Kestner v. Clark

182 P.3d 1117 (2008)

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Nature of the Case

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Facts

P and Clark (D) were married on November 29, 1986, and divorced in 1995. They had one child, Nathan, who was born on August 5, 1990. They agreed that P would have sole legal and primary physical custody of Nathan, and D would have regular visitation rights. P planned to attend graduate school in Illinois in the fall of 1995. The agreement included the provision that 'upon P's completion of the graduate program, she would use her best efforts to obtain re-employment in a reasonable job … in Juneau, Alaska. P graduated in 1997 and tried to find employment in Juneau with the State of Alaska but failed, and she remained in Macomb, Illinois. P married Terry Kestner in 2000, and they had two children who were two and three years old, respectively, in 2004. P left the workforce in 2001 to care for all three children. In 2004 D moved to modify custody on the grounds that Nathan was about to turn fourteen and wanted to move to Juneau for high school. A custody investigator recommended that D have school-year custody of Nathan. The parents reached a settlement before the court's hearing, agreeing that Nathan would live with his father during the school year. The parties sought to modify the child support payments. Eventually, the court granted D's motion to require P to file her entire 2003 tax return, which showed an adjusted gross income for P and her husband of $63,857. P was ordered to pay $50 monthly in child support. The court declined to impute income in that it was not unreasonable' for her to be a 'stay-at-home' mother. D filed a motion to impute income. P argues that she was not 'voluntarily and unreasonably' unemployed or underemployed given the cost of childcare and her relatively low income when she had been employed full-time. D and his fiancée, Nicole Hartmann, had an estimated combined household income of $90,000-$ 100,000 with which to support one child (Nathan), whereas P and Terry had a combined household income of $64,000 with which to support two children. P estimated that annual childcare costs in Macomb ranged from $9,360 to $10,242, depending on the provider. P's 2001 gross income was $21,501 from two jobs. D maintained that the superior court must examine the totality of the circumstances in determining whether to impute income. P's maximum gross income over a four-year period was $20,381, and that the Kestners' net worth as of March 2004 was $471,886. The court imputed income to P of $25,000 and that while P's 'desire to stay at home with her young children is understandable and laudable, it is a voluntary decision-based in large part on the fact that [Terry's] income and the family investments are sufficient to meet the family's needs.' P was ordered to pay $298.77 monthly in child support. P appealed.