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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
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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