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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Amanda M. Vogus v Eric L. Vogus (4/3/2020) sp-7436

Amanda M. Vogus v Eric L. Vogus (4/3/2020) sp-7436

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  REPORTER.  

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           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                            

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                        



AMANDA  M.  VOGUS,                                                     )  

                                                                       )    Supreme  Court  No.  S-17102  

                                 Appellant,                            )  

                                                                                                                                       

                                                                       )    Superior Court No. 3AN-14-05822 CI  

           v.                                                          )  

                                                                                                 

                                                                       )    O P I N I O N  

                

ERIC L. VOGUS,                                                         )  

                                                                                                              

                                                                       )    No. 7436 - April 3, 2020  

                                 Appellee.                             )  

                                                                       )  



                                                                                                               

                                            

                      Appeal from the Superior Court of the State of Alaska, Third  

                                                                                                         

                      Judicial District, Anchorage, Jennifer Henderson, Judge.  



                                                                                                                    

                      Appearances:              Dan  Allan,  Law  Offices  of  Dan  Allan  &  

                      Associates, Anchorage, for Appellant.  David W. Baranow,  

                                                                                                      

                      Law Offices of David Baranow, Anchorage, for Appellee.  



                                                                                                         

                      Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  

                                           

                      and Carney, Justices.  



                                           

                      WINFREE, Justice.  



I.         INTRODUCTION  



                                                                                                                                     

                      A mother appeals the superior court's entry of a child support order based  



                                                                                                                                       

on imputed income, arguing that the court's finding of her imputed gross income was  



                                                                                                                                     

based on faulty weekly hour and hourly rate determinations. We conclude that by going  



                                                                                                                               

well beyond the mother's previous weekly hours and hourly rate without any evidence  



                                                                                                                                       

or  findings  about  commensurate  job  opportunities  and  the  mother's  abilities  and  


----------------------- Page 2-----------------------

qualifications for those opportunities, the superior court failed to follow our case law.                                                                                                       



We therefore vacate the child support order and remand for further proceedings.                                                                      



II.            FACTS AND PROCEEDINGS            



                             After a 2014 divorce Amanda and Eric Vogus shared custody of their two                                                                                   



children.   But in October 2016 the superior court gave Eric primary physical custody of                                                                                                  



the   children   and   required   Amanda   to   document   her   earnings   for   a   child   support  



                          1  

calculation.                                                                                                                                                                    

                              Amanda did not provide sufficient information by affidavit, and in March  



                                                                                                                                                                              

2018 the court held an evidentiary hearing.  Eric requested that the court impute income  



                          2  

                             

to Amanda. 



                                                                                                                                                                                      

                             Amanda  testified  that  she  started  massage  therapy  school  when  she  



                                                                                                                                                                          

separated from Eric and that after graduating in October 2015, she found a massage  



                                                                                                                                                                                         

therapist job at a local gym.  Amanda stated that she worked 20 to 25 hours weekly; all  



                                                                                                                                                                           

of her pay stubs in the record show a $19 hourly rate.  Amanda stated that massage  



                                                                                                                                                                                  

therapy took a physical toll on her wrists, limiting her to a part-time schedule. She stated  



                                                                                                                                                                                      

that her training had involved doing massage therapy for five continuous hours but that  



                                                                                                                                                                                    

the gym expected six continuous hours, which she found too taxing.  She said that most  



                                                                                                                                                                                      

massage therapists do not work full time because of the physical demands.  Amanda said  



                                                                                              

she quit working at the gym in June 2017.  



                                                                                                                                                                                        

                             Amanda testified that fromDecember 2016 to September 2017 she also ran  



                                                                                                                                                                            

her own massage therapy business in a room rented at a salon and that her net earnings  



               1             See  Alaska R. Civ. P. 90.3(a) (providing for child support award based on                                                                                  



non-custodial parent's adjusted annual income).                                        



               2             See Alaska R. Civ. P. 90.3(a)(4) ("The 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.").  

                                                                                                             



                                                                                            -2-                                                                                    7436
  


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were minimal.  Amanda said that her massage license lapsed at the end of September  



                                                                                                                              

2017; she had needed to take continuing education classes to renew her license but had  



                                                                                                                             

chosen not to do so. Amanda also said that her other work experience had been part time  



                                                                                                                       

in customer-service  positions before working as a massage therapist.   She recalled  



                                                                                                                    

earning about $12 hourly in those jobs. Amanda said that from September to December  



                                                                                      

2017 she was supported by a partner and did not work.  



                                                                                                                          

                    Amandatestified that whileworking as amassagetherapist, shealso trained  



                                                                                                                             

as an amateur bodybuilder and took Tae Kwon Do classes.   She said that she was  



                                                                                                                       

pursuing a "fitness career" and did not seek other work to supplement her massage  



                                                                  

therapy income during this time.  Amanda said that in December 2017 she suffered an  



                                                                                                                                 

Achilles tendon rupture, requiring eight months to a year of recovery.  According to  



                              

Amanda the injury prevented her from standing for long periods of time and impacted  



                                                                                                                               

her mobility, limiting her ability to work.   Her testimony suggested that she did not  



                                                                                                                              

intend to seek work of any kind until she felt her injury was fully healed. She stated that  



                                                                                                                                

after recovering she would like to renew her massage therapy license and retrain to  



                                                                                                                          

practice in a less physical discipline, such as "touch therapy and energy work."  



                                                                                                                     

                    At the close of the hearing, the superior court made oral findings regarding  



                                                                                                                              

income imputation to Amanda.  The court first found that Amanda was voluntarily and  



                                                                                                                                     

unreasonably underemployed,imputingtoherfull-timeemployment of40hours weekly.  



                                                                                                                         

The court found that Amanda's "work during the period in question and . . . time leading  



                                                                                                                           

up  to  that  schooling  was  exclusively  for  being  a  massage  therapist."                                     The  court  



                                                               

acknowledged Amanda's testimony that she had let her massage therapy license lapse  



                                                                                                                              

and that the impact of massage therapy on her body limited her work in that field.  But  



                                                                                                                           

the court noted that she had "offered a little bit of testimony that perhaps she will return  



                                                                                                                     

to that [line of work] and that there may be options for her to return to that."  



                                                               -3-                                                         7436
  


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                                             The court found that Amanda's pursuit of a bodybuilding career was not                                                                                                                                                                   



a "reasonable reason" to base her income on a part-time work schedule. The court found                                                                                                                                                                                        



that, although Amanda had ruptured her Achilles tendon, she still was able to work; the                                                                                                                                                                                                



court reasoned that many people work full time with similar injuries.                                                                                                                                      



                                             Todetermineanhourly                                                          wagerate,thecourt relied                                                            on anAlaskaDepartment                       



of   Labor   and   Workforce   Development   wage   table   Eric   had   submitted.     The   table  



provided wages by percentile in Southcentral Alaska for various "healthcare support"                                                                                                                                                                                



occupations, including massage therapy.                                                                                                       Amanda's previous $19 hourly wage rate                                                                                                



placed her in the 10th percentile for massage therapists.                                                                                                                                  But the court imputed to her a                                                                    



$32.52 hourly wage rate corresponding to the 25th percentile.                                                                                                                                                 The court did not use the                                                



$40.92 hourly average wage rate Eric had advocated due to Amanda's limited work                                                                                                                                                                                                



experience.   



                                             Amanda appeals the resulting child support order.                                                                                                                        



III.                  DISCUSSION  



                                                                         

                      A.                     Income Imputation  



                                                                                                                                                                                                                                                                                             

                                             Alaska Civil Rule 90.3(a)(4) authorizes the superior court to calculate a  



                                                                                                                                                                                                                                                    

parent's potential income if that parent is "voluntarily and unreasonably . . . unemployed  



                                                                                                                                                                                                                                                                      

or underemployed"; the calculation must be "based upon the parent's work history,  

                                                                                                                             3   Amanda does not challenge the superior court's  

                                                                                                                                                                                                                                                                          

qualifications, and job opportunities." 



finding that she was voluntarily and unreasonably unemployed.  Amanda argues only  

                                                                                                                                                                                                                                                                                  



that  her  work  history,  qualifications,  and  job  opportunities  as  established  at  the  

                                                                                                                                                                                                                                                                                     



evidentiary hearing do not support the court's income calculation.  

                                                                                                                                                                                                                                



                      3                      Alaska  R.  Civ.  P.  90.3(a)(4).  



                                                                                                                                            -4-                                                                                                                                                7436  


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                       "The ultimate goal of a [child] support determination 'is to arrive at an                                                  



                                                                                4                                           5  

income figure reflective of economic reality.' "                                                                                      

                                                                                   In Fredrickson v. Button  we attempted  



                                                                                                                                      

to clarify when a superior court needs to make Rule 90.3(a)(4) findings for imputing  



                                                                                                                                                   

income.  At first blush, the rule we articulated could be seen as saying that regardless of  



                                                                                                                                                 

context,   once   the   court   determines   an   obligor   is   voluntarily   unemployed   or  



                                                                                                                                                    

underemployed (both of which we refer to generally as underemployment), the court is  



                                                                                                                                       

not required to make explicit findings regarding the availability of jobs and the obligor's  

                                                                                              6   But the actual context for our  

                                                                                                                                                

ability to perform such jobs before imputing income. 



ruling was far narrower; when we explained the case law underpinning that rule we  

                                                                                                                                                 



distinguished between two scenarios, only one of which was at issue and intended to be  

                                                                                                                                                  

covered by the rule.7  

                                       



                       The covered scenario is when an obligee points to an obligor's previous  

                                                                                                                                       



employment and related income as a prima facie case for underemployment, and in that  

                                                                                                                                                



context we stated that "the court can impute income based on the obligor's previous  

                                                                                                                                       



earnings unless the obligor demonstrates that she would not be able to achieve a similar  

                                                                                                                                           

income."8  Thesecond,distinguishablescenariois when thecourt imputes income"based  

                                                                                                                                           



not on previous income, but on arbitrary multiplication and 'the . . . court's intuitions'  

                                                                                                                     



            4          Farr   v.  Little,   411   P.3d   630,   635   (Alaska   2018)   (quoting  McDonald   v.  



Trihub,   173  P.3d  416,  427  (Alaska  2007)).  



            5          426  P.3d   1047  (Alaska  2018).  



            6          Id. at 1060-62.  

                                  



            7          Id.  



            8          Id.  at   1060-61.  



                                                                        -5-                                                                  7436
  


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                                                                                                                                                                                                  9  

about the obligor's earning capacity, without any evidentiary support."                                                                                                                               We then went              



on to "reaffirm" the burden-shifting mechanism for imputing income based on previous                                                                                                                                  



employment:  



                                     The   obligor's   previous   earnings   can   serve   as   prima   facie  

                                     evidence of her earning capacity, and the burden is on the                                                                                                 

                                     obligor to show that no job opportunities are available to her                                                                                             

                                     that would pay an equivalent amount.                                                                         The superior court   

                                     may not, however, impute as income an entirely arbitrary                                                                                   

                                     amount   with   no   support   in   the   record,   or  impute   income  

                                    based on previous earnings where there is no indication that                                                                                               

                                     the obligor is currently unemployed or underemployed.                                                                                                   [10]  



                                     Applying the burden-shifting framework in this case, (1) there was a prima  

                                                                                                                                                                                                                           



facie case that Amanda was underemployed and that she could earn wages consistent  

                                                                                                                                                                                                                 



with her previous employment as a massage therapist, and (2) Amanda did not rebut the  

                                                                                                                                                                                                                                     



prima facie case.  That leads to imputed income at the hourly rate and number of hours  

                                                                                                                                                                                                                              



Amanda previously worked as a massage therapist without the need for findings on the  

                                                                                                                                                                                                                                     



Rule 90.3(a)(4) factors referenced in the imputation context:  the parent's work history,  

                                                                                                                                                                                                                        



qualifications,  and  job  opportunities.                                                                      On  that  basis  the  superior  court  could  have  

                                                                                                                                                                                                                               



imputed income to Amanda based on her previous massage therapy work at $19 hourly  

                                                                                                                                                                                                                           



for a 20-25 hour week.  Using a 25-hour workweek would lead to about $475 weekly,  

                                                                                                                                                                                       



or  about  $24,700  yearly,  and  would  be  generally  consistent  with  Amanda's  prior  

                                                                                                                                                                                                                              



financial information and tax returns presented to the court.  

                                                                                                                                                                     



                  9                 Id.   at   1061   (footnote   omitted)   (citing  and  discussing   O'Connell   v.  



Christenson, 75 P.3d 1037, 1041 (Alaska 2003);                                                                                       Horne v. Touhakis                                  , 356 P.3d 280, 283                        

(Alaska 2015)).                              



                   10               Id. at 1062 (reaffirming burden-shifting mechanism articulated in Sawicki  

                                                                                                                                                                                                                        

v. Haxby, 186 P.3d 546, 548-49 (Alaska 2008)).  

                                                                                                                 



                                                                                                                   -6-                                                                                                          7436
  


----------------------- Page 7-----------------------

                                                                                                                                

                    But the superior court went well beyond that, apparently relying on the  



                                                        

generalized labor statistics Eric had submitted showing various hourly rate percentiles  



                                                                                                                               

for massage therapists. The labor statistics showed that the 10th percentile wage rate was  



                                                                                                                          

about $19.50 hourly; the 25th percentile wage rate was about $32.50 hourly; the median  



                                                                                                                               

(midpoint) wage rate was about $39.25 hourly; the mean (average) rate was about $41  



                                                                                                                      

hourly; the 75th percentile wage rate was about $54.50 hourly; and the 90th percentile  



                                                                                                                              

wage rate was about $60 hourly.   Amanda's previous $19 hourly income as a new  



                                                                                                                        

massage therapist corresponded almost exactly to the 10th percentile wage rate reflected  



                                  

in the labor statistics.  



                                                                                                                                

                    Eric argued during the hearing that the superior court should adopt the  



                                                                                                                        

average rate of $41 hourly. But despite no evidence that Amanda had massage therapist  



                                                                                                                               

qualifications or actual job options to earn more than the 10th percentile $19 hourly rate  



                                                                             

she previously had earned, and despite expressly acknowledging "the short amount of  



                                                                                                                           

time [Amanda] ha[d] actually worked as a physical [sic] therapist," the court nearly  



                                                                                                                                  

doubled her historical hourly rate by imputing the $32.50 rate for massage therapists in  



                                                                                                                     

the 25th percentile of hourly earnings. And by imputing more hours than she previously  



                                                                                                                        

hadworked on a weekly basis, the court more than doubled Amanda's historical massage  



                                                                                                                                      

therapy annual income - to about $67,500 - to calculate her child support obligation.  



                                                                                                                             

                      The mere existence of labor statistics does not give the superior court  



                                                                                                                            

license to disregard actual historical information; otherwise the court just as easily could  



                                                                                                                      

have selected a higher statistical point for massage therapists, such as Eric's suggested  



                                                                                                                               

average hourly rate ($41), the midpoint hourly rate ($39), the 75th percentile hourly rate  



                                                                                                                                

($54), or even the 90th percentile hourly rate ($60).  Any one of those rates, like the  



                                                                                                                         

court's chosen rate, would be arbitrary and based on nothing more than the court's  



                                                                                                                         

intuition.  Fredrickson prohibits this; nothing about Amanda's limited massage therapy  



                                                                -7-                                                         7436
  


----------------------- Page 8-----------------------

 work at $19 hourly for up to 25 hours weekly gives rise to a reasonable inference that she                                                                                                                                          



 suddenly could find massage therapy work at $32.50 hourly for 40 hours weekly.                                                                                                                                                   The  



 court needed to make specific findings about Amanda's work history, qualifications, and                                                                                                                                            



job availability before imputing income beyond the prima facie evidence of her previous                                                                                                                                



 earnings.   Because the support order is unsupported by necessary findings, it must be                                                                                                                                                



 vacated.  



                   B.                Timing Issue - Order's Effective Date                                                                



                                     When Eric filed his motion to modify custody and child support in late                                                                                                                         



 March 2016, the parents shared legal and physical custody and he was obligated to pay                                                                                                                                              



                                                                                                                                          11  

 child support under the shared custody framework.                                                                                                                                                                     

                                                                                                                                                Eric sought sole legal and physical  



                                                                                                                                                                                                                                   

 custody of the parties' two children.   Eric also requested an expedited hearing and  



                                                                                                                                                                                                                         

 decision on interimcustody. On April 15 the superior court granted Eric interimprimary  



                                                                                          

 custody pending a final custody decision.  



                                                                                                                                                                                                                

                                     The superior court held a final custody hearing in July.  At the conclusion  



                                                                                                                                                                                                                         

 of that hearing, the court issued an oral decision granting Eric primary physical custody  



                                                                                                                                                                                                                                   

 (with generous visitation to Amanda), but maintaining joint legal custody.  This was  



                                                                                                                                                                                                                                     

 followed by an October written order.  In that written order the court stated that the  



                                                                                                                                                                                                            

 custody modification required a change in child support obligations and ordered that  



                                                                                                                                                                                                                            

 Amanda would be the obligor parent as of April 1, 2016, "on the first day of the month  



                                                                                                                                                                                                                               

 following the filing of [Eric's] motion for modification."  The ultimate support order  



                                                                                                                                                                

 issued in April 2018 was entered effective April 1, 2016.  



                   11  

                                                                                                                                                                                                                  

                                     See Alaska R. Civ. P. 90.3(b) (providing guidelines for support obligation  

                                                                                                                                                                                       

 calculations when physical custody is shared, divided, or hybrid).  



                                                                                                                   -8-                                                                                                                     7436  


----------------------- Page 9-----------------------

                            Absent a de facto change in physical custody before the April 15 interim                                      



                                                                                                                                            12  

custody order, under our 2018                                   Geldermann v. Geldermann                                   decision                                      

                                                                                                                                                it was legal error  



                                                                                                                                                                  

to retroactively order Amanda to pay support to Eric as if he had primary physical  



                                                                                                                                                                                13  

                                                                                                                                                                                     

                                                                                                                                                                  

custody when the parties still were acting under shared custody and support orders. 



Perhaps there is evidence of a de facto change in custody on or before April 1, prior to  

                                                                                                                                                                               



the April 15 interim custody order, but it is not obvious to us and the parties have not  

                                                                                                                                                                             



discussed this issue.  Because the court did not have the benefit of Geldermann when  

                                                                                                                                                                        



entering the final support order and  Geldermann was issued only about two months  

                                                                                                                                                                    



before Amanda's opening brief in this appeal, the court should consider this issue on  

                                                                                                                                                                              



remand.  



IV.           CONCLUSION  



                            The child support order is VACATED and the matter is REMANDED for  

                                                                                                                                                                              



further proceedings.  

                



              12            428 P.3d 477 (Alaska 2018).                    



              13            See  428 P.3d at 485-88 (discussing rule against retroactive support orders                                                                



but noting              change in              custody   obviously   necessitates change in support orders,                                                                and  

holding that when parent moves to modify custody based on existing de facto custody  

                                                                                                                                                        

change, retroactivity bar does not prevent change in support effective                                                                       when modification   

motion was served on other parent).  

                                                           



                                                                                       -9-                                                                               7436
  

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