Reilly v. Northrup , 2013 Alas. LEXIS 172 ( 2013 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
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
MICHAEL S. REILLY, )
) Supreme Court No. S-14642
Appellant, )
) Superior Court No. 3AN-03-08806 CI
v. )
) OPINION
JAIME M. NORTHROP and )
STATE OF ALASKA, ) No. 6859 – December 20, 2013
DEPARTMENT OF REVENUE, )
CHILD SUPPORT SERVICES )
DIVISION, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Mark Rindner, Judge.
Appearances: Michael S. Reilly, pro se, Butte, Montana,
Appellant. Jaime M. Northrop, pro se, Wasilla, Appellee.
Glenn M. Gustafson, Assistant Attorney General, Anchorage,
and Michael C. Geraghty, Attorney General, Juneau, for
Appellee State of Alaska.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
STOWERS, Justice.
I. INTRODUCTION
Michael Reilly and Jaime Vinette1 engaged in a non-marital relationship
which resulted in the birth of their son Barlow.2 Reilly subsequently ceased to be
employed in Alaska and moved to Butte, Montana, where he worked part time repairing
and renting out homes and managing a bar. Vinette has custody of Barlow during the
school year, and Reilly has custody for six weeks during the summer.
Reilly moved to have his child support modified to reflect the fact that his
income had fallen. Vinette countered that he was voluntarily underemployed. Reilly
claimed that he could not work a full-time job because of his obligations to his special
needs daughter from another relationship, the poor job market in his area, and his
medical conditions. The superior court found that Reilly could work full time and that
he was voluntarily and unreasonably underemployed. The court did not find credible
Reilly’s testimony regarding the various reasons he alleged that prevented him from
working. The superior court imputed income to Reilly based on the average wage in
southwestern Montana for career paths the court believed Reilly would be qualified to
pursue.
Reilly appeals, arguing that the imputation of income was improper, the
amount to be imputed was calculated incorrectly, and the superior court erred in its
written child support order by not including a visitation credit for his summers with
Barlow. We affirm the superior court’s findings and orders, except that we remand the
child support order for a correction of a minor omission of visitation credit.
1
At the time this case began, Jaime Vinette’s name was Jaime Northrop. She
has since married and now goes by Jaime Vinette.
2
Pseudonyms are used for the children to protect their privacy.
-2- 6859
II. FACTS AND PROCEEDINGS
A. Facts
Michael Reilly and Jaime Vinette engaged in a temporary, non-marital
relationship which resulted in the birth of Barlow in February 2003. The relationship
had ended by the time of Barlow’s birth. At the time, both Reilly and Vinette lived in
Anchorage. Reilly worked as a “measurement while drilling engineer” earning
approximately $66,000 per year. Based on this income, Reilly’s child support was
originally set at $897 per month. His engineering job required working on a rig for three
months at a time. According to Reilly, he was working 13 hours a day, seven days a
week, on a 45-day-on, ten-day-off schedule.
In 2004 Reilly moved to Butte, Montana. He initially worked as a
handyman at a trailer park and repaired a home to rent out. In 2005 Reilly worked for
a short time for the Montana Department of Transportation as a civil engineer. The
reason Reilly lost this job is unclear; he claims he could not pass a test required for the
position, while Vinette argues that it was a temporary position to begin with.
Reilly petitioned for a modification of his child support in 2004 and 2005.
The court granted the second petition and adjusted Reilly’s support obligation down to
$487 per month based on his income working for the State of Montana.3
After Reilly stopped working for the state, he started managing two rental
properties which he owned; he also repaired other properties he owned to sell. He used
loans from his parents and a bank to buy a bar, which he managed and at which he
bartended one night a week. The bar was only open four nights a week, and he described
it as being unprofitable. Reilly claimed he used proceeds from his rental units to stay
3
This figure was later further adjusted down to $442 due to a change in
Barlow’s healthcare premiums.
-3- 6859
current on the bar’s mortgage. He had not applied for an engineering job, or any other
type of job, since 2008.
While living in Montana, Reilly had a second child. His daughter Nancy
was born in 2007. Reilly lived with the child’s mother for a time, but they separated in
2011. At the time of the superior court hearing, Reilly had full-time custody of Nancy.
He also had custody of Barlow for six weeks each summer. Both children have special
needs due to behavioral disorders. Nancy has been diagnosed with bipolar disorder and
Barlow has been diagnosed with attention deficit hyperactive disorder (ADHD), although
he may have bipolar disorder as well. The parties testified that Nancy has been rejected
by many daycare facilities due to her behavioral problems. Before Reilly assumed full-
time custody of Nancy, Nancy’s mother was forced to drop out of nursing school and
was fired from several jobs due to difficulty finding daycare for Nancy. Nancy is
currently in therapy, and Reilly testified he must spend a significant amount of time
caring for her and taking her to various medical appointments. Nancy attends a special,
government-run daycare for behaviorally challenged children from 10:00 a.m. through
2:00 p.m. She receives behavioral counseling three times a week through a non-profit
called AWARE. The parties testified that taking care of Barlow is also a “full-time job”
and that “[Vinette] has a lot of trouble with [Barlow] too because he’s got similar
problems.”
Reilly testified his only income was from his rental properties. He managed
and repaired five units from which he earned approximately $13,000 per year. He
testified he worked about five to ten hours a week repairing his rental units and ten hours
a week at the bar. In total, Reilly claimed he worked about 20 hours a week.
B. Proceedings
In July 2011 Reilly petitioned again for a reduction in his child support.
He argued his child support should be based on the $13,023 he made from his rentals in
-4- 6859
2010, and he submitted his 2010 tax returns to the Alaska Child Support Services
Division (CSSD). CSSD recalculated his child support obligation based on the 2010 tax
returns and issued a calculation showing that Reilly’s support obligation should be
lowered to $210 per month. Though initially CSSD petitioned the superior court to order
this reduction, CSSD took the position at the evidentiary hearing that Reilly should be
working full time and did not oppose the court imputing income to him. Vinette
responded to CSSD’s petition to modify support by asserting that Reilly was not being
truthful about his income and that he was voluntarily underemployed.
The superior court held a hearing to determine Reilly’s child support
obligations. Reilly testified that he was unable to work full time because of his
responsibilities caring for Nancy’s special needs. He also alleged that he cannot hold a
full-time job because he has Crohn’s disease and an undiagnosed mental condition that
prevents him from “work[ing] in a structured environment” or “work[ing] for [other]
people.”
In oral rulings the superior court found Reilly’s testimony regarding these
explanations to be dubious and unsubstantiated, and it found Reilly was voluntarily
underemployed. However, due to the length of time since Reilly had last worked in
engineering, the court decided not to impute income based on an engineer’s salary.
Instead, the court ordered CSSD to determine the average salary for a first-year college
graduate in Butte, Montana. The court granted Reilly’s request for a visitation credit for
the six weeks he has custody of Barlow in the summer and ordered Reilly and Vinette
to share the cost of Barlow’s transportation for the summer visits. The court ordered that
Reilly’s visitation credit be 50% of his child support for the time during which he has
Barlow, but he is only to receive visitation credit if he is current on his child support by
May 15 of each year.
-5- 6859
In response to the superior court’s order, CSSD determined that the U.S.
Department of Labor does not compile labor statistics specifically for Butte, Montana,
so instead CSSD relied on statistics for the entire southwest Montana region. CSSD also
could not find income statistics based on a general education or experience level, so it
employed statistics based on career field. CSSD determined the closest match for
Reilly’s career field is “construction and extraction occupations.” CSSD rejected the
second-closest match, “building and grounds cleaning and maintenance occupations,”
because this field does not include specialities that require a college degree and many of
the occupations in this field pay barely above minimum wage. In contrast, “construction
and extraction occupations” includes a mix of fields that require a college degree and
fields that do not. CSSD recommended to the court that the average wage for
“construction and extraction occupations,” $19.22 per hour or $39,977 per year, be
imputed to Reilly and that he pay $526 per month in child support based on this figure.
The superior court adopted CSSD’s recommendation and issued a written
order requiring Reilly to pay $526 per month. However, the order failed to include the
50% visitation credit and shared travel expenses which the court had included in its oral
rulings.
Reilly appeals from the superior court’s decision on several points. He
argues that the superior court should not have imputed income to him, that it calculated
the imputed income based on impermissible evidence, and that it erred by failing to
include the visitation credit in its final written order.4
4
Reilly also asserted in his “Statement of issues presented for review” that
the superior court’s decision was biased and based on the court’s personal feelings. As
Reilly provided no argument on this point and did not mention it again in his brief, this
argument is abandoned. See Wetzler v. Wetzler, 570 P.2d 741, 742 n.2 (Alaska 1977)
(stating that we “will consider as abandoned questions set forth in the Points but not
(continued...)
-6- 6859
III. STANDARD OF REVIEW
We “review[] modifications of child support orders under an abuse of
discretion standard. An abuse of discretion will be found only if, based on the record as
a whole this court is left with a definite and firm conviction that a mistake has been
made.”5 “Trial courts are granted broad discretion in fashioning child support
determinations.”6 We review under an abuse of discretion standard the court’s decision
to impute income; we use a clearly erroneous standard for the decision regarding the
amount of income to impute.7 Assessing whether a parent is voluntarily underemployed
is a question of fact, and we review factual findings for clear error.8
4
(...continued)
argued in . . . [the] brief”).
5
Robinson v. Robinson, 961 P.2d 1000, 1002 (Alaska 1998) (citations and
internal quotations omitted).
6
Ward v. Urling, 167 P.3d 48, 52 (Alaska 2007).
7
See Helen S.K. v. Samuel M.K., 288 P.3d 463, 473 (Alaska 2012) (“We
review the superior court’s decision to impute income for abuse of discretion. The
superior court’s ‘determination of an obligor’s imputed income is a factual finding that
we review for clear error.’ ”); Sawicki v. Haxby, 186 P.3d 546, 551 (Alaska 2008) (“The
superior court did not abuse its discretion when it denied Annie’s motion to reduce her
child support payments. Finally, it was not clearly erroneous for the court to impute
income of $52,000 to Annie.”); Shepherd v. Haralovich, 170, P.3d 643, 647 (Alaska
2007) (“[I]t would not have been an abuse of discretion to impute some investment
income.”); O’Connell v. Christenson, 75 P.3d 1037, 1039 (Alaska 2003).
8
Robinson, 961 P.2d at 1004 (citing Vokacek v. Vokacek, 933 P.2d 544, 549
(Alaska 1997)).
-7- 6859
IV. DISCUSSION
A. The Superior Court Had No Obligation To Accept CSSD’s Initial
Calculation.
Reilly contends that the superior court “did not take into consideration
CSSD’s information, research and findings pursuant to [Alaska] [C]ivil [R]ule 90.3.”
He argues that “CSSD followed the civil rules and laws governing [Alaska] child
support” and that the superior court erred when it ignored CSSD’s recommendation that
Reilly’s child support be reduced. However, CSSD only calculated Reilly’s child
support obligation based on the tax returns Reilly submitted, and thereafter Vinette
objected on the grounds of voluntary underemployment. CSSD did not make any
findings or determination whether Reilly was voluntarily underemployed. It is the
court’s responsibility to determine what the facts are and to determine what the law
requires. Once the issue of Reilly’s alleged underemployment became contested, it was
solely for the court to find the facts and to issue an appropriate child support order.
CSSD has no decision-making role to play in these judicial functions, and the court has
no obligation to accept CSSD’s initial calculation.9
B. The Superior Court’s Decision To Impute Income To Reilly Was Not
An Abuse Of Discretion.
Reilly argues that the superior court erred in finding that he was voluntarily
underemployed. Under Civil Rule 90.3(a)(4), income can be imputed to a parent when
the court finds the parent voluntarily underemployed:
9
See Alaska R. Civ. P. 90.3, which contains no requirement that the superior
court follow CSSD’s recommendation. See McDonald v. Trihub, 173 P.3d 416, 422-23
(Alaska 2007) (finding that a superior court order declining to follow a CSSD child
support calculation was not an impermissible retroactive modification of child support
because the CSSD order had not yet gone into effect).
-8- 6859
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. A determination of potential income may
not be made for a parent who is physically or mentally
incapacitated, or who is caring for a child under two years of
age to whom the parents owe a joint legal responsibility.
Potential income will be based upon the parent’s work
history, qualifications, and job opportunities.
In deciding whether to impute income, the superior court should consider the totality of
the circumstances.10 The court must make specific findings that the underemployment
is both voluntary and unreasonable.11
The court may find that underemployment is voluntary even if the
underemployment is in good faith.12 A parent can be found to be voluntarily
underemployed if he “has engaged in ‘voluntary conduct for the purpose of becoming
or remaining unemployed’ or underemployed. The key inquiry is whether the lack of
employment is the result of ‘economic factors’ or of ‘purely personal choices.’ ”13
“[T]he relevant inquiry under Civil Rule 90.3 is simply whether a parent’s current
10
Kestner v. Clark, 182 P.3d 1117, 1122 (Alaska 2008) (citing Alaska R. Civ.
P. 90.3 cmt. III.C).
11
Barlow v. Thompson, 221 P.3d 998, 1003 (Alaska 2009).
12
Robinson v. Robinson, 961 P.2d 1000,1004 (Alaska 1998) (citing Kowalski
v. Kowalski, 806 P.2d 1368, 1371 (Alaska 1991)).
13
Nunley v. State, Dep’t of Rev., Child Support Enforcement Div., 99 P.3d
7, 11 (Alaska 2004) (quoting Bendixen v. Bendixen, 962 P.2d 170, 172 (Alaska 1998);
Vokacek v. Vokacek, 933 P.2d 544, 549 (Alaska 1997)).
-9- 6859
situation and earnings reflect a voluntary and unreasonable decision to earn less than the
parent is capable of earning.”14
The court must also find that the unemployment or underemployment is
unreasonable.15 “The court must consider the ‘totality of the circumstances’ in deciding
whether an obligor is unreasonably underemployed.”16 Factors the superior court should
consider include “whether the obligor’s reduced income is temporary, whether the
change is ‘the result of economic factors or of purely personal choices,’ the children’s
needs, and the parents’ needs and financial abilities.”17 Even if the decision to be
unemployed is legitimately in the best interest of the parent’s subsequent family, it can
still be unreasonable in light of the parent’s paramount duty to support all of his
children.18
The superior court’s finding that Reilly chose to be underemployed, even
if he could work, is amply supported by the record.19 However, Reilly contends that his
underemployment is not voluntary because three circumstances each individually make
it impossible for him to hold a full-time job: (1) his medical conditions; (2) the fact he
could not find full-time employment when he last sought it; and (3) his daughter’s
14
Id. at 12.
15
Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008) (citing Alaska R. Civ.
P. 90.3(a)(4)).
16
Id. (citing Alaska R. Civ. P. 90.3 cmt. III.C).
17
Sawicki, 186 P.3d at 550 (citations omitted).
18
Kestner v. Clark, 182 P.3d 1117, 1123 (Alaska 2008).
19
Reilly made the following statements: “Me and my children cannot work
in [a] structured environment,” and “I will never get a full-time job . . . . But you know,
this is what I’m going to do for the rest of my life. I’m going to — you know, I’m not
going to work full time.”
-10- 6859
special needs. Reilly bears the burden of proof in demonstrating that these circumstances
truly prevent him from working, and he must show that they are extreme circumstances.20
1. The superior court did not clearly err in finding that Reilly can
work full time despite his medical conditions.
Reilly argues that he has “major medical issues that hinder him from getting
a larger income.” He claims the superior court “ignored” the fact that he has a broken
ankle and Crohn’s disease.
Reilly mentioned his broken ankle for the first time in his Statement of
Points on Appeal. He did not mention his ankle in the superior court, either in his
briefing or during the hearing. We “will not consider on appeal new arguments which
(1) ‘depend on new or controverted facts,’ (2) are not closely related to the appellant’s
arguments at trial, and (3) could not have been gleaned from the pleadings, unless the
new issue raised establishes plain error.”21 Reilly’s broken ankle was not closely related
to his arguments at trial, nor could this fact have been gleaned from the pleadings. The
new broken-ankle issue also does not establish plain error. A broken ankle is usually a
temporary condition, and normally we will not modify child support due to temporary
conditions.22 Thus, even if Reilly had raised the broken-ankle argument in the superior
court, it is unlikely it would have been grounds for a modification.
20
Kestner, 182 P.3d at 1123.
21
Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411, 418-19 (Alaska 2001)
(quoting Arnett v. Baskous, 856 P.2d 790, 791 n.1 (Alaska 1993)).
22
See Patch v. Patch, 760 P.2d 526, 530 (Alaska 1988) (“[A] trial court
should be reluctant to modify child support obligations when the obligor’s loss of income
appears only temporary.”); see also Richardson v. Kohlin, 175 P.3d 43, 48 (Alaska 2008)
(“[W]e have held that parents going through what appear to be temporary periods of
unemployment can be expected to maintain their support obligation by using assets, and
that ordinarily support should not be modified for temporary reductions in income.”).
-11- 6859
The superior court did consider Reilly’s Crohn’s disease. The court asked
Reilly whether he had any documentation from his doctor or other evidence that his
Crohn’s disease prevented him from working full time. Reilly admitted that he had not
submitted any documentation.
The court found that Reilly had a diagnosed medical disease that
“apparently flares up when there’s stress, [and] can be controlled by medications, some
of which he takes and some of which he doesn’t.” However, the court concluded that it
had “no evidence that [Crohn’s disease] precludes him from working full time.” These
findings accurately reflect the testimony of the witnesses. Thus, the court considered
Reilly’s testimony concerning his disease but simply did not find credible his claim that
the disease prevented him from working.23 The superior court’s finding was not clearly
erroneous.
2. The superior court did not clearly err in finding that Reilly can
work full time.
Reilly next argues that the superior court did not consider the fact he was
unable to obtain employment when he last applied at the Montana job service. However,
the court’s findings show it did consider this fact. Reilly testified he had tried but failed
to find engineering work through Montana’s job service and through other avenues. The
court acknowledged this testimony by deciding that, given the passage of time since
Reilly last held an engineering job, he could not be expected to find one now. Moreover,
Reilly admitted he had not looked for any full-time jobs besides engineering jobs. Thus,
the court did not ignore his testimony when it found he could obtain a full-time, non-
23
See McLaren v. McLaren, 268 P.3d 323, 331 (Alaska 2012) (“It is the
function of the trial court, not the reviewing court, to judge the credibility of witnesses
and to weigh conflicting evidence.”).
-12- 6859
engineering-related job. The court’s decision to impute income despite Reilly’s previous
inability to find work was not clearly erroneous.
3. The superior court did not clearly err in finding that Reilly can
work full time despite Nancy’s special needs.
Finally, Reilly argues the superior court erred in finding that he can work
full time even though he has to care for Nancy, his four-year-old daughter from a
subsequent relationship who has special needs due to her behavioral problems. Reilly
and Vinette both offered testimony about the severity of Nancy’s behavioral issues and
the difficulty of finding her daycare. Reilly explained that he must spend a significant
amount of time taking Nancy to appointments with doctors, counselors, and psychiatrists,
and that it would be impossible to work a full-time job around Nancy’s schedule.
Subsequent children normally cannot diminish a parent’s obligation to
provide for prior children.24 As the commentary to Civil Rule 90.3 explains:
A parent with a support obligation may have other children
living with him or her who were born or adopted after the
support obligation arose. The existence of such “subsequent”
children, even if the obligor has a legal obligation to support
these children, will not generally constitute good cause to
vary the guidelines. However, the circumstances of a
particular case involving subsequent children might
constitute unusual circumstances justifying variation of
support. The court should reduce child support if the failure
to do so would cause substantial hardship to the “subsequent”
children.[25
]
We adopted this principle in Kestner v. Clark, where we held that:
24
Kestner, 182 P.3d at 1122-23.
25
Alaska R. Civ. P. 90.3 cmt. VI(B)(2) “Subsequent Children.” Though we
have not officially adopted the commentary to the Rules of Civil Procedure, we do rely
on it for guidance. See Caldwell v. State, 105 P.3d 570, 573 n.6 (Alaska 2005) (citing
Eagley v. Eagley, 849 P.2d 777, 779 (Alaska 1993)).
-13- 6859
Parents have a paramount duty to support their children.
New obligations incurred after the birth of the parent’s first
child do not diminish that duty. . . . [A] rule relieving a
parent of his obligation to support a prior child because of the
birth of a subsequent child would “quite literally allow . . .
the non-custodial parent to sire himself out of his child
support obligation.” Because of the significance of a parent’s
duty to meet his or her child support obligations, we prioritize
fulfillment of that duty over even “legitimate” decisions to be
voluntarily unemployed or underemployed.[26]
A parent with subsequent children can be relieved of the duty to support his
prior-born child only “under the most extreme circumstances”: the parent wishing to
escape imputed income must prove imputed income resulting in an increase in child
support which would “cause substantial hardship to [his] subsequent children.”27 The
burden of proof is on the parent to show that working full time would create a substantial
hardship for the subsequent child and that the situation presents an extreme special
need.28
During the hearing, Reilly made no differentiation between the burdens
imposed by Nancy and Barlow, stating, “I mean, my son is special needs too, . . . we
have learning disorders,” and “I know [Vinette] has a lot of trouble with my son too
because he’s got similar problems and it’s difficult on all of us.” (Emphasis added.)
Reilly testified that “it’s just like — my son and my daughter. We can’t work under
structured — under structure.”
26
Kestner, 182 P.3d at 1122-23 (quoting Bailey v. Bailey, 724 So. 2d 335, 339
(Miss. 1998)).
27
Id. at 1123.
28
Id.
-14- 6859
The court asked Vinette, “Can you compare the circumstances of [Nancy]
in what your circumstances are with [Barlow]?” She answered, “They are very similar.”
When the court asked Reilly if he thought taking care of Barlow was a full-time job, he
answered, “Yeah, it is.” When asked by Vinette why it is that she can work full time and
take care of Barlow while he cannot work full time and take care of Nancy, Reilly’s
answer was that “well some people (indiscernible) better than others. . . . [W]ell, why
you have a better job than me, why — why is there people homeless on the streets, you
know?”
Further, Barlow may have bipolar disorder, like Nancy. Vinette testified
that “currently, my son has gone through an evaluation to help determine what may be
wrong with him . . . . His doctor believes that he is bipolar, but we wanted more
information before he was officially diagnosed with that.” She explained that Barlow
is on medication for his ADHD, but the medication does not alleviate his behavioral
problems, suggesting that he may have additional mental disorders. Vinette also stated
that the two children are similar enough that she and Nancy’s mother discuss the
problems they see with Barlow and Nancy to “figure out what might be wrong with our
children.”
The superior court recognized in its findings that Nancy has special needs.
However, the court did not find credible Reilly’s testimony that Nancy’s medical or other
special needs prevent him from working full time, and it decided that Reilly had not
provided adequate evidence to support his claim. The court explained:
[Reilly] claims that it’s necessary for him to [work only 20
hours a week] because of his obligations to his daughter,
making it impossible for him to work full time. But I would
find that [Vinette] is able to do work full time and manage the
needs of her similarly special needs son at the same time and
I see no reason why Reilly can’t do that as well.
-15- 6859
It was permissible for the superior court to compare Nancy’s special needs with Barlow’s
special needs — the parents themselves essentially equated the children’s levels of need
and attention — and it was not error for the court to find under these circumstances that
Reilly could work full time while providing for Nancy’s special needs, just as Vinette
worked full time and provided for Barlow’s special needs.
The superior court acknowledged that it was imposing a hardship, noting
that “[Reilly] could work a full-time job, . . . it would be certainly difficult, but it would
be no more difficult than it is for [Vinette].” The court concluded that it was possible for
Reilly to work a full-time job while “managing [Nancy’s] needs.”29
Reilly bore the burden of proof that his circumstance was a “most extreme
circumstance” and that Nancy would suffer a substantial hardship if he worked full time.
The superior court weighed Reilly’s testimony but did not find it credible. The court did
not clearly err by finding that Reilly had not met this burden.30
To summarize, the factual findings made by the superior court that Reilly
was voluntarily and unreasonably underemployed are supported by the record and are
not clearly erroneous. The superior court did not abuse its discretion in deciding to
impute income to Reilly.
29
Reilly did not present any of Nancy’s medical records or counseling
records. The only evidence he presented regarding the severity of her issues was his and
Vinette’s testimony.
30
It appears that in the course of seeking to obtain a fuller view of the parties’
circumstances, the court, like the parties themselves, asked for hearsay information. The
parties were pro se and probably did not understand they could have objected. It is true
that unobjected hearsay can be considered by the court. See Cassell v. State, 645 P.2d
219, 221 (Alaska App. 1982). But under some circumstances, it may be unfair for a trial
court to elicit hearsay on which it intends to rely. It is not clear in this case that the court
actually relied on any of the hearsay in making its findings or reaching its conclusions.
-16- 6859
C. The Superior Court Correctly Calculated Reilly’s Imputed Income.
Reilly also argues that the superior court did not correctly calculate his
imputed income. He contends that the court determined his income based on
“assumptions” instead of following the standard formula in Civil Rule 90.3 and that the
court should have used his educational background to determine the imputed income.31
We review the superior court’s determination of the amount of income to
impute for clear error.32 “A trial court is required to make specific findings to support
a determination of adjusted income under Civil Rule 90.3.”33 “Rule 90.3(a)(4) does not
rigorously command pursuit of maximum earnings. The rule’s more modest objective
is to give courts broad discretion to impute income based on realistic estimates of earning
potential.”34 We have observed that “[a]n important reason — if not the chief reason —
for imputing income to a voluntarily underemployed parent is to goad the parent into full
employment by attaching an unpleasant consequence (a mounting child support debt or,
in certain cases of shared custody, a reduced child support payment) to continued
inaction.”35 Generally speaking, “[a] trial court is granted discretion to choose ‘the best
31
Reilly asserts that “the [supreme court] should review the question of why
[Reilly’s] child support increased based on an occupational code not related to his
educational background.” This is an odd argument because Reilly’s educational
background is in engineering and using an engineering-based occupational code to
impute income to him would result in imputing more income than the superior court
ultimately decided to impute.
32
O’Connell v. Christenson, 75 P.3d 1037, 1039 (Alaska 2003).
33
Koller v. Reft, 71 P.3d 800, 805 (Alaska 2003).
34
Beaudoin v. Beaudoin, 24 P.3d 523, 530 (Alaska 2001).
35
Id.-17- 6859
indicator of . . . future earning capacity’ and to ‘impute income based upon ‘the most
complete evidence before it.’ ”36
If a parent’s educational background is not the best indicator of his earning
capacity, the superior court can rely on other evidence.37 Here, the superior court made
a specific finding that Reilly’s educational background was not a fair indicator of his
income potential, noting that:
I do not believe at this time, given that the last time he
worked an engineering job, it’s appropriate to base his
voluntarily unemployment salary based on an engineer’s
earning capacity, particularly with the limited information
about in the economy as it exists today, which is not great
around the country.
It was neither clear error nor an abuse of discretion for the superior court to impute
income based on an occupational code that is closely related to Reilly’s current
occupation and circumstances rather than his educational background. We also note that
the superior court did consider that Reilly had a college degree; that was the rationale for
imputing income based on the average salary for a first-year college graduate.
The superior court ultimately agreed with CSSD’s advice that the average
income of workers in “construction and extraction occupations” in southwest Montana
(as reported by the U.S. Department of Labor) was the best indicator of Reilly’s potential
income. The court explained that several of the sub-specialities included in “construction
and extraction occupations” are similar to Reilly’s work repairing and renovating houses
36
Ward v. Urling, 167 P.3d 48, 55 (Alaska 2007) (quoting Virgin v. Virgin,
990 P.2d 1040, 1049 (Alaska 1999); Byers v. Ovitt, 133 P.3d 676, 682 (Alaska 2006));
see also Koller, 71 P.3d at 805.
37
Ward, 167 P.3d at 55.
-18- 6859
he then sells or leases.38 The court’s approach is the type of approach we have instructed
the superior courts to use when determining imputed income.39 Thus, the court did not
clearly err in determining Reilly’s imputed income. Furthermore, the court’s decision
to not impute to Reilly an engineering salary and instead impute a much lower salary was
fair and reasonable.
D. The Superior Court’s Oral Visitation Credit Was Permissible, But The
Credit Was Omitted From The Final Order.
Reilly contests the superior court’s oral decision to award him only a 50%
visitation credit for the months that Barlow spends with him in the summer. According
to Civil Rule 90.3(a)(3): “The court may allow the obligor parent to reduce child support
payments by up to 75% for any period in which the obligor parent has extended
visitation of over 27 consecutive days. The order must specify the amount of the
reduction.” (Emphasis added.) The superior court has discretion regarding when to
credit the obligor parent and how much credit to give.40 The superior court must show
it considered the issue whether to grant the credit, and it must expressly make findings
regarding the issue.41 Reilly is incorrect when he argues that the visitation credit is
“required by Alaska state law.” The law does not require the superior court to award the
credit.
38
Examples of sub-specialities included in “construction and extraction
occupations” that seem to be closely related to Reilly’s current work include “carpenter,”
“construction laborer,” “electrician,” “painter[], construction and maintenance,” and
“construction and building inspector.”
39
See O’Connell v. Christenson, 75 P.3d 1037, 1041 (Alaska 2003).
40
Renfro v. Renfro, 848 P.2d 830, 832 (Alaska 1993).
41
Id.-19- 6859
Here, the superior court clearly considered the issue. The court questioned
Vinette and Reilly about whether they believed a summer visitation credit would be fair.
Both parties agreed a visitation credit would be fair, but Vinette mentioned she must
continue paying Barlow’s Alaska daycare expenses during his visit to Montana in order
to hold his place. The court commented that it would likely not award a full reduction
in child support, rather the credit would be between 50% and 75%, so she would still
receive some support for the daycare payments.
The superior court’s oral ruling granted Reilly a 50% visitation credit and
provided that the parties would share the cost of Barlow’s travel, but only if Reilly is
current on his child support by May 15 of each year. The court did not abuse its
discretion by awarding a 50% credit, which was reasonable considering that Reilly does
not have Barlow for a full summer.
However, Reilly is correct that the superior court erred by not including the
visitation credit in its final written order. The parties agree the visitation credit was
omitted from the written order. Thus, we remand this issue to the superior court so that
it can correct this omission.
E. Reilly’s Argument That His Child Support Cannot Be Increased
Because Neither Party Requested An Increase Is Without Merit.
Reilly finally argues that “[t]he [superior] court erred in increasing the child
support even though the [a]ppellee did not ask [for] or want the increase.” This
argument appears to be based on the fact that Vinette did not file a motion to increase
Reilly’s child support. But she did not have to file a motion; instead, she opposed
Reilly’s motion to modify his child support downward, arguing that he should actually
pay more child support because he was “voluntarily unemployed.” During the hearing
she again stated that she did not think Reilly’s child support should reflect his current
-20- 6859
employment situation. Reilly’s argument that his child support obligation cannot be
increased because neither party requested an increase is without merit.
V. CONCLUSION
We AFFIRM the decision of the superior court in all respects, except that
we REMAND the superior court’s child support order so that the court can correct the
inadvertent omission of the visitation credit in its written order.
-21- 6859