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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Silvan v. Alcina (01/14/2005) sp-5858

Silvan v. Alcina (01/14/2005) sp-5858

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

MAUREEN SILVAN,               )
                              )    Supreme Court No. S-11216
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3AN-02-13853 CI
                              )
JUAN ALCINA,                  )    O P I N I O N
                              )
             Appellee.             )    [No. 5858 - January 14,
2005]
                              )




          Appeal  from the Superior Court of the  State
          of    Alaska,    Third   Judicial   District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances: William T. Ford, Anchorage,  for
          Appellant.  Robert C. Erwin, Erwin  &  Erwin,
          LLC, Anchorage, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.


I.   INTRODUCTION

          This   appeal  from  a  judgment  in  a  divorce   case

challenges  the  superior courts custody order, its  division  of

marital property, and its award of interim spousal support.   The

main  issue  on  appeal concerns the mothers desire  to  move  to

Arizona.   The superior court found that if the mother did  move,

the  best  interests of the children lay in remaining  in  Alaska

with  their father.  Because the superior court properly analyzed

the  issue  by: (1) assuming the move would happen,  (2)  finding

there  was a legitimate purpose for the move, and (3) determining

the  best  interests of the children in the event of a  move,  we

affirm.

II.  FACTS AND PROCEEDINGS

     A.   Factual History

          Juan Alcina and Maureen Silvan were married in 1993  in

Knik.   They met in Spain but came to Alaska so that Alcina could

race  sled  dogs.   They decided to settle in Willow  and  bought

their  home  with funds from Silvans mother.  The superior  court

characterized  it  as  a  gift  to  the  marriage.   The  parties

stipulated the Willow houses value to be $157,500.

          The  couple have two children:  Javier, born  in  1994,

and  Neal, born in 1999.  Throughout the marriage, Silvan was the

childrens  primary caregiver. Alcina worked nights as a  mechanic

for  Alaska Airlines and focused on dog mushing.  Silvan did  not

work outside the home.

          The  marriage began to fail in 2000.  Silvan wanted  to

leave  Alaska,  and in response, Alcina applied for  a  job  with

Alaska  Airlines in Phoenix.  But Silvan had a new boyfriend  and

the  marriage was not salvageable.  Alcina filed for  divorce  in

December 2002.

     B.   Procedural History

          Soon  after the complaint was filed, Silvan  moved  for

interim  custody  and support and asked the  superior  court  for

permission to move to the Phoenix area with the children.  Silvan

told  the trial court that she wanted the children to be educated

in  Phoenix and claimed that Alcina would not be a good parent on

his own because he had rarely taken care of the children.  Silvan

also noted that Alcinas job at Alaska Airlines would allow him to

visit  the  children frequently.  Alcina responded  that  he  was

agreeable  to  a  relocation to Arizona and would  try  again  to

transfer there, but maintained that the children should stay with

him  until  Silvan  got  situated.  The  superior  court  granted

Silvans interim custody and support request but denied her motion

to  relocate,  postponing resolution of the  issue  until  trial.

Silvan was allowed to remain in the family home.

          At  trial  Alcina  reiterated  his  position  that  the

children  should live with him in Alaska during the school  year.

He  agreed  to move to Anchorage and proposed that his father  or

his niece could come to Alaska to care for the children while  he

was  working  nights.  Silvan made clear that  if  she  were  not

granted sole custody of the children, she would remain in  Willow

rather than move to Arizona without them.

          Superior Court Judge Sharon L. Gleason issued  an  oral

decision on July 7, 2003, finding that if Silvan were to relocate

to  Arizona,  the  childrens best interests would  be  served  by

staying  in Alaska with Alcina.  In the alternative, the superior

court  found that if Silvan stayed in Alaska, custody  should  be

shared, with the children staying with Silvan four nights a  week

and  with  Alcina three nights.  The trial court  awarded  Silvan

child  support and split the marital property 60/40 in her favor.

Because the house was the primary marital asset, the trial  court

decided that the house should be sold and that Alcina should  pay

Silvan her sixty percent share of its stipulated value by the end

of  the  year.  Alcina was permitted to move back into  the  home

upon  giving  Silvan thirty days notice that she was  to  vacate.

Alcina  was  also  ordered to pay Silvan $500 per  month,  to  be

deducted  from Silvans share of the homes value, until the  house

was sold.

          Alcina gave notice that he wished to move back into the

home,  but  Silvan  refused  to leave.   While  this  appeal  was

pending,  the  superior court granted a writ  of  assistance  and

Silvan  vacated the house.  Alcina then refinanced the house  and

paid  Silvan  sixty  percent of the agreed value  of  the  house,

satisfying the property division judgment.  He now lives  in  the

house.   Silvan  moved in with friends in Wasilla and,  with  her

mothers  help, was able to find an apartment.  In November  2003,

on  Alcinas  motion,  the superior court found  that  Silvan  was

voluntarily and unreasonably unemployed.  The trial court imputed

income  to her, which in turn reduced the child support  due  her

from Alcina.

III.      STANDARD OF REVIEW

          Trial  courts  are  vested  with  broad  discretion  in

determining custody issues in divorce actions.  A superior courts

resolution  of custody issues will be disturbed only  if  we  are

convinced that the record shows an abuse of discretion under  the

test  of  the  best  interests of the child,  or  if  controlling

findings  of  fact are clearly erroneous.1  We will find  that  a

trial  court abused its discretion only when we are left  with  a

definite  and firm conviction, after reviewing the whole  record,

that the trial court erred in its ruling.2  If the superior court

considered  improper factors in making its custody determination,

failed  to  consider  statutorily mandated factors,  or  assigned

disproportionate  weight  to particular  factors  while  ignoring

others, we will find an abuse of discretion.3  Equitable division

of  property and awards of spousal support in divorce actions are

also  reviewed for abuse of discretion and will not be overturned

unless they are clearly unjust.4

IV.  DISCUSSION

     A.   Silvans Notice of Appeal Was Timely.

          Alcina  asserts that Silvan failed to timely  file  the

appeal  of the custody judgment.  Under Appellate Rule  218,  the

notice  of appeal in a custody case must be filed within  fifteen

days of the date of the judgment; in this case that deadline  was

August   26,   2003.    After   judgment,   Silvan   moved    for

reconsideration  on  the  property issues  but  not  the  custody

issues.   She  did not file her notice of appeal until  September

11,  nine  days after the superior court ruled on her motion  for

reconsideration.   Alcina  claims that  the  pending  motion  for

reconsideration  on other non-custody issues  did  not  toll  the

deadline  for  the  custody appeal.  Silvan  maintains  that  the

appellate  clerks office told her to wait to file the  notice  of

appeal  until  there was a final judgment on all issues.   Silvan

          also claims that a brief delay should be forgiven, given her

uncertainty as to how to interpret the rule in the case of  child

custody and property division issues.  We agree.

          Although  the fifteen-day rule by its terms applies  to

appeals  from  final  judgments for custody of  children,5  under

Appellate  Rule  218(c)(1) an appeal can only  be  bifurcated  by

court  order  upon  a  showing  of good  cause.   Rule  218(c)(1)

contemplates a single final judgment which includes  both  points

related to the custody of children and points which do not relate

to  the  custody of children (for example, property  division  or

spousal  support)  .  . . .6  To require an immediate  appeal  on

custody   issues  when  property  division  issues  are   pending

resolution  would essentially force bifurcation  of  the  appeal.

Absent  a court order, Rule 218 requires a final judgment on  all

issues  in  cases involving custody prior to filing a  notice  of

appeal.   Silvans  notice of appeal was filed less  than  fifteen

days  after  the  motion for reconsideration was  denied,  making

judgment on all issues final and her appeal timely.

     B.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Granting the Father Custody if the Mother Relocates  to
          Arizona.
          
          Silvan essentially raises two challenges to the custody

decision.   First, she claims that the superior  courts  decision

strayed  from  the  procedure  laid out  in  Moeller-Prokosch  v.

Prokosch  I  &  II.7   She also challenges  the  superior  courts

decision  on  the  merits,  claiming  that  Alcina  is   not   an

appropriate  candidate for primary custody of the  children.   We

disagree.

          The  superior court correctly applied our  holdings  in

Moeller-Prokosch  I & II.  The court assumed that  a  move  would

occur  and found that Silvan had a legitimate reason to move:   a

desire  to  get away from the State of Alaska; and it  thoroughly

examined  the factors for determining the best interests  of  the

children  as  laid  out in AS 25.24.150(c).  The  superior  court

focused  on  the factor that considers the desire and ability  of

          each parent to allow an open and loving frequent relationship

between  the  child and the other parent,8 and found that  Alcina

was  better able to promote the childrens open relationship  with

their  mother.  The trial court expressed concerns about  Silvans

ability to foster an open relationship with Alcina, remarking:

          Ms. Silvan demonstrated to me a difficulty in
          recognizing  the importance  of  Mr.  Alcinas
          role  as  the father of these children.   She
          testified  that dad has never taken  care  of
          the  children, not recognizing at  least  his
          contribution  or  caretaking  role  the  last
          several months.  And she testified also, they
          are  with me all the time, which did not,  in
          my mind, give recognition to dads role now.
          
The  superior court concluded that some of Silvans actions, while

well-intentioned,   had  the  [e]ffect  of   impeding   an   open

relationship  between  father and son.  In  contrast,  the  trial

court found Mr. Alcina repeatedly talked about the decisions that

he  and  Ms.  Silvan  made in the plural.  We moved  schools,  we

decided to move . . . whereas Ms. Silvan spoke repeatedly  of  my

child,  and my desires.  The superior court evaluated this factor

in  light of Silvans proposed move.  The court was concerned that

if  Silvan had problems fostering a relationship with the  father

at  the time of trial, there would be a difficulty on the part of

mom  to  recognize the importance of dads role if he were several

hundred  or  1,000 miles away.  While the trial court noted  that

Silvan  was willing to accommodate visitation by Alcina, it  also

found  that  airline travel realities would preclude  Mr.  Alcina

from maintaining that level of travel, and that Silvan would view

Alcina as visiting [the children] rather than being active . .  .

in a parental role.

          We  conclude  that the weight that the  superior  court

gave to this factor was appropriate, particularly in light of the

impending  move.   It  is essential to have  a  custodial  parent

willing to foster an open relationship with the other parent when

a  great  distance separates the children from the  non-custodial

parent,  and  it  is reasonable for the superior court  to  place

          enhanced importance on this factor when making its decision.9

There is no indication that the trial court relied on this factor

to the exclusion of all others.10

          We are not persuaded by Silvans argument that the trial

court  held Silvans decision to relocate against her when  making

its findings.  Unlike Moeller-Prokosch III,11 there is no evidence

to  indicate that the superior court did not individually address

and  consider both parents situations.  The oral findings of  the

superior court indicate that there was symmetric consideration of

the consequences to the children, if Silvan were to move with the

children or without them.12

          The  trial court concluded that the needs . . . of  the

children would best be met by having both parents active in their

lives  and by having Mr. Alcina have primary custody in the event

that . . . Ms. Silvan decided to go through with her decision  to

relocate.   The  superior  court  provided  alternative   custody

arrangements  dependent on whether the move  occurred   a  method

authorized  by  Moeller-Prokosch I.13  The trial  court  did  not

disapprove  of Silvans decision to move, expressly  finding  that

Silvans reason was not illegitimate.

          Silvan  argues that the trial courts decision  violates

Moeller-Prokosch II, in which we held that it is impermissible to

count  [the  mothers]  move  . . . as a  negative  best-interests

factor  personal to [the mother] if her reasons  for  moving  are

legitimate  . . . .14  But the trial court in this case  did  not

find  that  the  move  itself would impair  a  good  relationship

between  the  children and their father.  Instead it  found  that

Silvans  tendency  to fail to foster that relationship  would  be

exacerbated  by  the  move.  Alcinas better attitude  toward  the

childrens relationship with Silvan, by contrast, would allow  the

bond to be strengthened even across the distance to Arizona if he

were given primary custody.  The superior court made its decision

by  comparing the living situations for the children  in  Arizona

and  Alaska, not by an impermissible consideration of whether the

          move itself was in their best interests.

          Silvan also argues that the trial court erred by basing

its  decision on Silvans new relationship.  It is true  that  the

superior  court mentioned its concern about the role of [Silvans]

boyfriend in the litigation.  It is also true, as Silvan  argues,

that  a  new relationship should not on its own count  against  a

parent.15  But the trial court explained that its specific concern

over  the  new  boyfriend was based on his demeanor  and  actions

during  trial  and the concern that his role with  .  .  .  [the]

divorce could impede mothers ability to allow for an open, loving

and  frequent relationship with Alcina.  Trial judges are in  the

best  position to make determinations about the demeanor  of  the

parties  and how their relationships with each other will  impact

the child.  There is nothing to indicate that the superior courts

finding in this instance was unreasonable or clearly erroneous.

          By  recounting  her version of the facts,  Silvan  also

appears   to  challenge  some  of  the  superior  courts  factual

findings.  Specifically, she notes that Alcina works four  nights

a week and that therefore the children would spend that time with

a  third  party, Alcinas father, if Silvan moved away and  Alcina

were  given  custody.   But this argument was  presented  to  the

superior court, which found that the grandfather would be a  good

guardian  while  Alcina was at work.  And the trial  court  found

that  the  children were doing well in both homes, and that  both

parents were very good parents.  When the superior court is faced

with conflicting evidence, we do not re-weigh it.  It is the  job

of  the  trial  court,  not the appellate  court,  to  judge  the

credibility of the witnesses and to weigh conflicting evidence.16

The  superior courts factual findings are supported by the record

and  are  not clearly erroneous.  The superior court applied  the

law  correctly;  its custody determination was not  an  abuse  of

discretion.

     C.   The  Superior Courts 60/40 Division of Marital Property
          Was Not an Abuse of Discretion.
          
          The  division  of  assets upon  the  dissolution  of  a

marriage  is  a three-step process.  First, the court  determines

what property is to be distributed.17  Next, the court determines

the  value  of the property.18  Finally, the court allocates  the

property  equitably  between the parties.19   The  allocation  is

committed to the broad discretion of the trial court; this  court

reverses only for an abuse of that discretion.20  Silvan  objects

to  the  superior courts allocation of the marital  assets.   The

superior  court divided them sixty percent for Silvan  and  forty

percent for Alcina.  Silvan offers two grounds for rejecting  the

superior  courts division:  she claims that it does not  properly

acknowledge that the house, the main marital asset, was purchased

with money provided by her mother, and that it takes insufficient

account  of the difference in earning potential between  her  and

Alcina.

          Silvan  asserts that the house, the main marital asset,

was  purchased  with monies furnished by [Silvans]  mother,  that

these  were  family  monies which had been  received  by  way  of

inheritance,  and  that [Silvan] would eventually  have  received

these  funds  as  her own separate property.  She challenges  the

trial  courts finding that the purchase money was a gift  to  the

marriage,  but  does  not challenge the characterization  of  the

house as a marital asset.  Instead, she argues that the origin of

the  purchase money should have led the superior court  to  award

her  a  greater share.  She relies on a footnote in  this  courts

decision  in  Lundquist  v. Lundquist, in  which  we  noted  that

marital property purchased with separate funds may be divided  in

a manner different from the other marital property of the parties

in recognition of the contribution of one of the parties.21

          We  note first that our decision in Lundquist does  not

require the source of the funds to be given any particular weight

in  the  division.  More importantly, though, the superior  court

explicitly  stated that it did consider that Silvans  mother  was

the  source  of  the  funds for the house when  doing  the  60/40

          division.  Silvans argument must therefore be that the superior

court should have given it more weight.

          Silvan  also argues that her low earning potential  and

her need for further education and rehabilitation entitled her to

more than sixty percent of the marital assets. The superior court

found that Silvan has a Bachelor of Arts Degree, bilingual skills

in  the  short  term her earning capacity will be less,  however,

over  time  her  income may very well surpass [Alcinas].   Silvan

provides no evidence or argument to suggest that this finding  is

clearly erroneous.

          The  superior  court has broad discretion  to  make  an

equitable  division  of  property; this  court  will  overturn  a

division  only  if it is clearly unjust.22  Silvan  has  made  no

argument  suggesting  that the 60/40 division  in  her  favor  is

clearly unjust.  We therefore affirm the superior courts division

of marital property.

     D.   The  Superior Court Did Not Err by Denying  the  Mother
          the Right To Live in the House Until It Was Sold.
          
          The  superior  court found that the  property  division

could  not  be accomplished equitably without selling the  house.

Silvan  was  living in the house at the time,  but  the  superior

court  gave  Alcina the right to require her to leave  on  thirty

days  notice.  Silvan did not leave when requested.  The superior

court  granted a writ of assistance and Silvan vacated the house.

Alcina then refinanced the loan and paid Silvan sixty percent  of

the  agreed value of the house, satisfying the property  division

judgment.  He now lives in the house.

          Silvan does not challenge the trial courts finding that

the  distribution of assets required selling the home.   Instead,

she  argues  that she should have been allowed to remain  in  the

house  until  the sale and given an opportunity  to  buy  Alcinas

interest  in  it  because she was the primary  custodial  parent.

When  the  trial  court  divides property, AS  25.24.160(a)(4)(F)

instructs it to consider the desirability of awarding the  family

home, or the right to live in it for a reasonable period of time,

          to the party who has primary physical custody of children.23  But

as  Alcina argues, the superior court awarded the parents  shared

physical  custody  of  the children, and  Silvan  does  not  have

primary  physical  custody.   The  superior  courts  division  of

custody into three days with Alcina and four days with Silvan  is

close  to an even split.  Because there is not such a significant

difference  in  their  custodial  times  that  Silvan  should  be

considered  to  be  the primary custodian, AS  25.24.160(a)(4)(F)

does not apply.

          Silvan  also  argues that the superior court  erred  in

failing  to  consider allowing Silvan to live in the home  for  a

reasonable period of time.  Silvan relies on Hanlon v. Hanlon  in

support  of this argument.24  In Hanlon, we affirmed the superior

courts  finding  that  the mother and primary  physical  guardian

should not be awarded the house but remanded because the superior

court never considered the mothers request to be allowed to  live

in  the  home  for two years or until her daughter finished  high

school.25  Although Silvan requested to remain in the house,  she

never  requested to be allowed to stay in the house  for  a  more

limited fixed period.  We therefore conclude that she has  failed

to preserve this issue for appeal.26

          Silvan  also claims that the trial court erred  in  not

giving [her] an opportunity to purchase [Alcinas] interest.   But

we  have concluded that the 60/40 division is equitable, and  the

trial court has wide discretion in deciding how to structure  the

property division.  We cannot say that the superior court  abused

its discretion on this point.

          Silvan cursorily argues that she should not have to pay

the attorneys fees Alcina incurred in securing her departure from

the house.  Given that she remained in the home in defiance of  a

court order, we can see little basis to support Silvans appeal of

attorneys  fees,  and we conclude that the trial  court  did  not

abuse its discretion in its award of fees.

          Finally,  Silvan  argues in her reply  brief  that  the

          costs of sale should not have been deducted from her part of the

property  division  because Alcina never sold  the  house.   This

argument  does  not appear to have been addressed  to  the  trial

court and thus is not properly before us at this time.

     E.   The Superior Courts Award of Interim Support Was Not an
          Abuse of Discretion.
          
          Silvan  finally challenges the superior courts  failure

to  award rehabilitation or reorientation support.  Reorientation

support is essentially transitional and may be awarded for  brief

periods  to provide support pending the sale of marital  property

or  to  enable a spouse to get a job appropriate to  the  spouses

existing skills.27  Rehabilitation support is properly limited to

job  training  or  other means directly related  to  the  end  of

securing for one party a source of earned income.28

          The  superior court ordered Alcina to pay  Silvan  $500

per  month until the house was sold, to be taken out of her share

of the property division.  Silvan claims that this was inadequate

and that the trial court should at least have provided sufficient

transitional money in addition to the property division award  to

allow [Silvan] to find a place of her own and have transportation

until the award was paid.  This court reviews the decision not to

award spousal maintenance for abuse of discretion.29

          Silvan  provides little argument for her position  that

the  award  of $500 per month was insufficient, merely  asserting

that  it  was  astonishing in its harshness,  and  that  she  was

treated with a complete lack of dignity and respect both  by  her

husband and by the court.  She makes no specific showing,  beyond

her  bare assertions, that this award was inadequate in her case.

While  there may be merit in Silvans argument that the award  was

inadequate  for  Silvan to find housing and  transportation,  she

points to no trial testimony concerning those expenses to suggest

that  the  award  was an abuse of discretion.   By  contrast,  in

Davila  v.  Davila,  the appellant spouse  presented  a  detailed

budget showing the cost of her plan for education and employment.30

Silvan offers no comparable argument or evidence suggesting  that

          the superior court abused its discretion.  She has not pointed to

evidence  concerning housing and transportation costs or expenses

related  to  her  maintenance and re-entry into the  job  market.

Because  of  Silvans utter failure of proof  on  this  issue,  we

cannot conclude that the trial court abused its discretion.

          Silvan  also  appears to question the  superior  courts

finding  that  she  was voluntarily and unreasonably  unemployed.

Silvan  notes  that she had been out of the job  market  for  ten

years,  had no home or transportation, and still had the duty  of

caring  for the children four days and nights a week.  While  the

trial court recognized her limited experience, it also recognized

that  she had a college degree and bilingual abilities that would

enable  her to surpass Alcinas income, as noted above.  Moreover,

it found that it would be reasonable for her to work part-time on

the  days  Alcina  had  the children and to  seek  employment  in

Anchorage, rather than looking solely in Wasilla.  Silvan has not

demonstrated that the superior courts findings in this regard are

clearly erroneous.

V.   CONCLUSION

          Because the superior court properly applied all of  the

necessary factors in determining custody, and because the  courts

property  division  and interim support awards  are  not  clearly

erroneous,  the  superior  courts decision  is  AFFIRMED  in  its

entirety.

_______________________________
     1    Horutz v. Horutz, 560 P.2d 397, 399 (Alaska 1977).

     2     Buster  v.  Gale, 866 P.2d 837, 841 n.9 (Alaska  1994)
(quoting  Dura  Corp. v. Harned, 703 P.2d 396, 409 (Alaska  1985)
(internal quotations omitted)).

     3    Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska
1997)  (citing  McDanold v. McDanold, 718 P.2d 467,  468  (Alaska
1986)).

     4     See  Laing v. Laing, 741 P.2d 649, 651 (Alaska  1991);
Davila v. Davila, 908 P.2d 1027, 1031 (Alaska 1995).

     5    Appellate Rule 218(a)(1).

     6    Appellate Rule 218(c)(1).

     7    Moeller-Prokosch v. Prokosch, 27 P.3d 314 (Alaska 2001)
(Moeller-Prokosch I); Moeller-Prokosch v. Prokosch, 53  P.3d  152
(Alaska 2002) (Moeller-Prokosch II).

     8    AS 25.24.150(c)(6).

     9     See,  e.g.,  Dupre v. Dupre, 857 A.2d 242,  258  (R.I.
2004) (stating that past actions of relocating parent, either  to
foster  relationship  between  child  and  other  parent,  or  to
frustrate  the  relationship, would be important  consideration);
Ireland  v.  Ireland, 717 A.2d 676, 686 (Conn. 1998) (considering
the relationship between the parents themselves and its potential
negative  impact,  if  any, on the child as  a  factor  with  the
potential to shed further light on what the best interests of the
child  may  be  in relocation cases); see generally  Janet  Leach
Richards,  Childrens  Rights  v.  Parents  Rights:   A   Proposed
Solution to the Custodial Relocation Conundrum, 29 N.M.  L.  Rev.
245,  259 (1999); Judith S. Wallerstein & Tony J. Tanke, To  Move
or  Not  to Move:  Psychological and Legal Considerations in  the
Relocation of Children Following Divorce, 30 Fam. L.Q.  305,  311
(1996).

     10    Cf. Smith v. Weekley, 73 P.3d 1219, 1227 (Alaska 2003)
(finding cause for remand when the trial court failed to consider
all statutory relevant factors, not just willingness to foster  a
relationship with the other parent).

     11     Moeller-Prokosch  v. Prokosch, 99  P.3d  531,  535-36
(Alaska 2004) (Moeller-Prokosch III) (holding it was error to not
consider  pertinent  consequences of mothers assumed  relocation,
such as detriment to child that would occur if separated from his
mother, and to only consider impact on child if he had to move).

     12    See id.

     13    27 P.3d at 317 n.8.

     14    53 P.3d at 157.

     15     Cf.  Long  v. Long, 816 P.2d 145, 151  (Alaska  1991)
(affirming  trial courts finding that wifes new relationship  was
potentially  detrimental to children because it was  reported  by
testimony from all persons involved and introduction of  guardian
ad   litems  report,  which  described  effect  of  parties   new
relationships on children).

     16     Native  Alaskan Reclamation & Pest Control,  Inc.  v.
United  Bank  Alaska, 685 P.2d 1211, 1215 (Alaska  1984)  (citing
Penn v. Ivey, 615 P.2d 1, 3 (Alaska 1980)).

     17     Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska  1983).
Characterizing  the property as marital or separate  is  part  of
this step.

     18    Id.

     19    Id.

     20    Id.

     21    923 P.2d 42, 48 n.5 (Alaska 1996).

     22    Wanberg, 664 P.2d at 570.

     23    AS 25.24.160(a)(4)(F).

     24    871 P.2d 229 (Alaska 1994).

     25    Id. at 234.

     26     See Vivian P. v. State, Dept of Health & Soc. Servs.,
Div. of Family & Youth Servs., 78 P.3d 703, 709 (Alaska 2003) (We
will  not  address  an issue on appeal that  was  not  raised  at
trial.).

     27     Davila  v. Davila, 908 P.2d 1025, 1027 (Alaska  1995)
(internal quotation marks omitted).

     28    Schanck v. Schanck, 717 P.2d 1, 5 (Alaska 1986).

     29    Davila v. Davila, 908 P.2d 1027, 1031 (Alaska 1995).

     30     Id.  at  1033-35.  In Davila, we still  affirmed  the
award,  concluding  that the mothers assigned  property  provided
sufficient  assets  to  cover  the  cost  of  her  education  and
employment.