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Sharpe v. Sharpe

Supreme Court of Alaska

January 8, 2016

JOLENE SHARPE n/k/a LYON, Appellant,

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, No. 3AN-11-10036 CI Andrew Guidi, Judge.

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.


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.


Jolene Lyon[1] 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. 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 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]


"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 mistake has been made.' "[8] We review the superior court's interpretation of the civil rules[9] and the Alaska Constitution[10] de novo.


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 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 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 noncustodial 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]

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 ...

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