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Coleman v. Coleman (12/11/98), 968 P 2d 570
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DONALD COLEMAN, )
) Supreme Court No. S-8004
) Superior Court No.
v. ) 4FA-95-0769 CI
MUBAARAKAH COLEMAN, ) O P I N I O N
Appellee. ) [No. 5053 - December 11, 1998]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Richard D. Savell, Judge.
Appearances: Edward R. Niewohner and
Shauna F. Morris, Niewohner & Wright, P.C.,
Fairbanks, for Appellant. No appearance by Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
This appeal concerns attorney's fees in a custody case.
A Michigan court divorced the parents, but left the issue of
custody to the Fairbanks superior court, which had jurisdiction
over their children. That court held a custody trial, but, just
before final arguments, the mother agreed to let the father have
custody in return for stipulations about the children's care.
Neither party mentioned attorney's fees in reporting this oral
settlement to the court. Ten days later, the mother successfully
moved the court to award her roughly half of her actual fees.
The father appeals. Most of his arguments lack merit.
His brief does, however, suggest an argument that, if a settlement
agreement does not discuss attorney's fees, the court should treat
the agreement as leaving the parties to pay their own fees. While
that argument has a sound basis in policy, we need not decide in
this case whether to adopt a per se rule to that effect, for the
father has not adequately briefed the issue. Without applying a
per se rule, we cannot say that the court abused its discretion in
this case by declining to infer that the mother, when she agreed to
settle the issue of custody without simultaneously securing an
agreement on the issue of fees, thereby meant to waive her
entitlement to fees. We thus affirm the award.
II. FACTS AND PROCEEDINGS
Donald Coleman and Mubaarakah Al-Haqq married in 1979.
They had four children: Zana (b. 1977), Aidah (b. 1979), Shuaraa
(b. 1981), and Amir (b. 1984). Donald and Mubaarakah separated in
1990 or 1991. They had been living in Fairbanks; Donald moved
alone to Detroit. In December 1994 Mubaarakah and the three
younger children visited Detroit for a funeral. When Mubaarakah
left, she let Shuaraa and Amir, the two youngest, stay to live with
Donald for the spring 1995 school semester.
On March 13, 1995, Donald filed a complaint for divorce
in a Michigan court, requesting permanent custody of all four
children. He soon also moved for temporary custody. On March 28
Mubaarakah, unaware of these developments, filed a complaint for
divorce, also requesting custody, in the Fairbanks court. Her
complaint alleged, inter alia, that "[Donald]'s income is
significantly higher [than hers], such that he should pay all or a
portion of her attorney's fees in this matter,"and specified "an
award of attorney fees"as part of the judgment prayed.
After an ex parte hearing in April, the Michigan court
gave Donald temporary custody of Amir and Shuaraa, and Mubaarakah
temporary custody of Aidah. Mubaarakah moved the Fairbanks court
in May to assert jurisdiction under the Uniform Child Custody
Jurisdiction Act, which Michigan has enacted, on the basis that
Alaska was the children's "home state." This was so because
Shuaraa and Amir had not lived in Michigan for six months before
Donald filed his complaint. The superior court -- after conferring
with the Michigan court, and after Donald failed to make any
relevant showing -- agreed. In August 1995 the Fairbanks court
asserted jurisdiction and granted Mubaarakah temporary custody of
all the children.
Despite the Fairbanks court's assertion of jurisdiction,
however, the Michigan court entered an order in October 1995
letting Amir remain in Michigan until the end of the fall 1995
school semester. (The order does not mention Shuaraa, but she
stayed too.) In January 1996 the Michigan court entered a judgment
divorcing the parties and dividing their property. The judgment
expressly left it to the Alaska court to determine custody and
The next day, Donald filed a motion in Fairbanks. The
court treated it as a request to extend the temporary custody of
Amir and Shuaraa that he was then exercising under the Michigan
court's October 1995 order. The court noted that Donald's motion
"directly contravenes this Court's [August 1995] order granting
Mubaarakah temporary custody,"and that Donald had "consciously
decided to ignore [the Alaska] proceedings." But it also noted a
January 17, 1996, letter from Mubaarakah to Amir saying that he
could stay in school in Detroit. The court found that she had
"agreed to allow Amir and Shuaraa to remain with their father to
finish the [1995 96] school year in Detroit." It declined to
"force the children to change schools in mid-semester,"but did
order Donald to return them "to their mother as soon as the school
year ends [i.e., in June 1996]."
Donald also moved the Fairbanks court to dismiss
Mubaarakah's divorce complaint, given the Michigan divorce
judgment. Mubaarakah cross-moved the court to accept an amended
complaint, captioned "Complaint for Child Custody." The amended
complaint reiterated her claim about Donald's higher income and her
request for attorney's fees. In March 1996 the court accepted her
amendment and denied Donald's motion to dismiss.
The court set trial for November 1996. Donald and
Mubaarakah submitted Child Support Guidelines Affidavits showing
his after-tax income as about $62,000, and hers as only $1,100 (her
permanent fund dividend). (Mubaarakah was apparently pursuing a
graduate degree at the time.)
The court held trial on November 19 20, 1996. At the
time set for final arguments on the 21st, Mubaarakah told the court
that she had agreed to let Aidah, Shuaraa, and Amir live with
Donald, if the court would incorporate certain stipulations about
the children's care in its custody order. (Zana was by then an
adult.) The court orally accepted the agreement as resolving the
On December 2 Mubaarakah moved the court to make Donald
pay "her remaining attorney fees in the amount of $3,250"-- just
less than half her total fees. (She had thus far paid $3,450 and
had an outstanding bill for $3,256.) On December 20 the court
entered findings of fact and conclusions of law awarding joint
legal custody, with primary physical custody to Donald. Finding
Mubaarakah's income "below the poverty level,"the court ordered
her to pay the minimum $50 monthly child support. It did not
address attorney's fees. On December 31 Donald opposed
Mubaarakah's motion for fees. On January 16, 1997, the court
signed Mubaarakah's proposed order awarding $3,250, without making
any findings or comments. Donald appeals.
A. Standards of Review
This case involves several questions of law: first,
whether the court had authority to award Mubaarakah fees in this
unusual proceeding; second, whether the court had authority to do
so upon a motion filed after the pendency of the action; and third,
whether it had such authority despite the settlement's silence
about fees. We decide these questions de novo, adopting the rules
that best reflect precedent, policy, and reason. [Fn. 1] If the
court did have authority to award fees, then it had "broad
discretion"in deciding how to exercise that authority, and we will
reverse its decision only if it was "manifestly unreasonable."[Fn.
B. The Superior Court Had Authority to Award Fees Based on
Relative Need Rather than Prevailing-Party Status.
Because the Michigan court had already divorced the
parties, Donald argues, this case falls in a gap between Alaska's
statutes governing divorce actions and those governing motions to
modify custody. The only statute in the Parent and Child chapter
authorizing attorney's fee awards, AS 25.20.115, [Fn. 3] governs
actions "to modify, vacate, or enforce"custody or visitation
orders. The attorney's fee statute that Mubaarakah invoked, AS
25.24.140(a), [Fn. 4] is part of the divorce and dissolution
chapter. Donald argues that since this action was not for
"divorce"or "modification,"neither provision applied, and nothing
authorized the court to award fees other than to the prevailing
party under Alaska Civil Rule 82. This opportunistic argument does
not persuade us.
We assume arguendo that the Michigan judgment fully
concluded Donald and Mubaarakah's "divorce,"leaving them, by the
time of the Fairbanks proceedings, unmarried people litigating an
initial custody dispute. Their case then falls under our rule that
"[a]n award of attorney's fees in a 'case between unmarried
individuals . . . limited to issues of child custody and support'
is 'based on [their] relative economic situations and earning
powers.'"[Fn. 5] This rule applies if the case is "closely
analogous to custody disputes in divorce cases,"[Fn. 6] as this
one obviously was.
C. Mubaarakah's Motion Was Timely.
Donald relies on the text of AS 25.24.140(a) to argue
that Mubaarakah's December 2 motion for fees was late. "During the
pendency of the action,"the statute says, "a spouse may, upon
application . . . be awarded . . . attorney's fees . . . ." Donald
argues that the court ended "the pendency of the action"when it
accepted the settlement on November 21, rendering Mubaarakah's
December 2 motion (or "application,"in terms of the statute)
This argument is suspect, for we do not in fact require
courts to award attorney's fees only during the "pendency of the
action." In Hilliker v. Hilliker, we said that we favor "a broad
reading of AS 25.24.140(a)(1)."[Fn. 7] We noted that, while the
statute "is most logically read as applying only to interim pre-
judgment orders,"we have in fact treated it as authorizing
"post-judgment awards of attorney's fees for trial services."[Fn.
8] We could, however, apply the statute's plain language to
require that a party at least request fees "during the pendency of
the action,"even if the court might award fees after the judgment.
Donald's argument, however, would still founder on the fact that
Mubaarakah requested fees in both her original complaint and her
After the action had arguably ended, she did file a
motion, a memorandum of law, and an itemized attorney's bill to
spur the court to address the issue. But she had already made an
"application"for attorney's fees at the very start of "the
pendency of the action."[Fn. 9] Faced with roughly the same
situation forty years ago, a Pennsylvania court noted that a
petition for fees filed after a judgment "was not a new
application; it merely implemented the original [prejudgment]
petition and [acted] entirely as a supplement to it, by setting
forth . . . an itemized statement of expenses and costs. The
application therefore became a part of the original petition . . .
on which no final order had been made."[Fn. 10] We agree with
that view, and conclude that Mubaarakah's request for fees was
D. Donald's Claim that the Parties' Economic Situations Were
Relatively Equal Is Groundless.
Donald argues that the court abused its discretion in
awarding Mubaarakah fees because she had received "an equal share
of the parties' property"and an award of "fees"in the Michigan
divorce judgment, and because her legal fees and earning capacity
roughly equaled his. His arguments are specious.
The Michigan judgment awarded each party the personal
property then in their possession; nothing suggests that such
property was substantial. The judgment also noted the lack of
marital real property, gave Mubaarakah half of Donald's military
pension accrued during the marriage, and ordered him to pay her
"statutory fees." Mubaarakah has plausibly claimed that she lacks
access to the pension. Donald notes no contrary evidence. As for
equal expenses, Donald admits that the amount of his attorney's
fees "is not part of the record." His reliance on the Michigan
judgment's boilerplate award of "statutory fees"is also
unavailing. He does not argue, and our research does not show,
that the term encompasses attorney's fees, and not just routine
costs. Only one contemporary opinion in Westlaw's Michigan family-
law database (MIFL-CS) mentions "statutory fees."[Fn. 11] We
found no opinion defining the term; the one that uses it refers in
passing to routine costs. [Fn. 12] Over 375 Michigan family-law
opinions, on the other hand, mention "attorney's fees"or some
variant of this phrase. [Fn. 13] It follows that the terms
"statutory fees"and "attorney's fees"plainly differ.
Donald also claims that Mubaarakah's "earning capacity is
more than adequate to pay her own fees and costs"because she has
a real estate license and could be earning money thereby instead of
seeking a graduate degree. But none of the excerpt pages that he
cites support that claim. He argues that she "did not dispute
[his] testimony . . . that she held a real estate license and could
have continued in that well-paying profession." We do not think
that he is making that up out of whole cloth, but neither below nor
on appeal has he pointed to any specific evidence of what she has
earned, or could now earn, in real estate. Mubaarakah's child-
support-guidelines affidavit was admissible evidence sufficient to
establish her income and support an award of fees. Donald
essentially argues that the trial court abused its discretion by
not (1) finding that her earning capacity was higher than that
actual income and, based on her unrealized potential income, (2)
ordering that each party bear his or her own fees.
To accept Donald's argument would be implicitly to
conclude that a trial court has discretion, in awarding attorney's
fees in a divorce case, to reduce or deny an award to one spouse
whose economic situation and current income are much weaker than
the other's on the ground that the former has unrealized potential
income. Donald cites no case in which a court has done so, and we
have found none. This case, though, does not require us to decide
whether a court may ever do so, for we conclude that Donald did not
satisfy his initial burden of producing evidence on the issue.
We have never discussed the burden of production on the
issue of earning capacity for an award of attorney's fees. [Fn. 14]
We assume a case in which spouse X offers sufficient evidence to
establish his or her current income. That income leaves X without
sufficient resources to be reasonably expected to pay his or her
own fees, [Fn. 15] so X seeks an award of fees. Spouse Y asks the
court to reduce or deny the award because X has unrealized
potential income. Assuming that a court has discretion to do so,
we conclude that Y must bear an initial burden of producing
specific evidence of X's earning capacity. Donald, as discussed
above, did not carry that burden.
We can dispatch Donald's other arguments in a briefer
fashion. He notes our holding in Johnson v. Johnson [Fn. 16] that
a trial court may consider the facts that ex-spouses had expended
equal money, time, and effort in a divorce, and had their property
divided equally. [Fn. 17] Both Johnsons, though, were bankrupt;
neither could pay the other's fees. [Fn. 18] Here, the only record
evidence of the parties' finances are the child support affidavits
showing Donald's income of about $62,000 and Mubaarakah's of
$1,100. Donald produced nothing to contradict this evidence of his
much greater financial capacity. He also notes our comment that,
even if one spouse has "greater financial resources and greater
earning capabilities, [the other's] resources and capabilities [may
be] sufficient enough that a court could reasonably expect her to
pay her own fees."[Fn. 19] But Donald has failed to rebut not
only the evidence that Mubaarakah's "resources and capabilities"
are meager in relative terms, but the evidence that they are
insufficient in absolute terms for us to "reasonably expect her to
pay her own fees." The court did not abuse its discretion in not
requiring her to do so.
E. Mubaarakah Did Not Unnecessarily Increase the Cost of
Litigation in Any Way Compelling a Denial of Fees.
Donald argues that Mubaarakah "unnecessarily escalated
the costs of the instant case by changing her mind"after agreeing,
apparently during the winter of 1995-96, to let the children stay
in Detroit. The record on this issue is scant and confusing, and
Donald's argument is cursory. We note that, even if Mubaarakah did
vacillate in her view of what was best for the children, such
conduct is not the sort of bad-faith vexatious or deceptive conduct
that we have held to justify courts in divorce cases in reducing an
award of attorney's fees (or enhancing an award against a
wrongdoing spouse). [Fn. 20]
By keeping Amir and Shuaraa in Detroit, moreover, Donald
flouted the Alaska court's August 1995 order asserting jurisdiction
and giving Mubaarakah interim custody. That court later found that
he had "consciously decided to ignore [the Alaska] proceedings."
After Donald persuaded the Michigan court to decree that Amir could
stay in Detroit for the fall 1995 semester, Mubaarakah protested to
the Alaska court, but not to the Michigan court. She has affied
that she "did not have the resources to attempt to enforce the
[Alaska] custody order in Michigan." Thus, even if she did later
make and then break an informal agreement to let Donald keep the
children, she did so while Donald was taking advantage of three
thousand miles of separation, and her lack of resources, to ignore
a court order. In these circumstances, we cannot say that the
court abused its discretion in rejecting his argument that
Mubaarakah had engaged in litigation misconduct justifying a denial
F. Mubaarakah's Failure to Insist, in Settling Custody, that
Donald Pay Her Fees Does Not Bar an Award.
Donald argues that Mubaarakah's motion for fees came too
late because it came after their settlement, which did not mention
fees. "If [she] had wanted attorney fees as part of the Settlement
Agreement,"he argues, "she should have asked for them at the time
of [s]ettlement." Donald's view of items not included in a
settlement agreement makes sense, and the rule that he suggests may
be wise. A settlement agreement is a contract, [Fn. 21] and we are
as leery of adding unnegotiated terms to it as to any other
contract. [Fn. 22] An agreement's silence as to fees thus may be
seen as a meaningful part of the parties' overall bargain, which we
should not disturb.
We have never held, however, that a settlement
agreement's silence about fees bars an award thereof. We expressly
reserved the question two decades ago in Tobeluk v. Lind. [Fn. 23]
There, the parties had addressed but not agreed on fees while
settling their dispute. [Fn. 24] We did not hold that this barred
an award, although we did note that "the better practice would be
for the parties to include a fee provision in the settlement
agreement, or at least to reserve the question for judicial
We need not decide today whether to adopt an inflexible
rule that, if a settlement agreement does not mention fees, a court
is bound as a matter of law to interpret the agreement to leave
each party to bear his or her own fees. [Fn. 26] Donald's brief
assertion of the propriety of such a rule is unadorned by the
citation of any authority. We do not have the benefit of the
presentation of an opposing view. Since the issue has not been
properly briefed, adoption of such a rule is not before us for
Our advice that it is the better practice to address fees
in all settlement agreements arose in a suit governed by Rule 82,
under which a court awards fees to the prevailing party. As
advice, it applies equally to cases in which entitlement to fees
does not depend on the merits, such as divorce cases, in which we
base awards on relative need, not on who "prevailed."[Fn. 27] (We
award fees on this basis because often no party "prevails"[Fn. 28]
in divorce cases and in order to ensure that both spouses have
"means to litigate the divorce action on a fairly equal plane."
There is a difference, however, between advising parties
to address attorney's fees in all future settlement agreements, and
interpreting an agreement in a case in which the parties failed to
do so. Because we have not adopted a per se rule for the latter
task, we must determine whether the superior court erred in this
case in inferring the parties' intent about fees, on which their
agreement is silent. To a court drawing such an inference, divorce
cases and Rule 82 cases may well differ. Because we do not base
fee awards in divorce cases on who prevails, the two forms of
relief that Mubaarakah sought -- custody, and a fee award based on
Donald's greater wealth -- were independent. There is no reason to
presume that, in settling one, she and Donald meant to settle the
other. They did not expressly address fees. Donald has not
alleged that they did so implicitly, but then failed to express
that part of their agreement to the court. Such an allegation
might make this a different case. But Donald's brief makes only
the cursory policy argument that we have declined to reach.
If one party agrees to settle without successfully
insisting that the other agree to pay its fees, arguably that
failure reflects the relative strength of their negotiating
positions. Yet we decline to infer that Mubaarakah's decision to
settle custody entailed a calculated tradeoff of her right to fees.
Her entitlement to fees based on relative need was independent of
the outcome, or the strength of her bargaining position, on the
merits. Indeed, we presume that her decision to settle reflected
not a financial calculation, but a conclusion that it would be best
for her children to live with Donald. Her ability to reach and
admit that conclusion at the climax of a long custody fight is
laudable. We decline to hold that, because she did not withhold
that conclusion and use it instead as a bargaining chip to extract
a concession on fees, the trial court should have inferred that she
meant to waive her entitlement to fees, when that entitlement is
independent of the outcome of the litigation.
We AFFIRM the superior court's award of attorney's fees.
See Jones v. Jones, 942 P.2d 1133, 1135 36 (Alaska 1997)
(citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
Beard v. Beard, 947 P.2d 831, 833 (Alaska 1997) (citing Wright
v. Wright, 904 P.2d 403, 410 n.11 (Alaska 1995)).
The statute provides: "In an action to modify, vacate, or
enforce that part of an order providing for custody of a child or
visitation with a child, the court may, upon request of a party,
award attorney fees and costs of the action. . . . [T]he court
shall consider the relative financial resources of the parties and
whether the parties have acted in good faith."
The statute provides: "During the pendency of the action, a
spouse may, upon application and in appropriate circumstances, be
awarded expenses, including (1) attorney fees and costs that
reasonably approximate the actual fees and costs required to
prosecute or defend the action . . . ."
Pugil v. Cogar, 811 P.2d 1062, 1067 (Alaska 1991) (quoting
Bergstrom v. Lindback, 779 P.2d 1235, 1238 (Alaska 1989)).
B.J. v. J.D., 950 P.2d 113, 118 19 (Alaska 1997).
768 P.2d 115, 116 (Alaska 1988) (citing L.L.M. v. P.M., 754
P.2d 262, 264 (Alaska 1988)).
Id. (citing Houger v. Houger, 449 P.2d 766, 772 (Alaska 1969)
(accepting without comment a fee award made after judgment)).
Morgan v. Morgan, 126 A.2d 805, 807 (Pa. Super. 1956). The
quoted analysis is dictum, for the court resolved the case by
adopting a new rule that courts may award fees in divorce cases
even after an attorney has rendered the services (making it
irrelevant when Mrs. Morgan had "applied"for fees). See id. at
806 07 (rejecting rule of Breinig v. Breinig, 26 Pa. 161 (1851)).
But the court went on to note that "even under a strict application
of the [old] rule,"she was entitled to an award because her
application had in fact been timely. See id. at 807.
See Hisaw v. Hayes, 350 N.W.2d 302, 303 (Mich. App. 1984).
See, e.g., Afshar v. Zamarron, 530 N.W.2d 490, 494 (Mich. App.
1995) ("attorney fees"); Iantelli v. Iantelli, 502 N.W.2d 691, 693
(Mich. App. 1993) ("attorney's fees"); Phinisee v. Rogers, 582
N.W.2d 852, 853 (Mich. App. 1998) ("attorneys fees").
Cf. Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998) (stating
rule that, in child-support determination, obligor parent bears
burden of establishing his or her earning capacity) (citing
Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991)).
See H.P.A. v. S.C.A., 704 P.2d 205, 212 (Alaska 1985).
564 P.2d 71 (Alaska 1977).
See id. at 77.
See id. at 76.
H.P.A., 704 P.2d at 212.
See, e.g., Beard v. Beard, 947 P.2d 831, 834 35 (Alaska 1997)
(affirming reduction of award to one-half of actual fees where
spouse with lesser earning power had answered divorce complaint
late, violated repeated orders to vacate family home, and
"litigated and relitigated almost every issue"); Wright v. Wright,
904 P.2d 403, 410 11 (Alaska 1995) (affirming award of full actual
fees against husband who had assiduously hidden marital assets,
which wife spent over $100,000 to locate).
See, e.g., Gaston v. Gaston, 954 P.2d 572, 574 (Alaska 1998)
(interpreting custody agreement).
See, e.g., Davis v. Dykman, 938 P.2d 1002, 1007 (Alaska 1997)
(declining to enforce settlement agreement because parties had not
agreed on key term, and "'courts should not impose on a party any
performance to which he did not and probably would not have
agreed'") (quoting Rego v. Decker, 482 P.2d 834, 837 (Alaska
589 P.2d 873, 879 n.13 (Alaska 1979).
See id. at 875.
Id. at 879 n.13. We were leery of deciding the issue in
Tobeluk, because that case involved a public-interest suit whose
settlement, by legislative enactment, reflected a "political
decision"that we were reluctant to unsettle. See id. at 880 81,
878 79 nn.11, 13.
Cf. id. at 881 (Matthews, J., concurring) (advocating adoption
of such a rule).
See, e.g., L.L.M. v. P.M., 754 P.2d 262, 263 64 (Alaska 1988).
See id. at 264 (citing Cooper v. State, 638 P.2d 174, 180
Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987).