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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sawicki v. Haxby (06/13/2008) sp-6272
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| ANNIE E. SAWICKI, | ) |
| ) Supreme Court No. S- 12447 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-99-3744 CI | |
| v. | ) |
| ) O P I N I O N | |
| JOHN E. HAXBY, | ) |
| ) No. 6272 June 13, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Allison Mendel, Mendel &
Associates, Anchorage, for Appellant.
Kenneth C. Kirk, Kenneth Kirk & Associates,
Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Annie Sawicki moved for a reduction of her child
support payments after she left one job and took another that
paid about half as much. The superior court found that Annie was
voluntarily and unreasonably underemployed, imputed her prior
income to her, and denied her motion. We affirm. Because John
Haxby made out a prima facie showing of unreasonable
underemployment, it was not error to require Annie to produce
contrary evidence. Because the evidence does not demonstrate
that it was clear error to impute income to her, the court did
not err in denying her reduction motion.1
II. FACTS AND PROCEEDINGS
Annie and John divorced in 1999. They initially shared
equal custody of their two children, but when Annie moved from
Alaska to Indiana, John obtained primary physical custody. The
children live with John during the school year and visit Annie
during the summer and school vacations. Annie has the children
for approximately twelve to fourteen weeks per year.
The superior court issued the parties present child
support order in March 2004. Annie was then Director of National
Development at St. Marys College in Notre Dame, Indiana. Based
on Annies income from St. Marys, the court found that her gross
annual income was $52,000 and set Annies support payment at $838
per month.
Annie voluntarily left her St. Marys job in June 2005.
She began working as a senior area manager in the business
development department of a consulting firm called International
Profit Associates, Inc. (IPA) in August 2005. She worked without
pay during a training period that lasted until mid-November 2005.
Annie also worked as a part-time event staffer at University of
Notre Dame sporting events, but the time commitment and pay were
minimal.
Alleging a reduction in her income, Annie asked the
court in December 2005 to reduce her child support obligation.
Based on her 2005 income, Annie claimed that her monthly child
support payments should be reduced from $838 to $427.16. John
opposed, arguing that she failed to provide an adequate
explanation for her change in jobs or documentation
substantiating her claim that her decreased income warranted
reduced support payments. Annie replied that she quit her St.
Marys job because it required too much travel, limiting her
ability to be with the children when they visited.
Both parties testified before a special master in
March 2006 after filing current, notarized Child Support
Guidelines affidavits. Annie admitted that she had earned over
$100,000 per year as a drug company representative in Alaska.
She testified that she quit her St. Marys job because it would
have required her to travel locally and nationally between fifty-
five percent and eighty percent of the time,2 interfering with
her ability to see the children. She stated that she expected
her income from her new job to increase as she gained more
experience and that her position afforded her the opportunity to
earn promotions and raises. Finally, she testified that she was
studying for a masters degree in business administration, but
that she was probably two years away from getting the degree.
After the hearing, John moved to re-open the evidence
because he claimed Annie perjured herself by testifying that she
did not have a masters degree in education. He argued that her
education had a direct bearing on her income-producing potential.
The court granted Johns motion, set another hearing for June
2006, and ordered Annie to file a financial declaration and
documentation supporting her claim that she traveled eighty
percent of the time while working for St. Marys.
Annie claimed that documentation substantiating her
assertion that she traveled eighty percent of the time was
unavailable. She explained that St. Marys had all of her travel
records and tickets, that she did not keep any records of her
own, and that St. Marys tracked only her mileage, not her travel
time. Annies financial declaration showed that she had $507,000
in assets including $82,000 in cash or cash accounts, $50,000 in
stocks and bonds, and $270,000 in a retirement or pension fund.
At the June 2006 hearing conducted by the master, Annie
acknowledged that she had a masters degree in education. She
also admitted that she was not actually working towards a masters
degree in business administration, but towards a certificate in
executive management. She stated that she would not get a
masters degree because the classes were not for credit.
The master filed his report and his recommended rulings
in July 2006. He found that Annie failed to substantiate her
testimony about how much she traveled and that her March 2006
testimony contained conflicting evidence on that issue. He also
found that she intentionally misled the court about her masters
degree in education and that it was difficult to accept her
explanations. The master recommended that the superior court (1)
deny Annies modification motion because he found that she was
unreasonably underemployed, and (2) award John fifty percent of
his reasonable actual attorneys fees pertaining to the support
modification motion: thirty percent because John was the
prevailing party and an additional twenty percent of his fees
because Annie engaged in vexatious and bad faith conduct. The
superior court adopted the masters recommendations and denied
Annies request for reconsideration.
Annie appeals.
III. DISCUSSION
A. Annies Motion To Modify Child Support
1. The burden of proof was properly on Annie.
Annie argues that the master incorrectly imposed the
burden of proof on her to prove she was not unreasonably
underemployed. She asserts that the burden of showing a prima
facie case of unreasonable underemployment should have rested
with John. Annie claims that John failed to meet his prima facie
burden because the only evidence of unreasonable underemployment
he presented was testimony he elicited from Annie about her work
history, education, and why she changed jobs. She posits that an
initial showing of voluntary and unreasonable underemployment
should require more.
We rule de novo in determining how the law applies to
undisputed facts.3 Annie relies on a footnote in Beaudoin v.
Beaudoin in which we stated that the court should assume that the
obligors earnings accurately reflect reasonable efforts to
maintain employment at earning capacity when an obligor moves the
court to modify his or her child support payments.4 We noted
that the court should depart from this assumption only to the
extent [the custodial parent] makes out a prima facie showing of
voluntary and unreasonable underemployment.5
Beaudoin does not define a prima facie case of
voluntary and unreasonable underemployment.6 We held there that
the father made out a prima facie case of unreasonable
underemployment simply by showing that the mother opted not to
seek gainful employment even though she shared only one-third of
the total responsibility for the childrens physical custody.7
In accord with what we said in Beaudoin, John presented
more than adequate evidence to make out a prima facie case of
voluntary and unreasonable underemployment. Annie concedes that
she voluntarily left her job at St. Marys. John therefore only
had to show that it was unreasonable for her to change jobs. We
conclude that John met his prima facie burden by showing that
Annie voluntarily left St. Marys to take a job paying
approximately half what she earned before. Johns prima facie
case is only bolstered by evidence that Annies reduced income may
be temporary, that her work history and qualifications indicate
she could be making substantially more money, and that she had
significant liquid assets at her disposal from which to satisfy
her child support obligation.
Annie also contends that the master improperly put the
burden on her to show that she traveled eighty percent of the
time while working for St. Marys, and to show that she sought,
but could not find, a better paying job or a job that enabled her
to use her masters degree in education. But all the evidence
concerning the reasonableness of Annies employment change was
either in her control or far more available to her given that she
no longer resides in Alaska; the relevant evidence would have
been available to her through her own records or exclusively
available to her through her employers records. Because John met
his initial burden, Annie was obliged to present evidence to
rebut his prima facie case. Annie failed to do so. Once the
primary custodian has made out a prima facie case of voluntary
and unreasonable underemployment or unemployment the burden of
persuasion shifts to the obligor to rebut that claim. The master
did not err in requiring Annie to present rebuttal evidence to
show that she was not unreasonably underemployed.8
2. The master did not apply the wrong legal standard
or make inadequate findings in concluding that
Annie was unreasonably underemployed.
Annie argues that the master did not consider the
totality of the circumstances or make adequate findings to
support his conclusion that she was unreasonably underemployed.
The master found Annie was voluntarily and unreasonably
underemployed in light of her past employment, income history,
and educational background. He also found that Annie ha[d] not
proven that it was necessary for her to quit [her] St. Marys job
because she had not substantiated the assertion that she traveled
between fifty-five and eighty percent of the time. Given that
John had custody of the children for most of the year, the master
found that it was unreasonable for Annie to leave her St. Marys
job to take an approximately forty-five percent pay cut at IPA.9
He therefore recommended that the superior court deny Annies
motion.
We independently review whether the trial court has
applied the correct legal standard in determining a child support
obligation.10 We review child support modifications for abuse of
discretion.11 We will find an abuse of discretion if we are left
with the definite and firm conviction on the whole record that a
mistake has been made.12 The trial courts determination of an
obligors imputed income is a factual finding that we review for
clear error.13
The trial court may use an obligors potential income
when calculating a child support award if the court finds the
obligor is voluntarily and unreasonably unemployed or
underemployed.14 It is appropriate to impute income to an obligor
if a parents current situation and earnings reflect a (1)
voluntary and (2) unreasonable decision to earn less than the
parent is capable of earning.15
Annie admits that she voluntarily left her job at St.
Marys College, where she earned $52,000 per year. We therefore
must decide only whether the trial court abused its discretion in
deciding that it was unreasonable for Annie to take a job that
paid half as much. The court must consider the totality of the
circumstances in deciding whether an obligor is unreasonably
underemployed.16 These include such factors as whether the
obligors reduced income is temporary,17 whether the change is the
result of economic factors or of purely personal choices,18 the
childrens needs, and the parents needs and financial abilities.19
Because the masters findings encompass the totality of
the relevant circumstances, we conclude that it was not error to
impute income based on them. The masters findings reflect that
he considered the parties custody arrangement, as well as Annies
work history, prior income, qualifications, education, and
reasons for leaving her job. These are relevant factors in
determining whether an obligor is currently unreasonably
underemployed.20 Although the master did not make findings on
several issues potentially relevant to the totality of the
circumstances, such as the temporary nature of her reduced income
or that she had substantial assets from which to satisfy her
obligation in the meantime, we are not left with the definite and
firm conviction that the superior court erred. Our independent
review of the record supports the conclusion that Annie was
voluntarily and unreasonably underemployed, and that it was
therefore appropriate to impute income to her. The superior
court did not abuse its discretion when it denied Annies motion
to reduce her child support payments.
Finally, it was not clearly erroneous for the court to
impute income of $52,000 to Annie. Potential income will be
based on the parents work history, qualifications, and job
opportunities.21 Given Annies extensive sales experience and
savings, it was not error to impute income to Annie at the salary
she recently earned at St. Marys.
B. Attorneys Fees
Annie also argues that Johns attorneys fees award
should be reversed, both because he should not have prevailed on
the motion to modify and because he materially misled the court
about whether he had paid for the childrens health insurance and
about his income. Her first reason is unavailing, given our
conclusion that the superior court did not err in denying Annies
motion to modify. And her second reason is not adequately
briefed.22 We therefore affirm the attorneys fees award.
IV. CONCLUSION
We AFFIRM the courts denial of Annies motion to modify
child support payments and the courts award of attorneys fees to
John. Given Johns concession at oral argument that the health
insurance credit issue was erroneously resolved, we REVERSE the
denial of Annies request for a health insurance credit and REMAND
for a determination of which party is entitled to a child support
credit for buying health insurance for the children.
_______________________________
1 At oral argument John conceded that a remand was
appropriate to determine whether he or Annie was entitled to a
child support credit for buying health insurance for the
children. We therefore remand for reconsideration of that issue.
2 Annie variously testified that she traveled for St.
Marys fifty-five percent, fifty-five to eighty percent, fifty-
five to sixty percent, and eighty percent of the time. She
explained in an affidavit that she traveled eighty percent of the
time. She defined travel as any time she left the St. Marys
campus for work.
3 Rusenstrom v. Rusenstrom, 981 P.2d 558, 560 (Alaska
1999) (applying de novo review to denial of motion to modify
child support).
4 Beaudoin v. Beaudoin, 24 P.3d 523, 531 n.26 (Alaska
2001).
5 Id.
6 It was unnecessary in Beaudoin to elaborate on what was
needed to make out a prima facie case because we concluded that
the father in that case established a prima facie case. Id. at
530.
7 Id. at 529-30.
8 At oral argument before us, Annie argued that it would
be appropriate to remand so that she may have the opportunity to
offer rebuttal evidence. The superior court presented her with
the chance to rebut Johns prima facie case when it ordered her to
provide evidence to support her extensive travel claims. Her
failure to do so then forecloses a second opportunity.
9 The master also properly considered Annies credibility
in determining that her travel obligations did not justify
leaving that position. It is the trier of facts function to make
credibility determinations and to weigh conflicting evidence.
Maloney v. Maloney, 969 P.2d 1148, 1150 (Alaska 1998).
10 Beaudoin, 24 P.3d at 526.
11 Byers v. Ovitt, 133 P.3d 676, 680 (Alaska 2006).
12 Id.
13 Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998); see also
Maloney, 969 P.2d at 1150.
14 Alaska R. Civ. P. 90.3(a)(4). Civil Rule 90.3(h)(1)
permits a superior court to modify a child support award if the
movant shows a material change of circumstances that affects the
movants ability to pay has occurred. A material change of
circumstances is presumed if the support is more than 15 percent
greater or less than the outstanding support order. Annie met
this burden when she showed that her monthly payments would be
reduced from $838 to $427.16 based on her 2005 income. This is
an approximately fifty-percent difference.
15 Alaska R. Civ. P. 90.3(a)(4).
16 Alaska R. Civ. P. 90.3 cmt. III.C (directing courts to
consider the totality of the circumstances in deciding whether to
impute income).
17 Patch v. Patch, 760 P.2d 526, 530 (Alaska 1988).
18 Nunley v. State, Dept of Rev., 99 P.3d 7, 11 (Alaska
2004) (internal quotations omitted); Alaska R. Civ. P. 90.3 cmt.
X.A.
19 Curley v. Curley, 588 P.2d 289, 292 (Alaska 1979); see
also Alaska R. Civ. P. 90.3 cmt. X.A.
20 See Beaudoin, 24 P.3d at 525 (remanding when father
made out prima facie case of mothers unreasonable unemployment
based on fact that she refused to seek gainful employment because
she wanted to be available for the children at all times even
though she had been employed in past and no longer had primary
custody of children).
21 Alaska R. Civ. P. 90.3(a)(4).
22 Braun v. Alaska Commercial Fishing & Agric. Bank, 816
P.2d 140, 145 (Alaska 1991). We note also that [a]ttention to
the issue in a reply brief does not resuscitate it. Id.
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