Sharpe v. Sharpe , 366 P.3d 66 ( 2016 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
JOLENE SHARPE n/k/a LYON, )
) Supreme Court No. S-15262
Appellant, )
) Superior Court No. 3AN-11-10036 CI
v. )
) OPINION
JYZYK SHARPE, )
) No. 7074 – January 8, 2016
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Darryl L. Thompson, Darryl L. Thompson,
P.C., Anchorage, for Appellant. No appearance by Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
BOLGER, Justice.
WINFREE, Justice, dissenting.
STOWERS, Justice, dissenting.
I. INTRODUCTION
A non-custodial parent moved to modify a child support order after she quit
her job in Anchorage, moved to a remote village, and adopted a subsistence lifestyle.
Although the parent acknowledged that she was voluntarily unemployed, she argued that
her decision was reasonable in light of her cultural, spiritual, and religious needs. The
superior court disagreed and denied the motion.
The parent appeals, arguing that the superior court gave inadequate weight
to her cultural and religious needs and that the child support order violates her right to
the free exercise of her religion. But the superior court adequately considered all
relevant factors in deciding not to modify the child support order. And there was no
plain error in the court’s failure to anticipate the free exercise claim, which the parent
raises for the first time on appeal. Therefore, we affirm the judgment of the superior
court.
II. FACTS AND PROCEEDINGS
Jolene Lyon1 and Jyzyk Sharpe divorced in July 2012. The superior court
awarded Jyzyk primary physical custody of the parties’ only child and ordered Jolene to
pay Jyzyk $1,507.00 per month in child support.
Jolene is a Yup’ik Eskimo who was raised in Nome and has family ties to
the native village of Stebbins. When the child support order was issued, Jolene was
“living in Anchorage, working at Alyeska Pipeline Service Company, and earning
approximately [$]120,000 a year.” In April 2013, she left Anchorage and took up a
subsistence lifestyle in Stebbins.
Soon after relocating to Stebbins, Jolene moved to modify the child support
order. She alleged that she was “no longer employed,” that she was “a full time stay at
home mother,”2 and that her only income was her annual Permanent Fund Dividend.
1
Jolene was known as Jolene Sharpe until the parties divorced. To avoid
confusion, we refer to both parties by their first names.
2
Although Jolene did not have primary custody of the parties’ daughter when
she moved to modify the child support order, Jolene was caring for another child from a
(continued...)
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These developments, she argued, constituted a material change in circumstances
warranting a modification of the child support order. She requested that the court reduce
her monthly child support payment to $50 per month, the minimum allowed under
Alaska Civil Rule 90.3(c)(3).
Jyzyk opposed the motion, arguing that modification of the child support
order was not warranted because Jolene was “voluntarily and unreasonabl[y]
unemployed.” Although he acknowledged that Jolene was entitled to quit her job and
move to a remote community, he argued that the parties’ “ten year old daughter . . .
should not be required to fund [Jolene’s] lifestyle choice.”
The superior court held a motion hearing in July 2013. During the hearing,
Jolene testified about her life in Stebbins and the benefits she derived from her
subsistence lifestyle. She expressed her desire to expose the parties’ child to traditional
life in Stebbins. And she said that living in Stebbins, a dry community, provided
reprieve from an alcohol abuse issue she had experienced during her marriage.
Jyzyk also testified at the hearing. He expressed his belief that the parties’
child would benefit from receiving child support from Jolene at its existing amount and
noted that these monthly payments “helped with everything [including] rent, groceries,
[and] clothes.” Jyzyk testified that “[i]n a dream world [he] would bring [the parties’
child] to Kotzebue [in the area where he was raised] and raise her on the river,” but he
recognized that financial constraints prevented him from prudently fulfilling this dream.
After the hearing the superior court denied Jolene’s motion. Although the
court acknowledged that “[Jolene] is finding sort of a spiritual awakening or
reconnecting with Native dance, Native culture, [and] subsistence lifestyle” and that life
(...continued)
separate relationship.
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in Stebbins is “rehabilitative for her,” it concluded: “[G]iven [Jolene’s] background and
her previous earnings I do not agree that . . . she does not have any income capacity
simply because she chose to relocate to the village of Stebbins and earn nothing . . . .”
Jolene appeals.3
III. STANDARD OF REVIEW
“Trial courts have broad discretion in deciding whether to modify child
support orders.”4 “We review an award of child support, including a modification to
such an award, for abuse of discretion . . . .”5 “A superior court abuses its discretion by
making a decision that is arbitrary, capricious, manifestly unreasonable, or . . . stem[s]
from an improper motive.”6 “We use the clearly erroneous standard when reviewing
factual findings, including findings regarding a party’s income, imputation of income,
and voluntary underemployment.”7 Factual findings “are clearly erroneous when, ‘after
reviewing the record as a whole, [we are] left with a definite and firm conviction that a
3
Jyzyk did not participate in this appeal.
4
Olmstead v. Ziegler, 42 P.3d 1102, 1104 (Alaska 2002) (citing Patch v.
Patch, 760 P.2d 526, 529 (Alaska 1988)).
5
Swaney v. Granger, 297 P.3d 132, 136 (Alaska 2013).
6
Morris v. Horn, 219 P.3d 198, 203-04 (Alaska 2009) (alterations in original)
(quoting Collins v. Arctic Builders, 957 P.2d 980, 981 (Alaska 1998) (internal quotation
marks omitted)).
7
Wilhour v. Wilhour, 308 P.3d 884, 887 (Alaska 2013) (footnotes omitted).
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mistake has been made.’ ”8 We review the superior court’s interpretation of the civil
rules9 and the Alaska Constitution10 de novo.
IV. DISCUSSION
A. The Superior Court Properly Considered The Financial Impact Of
Jolene’s Decision To Move To Stebbins And Adopt A Subsistence
Lifestyle On Her Child.
Jolene argues that it was an abuse of discretion to deny her motion to
modify the child support order. In particular, she argues that it was unreasonable for the
superior court “to direct nearly total focus on [her] past income history and ignore other
important factors,” including the burden of the child support obligation on her free
exercise of religion and the ameliorative effect of a subsistence lifestyle on her struggle
with alcohol.
When one parent takes primary physical custody of a child after divorce,
the non-custodial parent is required to pay child support “equal to the adjusted annual
income of the non-custodial parent multiplied by” a specified percentage.11 Although the
“adjusted annual income” is typically calculated using the parent’s actual income,12 under
Alaska Civil Rule 90.3(a)(4) “[t]he court may calculate child support based on a
determination of the potential income of a parent who voluntarily and unreasonably is
unemployed or underemployed.” “Potential income will be based upon the parent’s
8
Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000) (quoting Marine v.
Marine, 957 P.2d 314, 316 (Alaska 1998)).
9
Wolff v. Cunningham, 187 P.3d 479, 482 (Alaska 2008).
10
Glover v. State, Dep’t of Transp., 175 P.3d 1240, 1245 (Alaska 2008).
11
Alaska R. Civ. P. 90.3(a). The percentage varies according to the number
of children the parties have. Alaska R. Civ. P. 90.3(a)(2).
12
See Alaska R. Civ. P. 90.3(a)(1).
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work history, qualifications, and job opportunities.”13 As we have noted, the aim of
Alaska Civil Rule 90.3(a)(4) “is to give courts broad discretion to impute income based
on realistic estimates of earning potential in cases of voluntary and unreasonable
unemployment or underemployment.”14
Jolene conceded that she was voluntarily unemployed. Therefore, the only
issue at the hearing was whether her decision to be unemployed was unreasonable. The
superior court concluded that it was.
In determining whether a parent is “unreasonably” unemployed, the
superior court must look to the totality of the circumstances, including “such factors as
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.”15 But “[b]ecause 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.”16 And we have
consistently recognized that, when a child support obligor makes a career change for
13
Alaska R. Civ. P. 90.3(a)(4).
14
Beaudoin v. Beaudoin, 24 P.3d 523, 530 (Alaska 2001) (first emphasis
added).
15
Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008) (citations omitted)
(internal quotation marks omitted).
16
Kestner v. Clark, 182 P.3d 1117, 1123 (Alaska 2008) (internal quotation
marks omitted); see also id. (“[A] parent should not be relieved of the obligation to
support his or her children except under the most extreme circumstances.”).
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personal reasons, the superior court should consider the financial impact of this decision
on the child.17
In Pattee v. Pattee, our first case considering imputed income, the non­
custodial parent quit his job at a bar in Anchorage and moved to Washington to enroll
in Tacoma Community College.18 We rejected the notion that a voluntary career change
should require an automatic reduction in child support:
On the one hand, we do not believe that an obligor-parent
should be “locked in” to a particular job or field during the
minority of his or her children when accepting a
lower-paying position may ultimately result in personal or
professional advancement. On the other hand, the children of
the marriage and the custodial parent should not be forced to
finance the noncustodial parent’s career change. We believe
that the better rule is that stated by the Montana Supreme
Court: “[T]he judge [is] to consider the nature of the changes
and the reasons for the changes, and then to determine
whether, under all the circumstances, a modification is
warranted.”[19]
17
See, e.g., Richardson v. Kohlin, 175 P.3d 43, 48-49 (Alaska 2008) (“When
a parent is seeking a modification of support due to a change in employment the court
should consider ‘the extent to which the children will ultimately benefit from the
change.’ ” (quoting Alaska R. Civ. P. 90.3 cmt. III.C)); Dunn v. Dunn, 952 P.2d 268, 270
(Alaska 1998) (“When determining the potential income of the obligor parent, the trial
court must also balance the needs of the dependent children against the needs of the
obligor for a career change.” (Emphasis added.)).
18
744 P.2d 658, 659 (Alaska 1987), overruled on other grounds by Nass v.
Seaton, 904 P.2d 412 (Alaska 1995).
19
Id. at 662 (alterations in original) (citations omitted).
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We remanded the case to allow the trial court to examine the reasons for the father’s
unemployment and establish an appropriate child support obligation.20
The foregoing quote recognizes that a child support obligor should not be
“locked in” to a particular career. But this language is in a sentence that implies that a
career change must be supported by a “lower-paying position” that will “ultimately result
in personal or professional advancement.” And this sentiment is immediately followed
by the observation that “the children . . . and the custodial parent should not be forced
to finance the noncustodial parent’s career change.” Thus the financial impact of a
career change on the obligor’s children has always been regarded as an important factor
when a trial court examines whether voluntary unemployment is reasonable.
A few years after the Pattee decision, we applied the same rationale to a
case where the child support obligor had moved from Alaska to El Paso, Texas to study
engineering.21 The obligor testified that he decided to change careers because he was
“ ‘burned out’ on fishing [his prior career] and wanted a safer, less strenuous career.”22
The trial court commended the obligor’s pursuit of further education but noted that his
plan to enroll as a part-time student and to work as a part-time welder “is not completely
realistic” because he could pursue his education while working as part-time fisherman
to fulfill his child support obligation.23 The trial court imputed income to the obligor
20
Id.
21
Pugil v. Cogar, 811 P.2d 1062, 1064 (Alaska 1991).
22
Id.
23
Id. at 1064-66.
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based on his previous employment in Alaska as a welder and commercial fisherman
rather than on his prospective earnings as a welder in El Paso, and we affirmed.24
Similarly, in Olmstead v. Ziegler we considered the case of a child support
obligor who left the practice of law and returned to school to become a teacher.25 The
superior court concluded that it was unreasonable for the obligor “to train for a position
that is less remunerative than that his current education and experience justifies.”26
Though it expressed “[n]o moral criticism of [the obligor’s] lifestyle change,” the
superior court was unwilling to “shift any of the consequent burden [of the career
change] to the narrow shoulders of [the] child.”27 We affirmed, noting that the obligor
had failed to demonstrate that his career change would benefit his child.28
In recent cases, we have repeatedly stated that the “relevant inquiry” when
imputing income is “whether a parent’s current situation and earnings reflect a voluntary
and unreasonable decision to earn less than the parent is capable of earning.”29 And the
commentary to Alaska Civil Rule 90.3 specifically requires the superior court to examine
the financial impact on the child in deciding whether to impute income: “When a parent
makes a career change, [the totality of the circumstances] consideration should include
24
Id. at 1065-67.
25
42 P.3d 1102, 1103-04 (Alaska 2002).
26
Id. at 1105.
27
Id.
28
Id. at 1105-06.
29
Reilly v. Northrop, 314 P.3d 1206, 1213 (Alaska 2013) (quoting Nunley v.
State, Dep’t of Rev., Child Support Enforcement Div., 99 P.3d 7, 11 (Alaska 2004)); see
also Mallory D. v. Malcolm D., 309 P.3d 845, 849 (Alaska 2013); Ward v. Urling, 167
P.3d 48, 55 (Alaska 2007); Beaudoin, 24 P.3d at 528.
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the extent to which the children will ultimately benefit from the change.”30 This directive
implies that a court may consider the financial impact of a career change on a child,
because the amount of child support inevitably affects the child’s well-being.
There are certainly cases where we have affirmed child support
modifications when a career change was partly motivated by personal factors.31 But
these cases simply illustrate that the superior court has a wide range of discretion when
addressing this issue. The fact that some cases have treated relocation decisions as
reasonable does not free the superior court from the obligation to consider the financial
impact of a career change on the obligor’s child. Jolene does not cite any cases where
we have held that the consideration of this impact was an abuse of discretion.
In this case, Jolene moved to Stebbins and adopted a subsistence lifestyle
without any intention of seeking employment to meet her child support obligation. In
support of her request for reduction of her child support obligation, she specifically
stated that she had “no intention to return to the work force.” The record thus supports
the superior court’s conclusion that Jolene’s decision to leave her employment and move
to Stebbins would have an unreasonable financial impact on the resources available to
care for her daughter.
The dissent argues that when a court imputes income after an obligor
relocates, the reasonableness of the obligor’s decision to relocate must be analyzed prior
30
Alaska R. Civ. P. 90.3 cmt. III.C (emphasis added).
31
See Wilhour v. Wilhour, 308 P.3d 884, 889 (Alaska 2013) (“[T]he fact
that a parent voluntarily leaves a better-paying job in order to be closer to a child and
share the child’s custody should rarely weigh against that parent in determining
whether a reduction in child support is warranted.”); Richardson v. Kohlin, 175 P.3d
43, 49 (Alaska 2008) (noting that the obligor’s desire to be closer to his family was a
legitimate reason for a move that caused the obligor to become underemployed).
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to and separately from the reasonableness of the obligor’s unemployment. It contends
that once the decision to relocate is found reasonable, imputed income must be based on
the obligor’s new place of residence rather than former residence. The dissent concludes
that the trial court should have found Jolene’s decision to move to Stebbins reasonable
and erred in imputing Jolene’s income based on her former job in Anchorage rather than
her employment opportunities in Stebbins.
As the dissent recognizes, neither Rule 90.3(a)(4) nor Child Support
Services Division regulations say anything “about considering the reasonableness of a
parent’s decision to relocate” prior to and separately from the reasonableness of the
obligor’s unemployment.32 And the cases upon which the dissent relies also do not
provide support for this contention. Rather these cases demonstrate that the obligor’s
reason for moving is simply one of the several factors courts may consider in deciding
whether an obligor is unreasonably unemployed.33
In Richardson v. Kohlin, contrary to the dissent’s claim, we did not
separately analyze the reasonableness of the obligor’s move from the reasonableness of
his underemployment.34 Rather we affirmed the superior court’s consideration of the
move’s purpose as part of its totality of the circumstances analysis.35 Moreover, unlike
the present case, the obligor in Richardson actively sought employment in the Pacific
32
Dissent at 24.
33
See Alaska R. Civ. P. 90.3 cmt. III.C (directing courts to consider “the
totality of the circumstances” in deciding whether to impute income).
34
175 P.3d at 43.
35
See id. at 48 (“The superior court found that [the obligor’s]
underemployment was reasonable in light of the legitimate reasons for his move and his
diligent job search efforts.” (Emphasis added.)).
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Northwest after he was laid off from his job in Anchorage, a fact we found particularly
salient.36
In declining to impute income based on the obligor’s income in Alaska, we
repeatedly emphasized the obligor’s “diligen[t]” and “extensive attempts to find high-
paying work in [his new location].”37 We lauded the trial court for giving “great weight
to [the obligor’s] efforts to find work, the fact that he was [currently] working full time,
and his active pursuit of higher paying work,” and we noted that these efforts
distinguished the case from cases in which we have upheld the imputation of income.38
No such diligent efforts to find work are present in the case now before us. In contrast,
as Jolene testified, she has not applied for any jobs in Stebbins and “ha[s] no intention
to return to the workforce.”
The dissent also relies on Petrilla v. Petrilla, but that case did not involve
a review of the superior court’s decision to impute income.39 In Petrilla, after the obligor
moved from Alaska to Nevada and failed to find work, the superior court issued a
modified child support order imputing income to the obligor based on his potential
income in Nevada.40 Neither party timely appealed that order.41 Rather the obligor then
36
Id. at 45.
37
Id. at 49.
38
Id.
39
See dissent at 26-28, 36, 41 & n.58 (citing Petrilla v. Petrilla, 305 P.3d
302 (Alaska 2013)).
40
Petrilla, 305 P.3d at 305.
41
Id. at 306 (“Having elected to forgo a timely appeal of the [child support
order imputing income], [the obligor] cannot challenge that order now in the context
of an appeal of the denial of modification.” (Citation omitted.)).
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found a job that paid less than the imputed income estimate and then moved to modify
the post-relocation support order to reflect his actual income.42 After the superior court
denied his request, the obligor appealed.43
On appeal we recognized that, because the obligor did not file a timely
appeal of the superior court’s decision to impute income, the obligor could no longer
challenge that decision.44 Thus the sole issue before us in Petrilla was whether the
superior court should have modified the support order to reflect the obligor’s actual
rather than imputed salary. Petrilla is not applicable to the case before us now. The
issue here is whether the superior court should have modified Jolene’s support order,
which was issued before Jolene moved and based on her actual income in Anchorage,
to reflect her post-relocation circumstances. Unlike Petrilla, here we do not consider
whether the superior court should have modified an imputed support order that was
issued after the obligor relocated.
The dissent also misunderstands our decision in Sawicki.45 Similar to
Petrilla, in Sawicki we considered a child support order that the superior court issued
after the obligor relocated to Indiana to take a new job.46 When the obligor voluntarily
left her new job for a lower-paying job, she asked the court to modify the order, but the
court declined to do so.47 Thus on appeal we considered whether the obligor was entitled
42
Id. at 305.
43
Id. at 305, 308-09.
44
Id. at 306.
45
See dissent at 40 (citing Sawicki v. Haxby, 186 P.3d 546 (Alaska 2008)).
46
See Sawicki, 186 P.3d at 547.
47
Id.
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to a reduction in child support based on her voluntary change in employment.48 The
reasonableness of her move from Alaska to Indiana was not at issue because the
challenged child support order postdated that move.
The dissent also draws support from our Moeller-Prokosch line of cases for
its contention that the reasonableness of an obligor’s decision to relocate must be
considered separately from and prior to the reasonableness of unemployment.49 Yet the
Moeller-Prokosch cases do not lend such support because they consider child custody
in light of a custodial parent’s decision to relocate, not child support obligations when
a non-custodial parent decides to relocate. These two issues — child custody and child
support — have distinct considerations and courts accordingly analyze them differently.
In making custody determinations courts must apply the best interests of
the child analysis.50 When a custodial parent seeks to relocate with the child, the court
must analyze the reasonableness of the relocation decision to ascertain whether the move
has illegitimate motives, such as a desire to prevent contact between the child and the
non-custodial parent.51 If the court finds such illegitimate motives, it must consider them
48
See id.
49
See dissent at 24 n.9 (citing Moeller-Prokosch v. Prokosch (Moeller I),
27 P.3d 314 (Alaska 2001), and Moeller-Prokosch v. Prokosch (Moeller II), 53 P.3d 152
(Alaska 2002)).
50
AS 25.24.150(c).
51
See Moeller I, 27 P.3d at 316.
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in its best interests of the child analysis.52 If not, the court cannot hold the parent’s
decision to relocate against the parent when determining custody.53
In contrast, when calculating child support courts do not conduct a best
interests of the child analysis. Rather the non-custodial parent’s child support obligation
is based on a statutorily prescribed percentage of their actual or imputed annual income,
as mandated by court rule.54 Thus while the Moeller-Prokosch cases do require courts
to consider whether a parent’s decision to relocate is reasonable in custody cases, this
requirement is inapplicable to child support determinations.
The dissent also argues that imputing income based on a non-custodial
parent’s job in a prior place of residence produces an asymmetry with the custodial
parent’s “absolute right to change careers, take a lower-paying job, . . . quit work
altogether[, or] perhaps even . . . move to another geographic location with the
children.”55 But this “absolute right” of the custodial parent exists only in theory, as
demonstrated by Jyzyk’s testimony that “in a dream world” he would move back to his
Native village with his daughter but “finances” prevented him from doing so. Contrary
to the dissent’s claim, custodial parents do not possess any such “absolute freedom” —
their child’s needs constrain their actions.56 Further, Jolene’s decision to exercise her
52
See id.
53
See Moeller II, 53 P.3d at 155.
54
Alaska R. Civ. P. 90.3.
55
Dissent at 42.
56
See Rego v. Rego, 259 P.3d 447, 451-52, 455-57 (Alaska 2011) (upholding
a decision, based on the best interests of the child analysis, that forced a custodial father
to choose between remaining in Alaska and retaining custody of his child or relocating
to New Jersey, as planned, and losing custody). Contrary to the dissent’s interpretation,
(continued...)
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freedom to move restricts Jyzyk’s freedom to do the same. While the dissent argues that
our decision “effectively order[s] where a non-custodial parent must live and what
specific job that parent must hold,”57 it fails to recognize that its preferred outcome would
have the same limiting effect on the custodial parent, and consequently the child.
B. The Superior Court Adequately Considered Jolene’s Religious And
Cultural Needs.
Jolene argues that the superior court “direct[ed] nearly total focus on [her]
past income history” and gave short shrift to Jolene’s religious and cultural needs. It is
true that “the parents’ needs” is one of the factors the superior court must consider in
evaluating the totality of the circumstances.58 But the superior court did adequately
consider Jolene’s needs, and after considering these needs it found that they did not
outweigh other concerns, including her daughter’s need for financial support:
[Jolene] finds that [living in Stebbins] is sort of rehabilitative
for her from the standpoint of her eliminating . . . some of the
poisons of urban life. . . . She is finding sort of a spiritual
reawakening or reconnecting with Native dance, Native
culture, subsistence lifestyle, all of which is . . . admirable in
an abstract sense.
(...continued)
we do seriously consider the right to relocate — in the context of the applicable
framework. See id. at 456 (“A parent’s decision to relocate . . . changes the best interests
calculus.”); dissent at 24 & n.9, 42 & n.63. But, as we explained in Rego, “[t]he chance
that the superior court’s decision will influence [a custodial parent’s] decision to move
does not justify reversing the superior court’s order.” 259 P.3d at 456. Custody and child
support orders may force parents, custodial and non-custodial alike, to make difficult
decisions.
57
Dissent at 42.
58
Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008).
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Then again . . . she effectively is . . . taking a vacation
from the financial responsibilities that she assumed when she
had a child, and the result of her not working and providing
financial assistance is that it’s going to impose . . . a greater
burden on [Jyzyk], but, more importantly, it’s going to have
an impact over time on the opportunities . . . and resources
that are available to take care of [the parties’ daughter].
Now, I don’t know whether it’s realistic to continue
child support at [$]120,000 a year, . . . but given her
background and her previous earnings I do not agree that it
should be that she does not have any income capacity simply
because she chose to relocate to the village of Stebbins and
earn nothing . . . .
....
. . . I do find it a difficult choice in this case because
[Jolene] does seem to derive some very valid benefits from
being in Stebbins, and I’m sure that for the summers [her
daughter] derives some benefits there, too, but then there’s
the other nine months of the year when [the parties’ daughter]
lives in Anchorage and she’d be getting $50 a month, if that,
instead of . . . $1500 a month, which could go a long way
toward providing for necessities and also toward . . .
providing for her future needs, educational needs, and to help
give her a good start in life.
The record thus reflects that the superior court adequately considered
Jolene’s personal needs when it determined that her voluntary unemployment was
unreasonable.59
59
Jolene also argues that, “because this case involves a choice made on
cultural and religious grounds — a choice protected by the free exercise clause of the
Alaska Constitution, . . . a higher standard should be required to show that her decision
was unreasonable under the circumstances.” But she does not cite any cases to support
the proposition that a totality of the circumstances test should give special weight to
religious concerns. Jolene’s religious rights are more appropriately addressed through a
(continued...)
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Despite this consideration, the dissent worries that the superior court
“trivialize[s] Alaska Natives’ way of life”60 and “devalues Alaska Natives’ cultural,
spiritual, and religious connections to their villages and their subsistence lifestyle.”61 Yet
in reality the dissent’s desired outcome would have enormous financial implications for
Alaska Native children. “The primary purpose of Rule 90.3 is to ensure that child
support orders are adequate to meet the needs of children, subject to the ability of parents
to pay.”62 Granting either parent absolute freedom to exit the workforce would
undermine this purpose.
C. There Was No Plain Error In The Superior Court’s Failure To
Address Jolene’s Free Exercise Claim Sua Sponte.
Jolene argues that the child support order burdens her right to the free
exercise of her religion under the Alaska Constitution because it effectively requires her
to abandon her Native religious and cultural heritage and maintain a stressful job in
Anchorage. She argues that the superior court abused its discretion by failing to address
this undue burden on her religious practice.
The Alaska Constitution provides that “[n]o law shall be made respecting
an establishment of religion, or prohibiting the free exercise thereof.”63 A person’s
conduct is protected by the Free Exercise Clause if (1) “a religion is involved, the
conduct in question is religiously based, and the [person] is sincere in his or her religious
(...continued)
separate free exercise claim, which we consider next.
60
Dissent at 33.
61
Dissent at 44.
62
Alaska R. Civ. P. 90.3 cmt.I.B.
63
Alaska Const. art. I, § 4.
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belief”; and (2) “the conduct poses . . . [no] substantial threat to public safety, peace or
order,” and “there are [no] competing governmental interests that are of the highest order
and are not otherwise served.”64
Jolene never argued before the superior court that the child support order
should be modified because the existing order infringes her freedom of religion. Her
motion to modify child support did not mention the Alaska Constitution’s Free Exercise
Clause. And although she testified at the hearing about her spiritual and cultural
connections to life in Stebbins and the religious character of Eskimo dancing, she never
invoked the Alaska Constitution or otherwise argued that the child support order
burdened her Native religious practices. Therefore, Jolene’s free exercise claim was
never considered by the superior court, and we review it for plain error only.65
Although Jolene presented ample testimony at the hearing about her
subsistence lifestyle and the benefits she obtains from living in Stebbins, her testimony
did not focus on whether her decision to move to Stebbins was motivated by religious
belief, whether her alleged religious beliefs were sincere,66 or whether her religious
exercise would have been burdened had she remained in Anchorage and continued to
64
Larson v. Cooper, 90 P.3d 125, 131 (Alaska 2004) (alteration omitted)
(internal quotation marks omitted).
65
See David S. v. State, Dep’t of Health & Soc. Servs., 270 P.3d 767, 774
(Alaska 2012). Plain error “exists where an obvious mistake has been made which
creates a high likelihood that injustice has resulted.” Id. (quoting D.J. v. P.C., 36 P.3d
663, 668 (Alaska 2001)) (internal quotation marks omitted).
66
Jolene represents that the superior court said it “had no reason to question
her sincerity.” But the court merely noted: “I don’t question . . . your sincerity and . . .
the value you place in reconnecting with [your] . . . Native and historical . . . cultural . .
. roots . . . .” The court expressed no opinion about Jolene’s religious beliefs.
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work for Alyeska67 or sought employment in Stebbins. Without being presented with
evidence and argument about these key questions, the superior court did not make an
obvious mistake in failing to address the free exercise issue sua sponte. And even if the
court had anticipated Jolene’s free exercise claim, it could not have evaluated the merits
of the claim using only the evidence elicited at the hearing. We conclude that there was
no plain error in the superior court’s failure to address Jolene’s free exercise claim.
V. CONCLUSION
The judgment of the superior court is AFFIRMED.
67
For example, Jolene testified that when she lived in Anchorage, although
she was “weather-bound” there for “a couple years,” she would travel to Stebbins “every
February/March to come to the potlatch,” and that she “came [to Stebbins] every
opportunity [she and members of her family] knew that there was going to be Eskimo
dancing.”
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STOWERS, Justice, dissenting.
I join in that part of Justice Winfree’s dissent that would remand to the
superior court to reconsider the issues of (1) the legitimacy of the mother’s move and
(2) the voluntary unemployment analysis, which should instead focus on her employment
opportunities in Stebbins. However, I disagree to the extent the dissent suggests that the
mother may have a valid Free Exercise of religion claim. The mother’s claim that she
wishes to move to a place because that place enhances her cultural and spiritual
experience is, in my judgment, fairly conclusory and insufficient to state a Free Exercise
claim. I particularly find this to be the case because the mother failed to mention, much
less argue the applicability of, the Free Exercise clause before the trial court. Were the
case to be remanded for further proceedings, the mother of course could make a Free
Exercise claim and seek to admit evidence in support of it.
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WINFREE, Justice, dissenting.
I respectfully disagree with today’s decision affirming the superior court’s
denial of Jolene Lyon’s motion to modify her child support obligation. In my view:
(1) it was clearly erroneous to find Jolene’s move to Stebbins unreasonable; (2) it was
legal error to conflate the reasonableness of Jolene’s relocation to Stebbins with the
reasonableness of her unemployment in Stebbins; (3) there was an insufficient factual
basis to support a finding that Jolene was unreasonably unemployed in Stebbins; (4) it
was an abuse of discretion not to consider all the required factors when determining
whether Jolene is unreasonably unemployed; and (5) it was clearly erroneous to
determine that Jolene could reasonably continue to earn $120,000 annually, whether in
Anchorage or in Stebbins.1 The reasons behind Jolene’s move to Stebbins are far more
compelling — certainly not less compelling — than parental moves found reasonable in
1
I believe the standards of review applicable to this case are as follows:
Whether a substantial change of circumstances has occurred to allow consideration of
child support modification is a question of law. See Bagby v. Bagby, 250 P.3d 1127,
1128 (Alaska 2011); see also Alaska R. Civ. P. 90.3(h)(1) (allowing modification of
child support “upon a showing of a material change of circumstances” and setting
presumption of a material change of circumstances if new financial situation would lead
to more than a 15% change in support). Whether a parent’s relocation is for a legitimate
reason is a question of fact reviewed for clear error. Cf. Richardson v. Kohlin, 175 P.3d
43, 49-50 (Alaska 2008) (affirming factual finding that father’s move was for legitimate
purpose). Whether a parent is voluntarily and unreasonably unemployed are questions
of fact reviewed for clear error. See Reilly v. Northrop, 314 P.3d 1206, 1212, 1216
(Alaska 2013) (“The factual findings . . . that [the father] was voluntarily and
unreasonably underemployed are supported by the record and are not clearly
erroneous.”). Courts have broad discretion in deciding whether to modify child support
and whether to impute income, see id. at 1212, but “[s]ufficent factual findings are
required for imputing . . . or declining to impute income.” Richardson, 175 P.3d at 48.
The calculation of imputed income is a question of fact reviewed for clear error. Reilly,
314 P.3d at 1212 & n.7.
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prior cases, and in those prior cases the parent’s imputed income, if any, was determined
by employment opportunities in the new location, not the old location. Accordingly the
superior court should have focused on Jolene’s employment opportunities in Stebbins.
I would remand for further proceedings to determine whether Jolene is unreasonably
unemployed based on her overall circumstances in Stebbins, taking into account Jolene’s
Free Exercise argument.
Alaska Civil Rule 90.3(a)(4) permits a court to impute income when a
parent “voluntarily and unreasonably is unemployed or underemployed.” In deciding
whether a parent is unreasonably unemployed, the court must evaluate all of the parent’s
circumstances.2 If the court decides to impute income to a parent, the rule requires the
court to consider “the parent’s work history, qualifications, and job opportunities,” as
well as potential income from existing assets.3 Child Support Services Division (CSSD)
regulations about voluntary and unreasonable unemployment echo Rule 90.3(a)(4),4 but
more specifically require CSSD to consider “the parent’s . . . job opportunities in the
area where the parent physically resides” when determining imputed income.5 The
regulations also provide that “if a parent makes a career change, the agency will consider
2
See Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008) (citing Alaska R.
Civ. P. 90.3 cmt. III.C).
3
Alaska R. Civ. P. 90.3(a)(4); O’Connell v. Christenson, 75 P.3d 1037, 1041
(Alaska 2003). See also Horne v. Touhakis, 356 P.3d 280, 284 (Alaska 2015) (noting
lack of specific findings to support income imputation order and directing superior court
to make findings on “the four factors enumerated in Rule 90.3(a)(4))”); Gonzalez v.
Bernal, No. S-12784, 2009 WL 1039846, at *2 (Alaska Apr. 15, 2009) (reversing
superior court order imputing income to parent because court did not make “a more
specific inquiry into her actual present ability to earn” the amount of imputed income).
4
15 Alaska Administrative Code (AAC) 125.060(a) (2013).
5
15 AAC 125.020(b) (emphasis added).
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the extent to which the children will ultimately benefit from the change.”6 Additionally
CSSD permits a parent to request that an order to withhold and deliver be modified based
on hardship when the obligor parent “lives a subsistence life style without any local
opportunity for employment.”7
Rule 90.3(a)(4) says nothing about considering the reasonableness of a
parent’s decision to relocate, nor do CSSD’s regulations.8 But our case law reflects that
the reasonableness of a move is considered separately from the reasonableness of
unemployment, and that once a relocation decision is determined legitimate — i.e.,
reasonable — the parent’s imputed or actual income is evaluated in the context of the
new location, not the old location.9 This case law is consistent with the CSSD regulation,
6
15 AAC 125.060(c); accord Alaska R. Civ. P. 90.3 cmt. III.C; see also
Richardson, 175 P.3d at 49 (discussing superior court’s findings regarding parent’s move
outside of Alaska and potential benefits for child despite 40% decrease in child support).
7
15 AAC 125.550(a), (b)(5) (emphasis added).
8
See Alaska R. Civ. P. 90.3(a)(4); 15 AAC 125.010-.900 (2015).
9
See Petrilla v. Petrilla, 305 P.3d 302, 307-08 (Alaska 2013) (focusing upon
availability of employment for father in new location when determining whether income
could be imputed to him); Richardson, 175 P.3d at 49-50 (affirming child support
modification order based on lower income in new location). In the analogous context
of child custody modification due to a parent’s relocation, we have directed courts to
conduct a similar analysis: If a parent’s intent to relocate is not legitimate — i.e., the
parent is primarily motivated by a desire to make visitation more difficult — then that
illegitimate intent and motivation may be held against the relocating parent when
determining the child’s best interests. See Moeller-Prokosch v. Prokosch, 27 P.3d 314,
316 (Alaska 2001). But if the intended relocation is legitimate, the relocation itself
cannot be held against the relocating parent. Moeller-Prokosch v. Prokosch, 53 P.3d
152, 155 (Alaska 2002). As we noted in Rego v. Rego, 259 P.3d 447, 454 (Alaska
2011), “we take seriously the alleged infringement on a custodial parent’s right to
relocate.”
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noted above, requiring consideration of imputed income in the economy “where the
parent physically resides.”10
In Richardson v. Kohlin we addressed child support modification when a
non-custodial father relocated outside of Alaska and the mother requested imputation of
income based on the father’s previous Alaska income.11 The father was an Anchorage
union worker who decided to move to the Pacific Northwest to be closer to his and his
new wife’s families and to avoid continual custody disputes with the mother.12 The
mother argued that the father’s move “was ill-considered and impulsive” and that their
child would suffer from the move because of diminished support.13 The superior court
found the reasons for the father’s move legitimate; found potential benefits to the child,
including “the opportunity to better know her extended family” and the possibility of
diminished conflict between her parents; and determined that it would be inappropriate
to impute income.14
On appeal we affirmed the superior court’s factual finding that the father’s
move was for a legitimate purpose.15 We then considered whether the court “abused its
discretion” in “finding” that the father’s underemployment was reasonable.16 We upheld
10
15 AAC 125.020(b).
11
See 175 P.3d at 44-45, 48-50.
12
Id. at 44, 49.
13
Id. at 49.
14
Id.
15
Id. at 48-50.
16
Id. at 49-50. This seems to be the incorrect standard of review. A
(continued...)
-25- 7074
the court’s finding that, in light of the father’s efforts to find work, his full-time
employment, and his active pursuit of higher-paying work, the father’s
“underemployment” was reasonable.17 Although our Richardson opinion is not
particularly clear, I understand the ultimate ruling to be that: (1) because the move was
legitimate, there was no basis to impute income based on the father’s prior Alaska
income level, and (2) because the father was making reasonable efforts to find
appropriate work in his new location, there was no basis to impute income based on
income levels at the new location.
In Petrilla v. Petrilla parents were in a joint custody arrangement until the
father decided to relocate to Nevada with his new wife and daughter to be closer to his
parents, one of whom was terminally ill, in Arizona.18 The father quit his job as a
juvenile probation officer with the State of Alaska and for some time received
unemployment benefits while looking for similar work in Nevada.19 The mother moved
to modify custody and support before the father’s move, and after the move requested
that the court impute income to him based on his Alaska income.20 The father agreed the
mother should have sole legal and primary physical custody of their child, but disagreed
16
(...continued)
determination that underemployment is reasonable is a factual finding, and our use of the
term “finding” should have directed us to the proper “clearly erroneous” standard of
review. See, e.g., Reilly v. Northrop, 314 P.3d 1206, 1216 (Alaska 2013) (“[T]he factual
findings made by the superior court that [the father] was voluntarily and unreasonably
underemployed are supported by the record and are not clearly erroneous.”).
17
Richardson, 175 P.3d at 49-50.
18
305 P.3d 302, 303 (Alaska 2013).
19
Id. at 303-05.
20
Id. at 303-04.
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with the mother’s contention that his child support payment should be based on his
former Alaska income.21 The superior court rejected the mother’s argument that the
father’s support obligation should be based solely on his prior Alaska income —
appearing to state that it could not find the move itself to be voluntary underemployment
— and based the obligation on his Alaska income during the time he actually worked for
the State, then on his unemployment benefit income for five months, and thereafter on
what he could reasonably earn if he obtained a juvenile probation officer position with
the State of Nevada.22 The father then filed a new motion to modify the court’s final
calculation of his child support obligation, asserting that he had obtained a job with the
State of Nevada as a family services specialist and that his income would be around
$33,000 rather than the nearly $44,500 figure the court had imputed to him as a Nevada
juvenile probation officer.23 The court denied the motion.24
On appeal we concluded that the superior court had not provided a
sufficient factual basis to support its denial of the father’s modification motion,25
specifically noting that the court “made no express finding that [the father] was capable
of earning more than his new job paid, that higher-paying jobs were available to [the
father] in Nevada, or that [the father] took a position paying less than what was
21
Id.
22
Id. at 305.
23
Id.
24
Id.
25
Id. at 306-08; see also Richardson v. Kohlin, 175 P.3d 43, 48 (Alaska 2008)
(“Sufficient factual findings are required for imputing income or declining to impute
income.”).
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available.”26 We also stated: “[T]he record before us does not reflect the availability of
employment opportunities in Nevada that would have paid [the father] more than the
position he secured.”27 Rejecting the court’s position that the father “may have to work
one or two jobs” to meet his imputed income level, we remanded for more detailed
findings.28
Now to the facts of this case. Jolene is half Yup’ik Eskimo, and her tribal
affiliation is with Stebbins Community Association. Jolene’s Yup’ik mother was born
and raised in Stebbins, about 120 miles from Nome. Jolene was born in Anchorage but
raised in Stebbins and Nome. Jyzyk is an Alaska Native from the Kotzebue area,
although the record does not reflect a tribal affiliation.
Jolene and Jyzyk married in December 2002 in Nome. Their daughter was
born in Anchorage in June 2002. She is an enrolled tribal member of Stebbins
Community Association.
Jyzyk filed for divorce in August 2011. In September Jolene and Jyzyk
stipulated to equal shared custody, with the parties alternating custody on a weekly basis
but limiting their contact to writings only. Based primarily on her roughly $120,000
annual salary at Alyeska Pipeline Service Company, Jolene was ordered to pay Jyzyk
approximately $885 monthly as interim child support.
The record is clear that Jolene and Jyzyk’s post-separation relationship was
contentious from the start. Soon after their stipulated order barring non-written
communication and expressly barring each from the other’s residence, Jolene moved
26
Petrilla, 305 P.3d at 307 (footnotes omitted).
27
Id. at 308.
28
Id. at 308 & n.21.
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(unsuccessfully) to bifurcate the proceedings with the early entry of a divorce decree,
stating that the post-separation period was “fairly volatile” and that she and Jyzyk could
“reap psychological benefits and a calming effect” from the early decree. Both before
and after the divorce trial the parties engaged in mutual motion practice for orders to
show cause and sanctions.
In February 2012 the court entered a new preliminary and then a final
interim custody modification order giving Jyzyk primary physical custody of their
daughter, restricting Jolene to limited supervised visitation, and directing that Jolene’s
support obligation be modified accordingly. This change arose from an alcohol-related
incident of violence at Jolene’s residence while the then nine-year-old daughter was
present. Jyzyk contended that Jolene began drinking heavily in early 2010; according
to other documents in the record, this was a few months after Jolene began working for
Alyeska. As part of the court’s final interim order, Jolene and Jyzyk were each ordered
to “undergo an alcohol assessment.”
By the time of the July 2012 divorce trial Jolene had undergone her
required alcohol assessment. Jyzyk successfully argued at trial for sole legal custody of
their daughter because of conflict and inability to communicate with Jolene. Jolene was
granted continued supervised visitation consistent with the final February interim order.
The court ordered that when Jolene completed the recommendations associated with her
alcohol assessment, the requirement that visitation be supervised would be lifted. Of
final note with respect to child custody, the court recognized Jyzyk’s concerns — and
expressed its own — about Jolene’s boyfriend, B.J., a childhood friend of hers from
Stebbins with whom she reconnected in 2011. B.J. was one of the persons involved in
the February alcohol-related incident, but the court ordered that B.J.’s “presence in
[Jolene’s] life would not preclude [Jolene’s] receipt of unsupervised visitation.” At the
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conclusion of the divorce proceedings Jolene was ordered to pay $1,507 monthly in child
support.
Also relevant to the issue before us is a small portion of the superior court’s
property division at the time of divorce. The court first recognized that Jolene had a non-
marital interest in her mother’s restricted Native allotment property in the Nome area.
The court next ordered that Jolene and Jyzyk would “continue to co-own, [as] joint
tenants in common, a Nome-area lot” to be held or disposed of by mutual agreement.
The superior court’s decision was issued in late July. In mid-August Jolene
submitted a certificate of completion for her out-patient alcohol treatment program. She
sought, but Jyzyk opposed, implementation of an unsupervised visitation schedule. At
an early November evidentiary hearing the court approved a visitation agreement
reached by the parties, including a provision that Jolene not have unsupervised visitation
with B.J. present until B.J. submitted his own certification from an alcohol treatment
program. B.J.’s certificate of completion of an out-patient treatment program was filed
a week later.
In February 2013 Jolene and B.J. had a son. In late April Jolene, B.J., and
their son moved to Stebbins, where they lived together in a small four-plex apartment.
B.J. began working in Stebbins to support the family, while Jolene stayed home with
their son and immersed herself in Yup’ik cultural and religious activities and a
subsistence lifestyle.
Contending that her new child and relocation to Stebbins constituted a
change of circumstances warranting modification of her child support obligation, Jolene
moved to reduce her child support to the minimum $50 monthly payment.29 Jyzyk
29
See Alaska R. Civ. P. 90.3(h)(1) (allowing modification of child support
(continued...)
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opposed the motion, arguing that Jolene was voluntarily and unreasonably unemployed,
that she should not have quit her Anchorage job with Alyeska, and that her child support
obligation should remain unchanged. Jolene replied that she had “made a cultural,
religious and spiritual decision to move to her home village of Stebbins” — a decision
“she had always intended to make when the opportunity presented itself” — and that a
modification of child support was warranted.
The superior court ordered a hearing, expressly recognizing the religious
underpinning of Jolene’s modification motion by quoting her reply memorandum
statement that her decision to move to Stebbins was “cultural, religious and spiritual.”
The court noted that Jolene conceded her unemployment was voluntary, and that it
therefore had to determine whether Jolene’s unemployment was unreasonable and, if so,
whether it should impute income to her when determining her child support obligation.
At the hearing Jolene testified at some length about her cultural, religious,
and spiritual ties to Stebbins. As noted above, Jolene’s mother is a Yup’ik Eskimo born
and raised in Stebbins; Jolene is half Yup’ik Eskimo and was raised in Nome and
Stebbins. Like Jolene, her daughter is an enrolled tribal member of Stebbins Community
Association. B.J. also is from Stebbins, and Jolene and B.J. want their son to grow up
in the village and “know[] where he comes from and who his people are.” Jolene always
dreamed of living in the area, and she and Jyzyk had purchased the lot in Nome with that
intent. Jolene stated that her “roots” brought her back to Stebbins and that Stebbins “is
the cornerstone of [her] spiritual connection, [her] cultural connection, [and her]
subsistence lifestyle.” Her “family history[] and [her] relatives [are] all from [Stebbins].”
29
(...continued)
“upon a showing of a material change of circumstances” and setting presumption of
such a change if new financial situation would lead to a variation in support of more than
15%); Alaska R. Civ. P. 90.3(c)(3) (setting general minimum monthly child support).
-31- 7074
Jolene reconnected with these roots in 2004 when she brought her daughter there and
participated in her “first traditional dance with [her] daughter, [her] mom, and [her]
brother and his son” and returned in later years for the “yuraq” (Eskimo dancing) and
Yup’ik Eskimo lifestyle. Jolene wanted her daughter to be brought up in Alaska Native
culture and experience village life.
After relocating, Jolene became “completely immersed in the subsistence
lifestyle [in Stebbins]” and participated in Eskimo dancing as much as she could. Jolene
“learned that Eskimo dancing was — traditionally before Christianity came [to Stebbins]
— was [the Yup’ik Eskimo] religion” and she has “found that Eskimo dancing is very,
very spiritual and healing in making a connection with our [Yup’ik Eskimo] ancestors.”
Stebbins is a “dry” community, also one of the main reasons she left Anchorage for
Stebbins. In terms of dealing with sobriety, she was “so much . . . happier” living the
subsistence lifestyle in Stebbins, and she found life in Stebbins “spiritually healing.”
Jolene also explained that to “fully embrace” the spiritual aspects of Eskimo dancing and
to participate fully in subsistence activities, it was important to live in her village.
During its own questioning of Jolene, the superior court stated: “I’ve heard
your testimony and I don’t question . . . your sincerity and . . . the value you place in
reconnecting with [your] . . . Native and historical cultural . . . roots . . . .” But when it
came time to determine whether Jolene’s move to Stebbins was for a legitimate purpose,
the court characterized her decision as only “admirable in an abstract sense,” “essentially
taking a retreat from reality,” and “a lovely dream.” The court posited the following
hypothetical:
[I]f we change the facts in this case, just hypothetically, and
I had a person who – non-Indian, non-Native, but had
decided that – one of the obligor parents had decided they
wanted to join an ashram in India because it reawakened
them spiritually and reconnected them and they wanted to go
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to a mountainous retreat, live a basic normal lifestyle and do
this, and essentially withdraw from providing financial
support, I would have a hard time in that hypothetical
situation simply approving it, and I have the same difficulty
in this case.
This hypothetical and the court’s other unfortunate comparisons to joining
a monastery or going to a “Tibetan retreat” serve only to trivialize Alaska Natives’ way
of life. Contrary to the superior court’s analogy, Alaska Natives’ cultural, religious, and
spiritual connection to their tribes, their lands, and their subsistence activities are a
normal way of life, not an escape from normal life. Our legislature has recognized the
spiritual nature of subsistence living,30 and we likewise have recognized the importance
of subsistence activities to Alaska Native cultural and social identity.31 We applied the
Free Exercise Clause32 in Frank v. State to exempt the taking of moose for Athabaskan
30
See ch. 1, § 1(a)(3), SSSLA 1992 (finding that customary and traditional
uses of fish and game “are culturally, socially, spiritually, and nutritionally important and
provide a sense of identity for many subsistence users”).
31
See, e.g., Hammond v. N. Slope Borough, 645 P.2d 750, 754 (Alaska 1982)
(“The significance of subsistence activities is not limited to food gathering, but involves
social and cultural identification of a traditional and unique lifestyle.”); State v. Tanana
Valley Sportsmen’s Ass’n, 583 P.2d 854, 859 n.18 (Alaska 1978) (discussing importance
of subsistence hunting to Alaska Natives and noting that “subsistence hunting is at the
core of the cultural tradition of many of these people”).
32
Article I, section 4 of the Alaska Constitution protects an individual’s right
to practice a religion. It provides: “No law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof.” We have adopted a three-part test
that Alaska Free Exercise Clause claims must pass when seeking an exemption to a
facially neutral state law: “(1) a religion is involved, (2) the conduct in question is
religiously based, and (3) the claimant is sincere in his/her religious belief.” Swanner
v. Anchorage Equal Rights Comm’n, 874 P.2d 274, 281 (Alaska 1994) (citing Frank v.
State, 604 P.2d 1068, 1071 (Alaska 1979)). If these elements are established,
(continued...)
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funeral potlatches from State game regulations.33 Most recently, in Phillip v. State the
court of appeals evaluated a Free Exercise claim related to subsistence fishing, where the
fishers asserted that “according to traditional Yup’ik belief, Ellam Yua is the spirit of the
universe, consisting of all things in a state of interconnectedness. Ellam Yua provides
the Yup’ik with the resources they need to survive, and the Yup’ik are expected to work
hard to harvest those resources.”34 The court of appeals ultimately decided that the
State’s compelling interest in ensuring a healthy Kuskokwim River king salmon run
outweighed the Yup’ik subsistence fishers’ religious rights.35
The fundamental flaw in the superior court’s analysis is its conflation of the
legitimacy of Jolene’s move with the reasonableness of her unemployment in Stebbins
and the manner in which the court imputed income to Jolene: “[T]he choice that I’m
presented with is between treating [Jolene] as having zero income or . . . having imputed
to her the income that she had at Alyeska . . . .” This was a false choice. The questions
that should have been posed and answered at the hearing were: (1) whether Jolene’s
move to Stebbins was for legitimate reasons; (2) whether Jolene was in fact unreasonably
unemployed in Stebbins; and if so, (3) what level of income should have been imputed
32
(...continued)
“religiously impelled actions can be forbidden only where they pose some substantial
threat to public safety, peace or order, or where there are competing governmental
interests that are of the highest order and are not otherwise served.” Frank, 604 P.2d at
1070, 1073-74 (alterations omitted) (citation omitted) (internal quotation marks omitted);
see also Swanner, 874 P.2d at 281.
33
604 P.2d at 1069-70.
34
347 P.3d 128, 129, 131 (Alaska App. 2015).
35
See id. at 131, 135.
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to Jolene based on her work history, her qualifications, and her job opportunities in
Stebbins.36
The court found that Jolene’s decision to leave her employment in
Anchorage and relocate to Stebbins to reconnect with her cultural roots was
unreasonable because Jolene had not “established that her situation in Anchorage was
destructive or adverse to her” given that there was no evidence “that she suffered from
mental illness or from some sort of emotional state or psychological state that she needed
to leave the urban setting, that she needed medically or psychologically or spiritually to
leave Anchorage.” But we never have required relocating parents to show that their prior
locations were destructive to them or that they suffered from psychological conditions
or mental illnesses to justify their relocation. Moreover the court’s statements are at odds
with its earlier custody decisions favoring Jyzyk based on Jolene’s alcohol issues and
with the evidence that Jolene’s alcohol issues began shortly after she started working for
Alyeska.37 To the extent the court today silently approves the superior court’s reliance
36
Alaska R. Civ. P. 90.3(a)(4); 15 AAC 125.020(b) (requiring CSSD to
impute income based on a “parent’s past income, skills, work history, and education, and
the job opportunities in the area where the parent physically resides” (emphasis added));
see also Reilly v. Northrop, 314 P.3d 1206, 1210-12, 1217-18 (Alaska 2013) (affirming
trial court order imputing income to obligor parent based on information from U.S.
Department of Labor for region where parent had relocated); Petrilla v. Petrilla, 305
P.3d 302, 306-08 (Alaska 2013) (reversing because of lack of information about job
opportunities where parent had relocated); O’Connell v. Christenson, 75 P.3d 1037, 1041
(Alaska 2003) (remanding for specific factual findings supporting amount of imputed
income, suggesting that trial court refer to Alaska Department of Labor statistics).
37
Cf. AMERICAN PSYCHIATRIC ASS’N, DIAGNOSTIC & STATISTICAL MANUAL
OF MENTAL DISORDERS, FOURTH EDITION, TEXT REVISION (DSM-IV-TR) 212 (4th ed.
2000) (listing alcohol-related disorders including alcohol dependence and abuse).
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on “no destructive situation” and “no mental illness” factors to decide that a relocation
is not legitimate, I strongly disagree.
In my view, even without considering Jolene’s express Free Exercise claim
raised on appeal, her relocation to Stebbins was legitimate — to the extent the superior
court made a factual finding that Jolene’s move to Stebbins was not legitimate, that
finding is clearly erroneous. No evidence in the record suggests that Jolene’s relocation
to Stebbins was for the purpose of decreasing her child support obligation. The court
told Jolene it had “heard [her] testimony and . . . [did not] question . . . [her] sincerity and
. . . the value [she] place[d] in reconnecting with [her] . . . cultural . . . roots . . . .” The
court also found that both Jolene and her daughter derived some benefit from Jolene’s
move to Stebbins, and Jyzyk agreed that Jolene benefitted to some extent from the move.
Our case law is clear that moves outside of Alaska to be near other family
members and to decrease conflict over custody issues are legitimate for purposes of
modifying child support.38 How can it not be legitimate for an Alaska Native living in
an urban center and having difficulty with sobriety to relocate to her own dry tribal
village where she has family, cultural, religious, and spiritual roots; where she can more
easily maintain sobriety; where she has property interests; where she can raise her
children in their tribal culture; and where, incidentally, she can reduce conflict with her
former spouse over custody and visitation issues? Our case law also is clear that children
may benefit from being exposed to extended family members and decreased custodial
38
See Richardson v. Kohlin, 175 P.3d 43, 49-50 (Alaska 2008) (affirming
finding that move to be closer to other family members and decrease parental conflict
over child custody was legitimate); cf. Petrilla, 305 P.3d at 303, 305 (affirming without
questioning legitimacy of father’s move to be closer to terminally ill parent).
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conflict between parents.39 How would Alaska Native children not similarly benefit from
living, even part of the time, in their own tribal villages with extended family members,
and from the ensuing decreased custodial conflict between parents? Under the
circumstances in Richardson and Petrilla the decisions to relocate were legitimate; given
Jolene’s circumstances, I simply cannot fathom how her move to Stebbins is any less
legitimate.
The court relegates the reasonableness of Jolene’s move to one of the
factors in the totality of circumstances test used to determine how much income should
be imputed. But the cases actually discussed by the court provide little support for its
position. In Pattee v. Pattee we adopted the totality of the circumstances test to
determine whether child support should be reduced automatically after a voluntary
reduction in income.40 We reversed the superior court’s decision setting a reduced rate
39
Richardson, 175 P.3d at 49-50.
40
744 P.2d 658, 662 (Alaska 1987), overruled on other grounds by Nass v.
Seaton, 904 P.2d 412, 416 (Alaska 1995). The totality of the circumstances test now is
set out in the commentary to Rule 90.3:
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. The court shall
consider the totality of the circumstances in deciding whether
to impute income. When a parent makes a career change, this
consideration should include the extent to which the children
(continued...)
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because there was insufficient evidence about the parent’s career change, and remanded
for further findings.41 Key to our decision was our determination that the parent had
fraudulently conveyed an income-producing asset and was receiving rent-free housing,
a monthly allowance, and tuition assistance from family members.42 We made two
statements in Pattee relevant here: “we do not believe that an obligor-parent should be
‘locked in’ to a particular job or field during the minority of [the] children when
accepting a lower-paying position may ultimately result in personal or professional
advancement”; and “the children of the marriage and the custodial parent should not be
forced to finance the noncustodial parent’s career change.”43 And we quoted a Montana
case directing courts to “consider the nature of the changes and the reasons for the
changes” before deciding “whether, under all the circumstances, a modification is
warranted.”44
The court says that Pattee’s statement about not locking a parent into a
specific job or career does not apply here because “a career change must be supported
40
(...continued)
will ultimately benefit from the change. The court also may
impute potential income for non-income or low income
producing assets.
Alaska R. Civ. P. 90.3 cmt. III.C.
41
Pattee, 744 P.2d at 662. Child support initially was set at $1,200 monthly,
reduced by stipulation to $700 monthly, and further reduced to $326 monthly after trial.
Id. at 659, 662 n.7.
42
Id. at 659-62.
43
Id. at 662.
44
Id. (quoting In re Marriage of Rome v. Rome, 621 P.2d 1090, 1092 (Mont.
1981)) (internal quotation marks omitted).
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by a ‘lower-paying position’ that will ‘ultimately result in personal or professional
advancement.’ ”45 But the father in Pattee did not have a lower-paying position; his
family was supporting him (and apparently helping him defraud his former wife) and he
had no stated plans after attending community college.46 There was considerable
evidence that the father willfully was trying to minimize his property and income to
avoid paying child support, suggesting illegitimacy of purpose.47 We nonetheless
adopted a balancing test, indicating that a court must consider not just the financial
impact on the family, but also the reasons for and goals of a lifestyle change. But under
the court’s analysis today, there would have been no need to remand for further findings
in Pattee — the order simply would have been reversed with instructions to reinstitute
the original support obligation.
Pugil v. Coger involved a parent who had worked as a commercial fisher
and welder but asked the court to set his child support obligation using estimated wages
he could earn as a welder in Texas, where he had moved and planned to go to school.48
The superior court set his child support obligation based on a several-year average of his
commercial fishing income.49 We affirmed, noting that the superior court had considered
all relevant factors and that the parent “could both pursue his education and meet his
45
Opinion at 8 (emphasis added).
46
744 P.2d at 662.
47
Id. at 659-62.
48
811 P.2d 1062, 1064, 1066 (Alaska 1991).
49
Id. at 1064-65.
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[support] obligation . . . by commercial fishing during one quarter of the year.”50 In
short, we recognized that because of the seasonal nature of commercial fishing in Alaska,
the parent could meet his support obligation without completely disrupting his life
change. Pugil does not translate to this case: Jolene cannot change her life if her support
obligation continues to be based not on her life in Stebbins, but solely on one specific
full-time job in Anchorage — a job that she no longer has and that the superior court
could only speculate she could regain if she returned to Anchorage.
In Olmstead v. Ziegler both parents were lawyers; the father later
downsized his practice to become a teacher and sought a reduced support obligation (not
based on teaching salaries but based solely on his reduced income as an attorney).51 The
superior court decided that the parents had equal earning capacities as lawyers and that
the father failed to support his contention “that he was simply a failure at law.”52 We
affirmed, adding that the father had not “prove[d] any benefit to the child from his
decision to downsize his practice and change careers.”53 In contrast, it cannot be
disputed that Jolene stated a cogent and legitimate rationale for her move to Stebbins and
that her move and life change have benefits for her daughter.
In Sawicki v. Haxby54 the superior court refused to reduce a mother’s
support obligation when she quit her first job after moving to Indiana and took a new job
50
Id. at 1066.
51
42 P.2d 1102, 1103-04 (Alaska 2002).
52
Id.at 1105.
53
Id. at 1106.
54
186 P.3d 546 (Alaska 2008).
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paying half as much.55 We affirmed, stating that the superior court had considered the
mother’s “work history, prior income, qualifications, education, and reasons for leaving
her job” and identifying other “potentially relevant” factors — the temporary nature of
her reduced income and substantial assets available to her to meet her obligation while
awaiting advancement.56 The superior court did not impute income to the mother at the
maximum amount she had previously earned in Alaska, but rather determined she
realistically was capable of earning the amount from her most recent job in Indiana.57
In contrast, here the superior court did not consider the Rule 90.3(a)(4) factors for
Jolene’s earning capacity in Stebbins, or even Anchorage — it simply decided that
because Jolene once earned $120,000 in Anchorage, her support obligation should be
based on that salary — despite having no evidence of what she could earn in Stebbins
or if she could regain the Alyeska job if she returned to Anchorage.
Absent an illegitimate motive, we have not previously, even indirectly,
penalized a parent for moving from one geographical area to another.58 Nor should we,
for doing so certainly would implicate constitutional concerns.59 And the goal of setting
55
Id. at 547.
56
Id. at 550-51.
57
Id. at 548, 551.
58
Cf. Petrilla v. Petrilla, 305 P.3d 302, 307-08 (Alaska 2013) (focusing on
employment availability in new location when considering income imputation);
Richardson v. Kohlin, 175 P.3d 43, 49-50 (Alaska 2008) (affirming support modification
based on lower income in new location).
59
Cf. Rego v. Rego, 259 P.3d 447, 454 (Alaska 2011) (stating, in custody
modification context when custodial parent intended to relocate, that “we take seriously
the alleged infringement on a custodial parent’s right to relocate”).
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support is to “arrive at an income figure reflective of economic reality,”60 not maximum
possible earnings: “Nothing in our law compels a party to earn the maximum possible
wage or face imputation [of income].”61
Today’s decision not only flies in the face of these considerations, it
suggests that when setting a child support obligation neither a Native Alaskan’s return
to her village nor a traditional Native Alaska subsistence lifestyle has a valid role. The
court’s decision means that once a non-custodial Native Alaska parent participates in the
cash economy of urban Alaska that parent may be unable to voluntarily return to a rural
tribal community and live either a local cash-economy lifestyle, a culturally and
religiously based subsistence, non-cash, lifestyle, or even something in between. And
as a more general matter, why should a parent with primary physical custody have an
absolute right to change careers, take a lower-paying job, or quit work altogether —
perhaps even have the right to move to another geographic location with the children62
— while a non-custodial parent with a child support obligation does not have those rights
even if the actions are legitimate and provide benefits to the child? Why do we “take
seriously” an alleged infringement only on a custodial parent’s right to relocate, but not
a non-custodial parent’s right to relocate?63 In my view a court has no right to effectively
order where a non-custodial parent must live and what specific job that parent must hold.
60
McDonald v. Trihub, 173 P.3d 416, 427 (Alaska 2007) (quoting Adrian v.
Adrian, 838 P.2d 808, 811 (Alaska 1992)) (internal quotation marks omitted).
61
Ward v. Urling, 167 P.3d 48, 56 (Alaska 2007) (citing Beaudoin v.
Beaudoin, 24 P.3d 523, 530 (Alaska 2001)).
62
See supra note 9.
63
Cf. Rego, 259 P.3d at 454.
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The superior court disregarded the sparse evidence it had regarding the
Stebbins economy without asking for more,64 and completely ignored the question of
what Jolene could reasonably earn in Anchorage considering all of the relevant factors,65
including that she had only a high school education and no longer worked for Alyeska.
The court focused exclusively on Jolene’s former employment and framed the issue as
a “black and white” choice between setting support at $50 monthly or leaving child
support at the high amount set in the decree based on her former Alyeska job in
Anchorage. But the court acknowledged that Jolene might have to live in Anchorage to
work at her former job at Alyeska, and could only speculate whether she could return to
her old job even if she moved back to Anchorage. Even assuming the court could
properly impute income to Jolene based on what she might reasonably earn in
Anchorage, the court failed to require evidence regarding Rule 90.3(a)(4)’s imputation
factors — including the fact that Jolene no longer works for Alyeska. I would remand
to the superior court for further proceedings on this issue, as we did in Horne v.
Touhakis66 and Petrilla,67 because the record does not provide a sufficient basis for
64
See Petrilla, 305 P.3d at 307-08 & n.21 (noting lack of evidence that
“higher-paying jobs were available to [the father] in Nevada” when remanding);
O’Connell v. Christensen, 75 P.3d 1037, 1041 (Alaska 2003) (remanding for further
findings because “it is not clear that employment opportunities exist in Anchorage,”
where the father lived, that would pay the amount of income imputed to him).
65
See supra note 3 and accompanying text.
66
356 P.3d 280, 284 (Alaska 2015) (remanding and directing superior court
to make findings based on all Rule 90.3(a)(4) factors).
67
305 P.3d at 308 (remanding for further findings about employment
opportunities available to parent in Nevada); see also Richardson v. Kohlin, 175 P.3d 43,
48 (Alaska 2008) (“Sufficient factual findings are required for imputing . . . or declining
(continued...)
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determining whether Jolene is employable in Stebbins (or Anchorage) and, if so, how
much income should be imputed to her considering all of the required factors.68 The
court should also take into account Jolene’s Free Exercise claim.69
Today’s decision has enormous negative implications. It trivializes and
devalues Alaska Natives’ cultural, spiritual, and religious connections to their villages
and their subsistence lifestyle.70 It requires a non-custodial Native parent in rural Alaska
to pay child support based on what the parent could earn in urban Alaska regardless of
67
(...continued)
to impute income.”).
68
See O’Connell, 75 P.3d at 1039-41; see also Simone H. v. State, Dep’t of
Health & Soc. Servs., Office of Children’s Servs., 320 P.3d 284, 287 (Alaska 2014)
(“When applying a multi-factor test, ‘[t]he superior court abuses its discretion if it
considers improper factors . . . , fails to consider statutorily mandated factors, or assigns
disproportionate weight to some factors while ignoring others.’ ” (alterations in original)
(quoting Iverson v. Griffith, 180 P.3d 943, 945 (Alaska 2008))); cf. Olmstead v. Ziegler,
42 P.3d 1102, 1106 (Alaska 2002) (observing that trial court had “ample evidence of [the
parent’s] work history, qualifications, and job opportunities” when imputing income).
69
In two cases outside of Alaska where the obligor parents belonged to
religious sects that held property communally, the courts recognized that the parents’
religious beliefs should be considered, even though the parents still had an obligation to
support their children. See In re Marriage of Murphy, 574 N.W.2d 77, 79, 81-82 (Minn.
App. 1998); Hunt v. Hunt, 648 A.2d 843, 846, 851 (Vt. 1994). Unlike parents who have
argued that any imposition of a child support order would interfere with their religious
beliefs, see, e.g., Hunt, 648 A.2d at 849 (noting that obligor parent objected to payment
of any support), Jolene merely asked the court to consider her religious beliefs in
assessing her situation; she agreed that she had a support obligation, requesting that the
court impose the minimum $50 monthly payment.
70
Cf. 15 AAC 125.550(a), (b)(5) (permitting CSSD to modify withholding
order when obligor parent “lives a subsistence lifestyle without any local opportunity for
employment”).
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the legitimacy of choosing to live in rural Alaska,71 effectively requiring a parent in a
rural area to move to an urban area to maximize income and child support. And finally,
it infringes on constitutionally protected religious and privacy rights.
I dissent.
71
Cf. 15 AAC 125.020(b) (requiring CSSD to consider job opportunities “in
the area where the parent physically resides”).
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