| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wilhour v. Wilhour (9/6/2013) sp-6821
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
JOSHUA C. WILHOUR, )
) Supreme Court No. S-14764
Appellant, )
) Superior Court No. 3PA-10-03157 CI
v. )
) O P I N I O N
JACQUELINE S. WILHOUR, )
) No. 6821 - September 6, 2013
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Gregory Heath, Judge.
Appearances: David A. Golter, Golter & Logsdon, P.C., for
Appellant. Notice of nonparticipation filed by Kenneth J.
Goldman, Law Offices of Kenneth J. Goldman, P.C.,
Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
After relocating in order to share custody of his son, Joshua Wilhour moved
for a modification of child support based on both this new custody arrangement and a
reduction in his income. Joshua and his former wife, Jacqueline Wilhour, each alleged
that the other was voluntarily unemployed or underemployed. The court modified child
support, basing its calculation of Joshua's income on what he had earned before his
----------------------- Page 2-----------------------
move. Joshua appeals the court's order. He challenges the court's denial of his request
for an evidentiary hearing; its findings on whether the parties were voluntarily
unemployed or underemployed; and its selection of an effective date for the
modification. We remand for an evidentiary hearing and for reconsideration of the
effective date.
II. FACTS AND PROCEEDINGS
Joshua and Jacqueline Wilhour had a son, born in 2002. They lived in
Healy until August 2010, when the couple separated and Jacqueline moved to Wasilla
with their son. She filed for divorce soon after. The superior court issued a child
custody decree in November 2011, awarding joint legal custody and granting Jacqueline
primary physical custody. Joshua's monthly child support obligation was set at $992.15.
Joshua moved for reconsideration, asking that the court allow for an
automatic reversion to joint physical custody if he moved from Healy to the Matanuska-
Susitna Valley. The court granted Joshua's request, ordering "that in the event that
Joshua relocates to the Mat-Su Valley on or before February 23, 2012, physical custody
shall revert to an alternating weekly schedule."
Joshua relocated to the Valley before this deadline and on February 29,
2012, moved to modify child support, arguing that the change in custody resulting from
his move constituted a substantial change in circumstances. He also contended that the
move caused a significant reduction in his income, because he had quit his job in Healy
with the Matanuska Telephone Association (MTA). In his accompanying affidavit,
Joshua stated that he had recently signed up with the International Brotherhood of
Electrical Workers (IBEW) and expected to begin seasonal work in a few months. He
estimated, however, that his annual income from union work would be $40,000, less than
what he had been earning with the MTA in Healy. He also attested that he had
-2- 6821
----------------------- Page 3-----------------------
increasingly painful arthritis in one knee, making it more difficult for him to do his
former work as a lineman. He concluded that he "would still like to work full time for
MTA if [he could] find a position that does not put such a strain on [his] knee" but that
he intended to do seasonal work through the IBEW "for the time being, as this is
currently the best and surest prospect [he has] for stable employment."
Jacqueline filed a limited opposition to Joshua's motion. She
acknowledged that a modification of child support was warranted due to the change in
custody, but she argued that Joshua was voluntarily unemployed, that his union work had
the potential for income on par with what he had been making in Healy, and that his
reduction in income was therefore only temporary. She asked that child support be
determined using Joshua's previous income. She asserted that she was only "recently
. . . getting back into the job market" herself but had yet to make any "substantial
income," as shown by an attached W-2 from the Matanuska-Susitna Borough School
District. In Joshua's reply, he asked that the court hold an evidentiary hearing to
determine both parties' incomes and whether either of them was voluntarily unemployed
or underemployed.
The superior court did not grant Joshua's request for an evidentiary hearing.
It did, however, grant the motion to modify, taking into account the change in custody
but using Joshua's previous income to calculate support. The court made these findings:
Joshua indicates that his reduction in income is
temporary as he is currently seeking full time work
equivalent to his previous wages. Additionally, the reduction
in income was the result of a voluntary, planned move to the
Mat-Su Valley. Jacqueline has recently been getting back
into the job market but she does not currently earn a
substantial income; her ability to provide support is limited.
The assets the parties have are involved in active litigation
-3- 6821
----------------------- Page 4-----------------------
and cannot be used to provide support. Joshua's future
earning capability is consistent with his previous wages.
The court adopted Jacqueline's calculations for both parties' incomes, setting Joshua's
obligation of support at $717.39 per month. The court selected April 1, 2012, as the
effective date of the modification.
Joshua appeals, challenging the superior court's failure to hold an
evidentiary hearing, its findings as to the parties' underemployment, and the order's
effective date.
III. STANDARD OF REVIEW
"Trial courts have broad discretion in deciding whether to modify child
support orders."1
We review a trial court's determination of whether to modify child
support for an abuse of discretion.2
We use the clearly erroneous standard when
3 4
reviewing factual findings, including findings regarding a party's income, imputation
1 Olmstead v. Ziegler, 42 P.3d 1102, 1104 (Alaska 2002) (citing Patch v.
Patch , 760 P.2d 526, 529 (Alaska 1988)).
2 Id. (citing Schuyler v. Briner, 13 P.3d 738, 741 (Alaska 2000)).
3 Bennett v. Bennett , 6 P.3d 724, 726 (Alaska 2000) (citing Dodson v.
Dodson , 955 P.2d 902, 905 (Alaska 1998)).
4 Koller v. Reft , 71 P.3d 800, 804 (Alaska 2003) (citing Routh v. Andreassen,
19 P.3d 593, 595 (Alaska 2001)).
-4- 6821
----------------------- Page 5-----------------------
5 6
of income, and voluntary underemployment. We use our independent judgment in
deciding whether the superior court erred in not holding an evidentiary hearing.7
IV. DISCUSSION
A. The Superior Court Erred In Declining To Hold An Evidentiary
Hearing.
Alaska Civil Rule 90.3 provides for the modification of child support orders
8
A hearing is not
when there has been a showing of a material change in circumstances.
9 "[G]eneralized allegations of
required when there is no genuine issue of material fact.
factual issues that other record evidence convincingly refutes" do not create genuine
issues of material fact.10 Joshua contends that there are several factual issues that warrant
an evidentiary hearing in this case.
He argues first that there is a factual dispute as to whether his reduction in
income is indeed temporary. To warrant modification, a material change in
11 The
circumstances "ordinarily must be more or less permanent rather than temporary."
superior court found that "Joshua indicates that his reduction in income is temporary as
5 Ward v. Urling, 167 P.3d 48, 52 (Alaska 2007) (citing Dunn v. Dunn , 952
P.2d 268, 270 (Alaska 1998)).
6 See id. (citing Robinson v. Robinson , 961 P.2d 1000, 1004 (Alaska 1998)).
7 Routh , 19 P.3d at 595 (citing Adrian v. Adrian , 838 P.2d 808, 811 (Alaska
1992)).
8 Alaska R. Civ. P. 90.3(h)(1).
9 See Epperson v. Epperson, 835 P.2d 451, 453 (Alaska 1992).
10 Acevedo v. Burley , 944 P.2d 473, 4 75 (Alaska 1997) (internal quotation
marks omitted) (quoting Epperson , 835 P.2d at 453 n.4).
11 Hill v. Bloom, 235 P.3d 215, 218 (Alaska 2010) (quoting Patch v. Patch ,
760 P.2d 526, 529 (Alaska 1988)) (internal quotation marks omitted).
-5- 6821
----------------------- Page 6-----------------------
he is currently seeking full time work equivalent to his previous wages." But Joshua
never indicated that he was likely to find work that paid as well as his job in Healy. He
stated in his affidavit that he had attempted to transfer to a comparable position with
MTA in the Mat-Su Valley but was told that no such position was available. While he
still hoped to find a full-time position with MTA consistent with his physical limitations,
"the best and surest prospect [he had] for stable employment" was seasonal work through
the IBEW. Joshua estimated that this seasonal union work would provide an annual
income of approximately $40,000, basing this estimate on his annual earnings of $35,000
while working through the union in 1999. Jacqueline did not present any evidence
contradicting these assertions. She simply argued that "it is clear that [as an] IBEW
union worker, if [Joshua] chooses to have employment, [he] will be able to obtain
employment consistent with his previous income." But by explaining in his affidavit
why he expects that his future income is likely to be considerably less than what he was
earning in Healy, Joshua raised a genuine factual dispute as to whether his reduction in
income is temporary.
Joshua also contends there is a genuine factual dispute about the amount
of Jacqueline's income. He does not offer conflicting evidence, instead arguing that the
evidence she submitted did not provide the court with a sufficient basis on which her
income could be determined. Along with her limited opposition to Joshua's motion to
modify custody, Jacqueline submitted an unsigned Shared Custody Child Support
Calculation worksheet, a 2011 W-2 from the school district, and a Child Support
Services Division calculator print-out. Joshua points out that the W-2, which displays
only Jacqueline's total income for 2011, does not show whether the amount was earned
throughout the year or in just a portion of it, and he argues that this document by itself
is not proof of Jacqueline's earning potential.
-6- 6821
----------------------- Page 7-----------------------
Civil Rule 90.3 requires that each parent involved in a child support
proceeding "provide the court with an income statement under oath" along with verifying
"documentation of current and past income," which "might include paystubs, employer
12
statements, or copies of federal tax returns." "In determining earning capacity for Rule
90.3 purposes, the court has discretion, on the evidence before it, to choose the best
13
indicator of . . . future earning capacity." However, "trial courts must take all evidence
14
necessary to accurately reflect the parties' economic reality." We agree with Joshua
that there was an issue of fact as to Jacqueline's income that her limited submissions did
not resolve. The superior court on remand should take whatever additional evidence is
necessary to ensure that it has an accurate picture of Jacqueline's potential income as
well as Joshua's.
The superior court does not appear to have based its modification order on
a finding that either parent was underemployed. Though observing that Joshua's move
to the Valley was "voluntary [and] planned," the court found that his reduction in income
was merely temporary and thus did not by itself justify a change in support. As for
12 Alaska R. Civ. P. 90.3 cmt. VIII.A. "The commentary, prepared by the
Child Support Guidelines Committee, has not been adopted or approved by this court."
Marine v. Marine , 957 P.2d 314, 316 n.5 (Alaska 1998). However, "[we] often rel[y]
upon the commentary for guidance in child support matters." Bunn v. House , 934 P.2d
753, 755 n.7 (Alaska 1997) (citing Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992);
Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 1991)).
13
Renfro v. Renfro , 848 P.2d 830, 833 (Alaska 1993) (quoting Coghill, 836
P.2d at 926) (internal quotation marks omitted); see also Byers v. Ovitt, 133 P.3d 676,
682 (Alaska 2006) (finding that superior court was within its discretion in imputing
income based on estimated expenses where party had submitted varying and incomplete
versions of tax returns).
14 Routh v. Andreassen , 19 P.3d 593, 595 (Alaska 2001) (quoting Adrian v.
Adrian , 838 P.2d 808, 811 (Alaska 1992)) (internal quotation marks omitted).
-7- 6821
----------------------- Page 8-----------------------
Jacqueline, the court apparently decided that she was employed to her potential, which
at the time was "limited." The court on remand may have to address the parties'
allegations that the other is underemployed. We note that the potential rather than actual
income of an underemployed parent may be used in the calculation of child support only
15
"In determining
if the parent is "voluntarily and unreasonably" underemployed.
whether to modify child support following a voluntary employment change, a trial court
should consider the nature of and the reason for the change, and determine whether a
16
modification is warranted under all the circumstances." An important part of the
calculus is "the extent to which the children will ultimately benefit from the change."17
All else being equal, the fact that a parent voluntarily leaves a better-paying job in order
to be closer to a child and share the child's custody should rarely weigh against that
parent in determining whether a reduction in child support is warranted.
B. The Superior Court Erred In Setting The Effective Date Of
Modification.
Joshua argues that the superior court erred in setting the effective date of
modification as April 1, 2012, instead of March 1, 2012, the first day of the month
following the date he served the motion for modification. We have stated a preference
for using the date the motion was served as the effective date, holding that "the superior
court should exercise its discretion in selecting a different effective date only if it finds
15 Alaska R. Civ. P. 90.3(a)(4).
16 Maloney v. Maloney , 969 P.2d 1148, 1151 (Alaska 1998).
17 Richardson v. Kohlin , 175 P.3d 43, 48-49 (Alaska 2008) (quoting Alaska
R. Civ. P. 90.3 cmt. III.C).
-8- 6821
----------------------- Page 9-----------------------
18
good cause for doing so." The reasons for this preference include that "child support
reflects the child's current needs"; "child support is both based on and paid out of the
obligor's current income"; and "service of the motion gives the opposing party both fair
warning that support may change and an opportunity to reassess, even before the court
rules, the correct amount of support," thus "minimiz[ing] prejudice when relief is granted
19
effective as of the service date." In Tillmon v. Tillmon, we remanded the case where
the superior court had selected, without explanation, an effective date several months
20 In this case Joshua filed his motion to modify child
after the service date of the motion.
21
support on February 29, 2012, and served the motion by mail the same day. Yet the
superior court set the effective date as April 1, 2012. As in Tillmon, the superior court
did not explain why it chose an effective date that was later than the date of service. On
remand, the superior court should set the effective date as March 1, 2012, or explain why
a later date is appropriate.
V. CONCLUSION
We VACATE the superior court's child support modification order and
REMAND for an evidentiary hearing consistent with this opinion and for reconsideration
of the order's effective date.
18 Boone v. Boone , 960 P.2d 579, 585 (Alaska 1998).
19 Id . at 585-86.
20 189 P.3d 1022, 1030 (Alaska 2008).
21 "Service by mail is complete upon mailing." Alaska R. Civ. P. 5(b).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
