1066.
Footnote 15:
See 904 P.2d at 417-18 (remanding for other reasons).
Footnote 16:
Cf. Alaska R. Civ. P. 90.3 cmt. III.E at 247 ("determination
of future income may be especially difficult when the obligor has
had very erratic income in the past"); Nass, 904 P.2d at 417-19
(recognizing this difficulty); Kowalski, 806 P.2d at 1372 (same).
Footnote 17:
See Alaska R. Civ. P. 90.3(a)(4) & cmt. III.C at 246.
Footnote 18:
Id.
Footnote 19:
Alaska R. Civ. P. 90.3 cmt. III.C at 246; Pugil, 811 P.2d at
1066.
Footnote 20:
Indeed, in an opinion published after the superior court
issued its decision in the present case, we affirmed a finding of
voluntary underemployment in a shared custody situation.
SeeLacher v. Lacher, 993 P.2d 413, 417, 423 (Alaska 1999).
Footnote 21:
Cf. In re Marriage of Wright, 896 P.2d 735, 737 (Wash. App.
1995):
Although this court is sympathetic to the
significant difficulties faced by a single parent, we have held
that voluntary under-employment by either parent will not shield
that parent from a child support obligation. This principle
applies with equal force to men and women, regardless of the reason
for the under-employment.
(Citation omitted.)
Footnote 22:
See Alaska R. Civ. P. 90.3(a)(4).
Footnote 23:
The superior court expressly relied on this assumption,
stating that it was not "aware of any legal authority that would
allow the court to enter . . . an order"requiring Georgia to
"obtain a paying job."
Footnote 24:
Compare, e.g., In re Marriage of Braun, 887 S.W.2d 776, 779
(Mo. App. 1994) (affirming trial court's decision not to impute
income to wife who was unemployed during eight-year marriage, had
only a high school education and minimal work history, and was
awarded primary physical custody of three young children), and
Castaneda v. Castaneda, 615 N.E.2d 467, 471 (Ind. App. 1993)
(affirming trial court's decision not to impute full-time income to
mother who had been working part-time since the birth of her first
child and wished to remain part-time until the youngest of three
children started school), with In re Marriage of Jonas, 788 P.2d
12, 13 (Wash. App. 1990) (imputing income to mother who chose to
stay home with children, explaining: "No matter how legitimate
their reasons . . . each [parent] is accountable for earnings
foregone in making the choice to be unemployed."), In re Marriage
of LaBass, 66 Cal. Rptr. 2d 393, 397-98 (Cal. App. 1997) (affirming
trial court's decision to impute full-time teacher's salary to
mother who had chosen to work part-time to spend time with children
where she was qualified to work and after-school child care was
available), Terpstra v. Terpstra, 588 N.E.2d 592, 594-95 (Ind. App.
1992) (imputing full-time income to mother even though she claimed
consistent part-time work history where two of children would be in
school and wages covered child care), and Brody v. Brody, 432
S.E.2d 20, 22 (Va. App. 1993) (income may be imputed if children
are in school, child care is available, and cost of child care can
be determined).
Footnote 25:
See generally Pugil, 811 P.2d at 1066-67 (finding that trial
court had considered all the relevant factors in imputing income to
underemployed custodial parent); Terpstra, 588 N.E.2d at 594-95
(emphasizing that factors applied in determining whether to impute
full-time income to stay-at-home parent are necessarily case-
specific).
Footnote 26:
Because changed circumstances occurring after entry of the
1998 child support order led Georgia to obtain gainful -- albeit
part-time -- employment, we believe that, for periods of actual
employment, the superior court should begin by assuming Georgia's
earnings accurately reflect reasonable efforts to maintain
employment at earning capacity; the court should depart from this
assumption only to the extent that Michael makes out a prima facie
showing of voluntary and unreasonable underemployment.
