Olmstead v. Ziegler

42 P.3d 1102 (Alaska 2002)



Trial courts have broad discretion in deciding whether to modify child support orders. A trial court's determination of whether to modify child support will be reviewed for abuse of discretion. An abuse of discretion occurs when, based on a review of the whole record, the supreme court is left with a definite and firm conviction that a mistake has been made. Under Alaska R. Civ. P. 52(a), factual findings will not be set aside unless they are clearly erroneous.

Voluntarily reducing one's income may not justify a modification of child support. Determining whether or not a parent is voluntarily and unreasonably underemployed is essentially a question of fact. The trial court should consider the nature of the changes and the reasons for the changes, and then determine whether under all the circumstances a modification is warranted. A trial court may find that underemployment is voluntary even if the obligor acted in good faith.


William E. Olmstead and Elizabeth A. Ziegler were both attorneys. At the time of their divorce, they entered into a settlement agreement whereby neither party would pay child support. However, their settlement agreement contained a stipulation that William would pay for the child's education expenses. Two years later, William was failing in his attempt to be a solo practitioner and was earning just over $ 10,000 a year. He then decided to become a teacher. Thereafter, William filed a motion for an order modifying child support under Civil Rule 90.3. On October 28, 1999, the trial court denied William’s motion for modification of child support, noting that William had not provided the necessary income verification documents. William moved for reconsideration, and on November 16, 1999, the trial court issued an order simultaneously granting William's request for reconsideration and denying his motion to modify child support. The trial court found that, although their financial situations may have changed, the parties still possessed equal earning capacities. The trial court also reasoned that, although William was free to change careers, he was not entitled to a modification of child support.


Taking into consideration William’s change of career, was he entitled to a modification of child support?




The state supreme court agreed with the trial court that the father's career change constituted voluntary underemployment, which did not necessarily justify a modification in child support, even if the career change was taken in good faith. In the case at bar, the trial court established that William took many steps, including closing his office and failing to keep regular business hours, that demonstrated his intent to downsize his practice. While he repeatedly stated that he was simply a failure at law and was not capable of earning the average lawyer's salary, that claim was undermined by the fact that at one time he made over $ 53,000 a year. Thus, according to the state supreme court, the trial court properly determined that William was voluntarily and unreasonably underemployed and that he was not working at his full capacity based upon his past earnings.

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