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Mallory D. v. Malcolm D.

Supreme Court of Alaska

September 20, 2013

MALLORY D., Appellant,
v.
MALCOLM D., Appellee.

Mallory D., pro se, Palmer, Appellant.

Tara Logsdon and J. Matthew Hayes, Golter & Logsdon, P.C., Palmer, for Appellee.

Page 846

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

OPINION

BOLGER, Justice.

I. INTRODUCTION

A mother appeals from an order modifying her child support obligation. She argues that the court improperly calculated the father's self-employment income and also erred by imputing a 40-hour workweek when calculating her income. We agree that the court did not conduct a sufficiently probing review of the father's business expenses, reimbursements, and in-kind contributions to determine his adjusted annual income for child support purposes. And the superior court erroneously ruled that controlling precedent required the court to conclude that the mother was underemployed. We therefore reverse and remand for recalculation of the child support award.

II. FACTS AND PROCEEDINGS

Malcolm and Mallory were married and had three children.[1] In August 2009 they filed a petition for dissolution of marriage.[2] Following the entry of the dissolution decree, Mallory filed a motion to modify custody on May 5, 2010.[3] After litigation in superior court and an appeal to this court, the parties were granted joint legal custody and shared physical custody of their two daughters, and Malcolm was granted primary custody of their son. [4]

On remand, the parties filed several proposed child support orders; they disputed the amount of Malcolm's income and whether Mallory was voluntarily and unreasonably underemployed. The superior court held an evidentiary hearing regarding child support on February 21, 2012. Mallory testified that she worked an average of 30 hours per week. Her wages were $18.00 per hour. She explained that her employer was a construction company that did not have full-time work for her, especially in the winter season. But her employment schedule also allowed her to drive her daughter to and from school during the weeks that she was exercising custody, so that she did not have to use day care. Mallory testified that she had applied for full-time employment in Anchorage without success. Malcolm testified that he owned a business that applied urethane foam insulation. He explained that the income tax figures used in his child support guidelines affidavit were based on information that he received from his accountant.

At the close of the hearing, the court invited the parties to submit post-hearing briefing regarding (1) Malcolm's deductions for the business use of his home and (2) imputation of income for Mallory. After considering the parties' post-hearing briefing, the superior court determined that Malcolm's income should be as stated in his 2011 federal income tax return and that Mallory's income would be imputed at the rate of $18 per hour for full-time employment. The court issued a new child support order effective June 1, 2010. Mallory appeals from this order.

III. STANDARD OF REVIEW

We may reverse a child support award if the trial court abuses its discretion or applies an incorrect legal standard.[5] " We will find an abuse of discretion when our review of the record leaves us with a ‘ definite and firm conviction based on the record as a whole that a mistake has been made.’ " [6] The correct legal ...


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