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Petrilla v. Petrilla

Supreme Court of Alaska

July 19, 2013

Brian D. PETRILLA, Appellant,
v.
Roxana N. PETRILLA, Appellee.

Page 303

Brian D. Petrilla, Henderson, Nevada, pro se, Appellant.

Roxana N. Petrilla, Anchorage, pro se, Appellee.

Before: FABE, Chief Justice, WINFREE, MAASSEN, and BOLGER, Justices.

OPINION

FABE, Chief Justice.

I. INTRODUCTION

After a father left his job with the State of Alaska and moved to Nevada, leaving the mother with primary physical custody of their daughter, the child's mother filed a motion to modify child support. The superior court ordered a modification and imputed income to the father under Alaska Civil Rule 90.3(a)(4) after concluding that the father appeared unmotivated to find employment because he was apparently content to collect unemployment benefits. The superior court also expressed concern that the father had not sufficiently planned for how he would meet his child support obligations in the event that he could not find work in Nevada. The father subsequently found a state job in Nevada that paid substantially less than his imputed income, and he moved to modify and reduce his child support obligation. The superior court denied the father's request and the father now appeals, arguing that the superior court abused its discretion in imputing income, erred in the amount that it imputed, and abused its discretion in denying his motion to modify his child support obligation. Because we conclude that the superior court did not provide a sufficient factual basis for its denial of the father's motion to modify child support, we vacate the superior court's order denying the father's request to modify and remand this case for further proceedings consistent with this opinion.

II. FACTS AND PROCEEDINGS

Brian Petrilla and Roxana Petrilla were divorced in October 2001. They agreed to jointly share legal and physical custody of their daughter. This arrangement continued until August 2011 when the child started living exclusively with Roxana.

In the fall of 2011 Brian began making plans to move with his new wife, their six-year-old daughter, and his in-laws to Henderson, Nevada to be closer to Brian's mother and terminally ill father who lived in Tucson, Arizona.

On January 17, 2012, Roxana filed a petition in the superior court to modify custody in which she sought sole legal and primary physical custody of their daughter. Roxana also sought to modify the parties' child support arrangement so that Brian would pay child support.[1]

On February 1 Brian resigned from his position as a juvenile probation officer with the State of Alaska and moved to Nevada. Roxana subsequently filed a motion to impute

Page 304

Brian's income from 2011 for the purpose of calculating child support. Roxana argued that Brian had the capacity to earn at least $58,984.50, the amount of his gross wages from the State of Alaska for 2011.

Brian did not oppose Roxana's child custody request but he opposed her request to impute income. Although he was not working, Brian argued that he was not voluntarily or unreasonably unemployed and that imputation of potential income under Alaska Civil Rule 90.3 was therefore improper.[2] He contended that there was good cause for his family to relocate so that they could be closer to his ailing father, and he argued that his child support obligation should instead be calculated based on his " current [u]nemployment [i]nsurance ... ...


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