Richardson v. Kohlin

175 P.3d 43, 2008 Alas. LEXIS 8, 2008 WL 170044
CourtAlaska Supreme Court
DecidedJanuary 18, 2008
DocketS-12217
StatusPublished

This text of 175 P.3d 43 (Richardson v. Kohlin) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richardson v. Kohlin, 175 P.3d 43, 2008 Alas. LEXIS 8, 2008 WL 170044 (Ala. 2008).

Opinion

175 P.3d 43 (2008)

Sharen RICHARDSON, Appellant,
v.
Kenneth KOHLIN, Appellee.

No. S-12217.

Supreme Court of Alaska.

January 18, 2008.

*44 Michael B. Logue, Gorton, Logue, & Graper, Anchorage, for Appellant.

Ann DeArmond, Sterling & DeArmond, P.C., Wasilla, for Appellee.

Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

After being laid off from a high paying job as an IBEW journeyman electrician in Anchorage, a non-custodial father moved to the Pacific Northwest. There, despite months of trying to find work in Oregon and Washington, he was unable to secure work as an electrician. He then sought to modify the child support order that the court had entered *45 shortly after his move which had been based on his prior income. The superior court determined that the father's new income as a full-time non-union site-service technician in Washington represented a material change in circumstances. The court also determined that child support should not be based on the father's potential income working in Alaska because, considering the totality of the circumstances, he was not unreasonably underemployed. Because the superior court correctly determined that there had been a material change in the father's circumstances, and because there was an adequate basis for the superior court not to impute income, we affirm these decisions of the superior court.

II. FACTS AND PROCEEDINGS

A. Facts

Sharen Richardson and Kenneth Kohlin divorced in October 1996. They are the parents of a daughter born in May 1994. In the years since the divorce, custody and support have been modified numerous times. In the spring of 2004 Kenneth was living in Anchorage, where Sharen also lives. Kenneth, a member of the IBEW union, was employed as a journeyman electrician by Alcan Electric and worked on the Anchorage airport project. At that time Kenneth made around thirty-one dollars per hour. His May 2004 financial affidavit to the court reflected a gross annual income of $68,886 and a net income for child support purposes of $48,225.

While Kenneth was in Anchorage he had physical custody of his daughter forty-one percent of the time. The custody battles between Kenneth and Sharen in advance of fall 2004 proved quite contentious, including an ex parte domestic violence order that Sharen obtained against Kenneth on their daughter's behalf. Both parents acknowledged that the custody disputes and transitions were hard on their daughter.

During the summer of 2004 Kenneth learned that the airport job was coming to an end and that he would be subject to a reduction in force. He was later laid off from the job. Despite his knowledge of his tenuous employment situation, Kenneth purchased a home in Anchorage in September 2004. Then, in October 2004, Kenneth moved to the Pacific Northwest. Kenneth's stated reason for relocating in the Pacific Northwest was to be closer to family. Kenneth also testified that he left Alaska because "things got ugly" with regard to child custody disputes.

In November 2004 child support and custody were modified to reflect the fact that Kenneth had decided to move out of Alaska and was relinquishing the forty-one percent physical custody relationship he had previously been allotted in exchange for some weeks of visitation. The November order included a paragraph requesting updated financial affidavits so that the court could calculate new support obligations in accordance with Rule 90.3. Kenneth filed a motion with the court requesting that his May 2004 financial affidavit based upon his employment with Alcan Electric be used in calculating his new support obligations. Kenneth attested that he believed he would be able to meet his obligation through savings until he found new work. Thus, despite the fact that Kenneth was unemployed and living out of state at the time of the November 2004 order, his child support obligations were set at $804 based upon his previous income.

Once in the Pacific Northwest, Kenneth looked for work in several different towns in Washington and Oregon. He filed the necessary paperwork to obtain his reciprocal Washington state electrician license; he also took and passed the exam to become certified in Oregon. Kenneth inquired at various locals of the union for work, but was placed on "book two" rather than "book one" because of his newcomer status, which meant that he had very low priority for union jobs.[1] Kenneth ended up taking non-union construction work as a carpenter in Oregon in March 2005, earning seventeen dollars an hour. He held that job until August 2005 when he took a job with a wind technology company in *46 Washington where he saw greater opportunity for advancement. That job too paid Kenneth seventeen dollars an hour, as a site service technician, but it also guaranteed him a forty hour work week and offered him the opportunity to eventually earn twenty-two dollars an hour.

Kenneth acknowledged that the job situation in Alaska is clearly superior to that in Washington. In Alaska, there is typically a two-month turnaround between jobs. In one full year in Washington, on the other hand, he had received no IBEW employment and had barely gained any seniority in the union hiring list. He testified that although he knew he would be at the bottom of the list in a new place, he had not realized how difficult it would be to find work, because in Anchorage workers moved up the books quickly. Had he been able to secure IBEW work in Washington he could have expected pay around twenty-eight dollars per hour. While in Washington, Kenneth actively pursued higher-paying work, including regularly paying IBEW dues, attending meetings, and signing the books to show his availability for work.

B. Proceedings

In February 2005 Kenneth filed a motion to modify child support, claiming that his gross annual income was below the federal poverty level for a family of three. Before his motion was ripe for decision, Kenneth advised the court that he had secured full-time employment and would be modifying his financial affidavit. In April 2005 Kenneth filed a motion to amend his motion to modify child support to reflect an annual income of $25,428. He claimed that this was a material change in circumstances from the May 2004 financial situation that the court had used to determine his existing support obligation. That May 2004 financial affidavit had reflected a gross annual income of $68,886 and a net income for child support purposes of $48,225.

A hearing was held in October 2005 before Superior Court Judge Philip R. Volland. In a written order dated December 1, 2005, Judge Volland reduced Kenneth's monthly child support from $804 a month to $477 a month as of March 1, 2005 after finding that he was not unreasonably underemployed.[2]

Sharen appeals this determination on two grounds. First, she argues that because Kenneth was already unemployed and out-of-state in November 2004 when the court modified the child support order to reflect Kenneth's relinquishment of custody, the superior court erred as a matter of law in finding a material change in circumstance at the time of the February 2005 motion to modify. Second, Sharen argues that the superior court abused its discretion in finding that Kenneth was not voluntarily and unreasonably underemployed.

III. STANDARD OF REVIEW

In deciding whether to modify child support orders, trial courts have broad discretion.

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Bluebook (online)
175 P.3d 43, 2008 Alas. LEXIS 8, 2008 WL 170044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-kohlin-alaska-2008.