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Horne v. Touhakis

Supreme Court of Alaska

August 14, 2015

MARK HORNE, Appellant,
v.
BELINDA TOUHAKIS, Appellee

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William F. Morse, Judge. Superior Court No. 3AN-08-05233 CI.

Mark Horne, Pro se, Anchorage.

No appearance by Appellee.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

BOLGER, Justice.

I. INTRODUCTION

A child support obligor asked the superior court to reduce his child support obligation to the legal minimum after several of his business ventures failed. During an evidentiary

Page 281

hearing, the obligor conceded that it would be fair to base his child support obligation on imputed income, and he estimated that he could earn a gross annual income of about $40,000 if he sought and obtained full-time employment. The superior court concluded that the obligor underestimated his earning potential, and the court imputed income to the obligor at twice the obligor's income estimate. Because the court's findings were insufficient to allow us to review its imputed income determination, we vacate and remand.

II. FACTS AND PROCEEDINGS

Mark Horne and Belinda Touhakis were romantically involved for several years in the mid 2000s, though they never married and produced no biological children together. During their relationship, Touhakis adopted a daughter. When Horne and Touhakis ended their relationship, Horne requested custody and visitation rights as a psychological parent; [1] he simultaneously offered to provide child support. Touhakis initially opposed Horne's continued involvement in her daughter's life, but the parties eventually settled in 2009. Under the terms of the settlement, the parties agreed that Horne had established a psychological parent relationship with Touhakis's daughter and would have six-day-long visitation rights every 21 days. They also agreed that Horne would pay Touhakis $1,750 monthly in child support under Alaska Civil Rule 90.3.

Horne is a self-employed entrepreneur, and several of his projects and investments began losing money shortly after the settlement. In his 2010-2012 tax filings, Horne reported adjusted gross losses of $87,731, $189,774, and $446,632. In late 2012 he asked the superior court to modify his child support obligation to the legal minimum of $50 per month.[2]

The court held an evidentiary hearing, where Horne was represented by counsel and Touhakis appeared pro se. Horne submitted his 2010-2012 tax returns, testified about his financial situation, and called his accountant to the stand to verify the accuracy of his tax returns. Horne testified that he had not held a traditional job in approximately 20 years but that in early 2000 he had earned about $35,000 as an operations manager for a stevedore company. He further testified that, in light of his recent financial difficulties, he had been " looking a little bit" for regular employment and estimated that he was capable of making $18-20 per hour, or about $40,000 per year. Touhakis cross-examined both Horne and his accountant but did not submit any evidence of her own. She did, however, indicate her belief that Horne could " do much more than [the minimum child support contributions]."

The superior court granted Horne's motion in part. The court found that Horne's income had fallen severely -- a material change of circumstance warranting a modification to his child support obligation. But the court was unwilling to reduce Horne's obligation to the statutory minimum, noting that " Horne cannot expect [his daughter] to finance his speculative ventures." Instead the court found that Horne " agreed to have income imputed to him" and based its modified child support order on his potential income.[3] Although the court relied in part on Horne's testimony that he was capable of earning $20 per hour in full-time employment, the court concluded that Horne " underestimate[d] the market value of his skills and experience" and was capable of earning " at least $40 per hour should he be inclined to work for ...


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