Hope P. v. Flynn G.
355 P.3d 559
Alaska2015Background
- Parents divorced in 2005; a 2010 order provided joint legal and shared physical custody on an alternating-week schedule while both lived in the same community.
- In 2012–2013 Flynn changed jobs and entered a multi-year electrical apprenticeship that required extended out-of-town work stints; Hope’s custody time increased through her right of first refusal.
- August 2013: Hope moved for permanent modification of physical custody and requested an evidentiary hearing, arguing the 50/50 schedule was no longer realistic.
- September 2013: Flynn moved for a temporary modification proposing Hope have custody during the school week and him three weekends per month; the superior court granted Flynn’s temporary motion in October 2013 without an evidentiary hearing.
- The temporary order set custody at roughly 68% (Hope)/32% (Flynn) and required Flynn to file a proposed child support order; a master held an evidentiary hearing on support and recommended imputing Flynn’s prior higher income, but the superior court declined to impute income.
- The parties agreed at status hearings to make the temporary custody order permanent; Hope appeals the lack of evidentiary hearings and the refusal to impute income. The Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument (Hope) | Defendant's Argument (Flynn) | Held |
|---|---|---|---|
| Whether Hope was entitled to an evidentiary hearing on her motion to permanently modify custody | Flynn’s apprenticeship/work changes were a substantial, non-temporary change warranting a hearing and likely award of primary custody | Change was temporary/speculative and parties had reached an agreement; no prima facie showing of a substantial change | Court: No hearing required; allegations showed at most a speculative/temporary change and parties had agreed to the arrangement |
| Whether the court erred by converting the temporary custody order to a permanent order without a hearing | Conversion occurred without best-interest findings or adequate hearing; earlier order allegedly awarded Hope "primary" custody | Parties expressly agreed at hearings to make the temporary order final, and the court corrected its mislabeling of custody as "primary" when it was shared | Court: Conversion valid because parties waived hearing and court corrected terminology (shared custody) |
| Whether income should be imputed to Flynn for child support (voluntary underemployment) | Flynn voluntarily changed to lower-paying training; impute income based on prior MTA earnings ($59,660) | Change was reasonable (career advancement), temporary, made in good faith; Flynn sought work between classes and collected unemployment—no imputation | Court: No abuse of discretion in declining to impute income; superior court’s totality-of-circumstances findings were not clearly erroneous |
| Proper characterization of custody for Rule 90.3 support calculation (primary v. shared) | Hope: October 2013 order effectively granted her primary custody, warranting a different support calculation | Flynn: Custody as ordered was shared (68/32), which fits Rule 90.3 shared-custody definition | Court: Custody is shared under Rule 90.3; court clarified prior wording and used shared-custody calculation |
Key Cases Cited
- Schuyler v. Briner, 13 P.3d 738 (Alaska 2000) (standards for when a custody-modification motion triggers a hearing)
- Morino v. Swayman, 970 P.2d 426 (Alaska 1999) (temporary/experimental visitation changes ordinarily do not justify permanent modification)
- Reilly v. Northrop, 314 P.3d 1206 (Alaska 2013) (appellate review standards for masters' recommendations and related procedures)
- Pattee v. Pattee, 744 P.2d 658 (Alaska 1987) (factors for imputing income when a parent voluntarily changes employment)
- Ronny M. v. Nanette H., 303 P.3d 392 (Alaska 2013) (abuse-of-discretion standard for custody decisions and required analysis)
- Olmstead v. Ziegler, 42 P.3d 1102 (Alaska 2002) (consideration of whether children will benefit from a parent’s career change for imputation analysis)