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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Petrilla v. Petrilla (7/19/2013) sp-6799
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
BRIAN D. PETRILLA, )
) Supreme Court No. S-14926
Appellant, )
) Superior Court No. 3AN-01-08216 CI
v. )
) O P I N I O N
ROXANA N. PETRILLA, )
) No. 6799 - July 19, 2013
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Brian D. Petrilla, pro se, Henderson, Nevada,
Appellant. Roxana N. Petrilla, pro se, Anchorage, Appellee.
Before: Fabe, Chief Justice, Winfree, Maassen, and Bolger,
Justices. [Stowers, Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
After a father left his job with the State of Alaska and moved to Nevada,
leaving the mother with primary physical custody of their daughter, the child's mother
filed a motion to modify child support. The superior court ordered a modification and
imputed income to the father under Alaska Civil Rule 90.3(a)(4) after concluding that
the father appeared unmotivated to find employment because he was apparently content
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to collect unemployment benefits. The superior court also expressed concern that the
father had not sufficiently planned for how he would meet his child support obligations
in the event that he could not find work in Nevada. The father subsequently found a state
job in Nevada that paid substantially less than his imputed income, and he moved to
modify and reduce his child support obligation. The superior court denied the father's
request and the father now appeals, arguing that the superior court abused its discretion
in imputing income, erred in the amount that it imputed, and abused its discretion in
denying his motion to modify his child support obligation. Because we conclude that the
superior court did not provide a sufficient factual basis for its denial of the father's
motion to modify child support, we vacate the superior court's order denying the father's
request to modify and remand this case for further proceedings consistent with this
opinion.
II. FACTS AND PROCEEDINGS
Brian Petrilla and Roxana Petrilla were divorced in October 2001. They
agreed to jointly share legal and physical custody of their daughter. This arrangement
continued until August 2011 when the child started living exclusively with Roxana.
In the fall of 2011 Brian began making plans to move with his new wife,
their six-year-old daughter, and his in-laws to Henderson, Nevada to be closer to Brian's
mother and terminally ill father who lived in Tucson, Arizona.
On January 17, 2012, Roxana filed a petition in the superior court to modify
custody in which she sought sole legal and primary physical custody of their daughter.
Roxana also sought to modify the parties' child support arrangement so that Brian would
pay child support.1
1 Under the terms of a 2010 child support modification order, Roxana paid
Brian $37 each month.
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On February 1 Brian resigned from his position as a juvenile probation
officer with the State of Alaska and moved to Nevada. Roxana subsequently filed a
motion to impute Brian's income from 2011 for the purpose of calculating child support.
Roxana argued that Brian had the capacity to earn at least $58,984.50, the amount of his
gross wages from the State of Alaska for 2011.
Brian did not oppose Roxana's child custody request but he opposed her
request to impute income. Although he was not working, Brian argued that he was not
voluntarily or unreasonably unemployed and that imputation of potential income under
Alaska Civil Rule 90.3 was therefore improper.2 He contended that there was good cause
for his family to relocate so that they could be closer to his ailing father, and he argued
that his child support obligation should instead be calculated based on his "current
[u]nemployment [i]nsurance . . . with the understanding that [he would] immediately
provide [his] new income information upon gaining employment in the State of Nevada."
The superior court scheduled an evidentiary hearing for May 31. In
anticipation of the hearing, Brian filed an employment status update in the superior court
that detailed his job search efforts.
Both parties testified at the May 31 hearing. Roxana argued that the
superior court should impute Brian's Alaska wages. She contended that her own
research demonstrated that there were jobs open in Nevada with salaries comparable to
what Brian had earned in Alaska. She also argued that Brian had unreasonably delayed
2 Rule 90.3(a)(4) provides, in relevant part, that "[t]he court may calculate
child support based on a determination of the potential income of a parent who
voluntarily and unreasonably is unemployed or underemployed. . . . Potential income
will be based upon the parent's work history, qualifications, and job opportunities."
Alaska R. Civ. P. 90.3(a)(4).
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finding a new job and that he should have taken steps to plan for his child support
obligation in advance of the move.
Brian testified that he voluntarily quit this job as a juvenile probation officer
so that he could move to Nevada with his new wife, their daughter, and his in-laws to be
closer to his parents in Arizona. Brian testified that he had not worked since arriving in
Nevada. He also testified that nobody in his household was employed, and that the
household's income was based solely on his and his wife's unemployment benefits,
which would end in July and August, respectively.
Brian testified that he had planned to provide child support for his daughter
in Alaska from his savings until he got a job, but that the job search had taken longer
than he anticipated. He noted that he had submitted an application for a juvenile
probation officer position with the State of Nevada before he left Alaska and had
believed he had a good chance of getting that job but that he "didn't make the cut."
Brian testified that since arriving in Nevada he had limited his job search to public
service jobs and had not applied to retail or food service positions even though these jobs
were available. He explained that his plan was to apply to higher-paying public service
jobs while he had unemployment benefits and then to apply to lower-paying service
industry jobs after his unemployment benefits expired in July. He also testified that he
had hoped to find a job comparable to what he had in Alaska and that he applied for
"everything that [he] qualified for," but that salaries in Nevada were "significantly less"
than in Alaska.
Brian contended that he did not meet the minimum qualifications for many
of the jobs Roxana identified in her research, including those paying over $45,000,
because he did not have a bachelor's degree. He also maintained that competition for
lower-paying public service jobs was high. But Brian noted that he had the
qualifications for all of the jobs listed on his employment status update, even those that
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advertised for candidates with bachelor's degrees, because the positions allowed
applicants to substitute relevant work experience for advanced education.
The superior court acknowledged that "there is certainly a period of
transition time when having unemployment income would be necessary" to off-set the
cost of an out-of-state move. But it also expressed confusion as to why Brian would "use
all of [his] unemployment insurance before . . . seriously looking for a job." The
superior court explained that it appeared that Brian was comfortable with the $3,000 per
month in unemployment benefits that he and his wife received, and that Brian seemed
to have "no motivation to get out there and earn more."
The superior court ordered a modification of Brian and Roxana's standing
child support order, but it declined to impute a salary equivalent to Brian's Alaska
wages, stating that it would "have to find that [Brian] was moving or voluntarily
underemploying himself," which it did not find to be the case. Instead, the superior court
ordered that during the period of September 1, 2011 to January 30, 2012, Brian's child
support should be calculated based on his annual income of $58,000 from his
employment with the State of Alaska. The superior court then ordered that Brian's child
support for the period of February 1, 2012 to June 30, 2012 should be calculated based
upon his unemployment income of $1,576 per month. Finally, as of July 1, 2012, the
superior court imputed to Brian an annual income of $44,387, "based on his training,
education, and qualifications." This amount represented the annual salary of a juvenile
probation officer with the State of Nevada. The superior court explained that it chose to
impute income in part based on "the lack of planning on [Brian's] part."
The superior court issued its written order on June 5, 2012. Brian
submitted a motion for reconsideration on June 11. He contended that the amounts
ordered did not correspond to the superior court's verbal order from the May 31 hearing.
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On June 26, 2012, the superior court issued a new child support order, which reflected
the time periods and support amounts ordered at the May 31 hearing.
On June 30 Brian submitted a motion to modify child support based on new
employment. He included a letter from the State of Nevada, Division of Welfare and
Supportive Services, offering him the position of family services specialist with an
anticipated start date of July 23. Brian also attached the job announcement listing the
"approximate annual salary" for the position at "$33,199.20 to 48,462.48." Roxana
opposed Brian's motion to modify child support. She argued that Brian had not provided
pay stubs or a tax return to verify his new income. The superior court denied Brian's
motion as premature, concluding that "[t]he modification cannot and will not be
considered until the plaintiff can provide pay stubs and any other income information to
be considered by the court. The court will not issue an anticipatory order."
On September 14 Brian submitted a second motion for modification of
child support based on new employment income. He reiterated his request that the
superior court calculate his child support using his actual salary of $33,072, rather than
the imputed income of $44,387. Brian included a letter from the State of Nevada,
confirming that he had worked as a family services specialist with the agency since
July 23 and that his gross base pay was $636 per week. Brian also provided pay stubs
dating back to his start date of July 23.
On October 9 the superior court denied Brian's request to modify child
support based on his new employment and income. The superior court reasoned that
Brian had
waited until the court imputed a higher income than his
unemployment to go get a job. Clearly he could have been
earning more than twice his unemployment income had he
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----------------------- Page 7-----------------------
made the effort. Based on the evidence presented [at] the
hearing on May 31, 2012, the court declines to reconsider or
modify its early finding regarding [Brian's] earning
capability.
Brian now appeals two primary issues, arguing that the superior court
abused its discretion by imputing his income at $44,387 and that the superior court
abused its discretion in denying his motion to modify child support after he demonstrated
a material change in circumstances, specifically that he had secured new employment at
a salary substantially less than the imputed amount. Roxana argues that Brian has the
education and qualifications to seek and obtain a higher-paying job and therefore the
superior court did not err or abuse its discretion in imputing Brian's income at $44,387
and denying his motion to modify.
III. STANDARD OF REVIEW
"Trial courts have broad discretion in deciding whether to modify child
support orders."3 We review a trial court's determination whether to modify child
support for abuse of discretion.4 A trial court's decision to impute income is also
reviewed for abuse of discretion.5 We will find an abuse of discretion when a review of
the record as a whole leaves us with a "definite and firm conviction . . . that a mistake has
3 Olmstead v. Ziegler, 42 P.3d 1102, 1104 (Alaska 2002) (citing Patch v.
Patch , 760 P.2d 526, 529 (Alaska 1988)).
4 Id. (citing Schuyler v. Briner, 13 P.3d 738, 741 (Alaska 2000)).
5 Helen S.K. v. Samuel M.K. , 288 P.3d 463, 473 (Alaska 2012) (citing
O'Connell v. Christenson, 75 P.3d 1037, 1039 (Alaska 2003)).
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----------------------- Page 8-----------------------
been made."6 A trial court's determination of the amount of a party's "imputed income
is a factual finding that we review for clear error."7
IV. DISCUSSION
A. Brian Failed To File A Timely Appeal Of The Superior Court's
June 26, 2012 Child Support Order And Initial Imputation Of Income.
Brian first contends that there was no basis for the superior court to impute
income to him because he was not voluntarily and unreasonably unemployed or
underemployed. He also argues that the superior court erred in imputing income at the
amount of $44,387. Brian did not appeal the superior court's June 26, 2012 order
imputing income. Instead, on June 30, he moved to modify the child support award on
the basis that he had found employment working for the State of Nevada as a family
services specialist. He requested that his adjusted income be based on his actual salary
rather than the imputed amount. He has appealed the October 9, 2012 denial of his
motion to modify. Having elected to forgo a timely appeal of the June 26, 2012 order,8
he cannot challenge that order now in the context of an appeal of the denial of
modification.
6 Beaudoin v. Beaudoin , 24 P.3d 523, 526 (Alaska 2001) (quoting Kowalski
v. Kowalski , 806 P.2d 1368, 1370 (Alaska 1991)) (internal quotation marks omitted).
7 Helen S.K. , 288 P.3d at 473 (citing Sawicki v. Haxby, 186 P.3d 546, 550
(Alaska 2008)).
8 Alaska Appellate Rule 204(a)(1) requires notice of appeal to be filed within
30 days of the date shown on the clerk's certificate of distribution on the order being
appealed. The clerk's certificate of distribution for the June 26, 2012 child support order
was dated June 27, 2012. Brian therefore had 30 days from June 27 to file a notice of
appeal, but he did not file this appeal until October 17, 2012, more than 100 days after
the date shown on the clerk's certificate of distribution.
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B. The Superior Court Did Not Provide A Sufficient Factual Basis For Its
Decision To Deny Brian's Motion To Modify Child Support.
On June 29, 2012, just three days after the superior court entered its June 26
order imputing income of $44,387 to Brian, Brian received a firm job offer to work as
a family services specialist for the State of Nevada. Brian's salary for that position is
$33,072. On June 30, 2012, Brian moved to modify the superior court's child support
order entered on June 26, 2012, requesting that the superior court base his child support
obligation on the salary for his recently obtained employment and not the imputed
amount of $44,387. The superior court's order denying Brian's request to modify his
child support obligation to reflect the actual income of his new position was based on the
superior court's view that Brian waited until the superior court imputed income before
seriously seeking a new job. Moreover, the superior court declined to reconsider or
modify its earlier finding regarding Brian's earning capacity in light of his actual income
in his new position. Brian argues that the superior court abused its discretion9 in
declining to modify his child support obligation after he submitted verification of this
new Nevada employment and the required salary information.
In effect, the superior court concluded that Brian was voluntarily and
unreasonably underemployed even after he secured full-time employment as a family
services specialist for the State of Nevada. The superior court seemed to have based this
conclusion on the ground that Brian delayed finding a job until his unemployment
benefits expired and income was imputed to Brian. But the superior court made no
9 Brian argues that the superior court's decision not to modify child support
should be reviewed de novo. But we have previously held that trial courts have broad
discretion in deciding whether to modify child support orders. Richardson v. Kohlin ,
175 P.3d 43, 46 (Alaska 2008) (citing Olmstead, 42 P.3d at 1104). And we review a
decision by the superior court to modify child support for an abuse of discretion. Id.
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express finding that Brian was capable of earning more than his new job paid,10 that
higher-paying jobs were available to Brian in Nevada,11 or that Brian took a position
paying less than what was available.12 Brian now argues that paying child support
calculated on his imputed income creates an undue hardship on his family in Nevada and
that he would have to earn a salary of approximately $59,000 with the State of Nevada
to "justify" his monthly support obligation of $627.13
10 See Olmstead, 42 P.3d at 1105 (concluding that the record supported the
trial court's view that the father was not working at his full capacity after he "took many
steps, including closing his office and failing to keep regular business hours that
demonstrated his intent to downsize his practice"); see also Nass v. Seaton , 904 P.2d
412, 417-18 (Alaska 1995) (holding that the superior court did not err in finding a father
voluntarily and unreasonably underemployed where the father acknowledged that there
was machinist work available to him, but he did not advertise and chose to keep "a low
profile"); Pugil v. Cogar , 811 P.2d 1062, 1066-67 (Alaska 1991) (concluding that the
trial court did not err in finding that the father "has the capacity" to work as a
commercial fisherman in the summer in Alaska while also pursuing higher education out
of state).
11 See O'Connell v. Christenson, 75 P.3d 1037, 1041 (Alaska 2003)
(remanding to the trial court for additional findings after concluding that "it is not clear
that employment opportunities exist in Anchorage" that would pay the father's imputed
income).
12 See Sawicki, 186 P.3d at 550-51 (concluding that the trial court did not err
in deciding that it was unreasonable for the mother to leave a position paying twice as
much as her new salary); see also Pugil, 811 P.2d at 1066-67 (concluding that the
superior court did not abuse its discretion in imputing income to a father who left a
lucrative commercial fishing career to pursue a lower-paying job in welding).
13 Brian reports his child support obligation as $697 in his briefing. This
figure omits a health insurance adjustment, which brings his monthly obligation to $627.
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Alaska Civil Rule 90.3(h)(1) allows for modification of a child support
award "upon a showing of a material change in circumstances."14 We have held on many
occasions that the trial court must provide sufficient factual findings to enable appellate
review.15 For example, in O'Connell v. Christenson, the superior court imputed a
father's income at $40,000 after it noted that the father "might earn 'about 20,000 a year'
if he worked at McDonald[']s and that he was capable of doing work substantially more
remunerative than that."16 The superior court concluded that "minimally [the father]
could be expected to earn $40,000, if he put himself on the job market" and that this
income was "at the very low end of what could be expected."17 We concluded that these
findings were insufficient to allow our review because "[o]ther than the reference to the
possibility of [the father's] employment in the fast food industry and [a] statement that
it would 'approach things in the traditional manner,' the court did not provide any
rationale for its decision as to the amount of imputed income."18 We also noted that it
was "not clear that employment opportunities exist in Anchorage that would pay twice
14 The parties do not dispute that there was a material change in circumstances
when Brian secured his new employment with the State of Nevada.
15 See Richardson v. Kohlin, 175 P.3d 43, 48 (Alaska 2008); see also Bird v.
Starkey, 914 P.2d 1246, 1249 (Alaska 1996) (holding that the trial court must make
sufficient findings of fact "so that a reviewing court may clearly understand the grounds
on which the lower court reached its decision"); Nass , 904 P.2d at 419 (remanding for
sufficiently detailed factual findings which disclose the trial court's methodology as well
as factual basis for determining the income level to be imputed).
16 75 P.3d at 1041.
17 Id. (internal quotation marks omitted).
18 Id.
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[the estimated annual income of a food service worker]."19 On remand, we instructed the
superior court to impute income to the father "in an amount supported by appropriate
findings as to [the father's] physical abilities and qualifications, the employment
opportunities available to him, and what he should earn from them."20
We conclude in this case that the superior court did not provide a sufficient
factual basis for its denial of Brian's motion to modify child support. Brian received his
job offer from the State of Nevada on June 29, 2012. Although Brian may have delayed
starting his job search, the superior court presumably took this into consideration when
it calculated Brian's child support obligation for the period of February 1, 2012 to
June 30, 2012 using his unemployment benefits. And Brian applied for the family
services specialist position on April 14, 2012 and took a qualification exam for the job
on May 8, 2012. Thus Brian had to wait six weeks before he was offered the position.
But it is unclear from the superior court's decision how Brian's delay in searching for
work between February and April 2012 affects the question whether his current job and
its salary accurately reflect Brian's earning potential. As was the case in O'Connell, the
superior court did not make any specific findings as to the employment opportunities
available to Brian at the time he moved to modify child support to reflect his actual,
rather than imputed, income. And the record before us does not reflect the availability
of employment opportunities in Nevada that would have paid Brian more than the
position he secured.21
19 Id.
20 Id.
21 We also note that at the May 31 hearing the superior court determined that
Brian "may have to work one or two jobs" to meet his imputed income level. But
Brian's position as a family services specialist with the State of Nevada is similar in
(continued...)
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The superior court based its decision to deny modification on the testimony
at the May 31, 2012 hearing. But at that time, Brian reported to the superior court that
he had applied for and was denied the juvenile probation officer position with the State
of Nevada, and that he had applied for and was waiting for a response from the State of
Nevada on the family services specialist position that he ultimately accepted. Brian also
testified at the May 31 hearing that he had applied to "everything that [he] qualified for,"
but that salaries in Nevada were "significantly less" than in Alaska, and that competition
for jobs was high. In light of the record, and the lack of factual findings in the superior
court's order as to alternative, more lucrative job opportunities available to Brian at the
time he moved to modify, we remand this case to the superior court for more detailed
factual findings.
Brian also argues that he would have to earn over $59,000 to realistically
account for his monthly support obligation of $627 based on furloughs and retirement
contributions mandated for employees of the State of Nevada. Brian and Roxana dispute
whether Brian should be allowed to deduct mandatory retirement contributions, health
insurance, and furlough days from his child support obligation. Because the superior
court denied Brian's motion to modify child support without reaching the question of
these proposed deductions, this issue is not properly before us.22 On remand we assume
21(...continued)
many respects to his former position as a juvenile probation officer with the State of
Alaska. Both are full-time, professional, public service jobs. Although the starting
salary for a family services specialist in Nevada is less than that of a juvenile probation
officer in Alaska, without evidence that Brian declined other higher-paying jobs, we are
not persuaded that Brian should be expected to find a second night job to supplement his
income under the facts of this case.
22 See Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006) ("[C]ourts should
not resolve abstract questions or issue advisory opinions." (quoting Trustees for Alaska
(continued...)
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that the superior court will consider whether these deductions fall within the guidelines
of Rule 90.3.
V. CONCLUSION
We VACATE the superior court's order denying Brian's request to modify
child support and REMAND this case to the superior court for further proceedings
consistent with this opinion.
22(...continued)
v. State, 736 P.2d 324, 327 (Alaska 1987)) (internal quotation marks omitted)).
-14- 6799
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