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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
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| GAIL THOMAS, | ) |
| ) Supreme Court Nos. S- 12289/S-12330 | |
| Appellant/Cross-Appellee, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-05-4882 CI |
| ) | |
| KEVIN THOMAS, | ) O P I N I O N |
| ) | |
| 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.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
trial.
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
1990s.
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
granted.2
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
trial.
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.
III. DISCUSSION
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
determination.
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
environment.23
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
Property
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
property.
IV. CONCLUSION
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
1997).
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
2006).
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
complex.).
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
ground.
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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