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Mitchell v. Mitchell

Supreme Court of Alaska

March 18, 2016


Appeal from the Superior Court of the State of Alaska Superior Court No. 1JU-09-01002 CI, First Judicial District, Juneau, Philip M. Pallenberg, Judge.

Michael J. Mitchell, pro se, Tucson, Arizona, Appellant.

Johanna M. Mitchell, pro se, Juneau, Appellee.

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


FABE, Justice.


This appeal raises the question whether the superior court ordered the proper amount of child support in resolving a motion to modify support. A mother and father divorced, and the final decree granted them joint physical custody of their two minor children. Three years later, at age 47, the father quit his job, moved from Alaska to retire in Arizona, and withdrew significant funds from his retirement account. The mother moved for a modification of child support based on these changed circumstances. She argued that the withdrawn retirement funds should be included in the father's income and that he could afford to pay more child support based on his earning potential. The superior court ordered that the withdrawn retirement funds be included in the father's income for determining child support for a one-year period, effective from the date of the mother's motion. The father appeals, arguing that he cannot now be required to pay child support based on his income from the previous year. The mother challenges this contention and continues to argue that the court should have imputed income to the father based on his earning potential.

Because the father's significant increase in income from his retirement account withdrawal justifies a corresponding increase in his child support obligation, we conclude that the superior court's approach of ordering a year's worth of child support based on this year of increased income was not error. But because the superior court failed to consider the imputed income claim that the mother plainly raised in her motion, we remand for further consideration of that question.


A. Facts And Prior Proceedings

Johanna and Michael Mitchell married in 1996, had two children together in 1998 and 2001, and then separated in the fall of 2009. An attorney mediator helped the parties reach a divorce settlement agreement, which the superior court accepted after a hearing in December 2009. Both parties represented themselves throughout the divorce and subsequent proceedings.

The superior court issued a divorce decree and final child support order following the December 2009 hearing. The child support order gave Johanna and Michael joint legal custody and shared physical custody of their two children, stating that the children would reside with their mother 55% of the time and with their father 45% of the time. Both parents were living in Juneau at that time. Based on the shared custody arrangement and an evaluation of Michael's and Johanna's relative incomes, the court ordered Johanna to pay $273.35 per month in child support and to purchase health insurance for the children.

In November 2012, at age 47, Michael retired from his job at the National Weather Service, and in March 2013 he moved to Tucson, Arizona. Michael then withdrew $50, 000 from his pension account, which he apparently used to purchase his house in Arizona. In July 2013 Johanna filed her first motion to modify child support based on these changed circumstances. Johanna explained that, following Michael's move to Arizona, "[t]he children are now living with the mother . . . 100% of the time and have been since mid-February 2013. Mother is no longer paying child support to father and father is not currently paying child support to [m]other." Johanna did not state a specific amount of child support she was requesting from Michael.

Michael filed a response, agreeing that the existing child support order should be modified and that he should now pay child support to Johanna. But he explained that, for purposes of child support, his income should be calculated based on his predicted future income rather than his current actual income because "[n]either [his] 2012 or 2013 income [was] representative of [his] future earnings." He claimed that from 2014 through 2020 his "only source of earnings" would be his retirement account, which would yield yearly payments of approximately $17, 380. He explained that he would begin receiving a pension in 2021.

Michael filed several documents to support the contentions in his response brief. First, he filed a copy of his 2012 tax return showing a gross income of $95, 319, earned while he was still working for the National Weather Service. Second, he filed a child support affidavit reporting his "2013 actual and expected" income of $8, 991. Finally, Michael filed another child support affidavit showing his "[e]stimated 2014-2020" income of $17, 382 per year from his retirement account. Based on his estimated future income, Michael calculated that he owed $341 per month in child support. In the affidavit showing his actual 2013 income, Michael noted that the figure excluded "a 1 time lump sum withdrawal" from his Individual Retirement Account (IRA). But he did not list the amount of this withdrawal. Johanna did not file a reply or otherwise contest Michael's calculations.

The superior court granted Johanna's first motion to modify child support in October 2013. But rather than using his actual income including the lump-sum withdrawal, the court used Michael's expected income calculations as the basis for determining the amount of support he owed. In granting the motion, the court noted that "Michael filed a response indicating that he agrees with the motion, but he requests that the support order be based on his future retirement income. Johanna filed no reply disagreeing with this request." The court ordered Michael to pay $341 per month in child support, which is the amount Michael had calculated based on his estimated future income of $17, 382. Johanna did not appeal this decision.

B. Proceedings Leading To This Appeal

In July 2014 Johanna filed a second motion to modify child support, which is the subject of this appeal. Johanna argued that changed circumstances warranted further modification of child support as permitted under Alaska Civil Rule 90.3(h)(1). Johanna alleged that Michael's actual 2013 income had been much higher than the expected income he had reported in his affidavit during the previous year's proceedings. Johanna cited Michael's 2013 tax return and explained that his actual "2013 adjusted gross income was $58, 506 compared to his July 2013 estimate of $17, 382." Thus, she continued, "[h]is taxable 2013 income was $41, 124 higher than he told the court it would be last year." To support this contention, Johanna filed a copy of Michael's 2013 tax return showing the $50, 000 withdrawal from his retirement account, for a total gross income of $58, 506.[1] She also filed a child support guidelines affidavit using Michael's 2013 actual income, as reported on his tax return, to calculate his child support obligation at $1, 230.98 per month. Based on his actual income, she concluded, "[h]e can afford to pay more than $3, 852 per year."

Johanna also argued that Michael should be required to pay more child support because he was capable of earning a higher income: "He should use this access [to retirement funds] to also help support his children." She emphasized that Michael's unemployment was voluntary and that it reduced his ability to support his daughters, explaining that "[h]e 'retired' (quit) working at the National Weather Service voluntarily [in] late 2012 of his own accord. His children should not suffer for that decision. He is only 49 years old, too young to retire, capable of working." While Johanna did not file any new documentation of Michael's earning potential, the record already contained Michael's 2012 tax return, which had been filed in the 2013 proceedings and showed that he earned $95, 319 in the year leading up to his retirement.

Michael opposed Johanna's motion to modify support. He did not contest Johanna's ability to move for modification based on the retirement withdrawal, instead responding to her motion on the merits. He argued that the lump-sum withdrawal from his retirement account should not be included in the calculation of his income because, he argued again, his "2013 income [was] not representative of [his] 2014 and future income." He further explained that "the vast majority" of his 2013 income was the lump-sum withdrawal from his retirement account, which he said was used to purchase his primary residence in Arizona. According to his own interpretation of Civil Rule 90.3 Commentary III.A, Michael argued that a ...

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