Marcia Zug on Sharpe v. Sharpe and Child Support Modifications


It is easy to presume that maximizing child support is in a child’s best interest, but as the above cases demonstrate, there are exceptions. When the benefits of modification outweigh the negatives, modification should be permitted. This is true for all child support cases, but especially those pertaining to American Indian families. When considering modification requests made by Indian obligors, family courts must be particularly sensitive to the effects of income imputation on individual Native families as well as the effects of imputation on their tribes more broadly. If the benefit of modification relates to the child’s or the parent’s unique status as a member of a federally recognized tribe, this fact should be given substantial, perhaps even decisive, weight in the court’s modification decision. As discussed in Part I, courts applying the strict rule test have permitted modification when it benefits the child or the greater community. Supporting native subsistence lifestyles does both.

Sharpe v. Sharpe is here.

Alaska SCT Holds Yupik Parent’s Choice to Live Subsistence Way of Life Constituted “Voluntarily and Unreasonable” Unemployment Under State Child Support Law

Opinion in re Sharpe v. Sharpe (Alaska Jan. 8 2016)

In a 3-2 decision, Alaska’s Supreme Court has affirmed a lower court’s decision denying a motion for modification of child support to an Yup’ik Eskimo who the court believed was unreasonably unemployed when she quit her $120k job in Anchorage for a traditional way of life as a stay-at-home mom in the Native village of Stebbins Community Association.

Excerpt from Justice Bolger’s majority opinion:

Despite this consideration, the dissent worries that the superior court “trivialize[s] Alaska Natives’ way of life”60 and “devalues Alaska Natives’ cultural, spiritual, and religious connections to their villages and their subsistence lifestyle.”61 Yet in reality the dissent’s desired outcome would have enormous financial implications for Alaska Native children. “The primary purpose of Rule 90.3 is to ensure that child support orders are adequate to meet the needs of children, subject to the ability of parents to pay.”62 Granting either parent absolute freedom to exit the workforce would undermine this purpose.

Relevant excerpt from Justice Winfree’s dissent:

The fundamental flaw in the superior court’s analysis is its conflation of the legitimacy of Jolene’s move with the reasonableness of her unemployment in Stebbins and the manner in which the court imputed income to Jolene: “[T]he choice that I’m presented with is between treating [Jolene] as having zero income or . . . having imputed to her the income that she had at Alyeska . . . .” This was a false choice. The questions that should have been posed and answered at the hearing were: (1) whether Jolene’s move to Stebbins was for legitimate reasons; (2) whether Jolene was in fact unreasonably unemployed in Stebbins; and if so, (3) what level of income should have been imputed to Jolene based on her work history, her qualifications, and her job opportunities in Stebbins. 36

The court found that Jolene’s decision to leave her employment in Anchorage and relocate to Stebbins to reconnect with her cultural roots was unreasonable because Jolene had not “established that her situation in Anchorage was destructive or adverse to her” given that there was no evidence “that she suffered from mental illness or from some sort of emotional state or psychological state that she needed to leave the urban setting, that she needed medically or psychologically or spiritually to leave Anchorage.” But we never have required relocating parents to show that their prior locations were destructive to them or that they suffered from psychological conditions or mental illnesses to justify their relocation. Moreover the court’s statements are at odds with its earlier custody decisions favoring Jyzyk based on Jolene’s alcohol issues and with the evidence that Jolene’s alcohol issues began shortly after she started working for Alyeska.37 To the extent the court today silently approves the superior court’s reliance on “no destructive situation” and “no mental illness” factors to decide that a relocation is not legitimate, I strongly disagree.

In my view, even without considering Jolene’s express Free Exercise claim raised on appeal, her relocation to Stebbins was legitimate — to the extent the superior court made a factual finding that Jolene’s move to Stebbins was not legitimate, that finding is clearly erroneous. No evidence in the record suggests that Jolene’s relocation to Stebbins was for the purpose of decreasing her child support obligation. The court told Jolene it had “heard [her] testimony and . . . [did not] question . . . [her] sincerity and . . . the value [she] place[d] in reconnecting with [her] . . . cultural . . . roots . . . .” The court also found that both Jolene and her daughter derived some benefit from Jolene’s move to Stebbins, and Jyzyk agreed that Jolene benefitted to some extent from the move.