Patch v. Patch
| Decision Date | 26 August 1988 |
| Docket Number | No. S-2470,S-2470 |
| Citation | 760 P.2d 526 |
| Parties | Danny E. PATCH, Appellant, v. Colleen E. PATCH, Appellee. |
| Court | Alaska Supreme Court |
Barbara Franklin, and Douglas J. Marston, Aglietti, Pennington, Rodey & Offret, Fairbanks, for appellant.
Ardith Lynch, Asst. Atty. Gen., Fairbanks, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.
Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.
This appeal arises from the denial of a non-custodial parent's motion to reduce his child support obligation. The primary issue on appeal is whether the trial court may consider the availability of a movant's assets when asked to modify a child support obligation based on changed circumstances. A second issue is whether the trial court erred in awarding attorney's fees to the Child Support Enforcement Division under Civil Rule 82.
Danny and Colleen Patch were divorced in January 1985. At trial the sole issue was the amount of child support Danny was to pay. 1 Evidence was introduced that Colleen's monthly gross income was $2,573 and her net income was $1,840. Danny testified that he earned roughly $4,900 per month, including overtime. His mandatory deductions were $1,587 per month. Based on "the economic circumstances of the parties and ... the economic welfare of the children," the divorce decree provided Danny would pay $275 per child per month ($825 total) in child support to Colleen during the periods that Colleen had physical custody of the children. Danny was to have custody of the three children during the summer while Colleen was to have custody during the school year.
In October 1986 Danny was convicted of driving while intoxicated. As a result, Danny's driving privileges were suspended for one year and ninety days (from October 1986 to January 1988). Because of the license suspension Danny could no longer perform his data technician job with Alascom. Danny was informed that if he voluntarily quit his job prior to losing his license, the reason for his leaving would be off the record and he would be eligible for rehire with Alascom in the future. In October 1986 Danny voluntarily resigned from his Alascom job. He was unable to obtain other employment with Alascom that did not require a driver's license.
Approximately two months after the conviction Danny moved to California. He received unemployment benefits until June 1987. He also worked part time at a convalescent hospital from February to June 1987 at $4.21 per hour. By July 1987 he had found a full time job working in a manufacturing company at $4 an hour.
In February 1987 Danny, a vested member of the Teamster's pension fund, had "put in the paperwork" to cash out his pension. The pension was worth $58,000 at that time. Danny asked for a lump sum pay out. He anticipated being able to actually receive the cash in March of 1988.
In June 1987 Danny moved to reduce the amount of child support payable to Colleen. He argued that there had been a substantial change in circumstances in that his earnings had been reduced from $26 per hour to $4.21 per hour. In his accompanying financial affidavit Danny stated that his gross income was $736 per month and that he had no assets. Colleen, represented by the State Child Support Enforcement Division (CSED), opposed Danny's motion. She argued that 1) the equities do not justify placing an even greater burden for support upon her, 2) the change in Danny's circumstances are temporary and 3) he has assets available from the Teamster's pension fund from which child support can be paid. Colleen cross-moved to attach the pension fund to satisfy existing arrearages and for security for future payments.
The trial court ordered Danny to pay 65% 2 of his pension fund to the CSED to pay accrued arrearages and interest and as security for Danny's future child support payments. Arrearages and interest through August totaled over $7,000.
The hearing on Danny's motion to reduce child support was held in October 1987. Colleen testified that basic expenses for the three children were approximately $1,800 per month and that her total expenses were $2,938 per month. Colleen's net monthly income was $2,100, so that without child support she fell about $800 short each month. She further testified that she could not make ends meet on the amount of support she actually received during the previous year which averaged $200 per month. A manager of communications at Alascom testified that Danny had no real job prospects with Alascom during the year and three months his license was suspended. The manager also testified, however, that Danny would have a preference for rehire, that Alascom would be hiring and that Danny would be one of many considered because he was a good employee.
The court orally denied the motion to reduce the child support. The court found:
[A]t the present time, due to Mr. Patch's problem with his driver's license, he may not be able to earn the amount of money he was earning at the time of the original divorce, and there may be changed circumstances to that extent. However, due to the fact that here are sufficient funds available from his retirement benefits to pay the child support arrearages, as well as security for ongoing child support for, approximately, three years, the Court [does] not find there are sufficient changed circumstances to warrant a reduction if this is an asset which can be available to provide the child support. And therefore, the request to modify the child support is denied. With that period of time, there should be sufficient time for Mr. Patch to obtain sufficient employment to meet his child support obligations.
Trial courts have broad discretion in deciding whether to modify child support orders or award attorney's fees. This court will not find an abuse of discretion unless it has "a definite and firm conviction" based on the whole record that a mistake has been made. Houger v. Houger, 449 P.2d 766, 771 (Alaska 1969).
For the trial court to modify a support order, the movant must show by a preponderance of the evidence that, subsequent to the original order, there has been a material and substantial change in circumstances affecting the movant's ability to pay. Curley v. Curley, 588 P.2d 289, 291, 292 n. 9 (Alaska 1979). "The change ordinarily must be more or less permanent rather than temporary." Id. at 291. In determining whether a child support obligation should be decreased the court must consider not only the needs and financial abilities of both parents but also the needs of the children. Id. at 292. "[T]he trial court must examine the financial situation of both parents and determine whether the equities justify placing a greater burden on one and a correspondingly lesser burden on the other." Id.
Danny argues that the loss of his Alascom job together with an 80% decrease in income constitutes a material change in circumstances. Danny argues that the sole inquiry for reduction of child support is his income level. Colleen responds that Danny's reduced employment level is only temporary because his driving privileges were restored in January 1988. Colleen also argues that in examining the parties' financial situation the court can look to the assets available for support.
The amount of support a parent must provide is related, but not limited, to that parent's present income. We said in Pattee v. Pattee, 744 P.2d 658, 662 (Alaska 1987):
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.... 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 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." In re Marriage of Rome, 621 P.2d 1090, 1092 (Mont.1981).
In contrast to Mr. Pattee's decision to become a student, we realize Danny's resignation was not "voluntary" because he was in a "quit or be fired" position as the result of his driver's license suspension. Nevertheless, even where a non-custodial parent does not voluntarily resign from a job the trial court must consider all the circumstances of the change in employment to determine whether a modification is warranted.
Courts in other jurisdictions have been unwilling to reduce child support obligations where the non-custodial parent suffers a temporary reduction in income. For example in Ebert v. Ebert, 469 So.2d 615 (Ala.App.1985), the non-custodial father closed his medical practice in Alabama and moved to Nevada in hopes of starting a more lucrative...
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