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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Millette v. Millette (01/04/2008) sp-6218
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
| MATTHEW J. P. MILLETTE, | ) |
| ) Supreme Court No. S- 12107 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-03-13074 CI |
| ) | |
| CAROL JEAN MILLETTE, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6218 - January 4, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: Matthew J. P. Millette, pro se,
Anchorage. Lance C. Wells, Law Offices of
Lance C. Wells, PC, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
The superior court awarded sole legal and primary
physical custody of a six-year-old boy to his mother. The boys
father appeals that custody award and the award of child support,
which he argues was impermissibly retroactive and improperly
omitted his health care contributions. Finally, the father
argues that the superior court abused its discretion by not
ruling on certain motions that he made before the custody
hearing.
We affirm the superior courts ruling in all respects,
except with regard to support. As to support, we remand to the
superior court to reconsider the date at which the modified order
becomes effective and the question of credit to the father for
payment of his sons health care coverage.
II. FACTS AND PROCEEDINGS
Carol Jean Millette and Matthew Millette were married
for almost five years before becoming enmeshed in a protracted
and contentious divorce and custody dispute. The couple met
online in 1997 through the Christian Connection, an internet
dating service. At that time, Carol Jean was living in Colorado
and Matthew was living in Alaska, married with two young sons.
In October 1997 Carol Jean and Matthew met in person in Colorado
while Matthew was on a business trip. In April 1998 Carol Jean
moved to Alaska to be with Matthew and lived in an apartment
across from his. Matthew divorced his first wife in August 1998
and married Carol Jean a month later. Shortly thereafter Carol
Jean and Matthew moved into a home together in Eagle River with
Matthews two sons and Carol Jeans teenage son. The relationship
became rocky after they moved in together and Carol Jean
experienced her first Alaska winter. Carol Jean found conditions
in Alaska to be very depressing.
Jesse was born July 21, 2000. As Jesse grew out of his
infancy and became a toddler Carol Jean began to notice that
there was something seriously wrong with him his play grew more
solitary and his language development stopped. In December 2002,
when Jesse was almost two and a half years old, he was formally
diagnosed with autism. Jesse has since been seen by many doctors
and specialists including Dr. Brennan, who diagnosed the autism,
Dr. Lillibridge, who tested Jesse for allergies, Dr. Grove, a
naturopathic doctor who works with Defeat Autism Now and who
advises Carol Jean on Jesses diet, and Katherine Seyb, a speech
pathologist.
In June 2003 Carol Jean and Matthew separated. Both
Matthew and Carol Jean have since reported misconduct by the
other parent to the police and the Office of Childrens Services
(OCS).
Through a domestic violence protective order Matthew
obtained custody of Jesse for the first several months following
the parties separation. In February 2004, following the
expiration of that order, Carol Jean and Matthew agreed to share
custody on a week-on/week-off basis. In July 2004 the court-
ordered child custody investigation report recommended that Carol
Jean have sole legal and primary physical custody. Shortly after
the release of that report, Carol Jean decided she would like to
move to Arizona with Jesse. She filed two motions to modify the
interim custody arrangement. In August 2004 the superior court
modified interim custody, giving Carol Jean sole legal and
physical custody of Jesse. Matthew was ordered to enroll in and
complete a court-approved anger management program as well as a
minimum of twelve hours of parenting classes. Under the modified
interim custody order, Matthew was entitled to visitation with
Jesse two out of every three weekends (from six p.m Friday until
seven p.m. Saturday) as well as one weeknight visit and alternate
holidays.
Superior Court Judge Morgan Christen entered the
divorce decree on October 29, 2004. All issues involving
custody, visitation, and support were reserved for a separate
trial, which occurred over four days in September 2005. The
superior court entered its findings of fact and conclusions of
law on October 5, 2005.
Judge Christen awarded Carol Jean sole legal and
primary physical custody of Jesse. While Carol Jean remained in
Alaska, Matthew was entitled to continued visitation on the
schedule outlined in the August 2004 order on the condition that
within thirty days he file proof that he had enrolled in anger
management counseling. The counseling was to be completed prior
to any out-of-state visitation should Carol Jean move to Arizona
as planned. Furthermore, if Carol Jean moved, Matthew was
entitled to reasonable visitation whenever he was in the area
where Jesse lived and was also entitled to two weeks of
visitation in Alaska each summer and one week of visitation over
the winter holidays, also dependent on his completion of anger
management counseling.
Judge Christen ordered child support in the amount of
$348 retroactive to August 9, 2004, the date on which Carol Jean
received interim custody of Jesse.1 This amount did not reflect
credit for any of Matthews health care payments for Jesse.
Matthew appeals the courts custody and visitation
decisions. He also appeals the child support award as
impermissibly retroactive and impermissibly exclusive of his
health care payments. Finally, he appeals the courts failure to
rule on two pre-trial motions.
III. STANDARD OF REVIEW
The trial court has broad discretion in the
determination of child custody issues.2 As we have noted in the
past, [w]e give particular deference to the trial courts factual
findings when they are based primarily on oral testimony, because
the trial court, not this court, performs the function of judging
the credibility of witnesses and weighing conflicting evidence.3
We will reverse a trial courts resolution of custody issues only
if, after a review of the entire record, we are convinced that
the trial court abused its discretion or that the controlling
factual findings made by the trial court are clearly erroneous.4
In a child custody case, abuse of discretion is established if
the trial court considered improper factors, or improperly
weighted certain factors in making its determination.5 A courts
factual findings are clearly erroneous when our review of the
entire record leaves us with a definite and firm conviction that
a mistake has been made.6
Additionally, [a] courts modification of a child
support award is reviewed for an abuse of discretion and will not
be set aside unless a review of the record as a whole leaves the
appellate court with a definite and firm conviction that a
mistake has been made.7 Cases involving the proper method of
calculating child support, on the other hand, present a question
of law which we review de novo.8 Whether the court had the
authority to retroactively award child support is also a question
of law to be reviewed de novo.9 When reviewing questions of law,
we adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.10
We review decisions on motions to reopen discovery for
an abuse of discretion.11
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion in
Awarding Sole Legal and Primary Physical Custody to
Carol Jean.
Alaska Statute 25.24.150(c) governs child custody
decisions and requires that the court determine custody in
accordance with the best interests of the child . . . . The
statute lists nine factors which the court shall consider in
determining the best interests of the child. These factors are:
(1) the physical, emotional, mental,
religious, and social needs of the child;
(2) the capability and desire of each parent
to meet these needs;
(3) the childs preference if the child is of
sufficient age and capacity to form a
preference;
(4) the love and affection existing between
the child and each parent;
(5) the length of time the child has lived in
a stable, satisfactory environment and the
desirability of maintaining continuity;
(6) the willingness and ability of each
parent to facilitate and encourage a close
and continuing relationship between the other
parent and the child, except that the court
may not consider this willingness and ability
if one parent shows that the other parent has
sexually assaulted or engaged in domestic
violence against the parent or a child, and
that a continuing relationship with the other
parent will endanger the health or safety of
either the parent or the child;[12]
(7) any evidence of domestic violence, child
abuse, or child neglect in the proposed
custodial household or a history of violence
between the parents;
(8) evidence that substance abuse by either
parent or other members of the household
directly affects the emotional or physical
well-being of the child;
(9) other factors that the court considers
pertinent.[13]
In a well-reasoned decision, Judge Christen explicitly
discussed the first seven factors and found that factors two,
five, six, and seven all favored Carol Jean and that factors
three and four were neutral. Matthew does not appeal the lack of
consideration of factor eight, presumably because he never
alleged that Carol Jean had any substance abuse problems.
Moreover, our case law does not require that the court explicitly
discuss every factor.14 Similarly, Matthew does not argue that
the superior court impermissibly put too much weight on one
factor indeed, under the courts analysis none of the factors
favored Matthew. Instead, Matthews argument is based largely
upon his disagreement with the courts factual conclusions.
Matthew also argues that [t]he mothers testimony was given
greater credence than was the fathers.
We reject Matthews arguments. As discussed in the
standard of review, it is not this courts role to second guess
the trial court on issues of credibility.15 Because Matthew has
failed to offer any legal argument that the superior court abused
its discretion, and because (as discussed in detail below) the
courts factual findings were not clearly erroneous, we affirm the
superior court on the issue of custody.
1. The capability and desire of each parent to meet
Jesses special emotional, mental, and social needs
The superior court stated that the capability and
desire of each parent to meet Jesses special emotional and mental
needs favors Carol Jean for several reasons. Matthew argues that
Carol Jean is not best equipped to handle Jesses autism. He
argues that the superior court failed to consider the evidence
presented regarding Dr. Brennans recommendations on how to treat
Jesses autism. Matthew may be alluding to the fact that Jesse
did not attend summer school while in Carol Jeans care even
though Dr. Brennan allegedly recommended summer school. A review
of the record reveals that Dr. Brennan also recommended speech
therapy, which Carol Jean arranged for Jesse, and that Carol
Jean had to choose between speech therapy and summer school due
to scheduling conflicts. Thus, Matthew fails to demonstrate that
Carol Jean mismanaged Jesses needs or failed to incorporate the
doctors advice.
Matthew also argues that he should not be penalized for
taking a less active role in Jesses care during Jesses younger
years because he worked to support the family while Carol Jean
stayed at home to care for the children. However, the testimony
at trial indicates that Matthew was in fact resistant to allowing
support services for Jesse at that time. Carol Jean testified
that Matthew was initially against allowing individuals from Mat-
Su Infant Services into the house because he was afraid they
would invoke their values on [the family] in a way that was
inconsistent with the Christian values of their household. Carol
Jean also testified that it took several months of pleading
before she was able to strike a deal with Matthew to allow in-
home services on the condition that if they said anything that
Carol Jean felt was derogatory or threatening they would have to
leave.
Matthew contends that he took responsibility for Jesses
care while he had interim custody. Matthew states that during
this time he was a stay at home dad and took Jesse to numerous
doctors appointments and enrolled him in a preschool program that
provided occupational and speech therapy. Matthew argues that
Carol Jean merely continued existing therapies and schooling when
she gained interim custody. Testimony at trial, however,
revealed that Carol Jean was an active participant in Jesses
speech therapy, which began after she gained interim custody.
Katherine Seyb, the speech pathologist, testified that Carol Jean
ha[d] done a great deal to work with him at home, while Matthew
never made contact with Seyb. Moreover, the evidence regarding
who took care of Jesses needs when the couple had 50/50 custody
was contested at trial and thus required a credibility
determination that was within the discretion of the superior
court.
Matthew and Carol Jean strongly disagree about Jesses
dietary needs. Carol Jean spent hours researching the effect of
diet in autistic children and developed strict food lists with a
naturopathic doctor designed to minimize Jesses manifestations of
autism and to reduce rashes. Matthew contends that this was
unnecessary because medical testing revealed that Jesse was
allergic only to wheat, and that Jesses rashes were not caused by
food consumption. Carol Jean frequently accused Matthew of not
following the strict dietary regime during his visitation with
Jesse, and Matthew counters that Carol Jeans own safe list of
foods in fact included items with wheat in them.
The court found that Jesse required a special diet and
that it has been Ms. Millette who has consistently adhered to the
demands of meeting Jesses special dietary needs. While the
merits of Jesses strict diet might well be scientifically
debatable, it was not clearly erroneous for the court to find the
diet justified, and to find that Carol Jean more clearly adhered
to it.
2. Stability
The superior court concluded that Jesse would have a
temporary disruption in his environment regardless of its custody
determination. With Carol Jean, Jesse would experience the
disruption of a planned move to Arizona. With Matthew, Jesse
would experience the disruption of changing his primary
caregiver. The superior court weighted this factor strongly in
Carol Jeans favor by looking at the ability of the parents to
provide long-term stability. The court found that adherence to
therapy schedules was key to that stability and that evidence at
trial showed that Carol Jean was the parent who secured these
therapies, who followed up with the care providers, and who
adhered to Jesses strict diet.
Matthew argues that the court improperly equated moving
to Arizona and away from friends, family, doctors, and schools
with moving into his fathers home. It was not clearly erroneous
for the court to find that a change in primary caregiver would be
as disruptive as a change in the other aspects of Jesses life.
Moreover, Matthew does not challenge the courts analysis on the
long-term stability, which was clearly more important to its
determination of this point.
3. Willingness to foster relationship with other
parent
The superior court found that this factor favored Carol
Jean after finding that her planned move to Arizona was not
motivated by a desire to prevent Matthew from having a
relationship with Jesse, and finding that if Matthew had custody
he might use domestic violence allegations to keep Jesse from
Carol Jean.
Matthew argues that the court failed to consider
evidence that Carol Jean disrupted his relationship with Jesse.
He enumerates a variety of actions that he alleges Carol Jean has
undertaken which have impeded his relationship with Jesse,
including failing to respond to visitation requests, agreeing to
visitation requests at the last minute, seeking modifications to
the custody arrangement, limiting Matthews visitation time, and
hunting for signs of neglect following visitation.
While a review of the evidence provides some support
for Matthews assertions,16 the courts findings favoring Carol Jean
are also supported by the record. Despite Matthews allegations
regarding Carol Jeans attempts to disrupt his relationship with
Jesse, Carol Jean testified that she had happily fostered a
continued relationship between her oldest son and his father
despite moving from Colorado to Alaska, indicating that she was
capable of fostering a continued relationship between Matthew and
Jesse as well. Evidence also established that Matthew made
allegations against Carol Jean to the police four times between
June 2003 and September 2005, twice resulting in Carol Jeans
arrest on charges that were ultimately dropped.
Though the record may have presented some evidence
disfavoring both parties, the courts decision that this factor
favored Carol Jean was not clearly erroneous. Because the
justification of each partys actions in limiting contact with the
other required credibility determinations, and because the
parties testimony was important to the courts determinations on
this issue, we defer to the superior court, which was in the best
position to evaluate this evidence.17
4. Domestic violence
The court noted that the parties accused each other of
domestic violence but found that the evidence at trial did not
support the continuation of a domestic violence order between the
parties. Overall, the court found that this factor favored Carol
Jean because Matthew had an untreated anger problem and subjected
his other children to harsh and physically abusive discipline in
the presence of other family members. Matthew argues that the
court discounted his evidence of being the victim of spousal
abuse because he is male. Our review of the record, however,
supports the trial courts finding.
Carol Jean was arrested on Matthews domestic violence
complaint on the day they separated in June 2003. The incident
apparently escalated into a domestic violence situation when
Matthew attempted to take Jesse from Carol Jean and she tried to
grab Jesse back, allegedly hitting Matthew in the process. Carol
Jean was left with bruises from this altercation, while Matthew
was not. Matthew told his older sons from his previous marriage
to get in the car and to call the police. Carol Jean allegedly
cut off the police call and was charged with interfering with a
domestic violence report as well. Matthews oldest children
reported to the police and, subsequently to OCS, that Carol Jean
frequently spanked them for minor infractions. Although the
criminal charges were dropped, Matthew was awarded temporary
custody of Jesse through a domestic violence protective order.
Additionally, OCS created a temporary agreement with Matthew in
July 2003 which stipulated that Jesse would have only supervised
visits with Carol Jean until she had obtained parenting classes
and been determined to be emotionally and mentally stable. By
August 2003 OCS found that though the allegations of mental
injury against Matthews two oldest children and Jesse were
substantiated, Carol Jean had complied with the recommendations
and no longer needed her visits to be supervised.
Matthews own testimony about Carol Jeans alleged
history of domestic violence does not reflect that he ever
experienced fear of harm from her. He described Carol Jeans
seasonal affective disorder and stated that in their first year
of marriage, when Carol Jean was feeling isolated and depressed,
she threatened him with a gun so that he would let her leave. On
cross-examination, when asked if he felt in danger, Matthew
responded I felt in danger for her. Another time he was worried
that Carol Jean would commit suicide. Matthew indicated that
Carol Jean did not inflict any serious physical injury upon him
during their relationship.
Matthew, in turn, was the subject of child abuse
allegations. In August 2003 Alaska State Troopers and OCS
responded to a report that Matthews older sons (ages nine and
eleven) were home alone supervising Jesse (age three). The
troopers investigated and found the older boys had been well
trained in safety and had a neighbor to call on in case of an
emergency. Additionally, Matthew was gone only for an hour on a
job interview. OCS closed the investigation as invalid for
neglect.
At trial the court heard testimony that Matthew has the
parenting style of a firm disciplinarian, which on occasion
included severe physical correction of his children. Carol Jean
testified that Matthew made a paddle about an inch and a half
thick that he beat the children with. He broke the paddle on her
oldest son, and then proceeded to hit him with a two-by-four.
Carol Jean also testified that Matthew beat one of his older sons
so hard that she and Jesse cried. Nancy Walters, a friend of
Carol Jeans and member of their church, corroborated Carol Jeans
account of Matthews harsh disciplinary style by recounting how he
interacted with his boys, including an incident where he slapped
Jesses leg for being squirmy during church. Matthews response to
these allegations was to testify that he was never reported for
domestic violence or child abuse until the commencement of the
divorce hearing. But at no point did Matthew dispute Carol Jeans
accounts.
Carol Jean also presented evidence that Matthew was
fired from his job at Xerox based on an allegation that he
brought a concealed handgun to work, and that he had threatened a
co-worker with the gun.
Taken as a whole, the record provides ample factual
support for the superior courts findings that Matthew (1) was not
a victim of domestic violence, (2) had an anger problem, and (3)
was not as suitable a parent for Jesse as was Carol Jean.
B. The Superior Courts Visitation Order Was Not an Abuse
of Discretion.
Matthew appeals the superior courts award of very
limited visitation as well as the preconditions that the superior
court imposed on that visitation: attending anger management
counseling and obtaining a letter from a counselor familiar with
the courts decision stating that there are no continued barriers
to Matthew having unsupervised overnight visitation for more than
a weekend at a time.
The superior court also noted: Mr. Millette is free to
file a motion for additional visitation in the future, when the
court will presumably have access to additional information from
Jesses care providers and teachers and be able to better assess
Jesses progress and his ability to tolerate lengthier stays in
Alaska and lengthier interruptions of his therapies.
Matthew argues that these conditions were imposed
solely on Carol Jeans word. However, our review of the record
reveals corroboration of Carol Jeans testimony from within the
ample record, from Matthews own failure to deny his disciplinary
style, and from the testimony of other witnesses. Under these
circumstances and with the acknowledgment that future court
orders may allow for more liberal visitation, the court did not
abuse its discretion in deciding that limited visitation was in
the best interest of Jesse given his special need for stability
and routine.
C. Child Support
1. The award of child support was improperly
retroactive.
Matthew argues that the superior court violated Alaska
Civil Rule 90.3(h)(2) by making the modification of child support
retroactive. Civil Rule 90.3(h)(2) states in relevant part:
No Retroactive Modification. Child support
arrearage may not be modified retroactively .
. . . A modification which is effective on
or after the date that a motion for
modification, or notice of petition for
modification by the Child Support Services
Division, is served on the opposing party is
not considered a retroactive modification.
We have held that [w]ithout a valid motion before the court, a
modification of child support would be retroactive and thus
prohibited.18 This is true even where the circumstances have
materially changed and a modification would likely be permitted
upon motion.19 In such cases, the burden remains on the non-
custodial parent to file a motion for modification of child
support.20
Here the superior court entered a starting date of
August 9, 2004 on the child support order that was issued on
October 4, 2005. August 9, 2004 was the date on which the court
granted Carol Jean interim legal and physical custody of Jesse.
On November 24, 2004, more than three months after that order,
Carol Jean filed a motion for modification of a child support
order previously issued by the CSSD in the amount of ninety
dollars per month. When the court ruled upon this motion for
modification in its October 2005 final child support order, it
used the date of the order of interim custody as the starting
date for the modified child support.
Carol Jean argues that the court appropriately chose
the August 9 date because it was the date of the order for
modification of interim custody. Carol Jean also argues that the
court could have chosen the earlier date at which Carol Jean
petitioned for modification of interim custody. However, Carol
Jeans motion for a modification of custody did not include a
request for a modification of child support. Thus, we are
confronted with a court-ordered change in custody that did not
mention child support and which did not follow a motion
requesting a change in child support. Carol Jean
relies on Boone v. Boone21 for the proposition that the court may
use a date other than the date of notice of a petition to modify
child support. However, Boone contemplates dates following
notice to the obligor, rather than dates preceding it.22
Moreover, nothing in Boone alters the presumption in our case law
that a revised child support order presumptively relates back to
notice of a petition for modification.23
Therefore, we hold that the earliest date for the
modification should be the date on which Matthew received notice
of the November 24, 2004 Motion for Modification of Child Support
and Withholding Order. We remand for a determination of that
date.
2. It was error to fail to deduct the amount Matthew
pays for health insurance for Jesse.
Matthew alleges that the superior court erred because
its child support order did not reflect any credit for Matthews
monthly payment for Jesses health insurance. Civil Rule
90.3(d)(1) entitles Matthew to a credit based on the added costs
that he pays in order to insure Jesse.24 Carol Jean argues in her
brief that the court did not abuse its discretion on this issue
because Matthew failed to tell the court exactly how much he was
paying and failed to produce any documentation of payment.
Matthew argues that the testimony established that he was
providing support and that he should have been told by the court
to supply more information if that was needed. We agree with
Matthew.
In Rusenstrom v. Rusenstrom25 we reversed the superior
courts determination that insufficient evidence had been provided
regarding a fathers payments for his dependents health care and
remanded for further findings on the amount of the credit. In
that case it was unclear how much of the health insurance
benefits paid by the father went to the children at issue rather
than other dependents and that issue had not been addressed
below.26 We remanded with instructions to resolve uncertainty on
this point.27
In this case, the transcripts reveal that the issue of
health insurance was discussed, though without firm details.
Carol Jeans attorney, Lance Wells, asked Matthew about the amount
he paid for health insurance. Judge Christen also questioned
Matthew, asking how much additional money he paid to insure Jesse
rather than just himself. Matthew responded to this questioning
with some equivocation: its somewhere in the vicinity of a
hundred dollars. Wells28 prompted, Youd be able to get that
information from the employer, the insurance provider, exactly
how much Jesses portion of the policy is, and make that
available. . . . Matthew replied, I will try. They couldnt give
me an exact number, they said youre just going to have to do the
math. They could not issue me a statement saying this is how
much you pay for this one individual. It appears Matthew never
supplied the information to the superior court, although he
alleges specific dollar amounts in his brief on appeal.
Because Matthew presented evidence that he was making
some payment towards Jesses health care, the court should have
notified Matthew, as a pro se litigant, that he needed to provide
more information before the court was able to apply a specific
credit in a child support award.29 Because our review of the
transcript does not reveal any such request for documentation
from the court following Matthews testimony, we remand for
factual findings with instructions that the superior court should
credit the past health care support Matthew paid in accordance
with Rule 90.3(d)(1).
D. Matthew Waived the Issue that the Superior Court Erred
in Failing
To Rule on Matthews Motion To Compel Discovery.
Matthew asserts that the superior court abused its
discretion by failing to rule on his motion to compel discovery.
Carol Jean counters that Matthew waived this issue for purposes
of appeal because he did not do enough to insist upon a ruling at
trial. Carol Jean also argues that she legitimately objected to
the discovery request on the grounds that it was untimely.
It is well established that issues are waived for
purposes of appeal if not adequately raised below.30 In Marino v.
State31 the court of appeals held that a defendant could not raise
the failure to receive a ruling on a discovery motion on appeal
where he chose to proceed at trial without seeking a ruling.32 In
that case the defendant asked once for a ruling on a motion to
compel discovery of certain documents.33 The judge announced that
he would review the documents in question and issue a ruling
later.34 However, the ruling never came and the defendant never
raised the issue again.35 Similarly, in Erickson v. State36 the
court of appeals held that it was the defendants duty to insist
that the trial court rule on his motion.37
Here, Matthew made some effort to secure a ruling on
his motion to compel discovery with his August 5, 2005 Request
for Ruling. However, Matthew participated in the custody hearing
without suggesting until the last day that his lack of discovery
required a postponement. Not until the fourth day of the
hearing did Matthew bring up the issue of discovery, and he did
so then only in passing.38 By proceeding through almost the
entire child custody hearing without mention of his motion to
compel, Matthew did not sufficiently bring the issue to the
superior courts attention. Matthew argues that he
deserves extra leniency under Breck v. Ulmer39 because of his pro
se status in the litigation. However, we declined to extend
additional consideration to a pro se litigant on the issue of a
courts failure to rule on a motion in Jourdan v. Nationsbanc
Mortgage Corp.,40 where the litigant offered no proof that the
courts failure to rule was related to the litigants pro se status
and the court clearly made attempts to accommodate the litigant
in other ways.41 Here, Matthew offers no indication that the
courts failure to rule was related to Matthews status as a pro se
litigant. Accordingly, he was entitled to no extra
consideration.
E. The Superior Court Did Not Err in Failing To Rule
Regarding Disbursement of Funds From the Sale of the
Marital House.
Matthew alleges that the court erred by failing to rule
on Matthews motion to compel disbursement of proceeds from the
sale of the marital home. Carol Jean disputes Matthews right to
the money and believes Matthew owes her money. The superior
court did not address the issue because it was not relevant to
the issue of custody, and because Matthew himself objected during
the hearing to the discussion of debts he owed Carol.
We hold that the court did not err in failing to
address the issue of outstanding debts during the hearing on
custody, visitation, and support. Of course, because the hearing
and the courts subsequent findings of fact and conclusions of law
did not encompass the issue of marital assets, nothing in the
courts decision below or in our decision today precludes Matthew
from filing a new motion in the superior court to compel the
disbursement of funds he may be owed.
V. CONCLUSION
We AFFIRM the superior courts decisions on custody and
visitation and REMAND on the issue of child support for further
proceedings consistent with this opinion.
_______________________________
1 Child Support Services Division (CSSD) had previously
issued a child support order for ninety dollars a month.
2 Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).
3 Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005)
(quoting In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska
2001)).
4 Jenkins, 10 P.3d at 589.
5 Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982).
6 Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).
7 Boone v. Boone, 960 P.2d 579, 582 n.2 (Alaska 1998).
8 Spott v. Spott, 17 P.3d 52, 55 (Alaska 2001).
9 Taylor v. McGlothlin, 919 P.2d 1349, 1351 n.3 (Alaska
1996).
10 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
11 Taylor v. Johnson, 985 P.2d 460, 463 (Alaska 1999).
12 Factor six was amended to the quoted form as of July 1,
2004. AS 25.24.150(c), as amended by ch. III 4-5, SLA 2004.
This date was before the superior court judge issued her decision
but after the case was assigned to the court for consideration.
The previous version of factor six read: The desire and ability
of each parent to allow an open and loving frequent relationship
between the child and the other parent.
13 AS 25.24.150(c).
14 Ebertz v. Ebertz, 113 P.3d 643, 648 (Alaska 2005)
([T]he court need not discuss each statutory factor in detail;
the courts findings will be sufficient if they give us a clear
indication of the factors which [the court] considered important
in exercising its discretion or allow us to glean from the record
what considerations were involved. ) (quotations omitted).
15 Id. at 651.
16 Notes exchanged between Carol Jean and Matthew reveal a
tone of distrust and disapproval on the part of Carol Jean,
including frequent accusations of neglect. Carol Jeans requests
for reduced custody and shortened visitation times also reveal
her distrust of Matthew to care for Jesse during prolonged
visitation.
17 See Ebertz, 113 P.3d at 650.
18 Wright v. Wright, 22 P.3d 875, 879 (Alaska 2001).
19 See id.
20 Karpuleon v. Karpuleon, 881 P.2d 318, 320 (Alaska
1994).
21 960 P.2d 579 (Alaska 1998).
22 Id. at 585 (The rules text does not express a
preference or presumption that a modification become effective on
the motion service date, and does not prevent the superior court
from exercising its discretion and selecting a later effective
date. But we are nonetheless persuaded that the motion service
date should be the preferred effective date . . . .) (emphasis
added).
23 State v. Dillon, 977 P.2d 118, 118 (Alaska 1999).
24 Civil Rule 90.3(d)(1) states in relevant part: An
obligors child support obligation will be decreased by the amount
of the obligees portion of health insurance payments ordered by
the court and actually paid by the obligor. . . . The cost of
insurance is the cost attributable to the children for whom
support is paid.
25 981 P.2d 558 (Alaska 1999).
26 Id. at 562.
27 Id.
28 It appears from the transcripts that Wells asked this
question. However, Carol Jean alleges in her brief that the
court asked this question.
29 See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)
([T]he trial judge should inform a pro se litigant of the proper
procedure for the action he or she is obviously trying to
accomplish . . . .).
30 Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002) (We
have consistently held that a defendant who chooses to proceed
without demanding a ruling from the trial court waives the
potential claim of error.); see also Taylor v. Johnson, 985 P.2d
460, 466 (Alaska 1999) (declining to reverse where motion to
reopen discovery was not ruled upon and party did not alert court
to the status of the motion); 4 C.J.S. Appeal and Error 313
(2005) (An appellate court does not ordinarily pass on questions
raised but not ruled on in the court below; but a ruling by
implication may be sufficient to present a question for review.).
31 934 P.2d 1321 (Alaska App. 1997).
32 Id. at 1327.
33 Id.
34 Id.
35 Id.; cf. Dougan v. Aurora Elec. Inc., 50 P.3d 789, 796
(Alaska 2002) (where party made three timely discovery requests,
requested that board compel discovery three times, and addressed
discovery issue at pre-trial conference, in motion for
reconsideration and in additional objection, this court remanded
for factual determination of whether failure to rule on discovery
motions violated due process).
36 824 P.2d 725 (Alaska App. 1991).
37 Id. at 733.
38 On the issue of Carol Jeans mental health, Matthew
stated: This is the only documentation I have due to the fact
that I received no discovery from Carol Jean.
39 745 P.2d 66, 75 (Alaska 1987).
40 42 P.3d 1072 (Alaska 2002).
41 Id. at 1078-79.
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