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Reilly v. Northrop

Supreme Court of Alaska

December 20, 2013

Michael S. REILLY, Appellant,
v.
Jaime M. NORTHROP and State of Alaska, Department of Revenue, Child Support Services Division, Appellees.

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Michael S. Reilly, pro se, Butte, Montana, Appellant.

Jaime M. Northrop, pro se, Wasilla, Appellee.

Glenn M. Gustafson, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee State of Alaska.

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

OPINION

STOWERS, Justice.

I. INTRODUCTION

Michael Reilly and Jaime Vinette [1] engaged in a non-marital relationship which resulted in the birth of their son Barlow.[2] Reilly subsequently ceased to be employed in Alaska and moved to Butte, Montana, where he worked part time repairing and renting out homes and managing a bar. Vinette has custody of Barlow during the school year, and Reilly has custody for six weeks during the summer.

Reilly moved to have his child support modified to reflect the fact that his income had fallen. Vinette countered that he was voluntarily underemployed. Reilly claimed that he could not work a full-time job because of his obligations to his special needs daughter from another relationship, the poor job market in his area, and his medical conditions. The superior court found that Reilly could work full time and that he was voluntarily and unreasonably underemployed. The court did not find credible Reilly's testimony regarding the various reasons he alleged that prevented him from working. The superior court imputed income to Reilly based on the average wage in southwestern Montana for career paths the court believed Reilly would be qualified to pursue.

Reilly appeals, arguing that the imputation of income was improper, the amount to be imputed was calculated incorrectly, and the superior court erred in its written child support order by not including a visitation credit for his summers with Barlow. We affirm the superior court's findings and orders, except that we remand the child support order for a correction of a minor omission of visitation credit.

II. FACTS AND PROCEEDINGS

A. Facts

Michael Reilly and Jaime Vinette engaged in a temporary, non-marital relationship which resulted in the birth of Barlow in February 2003. The relationship had ended by the time of Barlow's birth. At the time, both Reilly and Vinette lived in Anchorage. Reilly worked as a " measurement while drilling engineer" earning approximately $66,000 per year. Based on this income, Reilly's child support was originally set at $897 per month. His engineering job required working on a rig for three months at a time. According to Reilly, he was working 13 hours a day, seven days a week, on a 45-day-on, ten-day-off schedule.

In 2004 Reilly moved to Butte, Montana. He initially worked as a handyman at a trailer park and repaired a home to rent out. In 2005 Reilly worked for a short time for the Montana Department of Transportation as a civil engineer. The reason Reilly lost this job is unclear; he claims he could not pass a test required for the position, while Vinette argues that it was a temporary position to begin with.

Reilly petitioned for a modification of his child support in 2004 and 2005. The court granted the second petition and adjusted Reilly's support obligation down to $487 per month based on his income working for the State of Montana. [3]

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After Reilly stopped working for the state, he started managing two rental properties which he owned; he also repaired other properties he owned to sell. He used loans from his parents and a bank to buy a bar, which he managed and at which he bartended one night a week. The bar was only open four nights a week, and he described it as being unprofitable. Reilly claimed he used proceeds from his rental units to stay current on the bar's mortgage. He had not applied for an engineering job, or any other type of job, since 2008.

While living in Montana, Reilly had a second child. His daughter Nancy was born in 2007. Reilly lived with the child's mother for a time, but they separated in 2011. At the time of the superior court hearing, Reilly had full-time custody of Nancy. He also had custody of Barlow for six weeks each summer. Both children have special needs due to behavioral disorders. Nancy has been diagnosed with bipolar disorder and Barlow has been diagnosed with attention deficit hyperactive disorder (ADHD), although he may have bipolar disorder as well. The parties testified that Nancy has been rejected by many daycare facilities due to her behavioral problems. Before Reilly assumed full-time custody of Nancy, Nancy's mother was forced to drop out of nursing school and was fired from several jobs due to difficulty finding daycare for Nancy. Nancy is currently in therapy, and Reilly testified he must spend a significant amount of time caring for her and taking her to various medical appointments. Nancy attends a special, government-run daycare for behaviorally challenged children from 10:00 a.m. through 2:00 p.m. She receives behavioral counseling three times a week through a non-profit called AWARE. The parties testified that taking care of Barlow is also a " full-time job" and that " [Vinette] has a lot of trouble with [Barlow] too because he's got similar problems."

Reilly testified his only income was from his rental properties. He managed and repaired five units from which he earned approximately $13,000 per year. He testified he worked about five to ten hours a week repairing his rental units and ten hours a week at the bar. In total, Reilly claimed he worked about 20 hours a week.

B. Proceedings

In July 2011 Reilly petitioned again for a reduction in his child support. He argued his child support should be based on the $13,023 he made from his rentals in 2010, and he submitted his 2010 tax returns to the Alaska Child Support Services Division (CSSD). CSSD recalculated his child support obligation based on the 2010 tax returns and issued a calculation showing that Reilly's support obligation should be lowered to $210 per month. Though initially CSSD petitioned the superior court to order this reduction, CSSD took the position at the evidentiary hearing that Reilly should be working full time and did not oppose the court imputing income to him. Vinette responded to CSSD's petition to modify support by asserting that Reilly was not being truthful about his income and that he was voluntarily underemployed.

The superior court held a hearing to determine Reilly's child support obligations. Reilly testified that he was unable to work full time because of his responsibilities caring for Nancy's special needs. He also alleged that he cannot hold a full-time job because he has Crohn's disease and an undiagnosed mental condition that prevents ...


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