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Schwier v. Schwier

Supreme Court of Alaska

August 9, 2019

MATTHEW SCHWIER, Appellant,
v.
AUDREY SCHWIER, n/k/a AUDREY MAGEE-DAVEY, Appellee.

          Appeal from the Superior of the State of Alaska, Third Judicial District, Court No. 3PA-15-02411 CI Palmer, Jonathan A. Woodman, Judge.

          Darryl L. Jones, Law Office of Darryl L. Jones, Palmer, for Appellant.

          No appearance by Appellee Audrey Schwier.

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

          OPINION

          CARNEY, JUSTICE.

         I. INTRODUCTION

         A 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.

         II. FACTS AND PROCEEDINGS

         A. Facts

         Matthew 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.[1] 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 arrangement.

         B. Proceedings

         1. Child in Need of Aid case, federal criminal case, and interim support order

         Shortly 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.[2] The court granted temporary custody to OCS, which placed the children with Audrey.[3]

         Shortly 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.[4] 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.

         Apparently 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.

         2. Matthew's motions to modify support

         a. November 2017 motion

         In 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.

         Audrey 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.[5] In late November Matthew replied that he had "fully explained and documented" his rental income; he attached an affidavit itemizing expenses on ...


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