Kevin O'Connell appeals a superior court order that imputed income to him and modified his child support obligation accordingly. Because the superior court failed to issue findings sufficient to justify the imputed income, we vacate the court's order and remand the case for further proceedings.
II. FACTS AND PROCEEDINGS
Kevin O'Connell and Kathleen Christenson are the parents of two children. O'Connell and Christenson were never married and never resided together with the children. O'Connell lives in Anchorage. Christenson resides near Fairbanks.
In May 1999 the superior court awarded sole legal and primary physical custody of the children to Christenson and established a visitation schedule for O'Connell. In September 1999 the superior court issued a child custody and support order setting out the child support obligation of the parties. The court required O'Connell to pay Christenson $62 per month in child support based on a net annual income of $4,605. At the hearing that yielded this order, the court declined Christenson's request to impute income to O'Connell because, according to the court, it lacked a basis for doing so. The court did require O'Connell to pay all visitation costs in return for setting the child support payment so low.
The subject of this litigation is a subsequent superior court order issued after Christenson filed a motion to change support and visitation. In that motion, Christenson sought to modify the visitation schedule, impute income to O'Connell, and modify his child support obligation. O'Connell filed an opposition to this motion and a cross-motion to modify custody. He claimed his adjusted annual income for 2001 was $8,185.38. In April 2002 the superior court held a hearing on these motions and issued an order a few days later. At the hearing, the court ruled that it would impute an income of $40,000 to O'Connell and modify his child support to reflect this change. In its order, the court imputed an income of $43,550.13 to O'Connell and calculated his monthly child support obligation to be $714.83. The order also called for the parties to split equally the transportation costs for visitation. O'Connell appeals the change in child support and the superior court's decision to impute to him an income of $43,550.13.
A. Modifying Child Support
O'Connell argues that the trial court erred in modifying his child support obligation absent a material change in circumstances.
1. Standard of review
We review a trial court's decision to
2. Change of circumstances presumed
Alaska Civil Rule 90.3 permits a modification of a child support order "upon a showing of a material change of circumstances as provided by state law. A material change of circumstances will be presumed if support as calculated under this rule is more than 15 percent greater or less than the outstanding support order."
Under the child support order in effect prior to the modification, O'Connell was required to pay Christenson $62 per month. The new support obligation as calculated under Rule 90.3 is $714.83 per month.
Because the support as calculated is 1,053% greater than the outstanding support order, a change of circumstances is presumed. The decision to alter child support based upon a change of circumstances would therefore not be an abuse of discretion if the amount of imputed income is justified. However, because we conclude that the amount of imputed income to O'Connell is not supported by adequate findings, we vacate the child support order.
B. Imputing Income
O'Connell contends that it was error for the trial court to impute income to him. He claims that the court abused its discretion when the court found that he was underemployed
1. Standard of review
We review decisions to impute income for abuse of discretion.
2. The decision to impute income
Rule 90.3 provides the trial court with the power to
The commentary to the rule adds that "[t]he court shall consider the totality of the circumstances in deciding whether to impute income. When a parent makes a career change, this consideration should include the extent to which the children will ultimately benefit from the change."
The comparative plenitude of O'Connell's assets may place in question the accuracy of his income affidavits. But whether O'Connell is underemployed ultimately depends on the jobs available to him, given his physical ability and training, and what he might earn in such jobs.
3. Findings to support imputing income
A trial court has a duty to enter findings adequate for rational appellate review when it sets a child support obligation.
In Olmstead v. Ziegler, we found that the trial court adequately supported its conclusion that both parents had equal earning capacities despite one parent's voluntary decision to change professions.
In Dunn v. Dunn, we upheld a superior court's conclusion that a father was underemployed and the methodology it used to reach an imputed income for child support purposes.
In the instant case, the trial court's order modifying child support imputed an income of $43,550.13 to O'Connell. The court did not issue written findings. At the conclusion of the testimony at the hearing, the court noted that O'Connell might earn "about 20,000 a year" if he worked at McDonalds and that he was capable of doing work substantially more remunerative than that. The court concluded that, "minimally [O'Connell] could be expected to earn $40,000, if he put himself on the job market, and I think that's at the very low end of what could be expected. I'm going to impute income in the amount of $40,000 a year...."
Other than the reference to the possibility of O'Connell's employment in the fast food industry and its statement that it would "approach things in the traditional manner," the court did not provide any rationale for its decision as to the amount of imputed income.
Rule 90.3 directs a court imputing potential income to a parent to base its determination "upon the parent's work history, qualifications, and job opportunities. The court also may impute potential income for non-income or low income producing assets."
We VACATE the child support order issued by the superior court and REMAND the case for further proceedings in accordance with this opinion.