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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

Millette v. Millette (01/04/2008) sp-6218, 177 P3d 258

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 12107
Appellant, )
) Superior Court No.
v. ) 3AN-03-13074 CI
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.

          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
          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.
          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
          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
          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
          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.
          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
     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
          (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
          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
          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
          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
          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
          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
          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
          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
          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
          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
          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
     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.
          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

     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

     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

     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

     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

     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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