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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.
