Miller v. Clough

Supreme Court of Alaska · Family Law

Family LawChild SupportImputed IncomeModificationAttorney's FeesDiscoveryAlaska Civil Rule 90.3(a)(4)potential income

Facts

After their 2001 divorce, Glenn Miller and Marian Clough shared equal custody, and the superior court imputed Marian annual income of $52,700 because it found her voluntarily underemployed. Marian later remarried John Clough, and Glenn moved to modify child support, arguing that Marian's remarriage to a wealthy husband justified imputing additional income to her and seeking discovery into the Cloughs' finances. The superior court rejected the argument that a new spouse's wealth could be used to increase imputed income under Rule 90.3(a)(4), denied the discovery motion as premature, but did recalculate support because the parties' daughter Gwenn had begun living with Glenn. Marian later sought attorney's fees, which the superior court denied because both parties had prevailed on different aspects of the dispute.

Issue

Does Alaska Civil Rule 90.3(a)(4) permit a court to treat a remarried parent's wealthy new spouse's assets or income as part of that parent's potential income when the parent remains voluntarily underemployed? Also, did the superior court err in denying discovery aimed at developing that theory and in denying Marian attorney's fees?

Rule

Under Alaska Civil Rule 90.3(a)(4), once a court decides that income should be imputed to a voluntarily unemployed or underemployed parent, the amount imputed must be based on the parent's work history, qualifications, and job opportunities. The 'totality of the circumstances' language applies only to the threshold decision whether to impute income, not to the calculation of the amount, and a new spouse's wealth cannot be directly relied on to increase imputed potential income. A party who has not properly moved under Rule 90.3(c)(1) for a variance based on unusual circumstances is not entitled to discovery on that unpled theory in the pending modification proceeding.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Anchorage, a court previously found that Dana Mercer was voluntarily underemployed and imputed income to her based on her prior nursing work, licenses, and available hospital positions. Two years later, Dana married Owen Pike, a wealthy real-estate investor, and her former spouse moved to increase the amount of income imputed to Dana because she now lives in a much more affluent household.

How should the court rule on the request to increase Dana's imputed income under Rule 90.3(a)(4)?

Explanation. Once the court decides to impute income, Rule 90.3(a)(4) limits the amount imputed to the parent's work history, qualifications, and job opportunities. A new spouse's wealth cannot be directly used to increase the amount of potential income imputed. Affluence after remarriage does not itself alter the parent's earning capacity under the rule. (Derived from Miller v. Clough (n.d.).)