from the Superior of the State of Alaska, Third Judicial
District, Court No. 3PA-15-02411 CI Palmer, Jonathan A.
L. Jones, Law Office of Darryl L. Jones, Palmer, for
appearance by Appellee Audrey Schwier.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
father appeals the superior court's denial of his motion
to modify child support. He argues that his house arrest
while awaiting trial on federal charges should be considered
involuntary unemployment for purposes of calculating child
support. He also argues that remand is necessary for an
evidentiary hearing and for the superior court to enter
findings of fact and conclusions of law. Because we conclude
that the father made a prima facie showing of a substantial
change in circumstances that would entitle him to an
evidentiary hearing, we remand to the superior court to
conduct an evidentiary hearing.
FACTS AND PROCEEDINGS
Schwier and Audrey Magee-Davey (formerly Schwier) were
married in 2004 in Arizona. They have two children, born in
2006 and 2010. In February 2016 the superior court granted
their petition for dissolution of marriage and approved their
parenting agreement, which provided for shared legal custody
and alternating weeks of physical custody. Audrey was ordered
to pay child support based on the guidelines in Alaska Civil
Rule 90.3, which governs child support
calculations. In January 2017 Audrey moved to modify
custody and support, and in April 2017 the court partially
granted her motion on the record, awarding her sole legal
custody but leaving in place the existing physical custody
Child in Need of Aid case, federal criminal case, and interim
after the court issued its April 2017 custody order, the
Office of Children's Services (OCS) removed the children
from Matthew's home and filed emergency Child in Need of
Aid (CINA) petitions. The court granted temporary custody to
OCS, which placed the children with Audrey.
after the CINA proceedings began, Audrey moved to stay her
child support obligation because the OCS placement had given
her primary physical custody. In response Matthew filed an
income affidavit along with recent pay stubs and his 2016 tax
return. The court granted Audrey's motion to
stay her child support payments while the CINA cases were
pending and ordered the parties to file updated income
affidavits, though it does not appear that either parent did.
In late August 2017 the court issued an interim child support
order requiring Matthew to pay $2, 422.05 per month. The
court also ordered Audrey's January 2017 motion to modify
custody and support to be held in abeyance until the CINA
cases either addressed custody or were dismissed.
around the same time as the CINA proceedings began, a federal
grand jury began investigating allegations that Matthew had
committed federal crimes. The grand jury returned an
indictment in September, charging him with a number of
federal offenses. By at least September 2017 the federal
court had ordered Matthew's house arrest as a pretrial
release condition. Shortly afterward Matthew resigned from
his job as a law enforcement officer for the Chickaloon
Tribal Police Department.
Matthew's motions to modify support
November 2017 motion
November 2017 Matthew moved to modify interim child support,
arguing that his "house arrest pursuant to federal
charges" had resulted in a "substantial
reduction" in his income. He did not file a new income
affidavit with his motion, attaching only a printout of an
updated child support estimate. He stated that because he was
not working, his only income was the $5, 722 he expected to
net from his rental properties that year.
partially opposed Matthew's motion to modify support,
pointing out that he had not provided the required tax
returns or other documents to support his claimed rental
income. In late November Matthew replied that he
had "fully explained and documented" his rental
income; he attached an affidavit itemizing expenses on ...