Maloney v. Maloney

BRYNER, Justice,

with whom FABE, Justice, joins, dissenting.

In my view, the superior court abused its discretion in granting Michael’s motion to modify his support obligation.

The superior court found that Michael’s decision to retire at age forty-six was a financially reasonable career choice because, “due to [Michael’s] disabilities, had he not voluntarily retired, in all likelihood, he would have been passed over for promotion for the remainder of his career.” The evidence that Michael produced to support this finding is conjectural at best. Michael had never before been passed over for promotion, no adverse personnel action was pending against him when he decided to retire, and no such action was ever threatened. Even if Michael accurately foresaw the likelihood of being passed over for future military promotion, he knew that he would be able to continue serving at his current rank until his younger child reached the age of majority. Moreover, though Michael might reasonably have feared that his physical problems would jeopardize his chances to progress in the military, he had no apparent reason to think that these problems would not also impair his civilian earning capacity.

Giving due deference to the superior court’s powers as a factfinder, however, I would willingly assume that, despite the speculative nature of the evidence, it did not abuse its discretion in finding that Michael made a sound economic choice when he decided to retire from the military. But the superior court failed to carry this finding to its logical conclusion: the soundness of Michael’s choice is itself compelling proof that he needed no decrease in his child support payment; for if Michael’s military retirement made economic sense, how could he complain that it impaired his long-term earning capacity?

Michael insists that he can have it both ways: he wants the court to find that he reasonably chose to retire because retirement was financially advantageous; yet he also wants the court to find that, having retired for financial advantage, he can remain permanently unemployed because no one could expect a man like him to find a job. Michael should not be allowed to tug at opposite ends of the same stick. One finding *1154or the other might make sense, but together they are inconsistent.

Perhaps Michael could have reconciled this inconsistency had he alleged that some unforeseen event occurred after he retired, making it impossible for him to earn the income that he had anticipated. But Michael’s superior court pleadings asserted no such unexpected change in circumstances. Michael asked the court to reduce his child support payments because he had been jobless since giving up his military career. Yet he was well aware of the circumstances that limited his job prospects before he decided to retire from the military: he certainly knew of his lack of civilian job skills; he tested the job market while still in the military and learned that it was not promising; and his failing health was one of the primary factors that led him to fear that the military would give him no future promotions. Having successfully insisted that he had been economically prudent in giving up his lucrative military career despite these circumstances, Michael cannot invoke the same circumstances to claim that his civilian earning capacity is now hopelessly impaired. The claim defies logic.

The superior court failed to acknowledge or to account for this internal tension in Michael’s claim; indeed, by uncritically accepting Michael’s argument, the court perpetuated the inconsistency. Instead of considering whether Michael’s current joblessness reflected a lasting change, the court merely found that he was “conducting a job search” and was therefore not voluntarily underemployed. It appears that the court simply assumed that Michael’s current unemployment was not a transitory phenomenon and could be treated as a permanent condition for purposes of modifying his existing support payments. Combining this assumption with its acceptance of Michael’s reasons for retiring, the court came to the paradoxical conclusion that Michael had been economically prudent in abandoning his military career for a civilian job that he apparently had no foreseeable hope of obtaining. Ironically, in reaching this conclusion, the court gave Michael every incentive to remain permanently unemployed.

If Michael prudently chose to leave the military, as he convinced the superior court that he did, then he should suffer little difficulty in meeting his original support obligation; if he rashly opted for a civilian life that makes paying support inconvenient, then his child should not suffer the consequences of his voluntary underemployment. Either way, I would find that the superior court abused its discretion in reducing Michael’s support obligation. Accordingly, I DISSENT from this court’s decision affirming the superior court’s order.