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Olmstead v. Ziegler (03/08/2002) sp-5543
Olmstead v. Ziegler (03/08/2002) sp-5543
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
WILLIAM E. OLMSTEAD, )
) Supreme Court No. S-9481
Appellant, )
) Superior Court No.
v. ) 1JU-94-306 CI
)
ELIZABETH A. ZIEGLER, ) O P I N I O N
)
Appellee. ) [No. 5543 - March 8,
2002]
________________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Michael A. Thompson, Judge.
Appearances: William E. Olmstead, pro se,
Juneau, Appellant. Elizabeth A. Ziegler, pro
se, Juneau, Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Bryner, Justices. [Carpeneti,
Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
This is an appeal from the denial of a motion to modify
child support. Under the trial courts original order, the
parties shared custody of their child and neither paid child
support to the other. The trial court determined that a
modification of child support was not warranted because the
father, William Olmstead, was voluntarily underemployed and his
earning capacity had not changed. We conclude the trial court
did not err in finding that Olmstead was voluntarily
underemployed, and we affirm the denial of the motion to modify
child support.
II. FACTS AND PROCEEDINGS
A. Factual History
William Olmstead and Elizabeth Ziegler married in
August 1989. Their only child, Lauren, was born in January 1990.
They divorced in December 1994. The parties, both of whom are
attorneys, entered into a settlement agreement that was
incorporated into the divorce decree. The agreement provided for
joint legal and physical custody of their daughter and specified
that neither party would pay child support to the other.
However, Olmstead did agree to pay for their daughters daycare
and education expenses. Their daughter no longer requires
constant daycare, and she now attends public schools. Olmstead
estimates that he spends approximately $80 per month on child
care.
At the time of the divorce, the parties submitted a
child support affidavit, as required by Alaska Civil Rule
90.3(3). Olmsteads estimated 1994 annual gross income was
$53,000 and Zieglers was $25,000. Zieglers estimate proved to be
high, as she actually earned $16,753 in 1994. Ziegler was
subsequently hired as an attorney with the firm of Baxter, Bruce
& Brand in Juneau, where her annual income increased
significantly. In 1998, she earned $53,761.
In August 1996 Olmsteads law partner of several years,
Patrick Conheady, left the partnership. Conheady claimed that
Olmstead was unproductive and frequently played card games on his
computer instead of working on his cases. Olmstead became a
solo practitioner. While he sought other positions and applied
for several state jobs, he was apparently unsuccessful in
obtaining other employment. Olmsteads income decreased
significantly during this period. In 1996 his income dropped to
$10,157. In 1998 he earned $13,075.
In March 1999 Olmstead informed his friends and
colleagues in Juneau that he would be leaving the practice of
law, as he had decided to go back to school to become a teacher.
In order to make ends meet in the meantime, he offered his legal
research and writing services to other attorneys. Olmstead has
since remarried. Ziegler remains single.
B. Procedural History
On June 3, 1999, Olmstead filed a motion for an order
modifying child support under Civil Rule 90.3. On October 28,
1999, the trial court denied Olmsteads motion for modification of
child support, noting that Olmstead had not provided the
necessary income verification documents. Olmstead moved for
reconsideration, and on November 16, 1999, the trial court issued
an order simultaneously granting Olmsteads request for
reconsideration and denying his motion to modify child support.
The trial court found that, although their financial situations
may have changed, the parties still possessed equal earning
capacities. The trial court also reasoned that, although
Olmstead was free to change careers, he was not entitled to a
modification of child support: [Olmstead] has elected to learn
new things for a while, and perhaps take on a new career. He is
free to do so, but under our case law [Ziegler] and the child are
not expected to finance these choices. Olmstead appeals.
III. STANDARD OF REVIEW
Trial courts have broad discretion in deciding whether
to modify child support orders.1 A trial courts determination of
whether to modify child support will be reviewed for abuse of
discretion.2 An abuse of discretion occurs when, based on a
review of the whole record, we are left with a definite and firm
conviction that a mistake has been made.3 Under Alaska Civil
Rule 52(a),4 factual findings will not be set aside unless they
are clearly erroneous.5
IV. DISCUSSION
A. The Trial Court Did Not Err in Finding that Olmstead
Was Voluntarily Underemployed.
Olmstead claims that the court erred in finding that he
was voluntarily underemployed and contends that the court
improperly relied upon his decision to change careers in making
that finding. Olmstead points out that he did not ask for a
modification of child support based upon his income as a student
or teacher. Rather, he requested a modification based entirely
upon his earnings while he was a practicing attorney. He thus
claims that it was improper for the trial court to rely on his
career change when he did not make it a basis for his motion.
Olmstead adds that he made a mistake by choosing law as a
profession, and that he lacks the personality traits necessary
for success in the field. He claims that he was not capable of
even moderate success as a solo practitioner, and no other
options were available to him.
Ziegler counters that Olmsteads lack of success in law
and subsequent move to teaching are the results of his voluntary
actions. She points to the fact that Olmsteads former law
partner left the partnership because Olmstead had greatly reduced
his productivity. Olmstead apparently began to scale back his
practice as early as February of 1998. He cancelled his
advertisement in the yellow pages and did not maintain regular
business hours. Ziegler suggests that Olmstead instead spent his
time running marathons and remodeling his home. She claims that
this evidence shows Olmstead voluntarily withdrew from the
practice of law. Ziegler relies upon Pattee v. Pattee, in which
we reversed the reduction of a child support award to accommodate
the fathers decision to become a student.6 She contends that
this case should follow Pattees mandate that the custodial parent
should not be forced to finance the noncustodial parents career
change.7
The trial court concluded that Olmsteads decision to
quit the private practice of law and undertake training for a new
career cannot be viewed as anything but a voluntary move on his
part. The court found that Olmsteads career change constituted
voluntary underemployment. The trial court also concluded that
Olmsteads underemployment was unreasonable:
This record can only support a conclusion
that [Olmstead] was merely unhappy with the
private practice of law and . . . has
withdrawn from it. There is no foundation
from which to conclude that [Olmstead] could
not earn exactly what [Ziegler] now earns
from law practice, if not more, should he
have found himself willing to so apply his
skills and experience. . . . Further, it
does not appear reasonable for [Olmstead] to
reenter the education system to train for a
position that is less remunerative than that
his current education and experience
justifies. No moral criticism of [Olmsteads]
lifestyle change is intended, but the Court
will not shift any of the consequent burden
to the narrow shoulders of this child.
Voluntarily reducing ones income may not justify a
modification of child support.8 Determining whether or not a
parent is voluntarily and unreasonably underemployed is
essentially a question of fact.9 The trial court should consider
the nature of the changes and the reasons for the changes, and
then . . . determine whether under all the circumstances a
modification is warranted.10 A trial court may find that
underemployment is voluntary even if the obligor acted in good
faith.11
We conclude that the trial court did not err in finding
that Olmstead was voluntarily and unreasonably underemployed.
The evidence before the trial court established that Olmstead
took many steps, including closing his office and failing to keep
regular business hours, that demonstrated his intent to downsize
his practice. He also significantly reduced his workload hoping
to obtain a job with the Department of Transportation. In
addition, the record contains an affidavit from Olmsteads former
partner, Conheady, recounting his difficulties with Olmsteads
lack of productivity: Conheady states that he left the
partnership because Olmstead was not producing enough billable
hours. While Olmstead has repeatedly stated that he was simply a
failure at law and was not capable of earning the average lawyers
salary, he has provided scant support for his assertions. In
addition, Olmsteads claims that he was unable to make a living
practicing law are undermined by the fact that at one time he
made over $53,000 a year.
Despite Olmsteads assertions to the contrary, it was
permissible for the trial court to consider Olmsteads career
change in determining the issue of voluntary and unreasonable
underemployment. In its order, the trial court addressed
Olmsteads career change, remarking that while Olmstead was free
to change jobs, Ziegler and their daughter did not have to
finance that choice. The trial court is not limited to
consideration of the facts and circumstances that Olmstead
chooses. We have stated that the trial court should consider the
nature of changes in income, as well as the reasons for the
changes, and then determine whether under all the circumstances a
modification is warranted.12 That includes Olmsteads career
change.
Moreover, Part III.C of the commentary to Civil Rule
90.3 recognizes that [w]hen a parent makes a career change, this
consideration should include the extent to which the children
will ultimately benefit from the change. Thus, it is appropriate
for the trial court to consider not only the career change, but
also its potential impact on the child. Since Olmstead has
failed to prove any benefit to the child from his decision to
downsize his practice and change careers, the trial court did not
err in finding that a modification is not warranted. It was not
error for the trial court to have found that Olmstead was
voluntarily and unreasonably underemployed, nor did the court err
by considering Olmsteads career change.
B. The Trial Court Did Not Err in Its Earning Capacity
Determination.
In a corollary argument, Olmstead also claims that the
trial courts determination of earning capacity is clearly
erroneous and requires reversal. Olmstead contends that evidence
of his earnings while working as a solo practitioner contradicts
the courts suggestion that he could have made more had he tried
harder. He adds that he is unsuccessful on his own because his
personality [makes] it very difficult for him to develop
business. Olmstead maintains that there is no evidence to
support the trial courts conclusion that his earning capacity was
equal to or greater than Zieglers.
However, the record supports the trial courts view that
Olmstead was not working at his full capacity. The trial court
remarked that [t]here is no foundation from which to conclude
that [Olmstead] could not earn exactly what [Ziegler] now earns
from law practice, if not more, should he have found himself
willing to apply his skills and experience. The trial court
added that the parties earning power was the same as when the
original settlement agreement was signed. The trial court based
its view of Olmsteads earning capacity on his actual past
earnings as well as on other factors discussed above.
The trial court had before it ample evidence of
Olmsteads work history, qualifications, and job opportunities.
Although Olmstead would prefer that the trial court calculate his
potential income based only on three years of his earnings of his
own choosing, the trial court properly considered Olmsteads
qualifications as an attorney with substantial experience.13 The
record also contains evidence that Olmstead at one time made over
$50,000 per year while practicing law. Implicit in the trial
courts evaluation of Olmsteads earning capacity is its rejection
of his claims that he is simply not a successful solo
practitioner. Also included in the record are Alaska Department
of Labor statistics stating that the average income for male
attorneys in Alaska is $65,811.
In sum, the trial courts determination that Olmstead
had the capacity to earn as much as Ziegler is not clearly
erroneous. There is adequate support in the record for this
conclusion, and the trial court did not commit error by
considering factors other than Olmsteads recent earnings as a
solo practitioner.
C. The Trial Court Did Not Err in Failing to Make Findings
and Set Forth Calculations to Support Its
Determination.
Olmstead next argues that the trial court failed to
enter explicit findings about earning capacity and to provide a
basis for this court to review the determination. Olmstead claims
that the trial courts failure to provide any calculations is
fatal and that remand is required. Ziegler responds that it was
unnecessary for the trial court to provide calculations because
the parties share custody.
Given their equal earning capacities, child support is
a wash.14 The trial court is required to enter sufficiently
detailed findings of fact to allow for meaningful appellate
review.15 Here the trial court adequately supported its decision
that the parties had equal earning power. Moreover, the cases
relied upon by Olmstead are not applicable to this situation the
trial courts findings on earning capacity are sufficient.16
V. CONCLUSION
The trial court did not err when it found Olmstead to
be voluntarily underemployed. Furthermore, the trial court did
not err when it determined that no modification of child support
was warranted. Therefore, the decision of the superior court is
AFFIRMED.
_______________________________
1 Patch v. Patch, 760 P.2d 526, 529 (Alaska 1988).
2 Schuyler v. Briner, 13 P.3d 738, 741 (Alaska 2000).
3 Id. (quoting State, Dept of Revenue v. Pealatere, 996
P.2d 84, 86 (Alaska 2000)).
4 Civil Rule 52(a) provides in part: Findings of fact
shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.
5 Nass v. Seaton, 904 P.2d 412, 414 (Alaska 1995).
6 744 P.2d 658 (Alaska 1987), overruled on other grounds
by Nass v. Seaton, 904 P.2d 412, 416 n.7 (Alaska 1995).
7 See id.
8 Robinson v. Robinson, 961 P.2d 1000, 1004 (Alaska
1998).
9 See Vokacek, 933 P.2d 544, 549 (Alaska 1997).
10 Id.
11 Robinson, 961 P.2d at 1004.
12 Pattee, 744 P.2d at 662 (quoting In re Marriage of
Rome, 621 P.2d 1090, 1092 (Mont. 1981)).
13 Olmstead graduated from law school in 1984.
14 See Civil Rule 90.3(b); Civil Rule 90.3 Commentary
III.C.
15 Nass v. Seaton, 904 P.2d 412, 418-19, 419 n.13 (Alaska
1995).
16 For example, in Beard v. Morris, we remanded to the
trial court for findings on how the trial court valued the
military-provided housing at issue. 956 P.2d 418, 420-21 (Alaska
1998). Unlike Beard, the trial court in this case made it quite
clear how it valued Olmsteads earning capacity; it considered it
to be at least the same as Zieglers $54,000. As explained
above, that finding is not clearly erroneous. Similarly, in Nass
v. Seaton, we required the trial court to enter sufficiently
detailed findings of fact which disclose its methodology, as well
as the factual basis, for its determination of the appropriate
imputed potential income level for the obligor-parent. 904 P.2d
at 419. The trial court in this case did outline the factual
basis for its determination that these two experienced attorneys
had equal earning capacities.
