Wilhour v. Wilhour
308 P.3d 884
Alaska2013Background
- Joshua and Jacqueline Wilhour separated Aug 2010; Jacqueline awarded primary custody with joint legal in 2011 decree and child support set at $992.15.
- Joshua relocated to the Mat-Su Valley to share custody and petitioned to modify child support based on custody change and reduced income.
- Joshua quit MTA and planned seasonal IBEW work; projected annual income around $40,000, knee arthritis limiting work.
- Jacqueline asserted Joshua was voluntarily unemployed/underemployed and that his potential union income could match prior earnings; she showed limited income evidence.
- Superior Court modified using Joshua’s prior income and denied an evidentiary hearing; court set April 1, 2012 as modification date; this is appealed on grounds of lack of hearing and misdated effective date.
- This opinion vacates the modification, remands for an evidentiary hearing, and for reconsideration of the effective date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Evidentiary hearing required for modification | Wilhour; factual disputes merit hearing | Wilhour; no genuine issues of material fact | Remand for evidentiary hearing |
| Income and underemployment findings | Dispute about Joshua's temporary income drop and Jacqueline's earning potential | Income properly reflected; underemployment not conclusively shown | Remand to determine both incomes and potential underemployment evidence |
| Effective date of modification | Service date should govern; March 1, 2012 | Court may set later date for good cause | Remand to set March 1, 2012 or provide explanation for later date |
Key Cases Cited
- Ward v. Urling, 167 P.3d 48 (Alaska 2007) (temporary or permanent nature of income changes considered in modifications)
- Dunn v. Dunn, 952 P.2d 268 (Alaska 1998) (modification requires material change in circumstances)
- Robinson v. Robinson, 961 P.2d 1000 (Alaska 1998) (income imputation and earning capacity)
- Routh v. Andreassen, 19 P.3d 593 (Alaska 2001) (imputing income and considering earnings potential)
- Adrian v. Adrian, 838 P.2d 808 (Alaska 1992) (standard for determining earning capacity and modification)
- Richardson v. Kohlin, 175 P.3d 43 (Alaska 2008) (guidance on modification timelines under Rule 90.3)
- Maloney v. Maloney, 969 P.2d 1148 (Alaska 1998) (appropriate date considerations for modification)