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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rodvik v. Rodvik (12/08/2006) sp-6080

Rodvik v. Rodvik (12/08/2006) sp-6080, 151 P3d 338

     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,


) Supreme Court No. S- 11986
Appellant, )
) Superior Court No.
v. ) 3AN-04-04120 CI
) No. 6080 - December 8, 2006
Appellee. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Fred H. Valdez, Anchorage,  for
          Appellant.    Maureen   OKeefe,    pro    se,
          Anchorage,   Appellee.   Robert  R.   Polley,
          Assistant  Public Advocate, and Joshua  Fink,
          Public   Advocate,  Anchorage,  Guardian   Ad

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

          FABE, Justice.

          Karsten  Rodvik appeals the superior courts  resolution
of  his  divorce  proceeding.   He challenges  the  trial  courts
decision granting sole legal and primary physical custody of  the
couples   three   children   to   his   former   wife,   Maureen.
Additionally,  he  appeals  the trial courts  decision  to  order
supervised  visitation and child support and its award  of  legal
fees to Maureen.  He also challenges the trial courts division of
property,  which  resulted in a distribution of marital  property
favoring Maureen.   Finally, he argues that it was error for  the
trial judge to decline to recuse himself from the Rodviks divorce
proceeding.   We  affirm the trial courts custody and  visitation
decision but remand several discrete property issues to the trial
court for further findings.
          Karsten and Maureen Rodvik were married in Anchorage in
1990  and separated in 2003.  They have three children, ages  13,
11, and 6.  Karsten filed a complaint for divorce in January 2004
seeking custody of the three children and child support.  Maureen
filed an answer and counterclaim for divorce, seeking custody  of
the children and child support.
          During  the contentious divorce, Maureen filed for  and
received  a  series  of protective orders.  A  domestic  violence
protective  order was issued on October 24, 2003,  after  Karsten
agreed  to  the  entry of the order.  In her  petition  for  this
protective  order, Maureen alleged that Karsten deprived  her  of
sleep,  prevented her from leaving, was verbally  abusive,  drank
heavily, struck the children, pushed Maureen, butted her with his
shoulder,  and grabbed her.  Another domestic violence protective
order  was granted by Superior Court Judge Peter A. Michalski  on
April 23, 2004, on the grounds that Karsten had refused to return
the children after his visitations on multiple occasions and that
he  contacted Maureen on matters not related to the  children  in
violation of the earlier protective order.  The court found by  a
preponderance of the evidence that Karsten had committed a  crime
involving  domestic  violence against Maureen  and  that  Karsten
posed a threat to the physical safety of Maureen or the children.
A  similar protective order was again issued on November 1, 2004.
A  fourth  protective order was issued on March 2, 2005 by  Judge
Michalski in connection with his final decision in the divorce.
          The  parties stipulated to the appointment of  a  child
custody investigator to assist in the evaluation of the childrens
best  interests because the case involved serious allegations  of
parental  behavior  problems,  including  domestic  violence  and
alcohol abuse.
          While  Maureen  was  represented  by  counsel,  Karsten
represented  himself at trial because his attorney withdrew  from
the  proceedings  on  February 10, 2005  with  Karstens  consent.
Karsten  requested a continuance in order to obtain new  counsel,
but  his  request  was  denied.   Karsten  did  not  provide  any
discovery  leading  up to trial, even after  the  superior  court
issued  an  order requiring Karsten to respond to  the  discovery
requests of Maureen.
          A  trial was held from February 28, 2005 through  March
2,  2005 before Judge Michalski.  In connection with the property
division,  Maureen  submitted a proposed property  division,  but
Karsten  did  not.   Testimony at trial in  connection  with  the
property   division,  discussed  more  fully  below,  was   based
primarily  on  Maureens proposed property  division.   The  court
awarded Maureen $158,560 worth of property, $12,560 more than the
$146,000 value of the property awarded to Karsten.
          The  trial court heard testimony from Maureen, Karsten,
a  guardian ad litem (GAL) appointed for the children, an  Office
of   Childrens   Services   investigator,   the   child   custody
investigator, the familys pastor, family members, neighbors,  one
of the childrens  teachers, and the childrens piano teacher.  The
child  custody  investigator issued  a  report,  concluding  that
Maureen bore most of the responsibility for the children over the
years,  had  the  most stable source of income,  prioritized  the
children,  was  organized and responsive to the childrens  needs,
and  had  largely refrained from criticizing Karsten in front  of
the  children  during the divorce. With respect to  Karsten,  the
custody  investigator  determined that he  was  less  capable  of
meeting  the  childrens needs, that he was less  responsible  for
meeting the childrens needs during the marriage, that he  had  an
unstable  employment history, that he was chronically  late,  and
that,  besides  the piano lessons, he was less  involved  in  the
childrens activities than Maureen.  The custody investigator also
concluded  that  Karsten has difficulty separating  his  emotions
from  those  of  his  children, insisting that  his  sadness  and
despair  over the end of the marriage is theirs.  She added  that
[Karstens]  denial, anxiety, and sense of urgency  regarding  the
divorce interfere with his ability to be emotionally available to
the  children  during  this difficult time.   The  child  custody
investigator recommended that Maureen be awarded sole  legal  and
primary physical custody.
          On June 14, 2005, the superior court issued a decree of
divorce  and awarded sole legal and primary physical  custody  of
the children to Maureen.  In its findings of fact and conclusions
of  law,  the  superior  court based its  decision  primarily  on
Karstens  erratic  behavior  and the emotional  impact  that  his
behavior  had  had on the children.  The trial court  also  found
that Karstens visits should be supervised.
          In  order to establish Karstens income as a piano tuner
for  purposes of determining child support, Maureen presented  an
expert  witness,  a piano instructor, who spoke  to  the  typical
volume of business and fees generated by piano tuners.  Based  on
this  testimony, the superior court imputed income to Karsten  in
the  amount  of  $40,000.   The court also  found  that  Karstens
passive-aggressive  non-participation  and  difficulty   entitled
Maureen to legal fees.
          Maureen filed a motion for entry of additional findings
of  fact  out  of  concern that the courts  final  order  not  be
vulnerable to legal attack.  In response, the trial court  issued
additional findings of fact, stating that the property  division,
while  weighted slightly more in favor of Maureen, was  equitable
given  the  fact  that Maureen would be caring  for  the  parties
children who would likely need counseling for years to come.  The
additional findings of fact also addressed more specifically  how
Karstens   denigration  of  Maureen  in  front  of  the  children
demonstrated  that  Karsten could not meet the childrens  mental,
emotional, and psychological needs, and how Karsten was unable to
foster  a  relationship between the children  and  Maureen.   The
trial  court  also expressly adopted the recommendations  of  the
          Karsten  appeals  the  superior  courts  findings  with
respect  to  the property classification and distribution,  child
custody  and visitation, child support, and legal fees.  He  also
argues that Judge Michalski should have recused himself from  the
divorce  proceedings because Karsten had criticized  one  of  the
judges  prior  decisions on a constitutional  issue  and  Karsten
worked  to effect a change to the Alaska Constitution to overrule
that decision.  Karsten was apparently active in the campaign  in
support  of  the  amendment and was publicly  critical  of  Judge
Michalskis decision.
     A.   Standard of Review
          Trial courts have broad discretion in determining child
custody   issues.1   We  will  reverse  a  trial  courts  custody
determination only if we are convinced that the trial  court  has
abused  its discretion or that controlling findings of  fact  are
clearly  erroneous.2   We find an abuse of discretion  where  the
trial  court  considered  improper factors,  failed  to  consider
statutorily  mandated  factors,  or  improperly  weighed  certain
factors  in  making  its determination.3  A  factual  finding  is
clearly  erroneous when a review of the entire record  leaves  us
with  a firm conviction that the trial court has made a mistake.4
The  trial  court has broad discretion in fashioning  a  property
division  in  a divorce action.5  Equitable division  of  marital
assets  by  the superior court involves a three-step  procedure.6
First, the trial court must decide what property is available for
distribution.7  Second, the trial court must value this property.8
Third,  the trial court must decide how to allocate the  property
in  the  most  equitable  manner.9  We review  the  trial  courts
determination  of  what  property is available  for  distribution
under  an  abuse  of  discretion standard.10   The  valuation  of
available  property  is a factual determination  that  should  be
reversed only if clearly erroneous.11  The equitable allocation of
property is reviewable under an abuse of discretion standard  and
will  not be reversed unless it is clearly unjust.12  The refusal
by  a  judge to recuse himself or herself from a case is reviewed
for an abuse of discretion.13
     B.   Child Custody and Visitation
          1.   The trial court did not err in granting sole legal
               and primary physical custody to Maureen.
          Under  AS 25.24.150(c), trial courts must make  custody
determinations  in  the best interests of the child,  considering
the following factors:
               (1)   the  physical, emotional,  mental,
          religious, and social needs of the child;
               (2)   the capability and desire of  each
          parent to meet these needs;
               (3)   the childs preference if the child
          is  of sufficient age and capacity to form  a
               (4)   the  love  and affection  existing
               between the child and each parent;
               (5)   the  length of time the child  has
          lived  in  a stable, satisfactory environment
          and    the    desirability   of   maintaining
               (6)  the willingness and ability of each
          parent  to facilitate and encourage  a  close
          and continuing relationship between the other
          parent  and the child, except that the  court
          may not consider this willingness and ability
          if one parent shows that the other parent has
          sexually  assaulted  or engaged  in  domestic
          violence  against the parent or a child,  and
          that a continuing relationship with the other
          parent will endanger the health or safety  of
          either the parent or the child;
               (7)   any evidence of domestic violence,
          child abuse, or child neglect in the proposed
          custodial household or a history of  violence
          between the parents;
               (8)   evidence that substance  abuse  by
          either   parent  or  other  members  of   the
          household  directly affects the emotional  or
          physical well-being of the child;
               (9)    other  factors  that  the   court
          considers pertinent.
          The trial court awarded sole legal and primary physical
custody  of  the  children  to Maureen,  emphasizing  the  impact
Karstens behavior had on the children.  The trial judge commented
that Karsten had insulted and denigrated Maureen in front of  the
children  in a manner that was emotionally abusive and  had  hurt
the  children  in ways it will take them their full  maturing  to
grow from.  The trial court concluded that Karsten could not meet
the  childrens emotional and psychological needs and that Karsten
could  not  facilitate  communication between  the  children  and
Maureen.   As further grounds for its conclusion, the court  also
referred to Karstens repeated violations of protective orders  by
contacting Maureen.
          The  trial courts findings are amply supported  by  the
record.   According  to  the child custody investigators  report,
Maureen  has  shouldered  most  of  the  responsibility  for  the
children  over  the  years, has had the  most  stable  source  of
income,  and  has largely refrained from criticizing  Karsten  in
front of the children.  She has also prioritized the children and
is  organized and responsive to the childrens needs.  The custody
investigator determined that Karsten is less capable  of  meeting
the  childrens  needs,  was  less responsible  than  Maureen  for
meeting the childrens needs during the marriage, and has  had  an
unstable  employment  history.   The  custody  investigator  also
concluded  that  Karsten has difficulty separating  his  emotions
from  those  of  his  children, insisting that  his  sadness  and
despair  over the end of the marriage is theirs, and  that  [h]is
denial,  anxiety,  and  sense of urgency  regarding  the  divorce
interfere  with  his ability to be emotionally available  to  the
children during this difficult time.
          The  GAL  also  testified at trial  that  Karsten  made
denigrating  comments about Maureen in front of the children  and
discussed  the  divorce in front of them, and that  the  children
were  more frequently absent or tardy when they were in  Karstens
care.   The GAL testified that Maureen, in contrast, was  careful
about  shielding  the children from the impact  of  the  divorce.
Because   the   testimony  of  witnesses   at   trial   and   the
recommendations of the GAL and custody investigator  support  the
findings of the trial court, we conclude that Karstens claims  of
error are without merit.
          2.   The  trial  court  did not err  in  ordering  that
               Karstens   visitation   with   the   children   be
          Karsten  argues that the GALs recommendation  does  not
provide  evidence justifying supervised visitation.  The superior
court  adopted  the recommendations of the GAL and child  custody
investigator  that  visits between Karsten and  the  children  be
supervised.   In  adopting the recommendations, the  trial  court
concluded that
          [w]ith  respect  to the children,  there  are
          many  many  examples of specific things  that
          were   problematic,  such  as  the  childrens
          tardiness  from  school  and  so  forth,  not
          actually getting care, which lead this  court
          to  find  that Karstens unsupervised  contact
          has,  and would continue to have, an  adverse
          effect on the children.
Specifically,  the  child  custody  investigator  explained   her
recommendation:   Given   [Karstens]   emotional    nature    and
unwillingness to hear other options regarding the divorce, he  is
considered to pose some risk[,] and some precautions may need  to
be  taken  during this volatile period . . . .  The trial  courts
order  that  the  visits  be supervised is  therefore  adequately
supported  in  the  record  and the harm  to  the  children  from
unsupervised visitation is clearly articulated in its findings.
          In J.F.E. v. J.A.S., we held that
          the  best  interests  of the  child  standard
          normally   requires  unrestricted  visitation
          with  the noncustodial parent. Therefore,  an
          order requiring that visitation be supervised
          must  be  supported by findings that  specify
          how  unsupervised visitation  will  adversely
          affect   the   childs  physical,   emotional,
          mental, religious, and social well-being  and
          the other interests set out at AS 25.24.150.[14
We  also  stated  that  we prefer a plan  by  which  unsupervised
visitation can be achieved.15
          The  recommendations  of  the GAL  suggested  that  all
contact  between  Mr. Rodvik and the children  be  supervised  at
least  until Mr. Rodvik obtains a psychological evaluation.   The
superior  court adopted this plan, stating, [b]ecause of Karstens
apparent  lack of insight into his childrens needs, the harm  his
actions  have done to them and the necessity that he comply  with
rules  established  by  the court, it is in  the  childrens  best
interests to immediately implement the [GALs] recommendations . .
. .  We conclude that it was reasonable for the superior court to
condition   resumption  of  unsupervised   visits   on   Karstens
psychological evaluation and the resulting recommendations of the
psychologist.  In accordance with our preference for unsupervised
visitation, the superior court expressed a willingness to revisit
the  issue  of unsupervised visitation when it stated that  [t]he
need  for  further supervision would be determined based  on  the
findings of the evaluation and Mr. Rodviks follow-through on  any
recommendations.  Thus, the trial court did not err  in  ordering
supervised  visitation  and  structuring  a  mechanism  by  which
Karsten  could  return to unsupervised visits with  the  children
after undergoing the psychological evaluation.

     C.   Property Division
          1.   We    remand    to   the   superior   court    for
               reconsideration   of   whether    certain    items
               constitute    marital    property    subject    to
          Maureen  was  the  only  party  to  submit  a  proposed
property division at trial. Karsten has appended to his brief  on
appeal  a list of property which he alleges was taken by  Maureen
and  not  accounted for at trial.  Karsten also argues  that  his
medical  coverage  should  have been  included  in  the  property
division.  But Karsten makes this argument for the first time  on
appeal.   Because,  [a]s a general rule,  we  will  not  consider
arguments for the first time on appeal,16 we disregard this claim
made  by  Karsten for the first time on appeal.  It  was  not  an
abuse  of  discretion  for the superior  court  to  consider  the
property  set forth in the exhibits introduced by Maureen  to  be
the universe of the couples marital property.
          Karsten  also  argues  that the trial  court  erred  in
separately listing and valuing a depth finder and radio as assets
when  they  were  attached to the boat  as  accessories,  and  in
finding  two antique clocks to be marital property.  But  he  did
not present any evidence with respect to these items at trial  or
otherwise  make  any objections to Maureens characterizations  of
these  items  as  marital property when given the opportunity  at
trial.  Thus, Karsten has waived this objection on appeal.17
          Karsten did, however, testify that the canoe listed  by
Maureen was premarital property.  Maureen also conceded at  trial
that the canoe, I didnt remember that . . . exact purchase date .
. . Karsten was indicating he had purchased it before marriage so
if  that  . . . is, in fact, the case, then he, obviously,  keeps
          the canoe.  Thats fine.  Exhibit L lists the purchase date of the
canoe  as  1990?, the year of the parties marriage.   Given  that
Karstens  testimony was unequivocal and Maureen allowed that  she
was  not sure when the canoe was purchased and that it could have
been  premarital  property, we remand to the  superior  court  to
revise its distribution of property to reflect that the canoe was
Karstens  premarital  property and  thus  is  excluded  from  the
property division.
          Karsten  also  argues that the trial  court  failed  to
consider  various  debts when fashioning its  property  division.
But  when  asked  at  trial  if his  debts  were  incurred  post-
separation, Karsten stated that [t]he only debt I had before this
happened  was  . . . our mortgage . . . a new truck  payment  and
loans  against  my life insurance policies and  maybe  500  to  a
thou[sand] . . . on [a] credit card.  It was therefore not  error
for the court to decline to include Karstens credit card debt  as
marital  debt.   It does, however, appear that  the  trial  court
failed  to  consider marital debts with respect to Karstens  life
insurance  and the carpet that was installed during the marriage.
Karsten  testified about both of these at trial, and neither  was
included  in  the final distribution of assets.  On  remand,  the
superior  court  should consider whether these should  have  been
included in the distribution of property as marital debts.
           Karsten  also claims that the superior court erred  in
classifying  certain of Maureens debts as marital debt.   Maureen
testified  at  trial that Keefe loan No. 2 was given  to  Maureen
after the couples separation and that the MBNA Visa card reflects
a   debt  for  attorneys  fees  incurred  by  Maureen  after  the
separation.   The superior courts characterization  of  these  as
marital  debts in the face of uncontested testimony from  Maureen
that they were not is error, and on remand the trial court should
remove these from the marital property distribution.

          2.   The  trial  court did not err in its valuation  of
               the marital property.
          The  trial  court  determined that the property  values
contained  in  Maureens proposed division were fair  and  adopted
them.  On appeal, Karsten argues that the superior court erred in
adopting   wholesale   Maureens  proposed  property   valuations.
Specifically,  he  disputes the trial courts  valuation  of  some
computers and printers, the marital home, Maureens retirement and
annuity  accounts,  and some ammunition.   But  Karsten  did  not
object  to the valuation of the computers and printers or to  the
value  of Maureens retirement and annuity accounts at trial,  and
therefore we will not entertain his objections on appeal.
          Karsten  next argues that the superior court  erred  in
valuing  the  ammunition at $5,000 and maintains  that  its  true
value  is $500.  The trial court heard conflicting evidence  with
respect  to the value of the ammunition from Maureen and Karsten,
and  both  parties  admitted that they were not  sure  about  the
amount  of the ammunition or its value.  It was thus not  clearly
erroneous for the trial court, after hearing testimony from  both
parties, to accept the estimate of Maureen over that of Karsten.
          Conflicting testimony was also heard about the value of
the  marital home.  Maureen estimated that the net equity in  the
house was $111,000.  This figure was calculated by taking a  high
value  of  the  market  analysis ($346,200) and  subtracting  the
amount  of  the  mortgage ($235,200).  Karsten testified  that  a
broker had estimated to him that the most he could push it  would
be $330,000, but, unlike Maureen, Karsten provided no documentary
evidence  to support this valuation.  Nor did he offer  testimony
about the net equity in the home.  It was therefore not error for
the  trial  court  to  credit Maureens supported  testimony  over
Karstens unsupported testimony.18
          3.   The  trial  court must supplement its findings  to
               support   an   uneven  distribution   of   marital
          Under  AS  25.24.160(a)(4),19 in a divorce action,  the
court   must  considercertain  statutory  factors  when  dividing
property.   We  have held that [i]n the absence  of  findings  to
warrant  an  unequal  division . . . an  equal  division  of  the
marital estate is presumptively the most equitable.20
          At  trial, Karsten requested that the court move toward
a   50/50  distribution  rather  than  the  distribution  Maureen
proposed,  which  was skewed in her favor.  But the  trial  court
made  two  adjustments to Maureens proposed division,  allocating
debt  owed  to Maureens family to Maureen and attributing  $5,000
worth  of  ammunition to Maureen after determining that  the  gun
collection should be awarded to Maureen.  The trial court  valued
the  allocation as $158,560 to Maureen and $146,000  to  Karsten.
In  doing  so,  the  court  noted that [a]lthough  the  resulting
distribution is not weighted as heavily in Maureens favor as  the
one she proposed, it is more than $12,000 in her favor. . . .
          In  its order entering additional findings of fact,  in
response  to  Maureens motion, the trial court added the  factual
finding that [t]he property division, while weighted slightly  in
Maureens favor, is equitable given the fact that Maureen will  be
caring  for  the parties children in the future and the  children
will   likely  need  counseling  for  years  to  come.    Karsten
challenges this uneven allocation of marital property.
          According to Turners treatise on equitable distribution
of property, the needs of the children should generally not be  a
factor in determining the amount of marital property assigned  to
each  spouse.21  Turner cites as support for this  statement  our
decision  in  Brandal v. Shangin, which concluded  that  [f]or  a
trial  court  to award one spouse a greater share of the  marital
property  simply  to  ease  his or her burden  of  child  support
constitutes  reversible error. 22  Turner further  suggests  that
[p]roperty  division  should be used to meet  the  needs  of  the
children only in the presence of a specific reason why this  goal
cannot be met with an award of child support alone.23
          We  conclude that before the superior court may fashion
an  uneven  distribution  of  the  Rodviks  marital  property  in
Maureens favor on the basis that Maureen will be caring  for  the
parties children in the future and the children will likely  need
counseling for years to come, it must first determine whether the
          child support is adequate to meet the childrens counseling needs.
The  need  for additional findings is reinforced by the  superior
courts  child support order, which already requires that  Karsten
pay  half  of  any  of the childrens uncovered medical  expenses,
which  could include the childrens counseling.  We have  remanded
this  case  to the superior court for reconsideration of  whether
certain assets constitute marital property and for redistribution
based  on its findings.  If the superior court deems it necessary
to  distribute property in either partys favor based on the needs
of  the  children, it must explain why the needs of the  children
cannot be met with child support alone.
          4.   The  trial  court  did  not err  in  awarding  the
               marital guns to Maureen based on 18 U.S.C.  922(g)
               but did err in awarding Karstens separate property
               to Maureen.
          The  trial  court  awarded the  entire  twenty-one  gun
collection  in  dispute  to  Maureen,  ruling  that  [g]iven  the
dictates of 18 U.S.C.  922(g), the court is compelled not  to  be
putting  into Karstens control anything which would  make  him  a
criminal.   Karsten argues that the superior court misinterpreted
the  federal statute and that the statute criminalizes  only  the
receipt of any firearm or ammunition that has been transported in
interstate commerce.  Karsten contends that he should be  awarded
the entire gun collection and the ammunition.
          In  order  to  determine whether Karstens  argument  on
division  of the gun collection has merit, it is first  necessary
to  examine whether Karsten was permitted to possess any firearms
or  ammunition  under the federal statute at the time  the  trial
court divided the parties property.  18 U.S.C.  922(g)(8) states:
          It shall be unlawful for any person
               (8)   who  is  subject to a court  order
               (A)    was  issued after  a  hearing  of
          which such person received actual notice, and
          at  which  such person had an opportunity  to
               (B)   restrains a person from harassing,
          stalking, or threatening an intimate  partner
          of  such  person  or child of  such  intimate
          partner  or  person,  or  engaging  in  other
          conduct  that would place an intimate partner
          in  reasonable fear of bodily injury  to  the
          partner or child; and
               (C)   (i)  includes a finding that  such
          person  represents a credible threat  to  the
          physical  safety of such intimate partner  or
          child; or
                    (ii)   by   its  terms   explicitly
          prohibits   the   use,  attempted   use,   or
          threatened use of physical force against such
          intimate partner or child; . . .
               . . . .
          to ship or transport in interstate or foreign
          commerce,   or   possess  in   or   affecting
          commerce,  any firearm or ammunition;  or  to
          receive  any firearm or ammunition which  has
          been shipped or transported in interstate  or
          foreign commerce.
          Prior  to the divorce trial, the trial court had issued
three  protective orders against Karsten upon Maureens  petitions
on:  October 24, 2003; April 23, 2004; and November 1, 2004.  The
October 2003 protective order was based on allegations by Maureen
that  Karsten was verbally abusive, drank heavily, and had struck
both  Maureen and the children.  The April 2004 and November 2004
protective  orders were issued after findings  that  Karsten  had
violated  previous  protective orders.  In  connection  with  its
final order on custody and property division in the divorce,  the
trial  court issued a fourth protective order on March  2,  2005,
which  was designed to last one year.  Although Karsten  disputes
the interpretation of the statute and its application to him,  he
does  not  argue  that  the protective orders  do  not  meet  the
criteria listed in 18 U.S.C.  922(g)(8).
          Decisions  analyzing 18 U.S.C.  922(g)(8) have  assumed
that  the  statute applies to simple possession of a firearm,  as
well as receipt of a firearm through interstate commerce.24   For
example,  in United States v. Emerson, the defendant was indicted
for simple possession of a firearm while subject to a restraining
order  in  violation  of  18  U.S.C.   922(g)(8).25   There,  the
defendant  had  purchased the firearm about  a  year  before  the
restraining  order  was entered.26  The Fifth Circuit  held  that
18  U.S.C.   922(g)(8)  was  constitutional  as  applied  to  the
defendants  possession of a weapon while subject  to  a  domestic
violence  restraining order.27  And, in United States v. Lippman,
the  defendant  was  subject to a domestic  violence  restraining
order  against  him  when he was arrested for possession  of  two
firearms.28  He was found guilty by a jury of violating 18 U.S.C.
922(g)(8),   and  the  Eighth  Circuit  upheld  the   conviction,
concluding  that 18 U.S.C.  922(g)(8) did not violate the  Second
Amendment.29   In  People  v. Adams, the  New  York  trial  court
analyzed whether a defendant, who was subject to a court order of
protection,  was  entitled to a waiver under the probation  rules
that  would allow him to apply for a hunting license  and  use  a
hunting  rifle.30  The court examined both state and federal  law
and  determined  that the defendant, for as long  as  the  [court
order  of  protection] is in effect, is barred by  18  U.S.C.  []
922(g)(8) from possessing a firearm, including a hunting rifle.31
Finally,  in  Towell  v. Steger, the Missouri  Court  of  Appeals
examined whether to remove an order of protection issued  by  the
trial court, noting that
          [u]nder  the  Federal  Gun  Control  Act,  18
          U.S.C. []  922(g)(8), a person under an order
          of protection may not possess a firearm, even
          for    recreational   purposes.    Therefore,
          Appellant  may  violate federal  laws  if  he
          possesses  hunting  weapons  or  legitimately
          hunts.  The mere possession of firearms while
          under  an  order  of protection  violates  18
          U.S.C. [] 922(g)(8).[32]
Thus,  the  court  recognized  a  person  who  is  subject  to  a
protective order could not possess a gun.33
          Karsten  has  pointed  to no case  concluding  that  18
U.S.C.   922(g)(8) does not prohibit possession of a  firearm  or
ammunition by a person who is subject to a protective order.   As
it  is  not  disputed  that  the  trial  court  entered  a  valid
protective  order  when  it issued the divorce  decree,  Karstens
possession  of any firearm, whether received before the  issuance
of the restraining order or after, was illegal under the statute.
Thus,  based  on the case law interpreting 18 U.S.C.   922(g)(8),
the  superior  court was at least reasonable in  concluding  that
federal  law  imposes a barrier to awarding firearms  to  Karsten
while a protective order is in effect.34
          Although  the  trial court did not err in awarding  the
marital  guns  to  Maureen, we analyze  separately  the  question
whether it was error for the trial court to award to Maureen  the
gun that was Karstens separate property.  There was testimony  at
trial  that  one  of  the twenty-one guns in the  collection  was
Karstens  separate property.  When Karsten was asked at trial  if
any  of  the other guns were premarital, he stated [w]ell,  there
are others on there that are definitely premarital but he did not
offer  further  evidence regarding the guns.  Karsten  identified
four  guns  as his separate property in his motion to  reconsider
the  findings  of  fact  and conclusions of  law  issued  by  the
superior court.  Karsten again argues in his brief on appeal that
the four guns are premarital property.  Under AS 25.24.160(a)(4),
although  the trial court is to provide for the division  of  the
property acquired only during marriage, the court, in making  the
division, may invade the property . . . of either spouse acquired
before  marriage when the balancing of the equities  between  the
parties  requires it.  Ordinarily a decision to  invade  separate
property must be accompanied by specific findings justifying  the
invasion.35   But in this case, the trial court  stated  that  it
would  not award the guns to Karsten based on the federal statute
because  such an award would make [Karsten] a criminal.   Because
the  trial  courts  overriding reason for awarding  the  guns  to
Maureen was expressed, we conclude that the trial courts findings
are  sufficient  to  justify this limited  invasion  of  Karstens
separate property, consisting of four guns.
     D.   The  Trial  Court  Did  Not  Abuse  Its  Discretion  in
          Imputing  $40,000 of Income to Karsten for Purposes  of
          Determining Child Support.
          Karsten   argues  that  the  trial  court  engaged   in
speculation  when imputing $40,000 as his income for purposes  of
calculating child support.  A trial court has broad discretion to
impute income based on the most complete evidence before it . . .
          . This discretion is particularly broad where the reason for the
incomplete record is the parents own unresponsiveness. 36
          Karsten is a self-employed piano tuner.  Karsten  never
provided complete discovery with respect to his income,37 and  he
introduces  the  figure of $36,000 as his actual projected  gross
income  for 2005 for the first time on appeal, with no supporting
documentation.   At  trial, an expert piano instructor  testified
about  the  general  earning capacity of  piano  tuners  such  as
Karsten.   The expert stated that most piano tuners in  the  area
charge about $100 for a piano tuning visit, noting that this  can
vary  depending  upon the level of experience of the  technician.
The  expert  further testified that over the long term,  a  piano
tuner  can  build up a client base so that he can tune  three  to
four  pianos per day.  The expert conceded under Karstens  cross-
examination  that Karsten was not a highly skilled expert,  which
would impact the rates that Karsten was able to charge.  But  the
superior  court gave Karsten the opportunity to elicit  testimony
from  the expert that would clarify for the court how much  money
Karsten  could  expect  to make given his  level  of  skill,  and
Karsten  declined the opportunity.  The superior court  addressed
Karsten, stating: If hes the expert in the area and knows .  .  .
this  business . . . Ill let you ask him what he thinks you would
be expected to make if you were working as hard as you could.  Do
you  want  to  ask him that?  Karsten responded: No, not  really.
The  expert  also testified that piano tuners in the  area  spent
anywhere from twenty to twenty-five percent of their earnings  on
overhead costs.
          In  its  findings  and  conclusions,  the  trial  court
determined that Karsten could tune two pianos per day at $100 per
job.   Based  on this, the trial court imputed $50,000  worth  of
gross  revenue to Karsten, and adjusted that earning capacity  to
$40,000 per year for purposes of calculating child support.  This
figure  estimates  the number of pianos tuned per  day  based  on
Karstens  number  of  years of experience  and  skill  level  and
includes  a  deduction  of  twenty percent  for  overhead  costs.
Because  Karsten provided no other evidence with respect  to  his
income  at trial, and declined to inquire of the expert how  much
he  could be expected to earn, the superior court did not err  in
imputing  this  income to Karsten.38  However, under  Civil  Rule
90.3,  federal  income tax is deductible from the adjusted  gross
income in order to arrive at the adjusted annual income for child
support purposes.  Therefore, on remand, the court should ask the
parties  to  brief the question of the appropriate deduction  for
federal income tax from Karstens imputed income of $40,000.
     E.    The  Superior  Court Did Not Err in  Awarding  Maureen
Legal Fees.

          Under  AS  25.24.140(a)(1), a  spouse  may  be  awarded
expenses,  including  attorney fees  and  costs  that  reasonably
approximate  the actual fees and costs required to  prosecute  or
defend the action in divorce proceedings.  The award of attorneys
fees  in  divorce actions is within the broad discretion  of  the
trial court.39
          The  superior  court awarded Maureen $10,000  in  legal
          fees based on Karstens conduct during the course of the
litigation.   Karsten argues that it was error for  the  superior
court to award Maureen attorneys fees because the parties are  of
comparable economic standing and should each have borne their own
attorneys fees.
          In  Alaska, cost and fee awards in a divorce are not to
be  based on the prevailing party concept, but primarily  on  the
relative economic situations and earning powers of the parties.40
This  is  because  in  divorce actions the  purpose  of  awarding
attorneys  fees  is to assure that both spouses have  the  proper
means to litigate the divorce action on a fairly equal plane.41
          Trial  courts also have the discretion to  increase  an
award  of attorneys fees where a party has acted in bad faith  or
engaged  in  vexatious conduct.42  When determining  whether  bad
faith  or  vexatious  conduct warrants an increase  in  attorneys
fees, we explained in Kowalski that
          one  partys misconduct does not authorize the
          court  to  disregard  the  relative  economic
          situations and earning powers of the  parties
          .  .  . . [I]n making an increased fee award,
          the court must first determine what fee award
          would  be appropriate under the general rule,
          and  only then increase the award to  account
          for  a  partys misconduct.  Failure to follow
          this two-step process constitutes an abuse of
We further explained in Kowalski that
          the  court must make explicit findings of bad
          faith   or  vexatious  conduct  and   clearly
          explain  its reasons for deviating  from  the
          general rule.  When the court finds that  one
          spouses    misconduct    has    unnecessarily
          increased the other spouses costs, the  court
          must  identify the nature and amount of these
          increased costs.[44]
          Under these standards, the superior court did not abuse
its  broad  discretion in awarding Maureen attorneys  fees.   The
superior court reasoned that
          [g]iven  the kind of passive-aggressive  non-
          participation and difficulty, not to  mention
          specific incidents raised by Maureens counsel
          in  his final argument, it would be fair  and
          appropriate   that  Karsten   contribute   in
          addition  to  the division of property,  that
          Karsten pay $10,000 of Maureens fees.
Maureens  counsel in his closing offered the following foundation
for the award of attorneys fees:
          Now,  a  cursory  glance at the  record  will
          demonstrate  that even if you leave  off  the
          pre-divorce  domestic violence  action  which
          related   to  the  parties  separation,   Mr.
          Rodviks vexatious conduct since the beginning
          of  this case has required her to receive two
          additional  long-term protective  orders,  to
          ask  that he be held in contempt, to ask that
          the  court  order the house be sold,  to  ask
          that  he  be  ordered to return the  children
          from Minnesota last summer.
We  conclude  that these specific allegations of  bad  faith  and
vexatious  conduct, incorporated by reference into  the  superior
courts order, adequately support imposition of attorneys fees  in
favor of Maureen.
          The  superior court did not explicitly engage  in  step
one  of the two-step process described in Kowalski, assessing the
relative  economic situations and earning powers of the  parties.
But the record reveals that Karsten and Maureen are of comparable
economic  standing, as income of $40,000 was imputed  to  Karsten
and  Maureen  reportedly earned $32,030.  We determine  that  the
Kowalski standard has been satisfied because implicit within  the
trial  courts findings was a threshold determination of  relative
equality  of  the  parties  income.   This  fee  award  was  thus
justified  by  the trial courts finding that Karsten dramatically
increased  Maureens litigation costs, affecting  her  ability  to
litigate the divorce action on an equal plane.
     F.   It  Was  Not  Error for Judge Michalski To  Decline  To
          Recuse Himself.
          Under AS 22.20.020(a)(9), a judge should recuse himself
or  herself  whenever the judicial officer feels  that,  for  any
reason, a fair and impartial decision cannot be given.  A  judges
conclusion  that  he  or  she can decide  the  case  fairly  will
constitute  an abuse of discretion only when it is plain  that  a
fair-minded  person could not rationally come to that  conclusion
on the basis of the known facts.45  In Perotti v. State, the court
of  appeals held that disqualification under subsection (a)(9) is
also  mandated when, under the circumstances of the case,  it  is
predictable  that an unmistakable appearance of bias  will  arise
from a judges participation in a case.46
          On  February  10, 2005, Karstens attorney, Wayne  Ross,
sent a letter to Judge Michalski requesting that the judge recuse
himself.   Ross  stated  that he had come  across  a  law  review
article  which  stated that Judge Michalski  reached  a  decision
which was the catalyst for the Alaska Marriage Amendment defining
marriage  as a union between a man and a woman.  In the same  law
review  article, Karsten was mentioned in a footnote as the  head
of a group that was critical of Judge Michalskis decision.47  The
request  for recusal was based upon this purported conflict.   We
conclude  that Judge Michalski did not abuse his discretion  when
he  refused  to  recuse  himself under these  circumstances.   By
virtue of holding a judicial office, judges are in a position  to
render  decisions  capable of sparking controversy  and  spirited
public  comment.   It  was not an abuse of discretion  for  Judge
Michalski  to  conclude  that  he was  capable  of  rendering  an
unbiased  decision  despite a litigants  vocal  opposition  to  a
decision the judge issued in his official capacity.

          We   AFFIRM  the  superior  courts  determination  that
Maureen  is  entitled to sole legal and primary physical  custody
and   that  supervised  visitation  pending  the  outcome  of   a
psychological  evaluation is appropriate.  With  respect  to  the
division of marital property, we REMAND to the superior court for
a reassessment of the classification of the canoe, Karstens debt,
and Keefe loan No. 2.  We AFFIRM the superior courts valuation of
the  marital  property  and its award of the  gun  collection  to
Maureen.   Because we conclude that the superior  court  did  not
offer  adequate  support for its decision to allocate  more  than
fifty  percent of the Rodviks property to Maureen, we  REMAND  so
that  the  superior court may set forth its reasoning  should  it
conclude  on  remand that an unequal distribution of the  marital
properties is still warranted.  Although it was not error for the
trial court to impute income of $40,000 to Karsten, we REMAND for
consideration of a federal income tax deduction from the  imputed
income.   Because the superior court did not abuse its discretion
in  determining  that  Karstens bad faith and  vexatious  conduct
warranted the imposition of attorneys fees, we AFFIRM that award.
Finally,  because  it  was not an abuse of discretion  for  Judge
Michalski  to  refuse to recuse himself from this proceeding,  we
AFFIRM his decision not to recuse himself.
     1    Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002).

     2    Id.

     3    Id.

     4    Id.

     5    Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994).

     6    Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).

     7    Id.

     8    Id.

     9    Id.

     10    Cox, 882 P.2d at 913.

     11    Id. at 913-14.

     12    Id. at 914.

     13     Hallam  v.  Alaska Airlines, Inc., 91 P.3d  279,  283
(Alaska 2004).

     14    930 P.2d 409, 413-14 (Alaska 1996).

     15    Fardig v. Fardig, 56 P.3d 9, 14-15 (Alaska 2002).

     16     Hoffman  Constr. Co. of Alaska v. U.S. Fabrication  &
Erection, Inc., 32 P.3d 346, 355 (Alaska 2001).

     17    Lee v. State, 141 P.3d 342, 352 (Alaska 2006).

     18     It is also notable that Karsten submitted a financial
declaration  on  February 4, 2003, when  he  was  represented  by
counsel,  for  purposes  of determining  interim  child  support.
Karstens  declaration stated that the marital home was valued  at
$350,000,  with a $239,000 mortgage, and the net  equity  of  the
real estate was listed as $111,000.

     19    Under AS 25.24.160(a)(4), the trial court is to provide

          for the division between the parties of their
          property,   including  retirement   benefits,
          whether  joint  or  separate,  acquired  only
          during marriage, in a just manner and without
          regard  to which of the parties is in  fault;
          however,  the court, in making the  division,
          may invade the property, including retirement
          benefits,  of  either spouse acquired  before
          marriage  when the balancing of the  equities
          between  the  parties  requires  it;  and  to
          accomplish this end the judgment may  require
          that  one  or  both  of the  parties  assign,
          deliver,  or  convey any  of  their  real  or
          personal   property,   including   retirement
          benefits, to the other party; the division of
          property  must fairly allocate  the  economic
          effect   of   divorce  by  being   based   on
          consideration of the following factors:
               (A)   the  length  of the  marriage  and
          station  in  life of the parties  during  the
               (B)  the age and health of the parties;
               (C)    the  earning  capacity   of   the
          parties,    including    their    educational
          backgrounds,  training,  employment   skills,
          work experiences, length of absence from  the
          job  market,  and  custodial responsibilities
          for children during the marriage;
               (D)   the  financial  condition  of  the
          parties, including the availability and  cost
          of health insurance;
               (E)    the   conduct  of  the   parties,
          including whether there has been unreasonable
          depletion of marital assets;
               (F)   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;
               (G)   the  circumstances and necessities
          of each party;
               (H)   the time and manner of acquisition
          of the property in question; and
               (I)   the  income-producing capacity  of
          the property and the value of the property at
          the time of division.
     20    Miles v. Miles, 816 P.2d 129, 131 (Alaska 1991).
     21     Brett  R. Turner, Equitable Distribution of  Property
8.22 (3d ed. 2005).

     22     36  P.3d  1188, 1194 (Alaska 2001) (citing  Arndt  v.
Arndt, 777 P.2d 668, 670 (Alaska 1989)).

     23     Turner, Equitable Distribution of Property  8.22  n.3
(3d ed. 2005).

     24    See, e.g., United States v. Lippman, 369 F.3d 1039 (8th
Cir.  2004) (holding that defendants conviction under  18  U.S.C.
922(g)(8)  for possession of firearms did not violate the  Second
Amendment);  United  States v. Emerson, 270 F.3d  203  (5th  Cir.
2001)  (concluding that 18 U.S.C.  922(g)(8) did not violate  the
Second   or  Fifth  Amendments  and  defendants  indictment   for
possession of firearm was permitted); United States v. Kafka, 222
F.3d 1129 (9th Cir. 2000) (holding that defendants conviction for
possession  of  firearm  was  proper  and  did  not  violate  due
process); and People v. Adams, 747 N.Y.S.2d 909 (N.Y. Sup.  2002)
(determining  defendant was not entitled to probation  waiver  to
allow  him  to  possess firearm because such possession  was  not
allowed under 18 U.S.C.  922(g)(8)).

     25    270 F.3d at 211-12.

     26    Id. at 212.

     27    Id. at 263-65.

     28    369 F.3d at 1040-41.

     29    Id. at 1044.

     30    747 N.Y.S.2d at 919.

     31    Id. at 919.

     32    154 S.W.3d 471, 475 (Mo. App. 2005).

     33    Id.

     34     Public  policy reasons could also have supported  the
trial courts decision to grant the marital guns to Maureen,  even
in the absence of the federal statute.  Congress had a clear goal
of  keeping firearms out of the hands of people who had committed
acts  of  domestic  violence and made the  following  legislative
findings when it passed the law:

               (1)   [D]omestic violence is the leading
          cause of injury to women in the United States
          between the ages of 15 and 44;
               (2)  firearms are used by the abuser  in
          7  percent of domestic violence incidents . .
          . and
               (3)   individuals  with  a  history   of
          domestic abuse should not have easy access to
H.R. Rep. No. 103-395 (1993).

     35    Murray v. Murray, 788 P.2d 41, 42 (Alaska 1990).

     36    Byers v. Ovitt, 133 P.3d 676, 682 (Alaska 2006) (citing
Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992)).

     37     Karsten presented some documents regarding his salary
in connection with interim child support.  Karstens gross monthly
income  for  January 2004 was listed as $2,534.00.   For  October
2003  through December 2003, his income was listed as $14,705.37.
Karsten  and  Maureens 2001 joint income tax return,  showing  an
adjusted gross income of $35,874, and their joint 2002 income tax
return,  showing  an adjusted gross income of $34,519  were  also

     38     Karsten  also  challenges the trial  courts  findings
allocating the expenses for medical costs, child support arrears,
and  health  insurance  premiums, but he did  not  contest  these
issues at trial and disputes Maureens figures for the first  time
on appeal. We therefore decline to address them here.

     39    Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991)
(citing  Lone  Wolf  v. Lone Wolf, 741 P.2d  1187,  1192  (Alaska

     40    Lone Wolf, 741 P.2d at 1192 (citations omitted).

     41    Id.

     42    Kowalski, 806 P.2d at 1373.

     43    Id.

     44    Id.

     45    Amidon v. State, 604 P.2d 575, 577 (Alaska 1979).

     46    806 P.2d 325, 327 (Alaska App. 1991).

     47    The footnote in the article stated:

          See   Mary   Ann  Pease  &  Karsten   Rodvik,
          Preventing  Redefinition of  Marriage  Doesnt
          Hurt  Anyone, Anchorage Daily News, Oct.  18,
          1998,  at  H4. Professor Mary Ann Glendon  of
          Harvard   has   described  the   habits   and
          attitudes of judges with grandiose visions of
          judicial  authority, practitioners  eager  to
          blaze  new  trails  to  the  nations  crowded
          courthouses, and legal scholars  yearning  to
          be  philosopher-kings and -queens.  Mary  Ann
          Glendon,   A  Nation  Under  Lawyers   282-83
Kevin G. Clarkson, David Orgon Coolidge & William C. Duncan,  The
Alaska  Marriage  Amendment:  The  Peoples  Choice  on  the  Last
Frontier, 16 Alaska L. Rev. 213 n.82 (1999).

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