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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harvey v. Cook (12/21/2007) sp-6215

Harvey v. Cook (12/21/2007) sp-6215, 172 P3d 794

     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

BROOKE HARVEY and
DONNA WIGGINS, )
) Supreme Court No. S- 12414/S-12434
Appellants/ )
Cross-Appellees, )
) Superior Court No.
v. ) 3PA-05-00831 CI
)
JASON T. COOK, ) O P I N I O N
)
Appellee/ )
Cross-Appellant. ) No. 6215 - December 21, 2007
)
          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Beverly W. Cutler, Judge.

          Appearances:   Darryl  L.   Thompson,   P.C.,
          Anchorage,   for  Appellants/Cross-Appellees.
          David  A.  Golter,  Golter &  Logsdon,  P.C.,
          Palmer, for Appellee/Cross-Appellant.

          Before:   Fabe,   Chief  Justice,   Matthews,
          Eastaugh,  and Carpeneti, Justices.  [Bryner,
          Justice, not participating.]

          CARPENETI, Justice.

I.   INTRODUCTION
          A mother and father disputed custody of their young son
in  proceedings  before the superior court.  The childs  maternal
grandmother unsuccessfully attempted to intervene in the  custody
dispute  to  pursue grandparental visitation.  After a  three-day
custody  hearing,  the  superior court  awarded  sole  legal  and
primary physical custody to the father, and ordered the mother to
pay child support.  The superior court awarded the father custody
knowing  that the father would be stationed overseas for much  of
the next year while serving in the Air Force and planned to leave
the  child  with his new wife during that time.  The  mother  and
grandmother   challenge  the  custody   award   and   denial   of
intervention.  They also argue that the superior court  erred  in
failing to address the mothers claim for back child support.  The
father  challenges the support award in a cross-appeal.  For  the
reasons  explained  below, we conclude that  the  superior  court
properly  denied the grandmothers attempt to intervene  and  that
the  custody  dispute  is  moot.   We  therefore  affirm  as   to
intervention  and as to the custody determination.   Because  the
mother failed to preserve the child support issue for appeal,  we
decline to address that issue.  Finally, on the cross-appeal,  we
reverse the calculation of the mothers support obligation.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Brooke   Harvey   and  Jason  Cook   had   a   romantic
relationship  when  Brooke was sixteen and  Jason  was  nineteen.
Shortly  after Jason enlisted in the U.S. Air Force,  he  learned
that  Brooke was pregnant.  Jasons military service required  him
to  move to Arizona before Brooke gave birth to the couples  son,
Haiden,  in August 2002.  After moving to Arizona, Jason  married
and fathered a child with his new wife.
          Because  of  Jasons absence, Brooke  acted  as  Haidens
primary caregiver.  After an extended period of unsettled  living
situations, Brooke moved with Haiden into the home of her mother,
Donna  Wiggins.  In June 2004 Brooke gave temporary  guardianship
of Haiden to her half-sister, Brandy Simpson.1
     B.   Proceedings
          In  January  2005  Brandy  petitioned  for  custody  of
Haiden.   Brooke,  appearing pro se, filed  a  non-opposition  to
Brandys  petition  for  custody  but  Jason,  represented  by  an
attorney, did oppose it.  Brooke also filed a cross-claim against
Jason  seeking  back child support and part of her medical  bills
pursuant to our holding in Matthews v. Matthews.2  After Superior
Court  Judge Beverly W. Cutler informed Brandy that  as  an  aunt
seeking  custody against a parent she was unlikely to be  awarded
custody,    Brandy  withdrew  her  custody  petition.   Following
Brandys  withdrawal,  both Brooke and  Jason  sought  custody  of
Haiden and a custody trial was set for April 26, 2006.
          In   January  2006  Donna  Wiggins,  Haidens   maternal
grandmother,  attempted  to intervene  in  the  custody  dispute,
claiming that she was entitled to intervene as a matter of right.
Jason   and   Brooke  separately  opposed  Donnas  intervention,3
arguing that the request for intervention was untimely.  In March
2006  the  superior court indicated its intention to deny  Donnas
motion  to  intervene  and formally denied  intervention  at  the
beginning of the custody trial.
          The  custody trial spanned three days in late April and
early  May 2006.  In August the court issued a decision in  which
it  awarded sole legal and physical custody of Haiden  to  Jason.
The  court awarded Jason custody primarily because it found  that
Jason  and  his new wife could offer much greater stability  than
Brooke.  The court made clear that it understood that Jason would
          be stationed overseas for most of the next year  and that Jasons
wife would be caring for Haiden in Arizona during Jasons absence.4
However,   the  court  concluded  that  these  facts   were   not
determinative of its custody decision.  The court awarded  Brooke
reasonable supervised visitation and also permitted Donna to have
visitation for at least two times a year for up to three days  in
a  row  of  [supervised] daytime visitation.  The  court  ordered
Brooke to pay fifty dollars per month in child support.
          Brooke  and  Donna filed a joint pro se  appeal.   They
argue  that the superior court erred in granting custody to Jason
and  by  not  addressing Brookes request for back child  support.
They  also argue that the superior court improperly denied Donnas
attempt  to  intervene.  Jason cross-appeals,  arguing  that  the
superior court erred by making a child support award without  any
factual findings documenting Brookes income.
III. STANDARD OF REVIEW
          I.   Whether the superior court applied the correct legal
standard in a custody dispute presents a question of law that  we
review de novo.5  A trial courts determination of custody will be
set  aside  only  if  the  entire record  demonstrates  that  the
controlling  findings of fact are clearly erroneous or  that  the
trial court abused its discretion.6  A finding of fact is clearly
erroneous when a review of the record leaves us with the definite
impression that a mistake has been made.7  An abuse of discretion
is  established  where  the  superior court  considered  improper
factors  in making its custody determination, failed to  consider
statutorily mandated factors, or assigned disproportionate weight
to  particular  factors  while ignoring others.8   Child  support
awards  are reviewed for abuse of discretion and will not be  set
aside  unless a review of the record as a whole leaves us with  a
definite and firm conviction that a mistake has been made.9
          In determining whether the superior courts denial of  a
motion  to intervene as a matter of right was in error, we  apply
our independent judgment if timeliness is not at issue and if the
facts relevant to intervention are not disputed because then only
questions  of law are posed.10  Denial of a motion for permissive
intervention is reviewed for abuse of discretion.11
IV.  DISCUSSION
     A.   Brooke and Donnas Argument that the Superior Court Erred in
          Failing To Apply the Parental Preference Rule Is Moot.
          
          A.   In a custody dispute between two parents, custody is to be
awarded  according to the best interests of the child.12   Where,
however,  a custody dispute is between a parent and a non-parent,
a  different  standard applies.  In such situations the  parental
preference  requires that a non-parent seeking  custody  show  by
clear  and convincing evidence that the parent is unfit  or  that
the  welfare of the child requires the child to be in the custody
of  the  non-parent.13   The  rule gives  a  parent  a  custodial
preference over non-parents due to the nature of the parent-child
relationship14  and helps avoid the danger of giving  courts  the
power  to  award  custody . . . to [non-parents]  solely  on  the
grounds of best interests.15
          Brooke  and  Donna suggest that the parental preference
          rule should have been applied in this case because the custody
dispute was effectively between Brooke (a parent) and Jasons wife
(a  non-parent).  They reason that Jason was unable  to  exercise
physical custody over Haiden while stationed overseas and that by
awarding  him  custody  the  superior court  effectively  awarded
physical  custody  to  Jasons  wife.   Jason  responds  that  the
parental preference rule was inapplicable because he would remain
responsible for Haiden during his temporary physical absence  and
was therefore able to exercise physical custody.
          On   October   29,  2007,  we  requested   supplemental
memoranda addressing the status of Jasons deployment and [i]f the
deployment  ended,  whether the parental preference  argument  is
moot.   Both  parties responded to the request  and  agreed  that
Jason  has  returned to the United States and Haiden now  resides
with him.  Given the parties agreement that Jason has returned to
the  United States and his son is residing with him, the parental
preference issue is moot.16  Because Brooke and Donna  failed  to
provide   any  alternative  argument  to  challenge  the  custody
determination  below, the superior courts custody  decision  must
stand.17
     B.   The Superior Court Did Not Err in Declining To Allow Donna
          To Intervene in the Custody Dispute Between Jason and Brooke.
          A.   Alaska Civil Rule 24 governs intervention of non-parties in
ongoing  disputes.18  Under this rule intervention may be  as  of
right  or permissive.19  A movant is entitled to intervene as  of
right if four conditions are met: (1) [T]he motion [to intervene]
must  be timely; (2) the applicant must show an interest  in  the
subject  matter of the action; (3) the applicant must  show  that
this interest may be impaired as a consequence of the action; and
(4)  the  applicant must show that the interest is not adequately
represented  by  an  existing party.20  A movant  may  also  seek
permissive intervention so long as the claim or defense  and  the
main action have a question of law or fact in common.21
          Brooke  and  Donna  argue that Donna  was  entitled  to
intervene  in  the custody proceedings as a matter  of  right  in
order to protect her right to seek grandparental visitation.   In
the  alternative, Brooke and Donna suggest that the courts denial
of  permissive  intervention represented an abuse of  discretion.
We separately address each argument.
          1.   Intervention as of right
          1.   The superior court concluded that Donna was not entitled to
intervene as a matter of right because her interests would not be
impaired  if  she were not permitted to intervene in the  custody
proceedings and, alternatively, because her attempt to  intervene
was untimely.  Because all four requirements must be met in order
for a party to be entitled to intervene as a matter of right,  we
may affirm the superior courts decision regarding intervention as
of right if either ground for denial is supported by the record.22
          Brooke  and Donna assert that this court has previously
recognized that a grandparent seeking visitation23 is entitled to
intervene  as a matter of right.  Contrary to Brooke  and  Donnas
assertion, we have not held that a grandparent seeking visitation
is entitled to intervene as of right.  The cases which Brooke and
Donna  cite, Elton H. v. Naomi R.24 and Todd v. Todd,25  did  not
          address this issue.  In Elton H. we noted that we had previously
allowed  psychological parents and grandparents to  intervene  as
parties  in  custody disputes,26 but at no point did we  indicate
grandparents are entitled to intervene as of right.  Likewise, in
Todd  we  merely observed in passing that the superior court  had
allowed the grandparents to intervene in custody proceedings;  we
did  not  indicate  whether the superior court  had  allowed  the
grandparents to intervene as of right or permissively.27   Brooke
and  Donnas  attempt to extract from these cases a  rule  holding
that  grandparents  are  entitled to intervene  as  of  right  in
custody proceedings to pursue visitation is therefore unavailing.
Moreover,  both  cases  are  factually distinguishable  from  the
present  one.   Donna  sought to intervene to  protect  only  her
visitation  rights,28  whereas the grandparents in Elton  H.  and
Todd  both  sought  custody  of the children  involved.29   Thus,
neither  Elton  H. nor Todd is dispositive of whether  Donna  was
entitled to intervene as a matter of right.
          Brooke  and Donna also suggest that the superior  court
erred  in  concluding that Donnas interests would not be impaired
if  intervention were denied.  Relying in part on the  fact  that
Donna  could institute a separate civil action to seek visitation
of  her  grandchild,  the superior court  concluded  that  Donnas
interests  would  not  be impaired if she  were  not  allowed  to
intervene.   The  court observed that Donna was  not  without  an
alternative  remedy because, inter alia, she is free to  commence
at  any  time  an independent civil action of her  own  asserting
visitation rights in Haiden.  Because we agree that Donna  failed
to  establish that her rights would be impaired as a  consequence
of  the  custody  action,  we conclude that  the  superior  court
correctly denied Donnas attempt to intervene as of right.30
          A  movant  seeking  to intervene  must  show  that  the
interest  he or she is asserting may be impaired as a consequence
of  the  action.31   In determining whether an  interest  may  be
impaired courts ask, [W]ill the disposition of the action  impair
as  a  practical  matter  the absentees ability  to  protect  his
interest in the . . . transaction upon which the suit is based?32
This  inquiry focuses on the adverse consequences a  movant  will
suffer  if  not permitted to intervene.  Where these consequences
are  serious,  such  as where the decision of  a  legal  question
would,  as  a practical matter, foreclose rights of the  proposed
intervenor  in  a  subsequent  proceeding,33  the  rationale  for
allowing intervention is strong.  Conversely, where, for example,
a  movants non-participation will cause only inconvenience, there
is  little  harm and intervention as a matter of right  generally
will not be permitted.34
          In  this  case Donna sought to intervene  in  order  to
protect  her  right  to obtain court-ordered  visitation  of  her
grandson.  The issue we must therefore resolve is whether  Donnas
rights  or interests were impaired when she was not permitted  to
intervene  in  the custody dispute.  We conclude that  they  were
not.
          Statutes governing grandparental visitation provide two
separate   means   of  requesting  such  visitation.    Where   a
grandparent is permitted to participate as a party in  a  custody
          determination, he or she may request that the court provide for
visitation  by  a  grandparent  . . . if  that  is  in  the  best
interest of the child.35  Alternatively, under AS 25.20.065,36  a
grandparent may petition for visitation [a]fter a decree or final
order relating to child custody is entered under AS 25.20.060  or
AS 25.24.15037 so long as the grandparent did not formally request
visitation during the pendency of the custody proceedings.38
          Donna  suggests  that she needed to  intervene  in  the
custody  proceedings  in order to protect  her  ability  to  seek
visitation.   We  cannot  agree.   Had  Donna  been  allowed   to
intervene  in  the  custody proceedings, she  could  have  sought
grandparental visitation under AS 25.20.060(a). When intervention
was not permitted, however, she was still able to seek visitation
under  AS  25.20.065 by instituting an independent civil  action.
In  other words, because Donna was able to seek visitation  after
the  custody proceedings had been resolved through the procedures
established by AS 25.20.065, her right to seek visitation was not
impaired.   The mere fact that Donna would have been required  to
seek  visitation through different means does not establish  that
her right to seek visitation was impaired.39
           Donna argues that she could not have sought visitation
under  AS  25.20.065   due  to  her attempted  intervention.   We
disagree.   Because Donna was not allowed to intervene,  she  was
never  a  party to the custody proceedings, meaning that she  did
not  formally request the court to grant visitation rights during
the  pendency of [the custody] proceedings.40  She was  therefore
eligible to institute a separate action seeking visitation  under
AS  25.20.065(b)(1).  Although Donna may be  correct  in  arguing
that  the custody proceedings would have been the most convenient
means  to  determine  whether she was entitled  to  grandparental
visitation,  this observation neither changes the fact  that  she
was  able  to  institute an independent civil  action  to  secure
visitation  of  her grandson nor proves that her  right  to  seek
visitation  was impaired by the courts denial of her  attempt  to
intervene.
          Because  AS  25.20.065 allowed Donna to seek visitation
after  the custody case was resolved through an independent civil
action,   the  superior  court  correctly  determined  that   her
interests  would  not  have been impaired  if  intervention  were
denied.   The  superior  courts  denial  of  Donnas  attempt   to
intervene as of right was therefore not in error.
          2.    Permissive intervention
          As  noted  above,  where a movant is  not  entitled  to
intervene   as  of  right,  he  or  she  may  pursue   permissive
intervention.   Permissive intervention may be granted   when  an
applicants  claim or defense and the main action have a  question
of  law  or  fact  in common.41  Even where this  commonality  is
established,  the superior court may deny a request to  intervene
where  the  intervention  will  unduly  delay  or  prejudice  the
adjudication of the rights of the original parties.42
          The superior court denied Donnas motion to intervene on
the  ground that it would substantially delay resolution  of  the
custody  dispute  between  Jason  and  Brooke.   Donna  moved  to
intervene  on January 23, 2006, roughly three months  before  the
          custody trial scheduled to take place in late April 2006.  The
superior court concluded that allowing Donna to intervene at such
a late stage in the proceedings would muck[] up the works of this
lawsuit  too much at this point in time . . . .  The court  noted
that  it had a duty to make a prompt permanency decision and held
that  it  was  not in this childs best interests to hold  up  the
custody trial thats been set here . . . for a long time.
          We  believe  the court did not abuse its discretion  in
denying  Donnas attempt to intervene.  The record indicates  that
it  was  necessary to adjudicate the custody issue at  the  April
trial  because  of  the fact that Jasons presence  could  not  be
assured  once  he was stationed in Korea.  We also note  that  in
light  of  the  automatic ninety-day stay that the Servicemembers
Civil  Relief  Act  provides for where a servicemembers  military
obligations   substantially  impair  his  or   her   ability   to
participate  in  civil  proceedings,43  even  a  short  delay  in
resolving   the   custody  issue  could   have   been   magnified
substantially due to the fact that Jason was scheduled  to  leave
for  South  Korea  shortly after the conclusion  of  the  custody
proceedings.   In  sum,  the superior court  did  not  abuse  its
discretion   by   denying   Donnas  motion   seeking   permissive
intervention.
     C.   Brooke Waived Her Claims to Past Child Support.
          Brooke  and  Donna  argue that Brooke  is  entitled  to
reimbursement  for  past support and expenses under  Matthews  v.
Matthews44 and that the superior court erred by failing to address
Brookes  Matthews  claims.  Jason responds that Brooke  abandoned
these claims by failing to pursue them in the superior court.  We
agree with Jason that Brooke abandoned her claim.
          Ordinarily, a party seeking to raise an issue on appeal
must  have  raised it and offered evidence on  it  in  the  trial
court.45  Therefore, issues not properly raised in the trial court
will not ordinarily be considered on appeal.46  This rule is based
on the belief that permitting a party to claim error regarding  a
claim  not raised and litigated below is both unfair to the trial
court and unjust to the opposing litigant.47
          Brooke  listed a cause of action for back child support
in  a counterclaim against Jason filed in November 2005.  She did
not,  however,  pursue  the matter any further  in  the  superior
court.   Brooke did not submit any motions regarding this  issue,
made no claims to child support in her trial brief, and failed to
present evidence or request findings regarding past child support
during the custody hearing itself.  These failures are especially
glaring  in  light  of the fact that Brooke  was  represented  by
counsel  in  the  later  stages of the  proceedings  below,  most
notably during the custody trial.
          Brooke  and Donna imply that the superior court  should
have informed Brooke of the need to address this issue before  it
issued a final judgment.  Citing Lane v. City of Kotzebue,48  she
argues  that a trial court may not issue a final judgment without
addressing all of the issues raised by the parties . . . .  We do
not believe that Lane goes so far.
          In  Lane  a litigant pursued a trespass claim that  the
superior  court held needed to be pled as an inverse condemnation
          claim.49  Lane failed to amend his pleadings after being
instructed  to  do  so  and the superior court  granted  a  final
judgment  in  the case.50  We reversed, holding that [t]he  court
never  addressed [the inverse condemnation] claim on its  merits,
and  never  dismissed the trespass claim for failing to  state  a
claim on which relief could be granted.  Lane had no warning that
the  court  might  dismiss  this  claim  before  it  entered  the
September 1997 final order.51  This case is distinguishable  from
Lane  because  Brooke did not take any steps to adequately  raise
the  claim after initially pleading it.  The duty to ensure  that
each  of  a partys claims are litigated generally rests with  the
party  advancing the claims.52  We decline to follow an expansive
reading  of Lane that would require the superior court to  ensure
that  each  claim  contained in the parties  pleadings  has  been
properly  raised  before issuing a final decision.   This  burden
properly lies with the litigants, not the courts.
          Because  Brooke  failed to pursue  her  Matthews  claim
after raising it at the outset of the case, we conclude that  she
abandoned that claim.
     D.   It Was Error To Set Brookes Support Obligation at Fifty
          Dollars per Month.
          In  his  cross  appeal Jason argues that  the  superior
courts  support  award cannot stand because the court  failed  to
make  any factual findings regarding Brookes income and therefore
lacked  any  evidentiary  basis for the fifty  dollar  per  month
figure.   Jason further argues that the fifty dollar  figure  was
not  justified by Civil Rule 90.3(c)(1), which allows  for  child
support  awards  to  be  varied for  good  cause  where  manifest
injustice would otherwise result.
          Civil Rule 90.3(a)53 sets out guidelines for calculating
child  support  awards where one parent has been awarded  primary
physical  custody.  Where custody involves only  one  child,  the
support  amount  is  to  be set at twenty  percent  of  the  non-
custodial parents adjusted income.54   Courts may deviate from the
percentages  established  by  Civil Rule  90.3(a)(2)  in  limited
circumstances, such as where there is good cause  upon  proof  by
clear  and  convincing  evidence that  manifest  injustice  would
result if the support award were not varied.55  As with any other
type  of  decision, a child support award must  be  supported  by
findings that are sufficiently detailed and explicit to  give  an
appellate court a clear understanding of the ground on which  the
trial court reached its decision.56
          Here, the only evidence of Brookes income was testimony
from  Brooke  regarding her earnings from her job as  a  cocktail
waitress.   However, the court specifically rejected  the  income
figure  that  Brooke  proposed, stating  that  Brooke  was  being
unrealistically optimistic with her earnings estimate in order to
present  herself to the court in a favorable light for  custodial
purposes.  Aside from this discussion, there was no documentation
of or findings relating to Brookes earnings.57  Specifically, the
court  did  not make any findings as to Brookes actual  income.58
Because the record falls short of providing findings that give us
a  clear  understanding of the ground on which  the  trial  court
reached its decision regarding Brookes child support obligations,59
          we are compelled to reverse the order requiring Brooke to pay the
minimum fifty dollars each month in child support.  We remand  to
the  superior court for a determination of Brookes child  support
obligations in accordance with this opinion.
V.   CONCLUSION
          I.   Because Donna did not meet the standard for intervention as
a  matter  of  right  and the superior court did  not  abuse  its
discretion  in  denying permissive intervention,  we  AFFIRM  the
superior  courts  decision to deny Donnas attempt  to  intervene.
Brooke  waived any claim of error relating to her claim for  past
child  support  by failing to pursue the claim  in  the  superior
court.   Because the argument that the superior court  failed  to
apply  the parental preference rule is moot, we AFFIRM the courts
custody  determination.  Finally, we REVERSE  the  child  support
determination  and  REMAND for proceedings consistent  with  this
opinion.
_______________________________
     1     The  record  does  not make clear  whether  Jason  was
consulted about or approved of this decision.

     2    739 P.2d 1298, 1299 (Alaska 1987) (holding that even in
the   absence  of  a  court  order  a  parents  duty  of  support
encompasses  a  duty to reimburse other persons who  provide  the
support  the parent owes), superceded in part by statute,  Alaska
Civil  Rule 90.3, as recognized in Vachon v. Pugliese,  931  P.2d
371, 381 (Alaska 1996).

     3    By this time Brooke was represented by counsel.

     4     Jasons  military service was to entail six  months  of
service  in South Korea, followed by one month of leave in  which
he  planned to return to visit his family, and then another  five
months  of  service  in South Korea.  Jason returned  from  South
Korea in July 2007 and Haiden now resides with him.

     5    Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005).

     6    Melendrez v. Melendrez, 143 P.3d 957, 959 (Alaska 2006)
(quoting  Chesser-Witmer v. Chesser, 117 P.3d  711,  715  (Alaska
2005)).

     7    Elton H. v. Naomi R., 119 P.3d 969, 974 (Alaska 2005).

     8    Id.

     9     Moore  v.  Moore,  893 P.2d 1268, 1269  (Alaska  1995)
(citation omitted).

     10     Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d
906, 912 (Alaska 2000).

     11    State v. Weidner, 684 P.2d 103, 114 (Alaska 1984).

     12     Veazey  v.  Veazey, 560 P.2d 382, 386 (Alaska  1977),
superceded by statute on other grounds, ch. 63,  30, SLA 1977, as
recognized in Deivert v. Oseira, 628 P.2d 575, 579 (Alaska 1981).

     13    Evans v. McTaggart, 88 P.3d 1078, 1085 (Alaska 2004).

     14    Elton H. v. Naomi R., 119 P.3d 969, 974 (Alaska 2005).

     15    Turner v. Pannick, 540 P.2d 1051, 1054 (Alaska 1975).

     16     See  Akpik v. State, 115 P.3d 532, 535 (Alaska  2005)
(noting  that a claim is moot if it has lost its character  as  a
present, live controversy).

     17     In  response to our October 29, 2007 request,  Brooke
now  alleges that there is a significant and material  change  in
circumstances that warrants modification of custody.  Our opinion
today  does  not  impact Brookes right to move to modify  custody
based on the alleged change of circumstances.

     18    Civil Rule 24 provides in relevant part:

            (a)  Intervention  of  Right.  Upon  timely
          application  anyone  shall  be  permitted  to
          intervene  in  an action when  the  applicant
          claims  an interest relating to the  property
          or  transaction which is the subject  of  the
          action and the applicant is so situated  that
          the  disposition  of  the  action  may  as  a
          practical   matter  impair  or   impede   the
          applicants ability to protect that  interest,
          unless  the applicants interest is adequately
          represented by existing parties.
          
          (b)   Permissive  Intervention.  Upon  timely
          application   anyone  may  be  permitted   to
          intervene  in  an action when  an  applicants
          claim  or defense and the main action have  a
          question  of  law or fact in common.  When  a
          party to an action relies for ground of claim
          or  defense  upon  any statute  or  executive
          order  administered  by a  federal  or  state
          governmental officer or agency  or  upon  any
          regulation, order, requirement, or  agreement
          issued  or  made pursuant to the  statute  or
          executive  order, the officer or agency  upon
          timely   application  may  be  permitted   to
          intervene  in  the action. In exercising  its
          discretion  the court shall consider  whether
          the   intervention  will  unduly   delay   or
          prejudice  the adjudication of the rights  of
          the original parties.
          
     19    Civil Rule 24(a)-(b).

     20     Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d
906,  911  (Alaska 2000) (citing State v. Weidner, 684 P.2d  103,
113 (Alaska 1984)).

     21    Civil Rule 24(b).

     22    See Weidner, 684 P.2d at 113.

     23     Although  Donna  mentioned  custody  in  one  of  her
pleadings in the superior court, taken as a whole her submissions
to the superior court make clear that she sought only visitation.
Donna  referenced visitation in several of her motions and failed
to  object  to Jasons contention that she was seeking visitation,
not  custody.   That  Donna was not seeking  custody  is  further
evidenced  by  the  fact that she did not  assert  that  she  had
standing to seek custody of her grandson until the morning of the
custody  trial.   See Buness v. Gillen, 781 P.2d 985, 988 (Alaska
1989) (holding that non-parent must have a significant connection
with the child to have standing to assert claim for custody under
AS  25.20.060), overruled in part on other grounds  in  Evans  v.
McTaggart, 88 P.3d 1078, 1083-84 (Alaska 2004).

     24    119 P.3d 969 (Alaska 2005).

     25    989 P.2d 141 (Alaska 1999), overruled in part on other
grounds  in  Evans  v. McTaggart, 88 P.3d 1078,  1083-84  (Alaska
2004).

     26    119 P.3d at 979.

     27    989 P.2d at 142.

     28    See supra note 23.

     29    Elton H., 119 P.3d at 979; Todd, 989 P.2d at 142.

     30     Because  we  affirm  the superior  courts  denial  of
intervention as of right on this ground,  we decline  to  address
Brooke  and  Donnas  argument that the superior  court  erred  in
concluding  that  Donnas request to intervene was  untimely.  See
State v. Weidner, 684 P.2d 103, 113 (Alaska 1984).

     31    Weidner, 684 P.2d at 113.

     32     7C Charles Alan Wright, Arthur R. Miller, & Mary Kaye
Kane, Federal Practice and Procedure  1907, at 250 (2d ed. 1986).

     33     Lake Investors Dev. Group, Inc. v. Egidi Dev.  Group,
715 F.2d 1256, 1260 (7th Cir. 1983).

     34    See, e.g., Blake v. Pallan, 554 F.2d 947, 954 (9th Cir.
1977)  (Mere  inconvenience to the [party seeking  to  intervene]
caused by requiring him to litigate separately is not the sort of
adverse practical effect contemplated by Rule 24(a)[].).

     35    AS 25.20.060(a) provides:

          If  there  is  a dispute over child  custody,
          either parent may petition the superior court
          for   resolution  of  the  matter  under   AS
          25.20.060 - 25.20.130. The court shall  award
          custody on the basis of the best interests of
          the  child. In determining the best interests
          of  the  child, the court shall consider  all
          relevant  factors,  including  those  factors
          enumerated   in  AS  25.24.150(c)   and   the
          presumption  established in AS  25.24.150(g).
          In   a   custody  determination  under   this
          section,   the   court  shall   provide   for
          visitation  by a grandparent or other  person
          if  that  is  in  the best interests  of  the
          child.
          
     36    AS 25.20.065 provides in relevant part:

          (a)   Except  as  provided  in  (b)  of  this
          section,  a  childs grandparent may  petition
          the  superior court for an order establishing
          reasonable  rights of visitation between  the
          grandparent and child if
          
          (1)   the  grandparent  has  established   or
          attempted   to  establish  ongoing   personal
          contact with the child; and
          
          (2)  visitation by the grandparent is in  the
          childs best interest.
          
          (b) After a decree or final order relating to
          child  custody is entered under AS  25.20.060
          or  AS  25.24.150 or relating to an  adoption
          under  AS  25.23, a grandparent may  petition
          under this section only if
          
          (1) the grandparent did not request the court
          to   grant   visitation  rights  during   the
          pendency  of proceedings under AS  25.20.060,
          AS 25.23, or AS 25.24; or
          
          (2)  there has been a change in circumstances
          relating to the custodial parent or the minor
          child  that justifies reconsideration of  the
          grandparents visitation rights.
          
     37    AS 25.20.065(b) (emphasis added).

     38     AS 25.20.065(b)(1).  Where a grandparent participated
in the custody proceedings, he or she may nonetheless institute a
separate action seeking visitation under AS 25.20.065 where there
has  been  a  change in circumstances relating to  the  custodial
parent  or the minor child that justifies reconsideration of  the
grandparents visitation rights.  AS 25.20.065(b)(2).

     39     We also note that similar standards of proof apply to
actions  under AS 25.20.060(a) and .065(a), both of which require
that  the grandparent establish that visitation is in the  childs
best interest.

     40    AS 25.20.065(b)(1).

     41    Civil Rule 24(b).

     42    Id.

     43    See 50 U.S.C. Appendix  521(d)(1).

     44    739 P.2d 1298, 1299 (Alaska 1987), superceded by Civil
Rule  90.3,  as stated in Vachon v. Pugliese, 931 P.2d  371,  381
(Alaska 1996).

     45    See Forquer v. State, Commercial Fisheries Entry Commn,
677  P.2d  1236,  1238 n.2 (Alaska 1984) (declining  to  consider
issue  on  appeal  where appellants failed to adequately  develop
both  their  arguments and the record); see also 4 C.J.S.  Appeal
and  Error   306 (2007) (failure to offer evidence  on  issue  in
trial court waives issue for purposes of appeal).

     46     D.J.  v.  P.C.,  36  P.3d 663, 667-68  (Alaska  2001)
(holding issues not raised below reviewed only for plain  error);
see  also  4  C.J.S.  Appeal and Error   292  (2007)  (Generally,
questions  of whatever nature, not raised and properly  preserved
for review in the trial court, will not be noticed on appeal.).

     47     In  re Marriage of Walker, 42 Cal. Rptr. 3d 325,  332
(Cal. App. 2006).

     48    982 P.2d 1270 (Alaska 1999).

     49    Id. at 1274.

     50    Id.

     51    Id.

     52    See Forquer v. State, Commercial Fisheries Entry Commn,
677  P.2d 1236, 1238 n.2. (Alaska 1984); see also 4 C.J.S. Appeal
and  Error  306 (2007) (To be considered on review, a matter must
have  been  timely  presented to the  trial  court  in  a  manner
sufficient to obtain a ruling thereon, and thereafter kept  alive
during the trial.).

     53    Civil Rule 90.3(a) provides in relevant part:

          A  child support award in a case in which one
          parent is awarded primary physical custody as
          defined  by  paragraph (f) will be calculated
          as  an  amount  equal to the adjusted  annual
          income of the non-custodial parent multiplied
          by  a  percentage  specified in  subparagraph
          (a)(2).
          
               . . . .

          (2) The percentage by which the non-custodial
          parents adjusted income must be multiplied in
          order  to  calculate the child support  award
          is:
          
          (A) 20% (.20) for one child . . . .
          
     54    Id.

     55    Civil Rule 90.3(c).

     56    Sloan v. Jefferson, 758 P.2d 81, 86 (Alaska 1988).

     57     Brooke  filed  a child support affidavit  before  the
custody trial, but did not include any supporting documentation.

     58     Cf.  Evans  v. McTaggart, 88 P.3d 1078, 1090  (Alaska
2004)  (noting  that  superior court made findings  that  mothers
income  fell  below  federal income poverty  guidelines  [before]
impos[ing] the fifty dollar minimum sum called for by Civil  Rule
90.3(c)(1)(B)).

     59    Sloan, 758 P.2d at 86.

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