Dunlap v. Dunlap, 031319 AKSC, 1715

Docket Nº:1715
Party Name:MICHAEL DUNLAP, Appellant, v. SHAWNA DUNLAP, n/k/a SHAWNA STARR, Appellee.
Attorney:Appearances: Katie Banaszak, Assistant Public Advocate, Palmer, and Richard K. Allen, Public Advocate, Anchorage, for Appellant. No appearance by Appellee Shawna Starr.
Judge Panel:Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
Case Date:March 13, 2019
Court:Supreme Court of Alaska
 
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MICHAEL DUNLAP, Appellant,

v.

SHAWNA DUNLAP, n/k/a SHAWNA STARR, Appellee.

No. 1715

Supreme Court of Alaska

March 13, 2019

Memorandum decisions of this court do not create legal precedent. A party wishing to cite such a decision in a brief or at oral argument should review Alaska Appellate Rule 214(d).

Appeal from the Supreme Court No. S-16564 Superior Court No. 1JU-14-00894 CI of the State of Alaska, First Judicial District, Juneau, Louis J. Menendez, Judge.

Appearances: Katie Banaszak, Assistant Public Advocate, Palmer, and Richard K. Allen, Public Advocate, Anchorage, for Appellant. No appearance by Appellee Shawna Starr.

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

MEMORANDUM OPINION AND JUDGMENT

[*]

I. INTRODUCTION

The superior court found that a father whose work consisted primarily of seasonal employment on ice roads and pipelines was voluntarily underemployed and imputed income to him by multiplying his most recent winter hourly wage by 40 hours per week and 52 weeks per year. The father appeals, challenging the court's decision to impute income to him and its method ofcalculating the imputed income. We are unable to ascertain why the superior court found the father's underemployment was voluntary, and the court made no finding that the underemployment was unreasonable; we therefore vacate the child support order and remand for further explanation. We also reverse the superior court's imputation of income as clearly erroneous.

II. FACTS AND PROCEEDINGS

Michael Dunlap and Shawna Starr married in December 1988 in Juneau.1Starr filed for divorce in October 2014. Dunlap and Starr had six children. At the time of trial two of the children were still minors, and one adult child had Down's Syndrome and required a custody determination. The superior court bifurcated the case, holding a trial on the issues of divorce, child custody, and visitation in January 2016 and a trial on the issues of child support, property, and debt in May 2016.

The court issued a decree of divorce in January 2016, a property division and child support order in November 2016, and a child custody order in December 2016. The court awarded Starr primary physical and sole legal custody of the three children. It imputed income to Dunlap of$66, 754.80 and awarded child support for the two minor children based on this figure. Dunlap appeals only the court's decision to impute income to him and its calculation of that imputed income.

A. Evidence Related To Imputed Income

Dunlap's 2014 and 2015 tax returns were admitted at trial. According to these returns, Dunlap's income in 2014 was $59, 979 and his income in 2015 was $42, 532.

Testimony about how much Dunlap worked and his earning potential was scattered through both the January and May trials. Dunlap testified about his work history. He stated that for the last five years he had worked primarily doing construction on ice roads or working on pipelines. Over his career he also worked in Juneau, doing various odd jobs. He explained that he worked projects, so the amount he was able to work varied dramatically, and that he did not work at all in some years. He testified that he made "40 some thousand" dollars in the average year.

Dunlap provided a time line of his work history in the years leading up to trial, starting in 2013. He testified to working a "short job" up north in October 2013. He then worked again up north, starting before Thanksgiving and into December 2013 before being sent home with the flu. On New Years Day 2014 he returned to work and worked until April. In Fall 2014 he worked a job as an end dump driver for Miller Construction in Juneau. He explained that the job was temporary and that he worked on an on-call basis a "[f]ew days here, few days there." He testified that he never liked this type of work situation, saying, "I'd prefer to work seven twelves or more and earn what I can while I can." He next worked in January 2015 but was only able to work for a "couple weeks" up north before he injured his back and had to be sent to Anchorage for medical care. He waited for one month to go back to work, but after a month he was laid off. He then worked for Price Gregory in the Kuparuk area, west of Prudhoe, starting about the third week of February 2015. This job lasted six weeks. He worked for three weeks in May 2015 at the Juneau airport for Alaska Juneau Construction before being laid off after he clipped a fence with the truck he was driving. He collected unemployment from May through July and then again starting in October 2015. Meanwhile, he got calls about jobs up north in both September and December 2015, but he was later informed that he could not be hired because of workers' compensation issues stemming from his back injury. He said he was told these issued were resolved in September but then the same thing happened in December. This brought his work history current as of the January 2016 trial.

Dunlap next testified about his job prospects. He explained that he was in good standing with his union and that he had worked for multiple companies up north over the years and was in good standing with a number of them. He testified that there was a remote hire list for jobs up north and that he had not put himself on this list because he was "waiting on the divorce proceedings to resolve." He explained, "[A]s it got closer to the court trial date I just didn't call and tell them I was ready to go north, but I did have a close friend go to work last week..., and I told them, tell them I'll be ready after this date." He testified that he expected to work soon. He was later asked on cross-examination, "[Y]ou had stated you haven't been working not because you couldn't work and you hadn't made the call to work because you were waiting for this case to be...

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