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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Thomas v. Thomas (11/09/2007) sp-6189

Thomas v. Thomas (11/09/2007) sp-6189, 171 P3d 98

     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 Nos. S- 12289/S-12330
Appellant/Cross-Appellee, )
) Superior Court No.
v. ) 3AN-05-4882 CI
Appellee/Cross-Appellant. ) No. 6189 - November 9, 2007
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial   District,  Anchorage,   Peter   A.
          Michalski, Judge.

          Appearances:  David  R.  Edgren,  Edgren  Law
          Offices, LLC, Anchorage, for Appellant/Cross-
          Appellee.  Robert C. Erwin, Robert C.  Erwin,
          LLC, Anchorage, for Appellee/Cross-Appellant.

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

          BRYNER, Justice.

          Gail  and  Kevin  Thomas divorced after  a  twenty-year
marriage in which they raised nine children.  The superior  court
gave  Kevin  custody of the six younger children.  Gail  appeals,
arguing  both  that the superior court failed to make  sufficient
findings  and  that the findings it did make in  support  of  its
disposition  were  erroneous.   We remand  for  further  findings
because  the  current record does not allow us to  determine  the
bases for the superior courts decision.  Kevin cross-appeals  the
portion  of  the  courts decree characterizing a number  of  gold
coins  as Gails separate property.  We conclude that the superior
court characterized the coins properly.
          Kevin and Gail Thomas were married in California in May
1984.   They moved to Alaska soon after to manage some  of  Gails
fathers  properties.   Several years later,  using  funds  earned
while working for Gails father, they bought a trailer park and  a
piece  of unimproved property.  Kevin and Gail lived first  in  a
trailer  on the unimproved property, then in a cabin, and finally
in a home Kevin built on the property.
          Kevin  and Gail had nine children: Michael, born 10/85;
Christopher,  4/87; Julie (also known as Windy), 11/88;  Gabriel,
2/93;  Faith,  10/94; Theresa, 4/99; Job, 6/00; Mary,  3/02;  and
Ruth,  1/04.  Generally, Kevin managed the trailer park and  Gail
took  care of the children.  The older children frequently helped
care  for  the younger children.  All of the children were  home-
schooled:  Gail taught the younger children and Kevin taught  the
older children.  Seven of the children were minors at the time of
          In  the  late 1980s or early 1990s, Gail and her sister
received  real property in Indiana as an inheritance  from  their
father.1   The  sisters returned the Indiana  property  to  their
father in exchange for a down payment on an apartment complex  in
Anchorage.   For  approximately eight years,  Kevin  managed  the
apartment  complex for Gail and her sister.   Kevin  was  paid  a
management  fee  for this work.  The property  was  sold  in  the
          Gail and her sister received approximately $60,000 each
from  the  proceeds of the sale.  Approximately $6,000  of  Gails
share  was  tithed to the Thomases church, $4,000  was  spent  on
miscellaneous items, and $50,000 was used to purchase gold  coins
(or  bullion).   Since buying the gold, neither  Kevin  nor  Gail
exchanged it for money or otherwise used it.  The coins were kept
in a vault in the family house that Gail could not access.
          Kevin  and  Gail  began having marital difficulties  in
2002.   Gail  moved into a domestic violence shelter  in  January
2005.   That  same  month, she filed two  requests  for  domestic
violence  protective orders against Kevin and  one  each  against
Michael  and  Chris.   Gail was given temporary  custody  of  the
children  and  possession of the family home  by  the  protective
orders  she obtained against Kevin, but later left the  home  and
returned the children to Kevin because she did not have access to
family  resources  to  care for them.  Gail eventually  requested
that  each  of  her  petitions be dissolved;  her  requests  were
          Gail  filed  a  third  request for a  protective  order
against Kevin in February 2005 (3AN-05-538CI).  She described the
incident supporting her petition as follows:
          2-21-05 Kevin Thomas entered the cabin  where
          I  was  staying around 6:00 am.   He  started
          arguing  with  me, he pushed me  out  of  the
          place  where I was reclining.  He bruised  my
          neck while removing my cross [necklace].   He
          pounded  my  head into the floor many  times,
          leaving  a  big  bump.  I  have  [repeatedly]
          asked  Kevin Thomas not to talk  to  me.   He
          shows  constant  disrespect  to  me  in   the
          presence of our children.
The  court granted a protective order against Kevin and scheduled
a  hearing for a long-term order.  Kevin was charged with assault
by  the Municipality of Anchorage (3AN-05-1588CR), arraigned, and
released, all on the same day Gail filed her petition.  Kevin was
released on the condition that he not talk to Gail or go  to  the
family  cabin where Gail was staying.  The hearing for the  long-
term order was rescheduled for March 2, 2005.
          Magistrate  Andrew M. Brown presided over the  March  2
hearing.   At  the hearing, Kevin admitted that he had  assaulted
Gail.   Magistrate  Brown  issued a  long-term  protective  order
against  Kevin that gave Kevin temporary custody of the  children
and  allowed Gail to visit with the children at the family cabin.
Magistrate Brown also appointed a custody investigator to prepare
a  custody report.  Approximately one week later, Kevin requested
that  the  protective order be modified so that he could  contact
Gail  to  attempt reconciliation.  Magistrate Brown  scheduled  a
hearing for Kevins request to be held on March 17, 2005.
          The  custody investigator submitted her report on March
16,  2005.   The investigator recommended that Kevin  be  awarded
temporary  custody and that Gail be able to visit  with  the  six
younger  children for two overnight periods each  week.   At  the
March  17  hearing,  Magistrate Brown denied  Kevins  request  to
communicate with Gail for purposes of reconciliation.  Magistrate
Brown  ruled  orally on the record and later that  day  issued  a
written  order  that  kept  custody  with  Kevin  and  gave  Gail
visitation  at the family cabin three days each week.  Magistrate
Brown  also  ordered  that  Kevin be  allowed  limited  telephone
contact with Gail to handle bills and other matters, but that  he
not approach the cabin while Gail was visiting with the children.
          Kevin  entered  a  plea of no contest  to  the  assault
charge in 3AN-05-1588CR on March 25, 2005.  He was sentenced that
same  day; one of the conditions of his release was that  he  not
contact Gail.
          Meanwhile,  in  the  midst  of  the  domestic  violence
proceedings,  Gail  filed  a  pro se  complaint  for  divorce  on
February  3, 2005.  In his pro se answer of April 4, 2005,  Kevin
asserted  that  he  was  prohibited by  court  order  from  fully
answering  the complaint.  District Court Judge Mary  Anne  Henry
issued  a written order on May 9, 2005, modifying the no  contact
provision in the criminal judgment to allow Kevin to have  direct
or  indirect contact with Gail . . . for purposes of the  divorce
          Anchorage  Superior Court Judge Peter A. Michalski  was
assigned to the Thomases divorce case.  On May 11, 2005, he  gave
Kevin  an  extension  of time to file an amended  answer.   Kevin
filed  a  responsive amended answer, pro se,  on  June  3,  2005.
Trial  was originally set for December 2005.  Kevin moved  for  a
continuance  before  trial.  Gail retained  an  attorney  shortly
before  the  initial  trial date; the  attorney  filed  a  motion
stating  that Gail was not opposed to a continuance.   Trial  was
rescheduled for February 2006.  At trial, Gail testified  on  her
own  behalf, while Kevin, Michael, and Julie testified on  Kevins
behalf.  The court did not appoint a custody investigator for the
trial.   At  the  end of trial, Judge Michalski took  the  matter
under  advisement, although he did order that Kevin not spend  or
trade the gold coins until the divorce decree was issued.
          Judge Michalski issued a written divorce decree setting
out  findings  of fact on March 30, 2006.  He gave Kevin  primary
physical  custody  and sole legal custody of  all  the  children.
Judge Michalski gave the marital assets to Kevin and ordered  him
to  pay Gail an offset for her share.  Judge Michalski found that
the  gold  coins  were  to be returned to Gail  as  her  separate
property.  The decree did not address child support or set out  a
visitation schedule for Gail.
          Gail  filed  a motion for reconsideration.  She  argued
that  the  superior  court had improperly applied  the  statutory
factors when it awarded Kevin custody of the children and that it
had  erred  by failing to provide her with a visitation schedule.
On  April  12,  2006, the court granted Gail visitation  for  the
first  three  weekends of each month but otherwise  affirmed  its
earlier decree.
          Kevin  then  filed  a  motion for reconsideration.   He
argued   that  the  court  erred  in  changing  the  pre-existing
visitation arrangement, requiring him to pay Gail an offset,  and
not  awarding him child support.  The court denied Kevins motions
as  to  visitation  and property distribution but  ordered  Gails
attorney to prepare a child support order.
          Both  parties  appealed.  Gail challenged the  superior
courts  application of the AS 25.24.150(c) best interest  factors
in  awarding Kevin custody of the children.  In his cross-appeal,
Kevin  challenged the courts characterization  of  the  coins  as
Gails  separate property and claimed the superior court committed
error by failing to require Gail to pay child support.
     A.   Custody Award
          The   central  issue  is  whether  the  superior  court
properly  awarded custody of the seven minor children  to  Kevin.
We  are  unable  to  review the merits  of  the  superior  courts
decision  because  its  findings do not  indicate  which  factors
guided  the courts custody disposition.  We briefly discuss  what
factors  were  presented by the evidence in the record  and  also
discuss the error in those findings that the court did make.
          We   give  the  superior  court  broad  discretion   to
determine custody awards in a divorce proceeding so long  as  the
determination  is  in  a  childs best interests.3   We  will  not
reverse a superior courts custody determination unless it  abused
its  discretion or its controlling factual findings  are  clearly
erroneous.4   The superior court abuses its discretion  where  it
consider[s] improper factors in making its custody determination,
fail[s]  to  consider statutorily mandated factors, or  assign[s]
disproportionate  weight  to particular  factors  while  ignoring
others.5   The  superior  courts  factual  findings  are  clearly
erroneous  if, after a review of the entire record, we  are  left
with the definite impression that a mistake has been made.6
          In  determining a childs best interests,  the  superior
          court must consider the nine factors set out in AS 25.24.150(c).
We review the adequacy of findings for  whether they give a clear
indication of the factors considered important by the trial court
or allow us to determine from the record what considerations were
involved.7   The  superior court need not  discuss  each  of  the
factors; it must only address those that are actually relevant in
light  of  the  evidence presented.8  It is preferable,  but  not
necessary, for the court to set out ultimate or wrap-up  findings
that  relate its factual findings to its legal conclusion that  a
certain custody disposition is in a childs best interests.9
          Here, the superior court did not discuss either of  the
first  two  factors: the physical, emotional, mental,  religious,
and  social  needs of the child, and each parents capability  and
desire to meet those needs.10  Gail argues that the superior court
ignored these factors despite evidence that Kevin was raising the
children  in  a harmful environment and would be unable  to  meet
their  need  to have a relationship with her.  Kevin argues  that
the  children  needed to be kept together and home-schooled,  two
needs  that  Gail  could not, or would not, meet.   The  superior
court  erred in failing to discuss these factors given  that  the
parties disputed what the childrens needs were and who could best
serve them.
          Without  express  discussion by the  court,  we  cannot
accept  Kevins  assertion  that the record  supports  the  courts
determination on this issue.  First, the record does not  support
Kevins conclusion as to the younger children.  Kevin defines  the
childrens  needs  solely  on the basis  of  the  older  childrens
testimony, which is inappropriate given that the older  children,
who  are  no longer minors, are not subject to the courts custody
order.   Additionally,  the older children were  solidly  aligned
with  their  father and their testimony regarding  their  younger
siblings  likely reflects this bias.  We note that Gail  was  the
primary  caretaker for the younger children before her separation
from Kevin, and there is no evidence in the record that she could
not  serve  in this role in the future.  Both Michael  and  Julie
testified that Gail had done a good job raising them.  Kevin does
not  argue that Gail is incapable of caring for the children;  he
only argues that she cannot meet the needs of the children as  he
defines them.  The superior courts failure to make findings about
these factors leaves us unable to determine whether the childrens
needs were properly considered.
          We  also  note that we have never applied a presumption
that siblings must remain together.11  Whether it is advisable to
keep  children  together  depends on case-specific  circumstances
determining the childrens best interests.12  Here there is a four-
year  gap  between the three older children and the  six  younger
children.  Thus, at least as between the children who are  adults
and  not  subject to any custody order  and the younger  children
who  remain  covered  by the custody order,  a  natural  division
exists.   For  this reason, even if we followed a rule  declaring
that  custody  orders  should  presumptively  keep  all  siblings
together, it would not be self-evident how it would separate  the
children  in this case if all the children covered by the  courts
order  were placed with Gail.  The superior courts order  applied
          only to the children Gail wanted custody of; the only exception
was  Julie,  who  would  soon  age  out  of  the  courts  custody
          The  third  statutory  factor the superior  court  must
consider is a childs preference if the child is of sufficient age
and capacity to form a preference.13  A childs true preference is
important   in  this  calculus  and  an  immature  or  improperly
motivated  preference should be discounted.14  The superior court
has discretion to determine whether a child is capable of forming
a trustworthy preference.15  In its divorce decree the court noted
Kevins testimony that the children want to remain together and to
be  with  him.   The  court also noted  that  two  of  the  older
children,  Michael and Julie, agreed with [Kevin] and claimed  to
speak the preference of the other minor siblings.  Later, in  its
order  on  reconsideration, the superior court  also  found  that
[t]he preference of children often is indirect in proof, but here
two of the children (one of them an adult) specifically expressed
preferences,  as did the father express his preferences  and  his
understanding  of  the childrens on cross-examination  by  [Gails
attorney].   Gail  contends that the superior  courts  preference
finding  was  flawed because it was based on the older  childrens
testimony.  She argues that the preference expressed by the older
children should not be given weight because it represents  Kevins
influence  and was not a true preference.  Gail argues  that  the
older  childrens  preference  is  irrelevant  because  she  seeks
custody  of  only the younger children.  Finally,  Gail  contends
that  the  younger  children were too  young  to  have  formed  a
trustworthy preference.
          Kevin  does  not  point to any better evidence  of  the
younger  childrens preference in the record; he  seems  to  argue
that  the  older  childrens preference is more important  because
they  played  an important role in raising the younger  children.
As  Gail  notes,  the only evidence in the record  regarding  the
younger  childrens  preference comes  from  the  older  children.
There  is  one sentence in the custody investigators report  from
the  Thomases  domestic violence proceeding suggesting  that  the
younger  children preferred their father.  However,  this  report
was  not  prepared for purposes of determining permanent custody,
and  was  based on interviews with only the five oldest children.
Additionally,  the  superior court does not mention  the  custody
investigators  reports  in its findings.  There  is  insufficient
evidence  in  the  record  to  establish  the  younger  childrens
preference.   The  record does not support  the  superior  courts
finding that all the children preferred to live with Kevin.
          Moreover, the substantial evidence indicating that  the
younger childrens best interests might not be fairly reflected by
the  preferences  of  their  adult or nearly  grown-up  siblings,
suggests  that  a  guardian  ad  litem  might  have  provided   a
substantial benefit to the younger children and the court  alike.
Although  the parties in a divorce are usually expected  to  take
the  initiative in requesting the court to appoint a guardian  ad
litem, Alaska law vests courts with broad authority to make  such
appointments  and  requires them to act on their  own  initiative
when,  in the opinion of the court, representation of the  childs
          best interests . . . would serve the welfare of the child.16  Two
relevant  factors  in  deciding whether a guardian  ad  litem  is
necessary  are  the ages of the children and the  nature  of  the
parents claims.17  Even when neither party requests a guardian ad
litem, the court in a child custody case has an independent  duty
to   represent[]  the  interests  of  society  in  promoting  the
stability  and  best interests of the family18  by  appointing  a
guardian  ad litem when circumstances convince the court  that  a
childs best interests need representation.19
          The  six younger children were between the ages of  two
and  twelve.  Julie, one of the older children who testified that
she  preferred living with Kevin, was seventeen at  the  time  of
trial   just nine months away from becoming an adult upon turning
eighteen.   The  two  other older siblings were  already  adults.
Thus  we are presented with a situation where six children  under
the  age  of  thirteen were considered to have a  preference  for
their  father purely on the testimony of the father and the older
children.   Moreover, Gail forcefully claimed that Kevin  exerted
improper  influence on the three older children, held them  under
his  sway,  and  had  turned  them against  her;  ample  evidence
supported   these  claims.   The  older  childrens  actions   and
testimony  arguably showed signs of this kind  of  influence;  in
fact,  the superior court expressly found that the older children
were  under  Kevins influence and that even the younger  children
had likely been influenced, too.
          Under these circumstances, the superior court may  wish
to  consider  on remand whether a guardian ad litem could  be  of
assistance  to the court in separating its consideration  of  the
younger  childrens best interests from preferences  expressed  by
their older siblings acting on Kevins behest, as well as from any
preferences  that  might  have  been  expressed  by  the  younger
children  themselves  in  order to placate  Kevin.   As  we  have
recognized  on  other occasions, a vital part of  a  guardian  ad
litems  role  in  such cases is to delve into  whether  a  childs
thinking  [was]  consciously  or subconsciously  colored  by  one
parent against the other.20
          The  fourth  statutory factor the superior  court  must
consider is the love and affection existing between the child and
each  parent.21   The  superior  court  found  in  its  order  on
reconsideration that [t]he love and affection of the children and
parents was not specifically articulated, but appeared strong for
both parents, though perhaps stronger in the fathers favor.   The
courts  finding  on this point was clearly erroneous  given  that
there was only a brief mention of the younger childrens affection
in  the custody investigators report.  The evidence in the record
simply  does not support the conclusion that all of the  children
felt  more  love  and affection for their father.   Although  the
older  childrens testimony indicates they preferred their father,
this  evidence was swayed by Kevins influence, as was  the  older
childrens  testimony concerning the younger childrens preference.
Further,  even  the  older  children  testified  that  they  felt
affection  towards Gail.  The superior court did not address  the
issue sufficiently in its decree to make a finding either way.
          The   fifth   factor  in  determining   which   custody
          arrangement is in a childs best interests is the length of time
the child has lived in a stable, satisfactory environment and the
desirability  of  maintaining continuity.22  The  superior  court
seemed  to address this factor in its reconsideration order  when
it  found  that [t]he length of time in the residence, and  under
[Kevins]  primary  care  was  fully considered,  but  not  overly
weighted.   Gail argues that the stability and continuity  factor
weighs  against  Kevin  because  he  provided  an  unsatisfactory
environment for the children.  Gail further argues that  she  was
an  adequate primary caregiver and thus would better provide  the
children with a stable environment.
          The  record  shows that Gail was the primary  caretaker
for  the  children when they were young.  As the children matured
they  helped care for the younger children.  Until shortly before
her  separation  from  Kevin, Gail was  the  primary  home-school
teacher  and  caregiver for the younger children.   The  superior
court  did  not find Gail in any way an unfit parent,  and  Kevin
never  argued that she was incapable of caring for the  children.
In  context,  then,  the  courts  statement  that  it  had  fully
considered but not overly weighted the childrens length  of  time
in  the residence, and under [Kevins] primary care suggests  that
the court focused its consideration of the fifth factor solely on
the  time  Kevin spent caring for the children after the  parties
separation,  overlooking  Gails role  as  the  younger  childrens
primary caregiver before the parties separated.  Thus, the courts
finding on the fifth factor provides no assurance that the  court
gave  balanced consideration to the important roles both  parents
played  in  providing  the children with a  stable,  satisfactory
          The sixth factor is the willingness and ability of each
parent  to  facilitate  and  encourage  a  close  and  continuing
relationship  between  the other parent  and  the  child.24   The
superior court failed to address this factor in either the decree
or  the  reconsideration order.  Gail argues that Kevins negative
feelings  towards  her  and  his  controlling  personality   will
preclude her from having any relationship with the children,  and
the record shows that he had been interfering with her ability to
visit with the younger children.  Kevin contends the factor is  a
wash  between  the  parties because their feelings  towards  each
other  are  equally  negative.  It is not our role  to  determine
whether  Gails  arguments have merit by weighing the  conflicting
evidence  and  deciding  the issue for  ourselves.   Because  the
evidence  below  squarely placed this point in  dispute,  it  was
incumbent  on  the  superior court to  address  and  resolve  the
controversy  in  its  findings so  that  its  decision  could  be
meaningfully reviewed.
          The   seventh  factor  is  any  evidence  of   domestic
violence, child abuse, or child neglect in the proposed custodial
household  or  a history of violence between the parents.25   The
superior  court  stated  in  its order  on  reconsideration  that
[d]omestic  violence  and drug use were not expressly  addressed,
primarily  because  either there was no  evidence,  insignificant
evidence,  or  muddy evidence, at best, regarding  either.   This
finding is incorrect.  Kevins February 2005 assault against  Gail
          unquestionably qualifies as a serious incident of domestic
violence.   Kevin  pled no contest to the assault,  a  protective
order  was entered against him, he admitted the assault at trial,
and  the  older childrens testimony made it clear that they  were
aware  of the assault and had been impacted by it.  Additionally,
there  are suggestions of other episodes of domestic violence  in
the  record.   The  evidence of domestic violence  in  this  case
cannot  accurately  be characterized as insignificant  or  muddy.
The superior court was presented with uncontroverted evidence  of
a  serious  episode  of domestic violence,  and  its  failure  to
thoroughly consider that issue and address it in its findings was
clearly erroneous.26
          The  superior court did not discuss the eighth  factor,
evidence of substance abuse,27 or the ninth factor, other factors
that  the  court considers pertinent,28 but this  was  not  error
because these factors are irrelevant in this case.29
          In  summary, the inadequacies discussed above  preclude
us  from meaningfully reviewing the merits of the superior courts
decision.  The existing findings fail to provide a clear  picture
of  the  factors  the court considered important;  nor  does  the
record otherwise provide a basis to sustain the result reached by
the  superior  court.   In its reconsideration  order  the  court
stated that the discussion of its basis for decision may not have
listed  each of the factors considered, but the mention  of  each
factor  is  not  required  as long as  it  is  considered.   This
statement does not accurately describe the applicable law.  It is
true  that  when the facts of a case do not implicate  particular
best interest factors, those factors need not be discussed in the
custody  determination.  But whenever a factor  is  substantially
disputed,  it  must  be addressed by the superior  court  in  its
findings.30   As  discussed above, several  of  the  factors  not
discussed  by  the  court  were  implicated  in  this  case   and
vigorously  disputed  by  the parties.   The  omission  of  these
factors  from  the  superior courts findings  precludes  us  from
reviewing  the merits of its decision to ensure that it  properly
exercised its discretion.
          We therefore remand the case to the superior court with
directions to redetermine the issue of custody based on  findings
and conclusions in keeping with this decision.31
     B.   Award of Marital Home
          Gail separately challenges the superior courts decision
to  award  the marital home to Kevin.  The superior  court  found
that  the  marital  estate  included  the  familys  trailer  park
business and their home on the hillside.  After valuing the total
estate  at  $649,000, the court gave Kevin both the marital  home
and  business,  ordering  him to make an off-setting  payment  of
$325,000 to Gail.
          The  parties agree that the superior court awarded  the
marital  home  to  Kevin  mainly because  it  believed  that  the
children  should stay in the home.  Gail does not challenge  this
premise;  she simply argues that she should be given the  marital
home  because  she  should have custody of the  children.   Kevin
responds that the superior court properly awarded him the marital
home   because   it  houses  his  business  and   the   children.
          Our decision to remand this case for a new decision on the issue
of custody will provide the superior court with an opportunity to
redetermine the award of the marital home on remand if the  court
gives  Gail custody of the children.32  Accordingly, we need  not
decide this issue here.
     C.   Characterization  of  Gold  Coins  as  Gails   Separate
          Kevin  contends in his cross-appeal that  the  superior
court  erred  in characterizing the gold coins as Gails  separate
property  and  precluding him from receiving a portion  of  their
value.   We  reject Kevins argument because the record  does  not
show  that  Gail intended to contribute the coins to the  marital
estate.33   The  first  step  in dividing  a  marital  estate  is
determining  which  assets  to include  in  the  estate,34  which
requires  characterizing  the  couples  assets  as  separate   or
marital.35   Whether  the  trial court  used  the  correct  legal
standard  in characterizing property is an issue of law  that  we
review de novo.36
          A  spouses  separate property can become  part  of  the
marital property through transmutation.37  Separate property  can
become marital property where that is the intent of the owner and
there  is  an act or acts which demonstrate that intent.38   With
respect to real property, this requirement may be met where a non-
owner  spouse  devote[s] substantial efforts to  [the  propertys]
management, maintenance, or improvement.39
          Kevin  contends  that Gails exclusive interest  in  the
apartment  complex transmuted to become marital property  because
he  managed  the apartment complex and worked there  without  any
pay.   He reasons that, because the apartment complex was marital
property,  the gold coins the parties acquired after selling  the
property  also  became  part  of the  marital  estate.   But  the
superior court considered conflicting testimony on this point and
resolved  the  conflict  by  expressly  finding  that  Kevin  had
received compensation for his work at the apartment complex.   It
is  not  our place to question the superior courts resolution  of
factual disputes, especially when the courts resolution turns  on
issues  of  testimonial credibility.40  Given  the  trial  courts
superior   ability   to  assess  the  facts  and   evaluate   the
truthfulness of a witness, we must uphold the trial courts ruling
on this point.41
          Kevin also argues that the coins transmuted after being
acquired.   There was evidence that Gail used a  portion  of  the
property sale proceeds to pay for family expenses.  Additionally,
there  was  evidence that she had wanted to use the  proceeds  to
purchase  an investment for the family and reluctantly agreed  to
Kevins  demand  to use the money to purchase gold coins.   Though
the  parties  agreed that the coins were ostensibly purchased  to
provide the family with insurance, there is no evidence that  the
coins  were  actually used for this or any  other  purpose.   The
superior court found that Gail purchased gold coins with  $50,000
of her share [of the property sale proceeds] and the coins remain
her independent non-marital property.
          We    agree   with   the   superior   courts    ruling.
Transmutation requires something more than a bare intent to  make
          separate property marital; the intent must be accompanied by
conduct  aimed at effectuating that intent.42  Here, the evidence
fails  to  show  any step by Gail that could be construed  as  an
action  intended  to transmute the disputed coins  into   marital
property.  The coins simply remained untouched and unused in  the
familys vault.43  Because no act or acts demonstrated an intent by
Gail  to  convey  the coins to the marital estate,  the  superior
court  properly ruled that the coins continued to be her separate
          For  these reasons, we REMAND the case to the  superior
court with directions to reconsider and enter new findings on the
issue  of  custody as directed in this opinion;  on  remand,  the
court  is also DIRECTED to reexamine the issues of legal  custody
and  division  of the marital home as necessary in light  of  its
custody  ruling on remand.  We AFFIRM the superior courts  ruling
that the gold coins were Gails separate property.
     1     The  record  is  unclear as to  whether  Gails  father
actually died.

     2     The record does not reflect that Gails second petition
against  Kevin  was dismissed, but it seems to have  been  closed
without an express order.

     3     Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska  2005)
(citing Carter v. Novotny, 779 P.2d 1195, 1198 (Alaska 1989)).

     4    Id. at 973-74.

     5     Id.  at 974 (quoting Fardig v. Fardig, 56 P.3d  9,  11
(Alaska 2002)).

     6    Id. (citing Fardig, 56 P.3d at 11).

     7    Borchgrevink v. Borchgrevink, 941 P.2d 132, 137 (Alaska

     8     Virgin  v.  Virgin, 990 P.2d 1040, 1045 (Alaska  1999)
(quoting Park v. Park, 986 P.2d 205, 207 (Alaska 1999)).

     9     Virgin, 990 P.2d at 1046-47 (quoting Borchgrevink, 941
P.2d at 139-40).

     10    AS 25.24.150(c)(1)-(2).

     11     See Melendrez v. Melendrez, 143 P.3d 957, 961 (Alaska

     12    Id.

     13    AS 25.24.150(c)(3).

     14     See  Jenkins  v. Handel, 10 P.3d 586, 590-91  (Alaska
2000)   (childrens  preferences  properly  rejected  where   they
resulted from others influences and the desire for greater social
and  recreational opportunities); Rooney v. Rooney, 914 P.2d 212,
217-18 (Alaska 1996) (childs preference resulting from his desire
to please both parents properly rejected by superior court).

     15    See Fardig, 56 P.3d at 13 n.13.

     16    AS 25.24.310(c) (The court shall require a guardian ad
litem  when, in the opinion of the court, representation  of  the
childs  best  interests,  to be distinguished  from  preferences,
would serve the welfare of the child.).  See also Alaska R.  Civ.
P.  90.7(a) ([T]he court may appoint a guardian ad litem for  the
child  only when the court finds separate representation  of  the
childs best interests is necessary, such as when the guardian  ad
litem may be expected to present evidence not otherwise likely to
be  available  or  presented,  or  the  proceeding  is  unusually

     17     Lacy  v.  Lacy,  553  P.2d 928,  930  (Alaska  1976),
superseded by statute on other grounds, Ch. 63,  30, SLA 1977, as
recognized in Deivert v. Oseira, 628 P.2d 575, 579 (Alaska 1981);
Veazey v. Veazey, 560 P.2d 382, 385 (Alaska 1977).

     18     Veazey,  560  P.2d  at 387 n.6  (quoting  Kritzik  v.
Kritzik, 124 N.W.2d 581, 585 (Wis. 1963)), superseded by  statute
on  other  grounds,  Ch.  63,  30, SLA  1977,  as  recognized  in
Deivert, 628 P.2d at 579.

     19    AS 25.24.310(c); see also Deivert, 628 P.2d at 579.

     20    Veazey, 560 P.2d at 390.

     21    AS 25.24.150(c)(4).

     22    AS 25.24.150(c)(5).

     23    Id.

     24    AS 25.24.150(c)(6).

     25    AS 25.24.150(c)(7).

     26      Under  AS  25.24.150(g),  [t]here  is  a  rebuttable
presumption  that  a  parent who has a  history  of  perpetrating
domestic violence against the other parent [or] a child  may  not
be  awarded  custody, whether sole or joint, physical  or  legal.
Though applicable at the time of the Thomases divorce trial, Gail
did  not ask for this presumption against awarding custody  to  a
spouse with a history of perpetrating domestic violence.

     27    AS 25.24.150(c)(8).

     28    AS 25.24.150(c)(9).

     29    See Virgin, 990 P.2d at 1045.

     30    See id.

     31     Although the courts findings are insufficient,  Gails
argument that she was  effectively denied a hearing at all  lacks
merit.   We  decline to address Gails arguments  regarding  legal
custody because the superior court will reconsider the issue.

     32     Gail  suggests in her briefing that, as  of  December
2006, Kevin had failed to pay any part of the $325,000 offset  he
owed  for Gails share of the marital estate.  If it appears  that
compliance  with  the provisions of the original  property  order
continues  to pose a problem, the superior court will  also  have
discretion  on  remand to reexamine the original  award  on  that

     33    Kevin also argues that he was incorrectly denied child
support  by the superior court.  This argument fails because  the
superior court specifically ordered Gail to pay him child support
in its order denying reconsideration.

     34    Chotiner v. Chotiner, 829 P.2d 829, 831 (Alaska 1992).

     35    Id.

     36    Martin v. Martin, 52 P.3d 724, 726 (Alaska 2002).

     37    Id. at 726-27.

     38    Chotiner, 829 P.2d at 832.

     39     Martin, 52 P.3d at 728 (quoting Chotiner, 829 P.2d at
832-33) (first alteration in original).

     40     See id. at 730 (refusing to reverse a superior courts
implicit decision to credit one spouses testimony over anothers).

     41     See Whitesides v. State, Dept of Pub. Safety, Div. of
Motor  Vehicles,  20 P.3d 1130, 1136-37 (Alaska  2001)  (a  trial
courts  credibility  determination should be  accorded  deference
given  its  opportunity to observe witnesses and  its  experience
gauging credibility).

     42     Chotiner,   829  P.2d at 832 (transmutation  requires
intent  of  the owner and . . . an act or acts which  demonstrate
that  intent) (emphasis added); cf. N. Pac. Processors,  Inc.  v.
City  &  Borough  of  Yakutat, 113 P.3d 575,  585  (Alaska  2005)
(finding  that, in regards to contracts, [c]onduct  is  a  better
indicator of intent than is testimony).

     43     Kevin argues that placing the gold in a safe  in  the
family home raised a presumption that Gail intended to contribute
it  to  the marital estate.  He analogizes the situation to joint
ownership  of  separate funds resulting from their  deposit  into
joint savings accounts.  But the analogy is inapt: Kevins ability
to  gain  physical access to the gold coins in the  family  vault
hardly equates to the rights of ownership and access conferred by
law when funds are banked in a joint account.

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