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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Robertson v. Riplett (10/24/2008) sp-6320

Robertson v. Riplett (10/24/2008) sp-6320, 194 P3d 382

     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


DOUGLAS B. ROBERTSON, )
) Supreme Court No. S- 12800
Appellant, )
) Superior Court No. 3AN-07-4708 CI
v. )
) O P I N I O N
CHER L. RIPLETT, )
) No. 6320 October 24, 2008
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Jack W. Smith, Judge.

          Appearances:  Douglas B. Robertson,  pro  se,
          Beavercreek,  Ohio.  David  W.  Baranow,  Law
          Offices  of  David  Baranow,  Anchorage,  for
          Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          After  registering Ohio child custody orders in  Alaska
where  his  children and former wife were then living,  a  father
asked the Alaska court to modify an Ohio order that suspended his
visitation  rights.  The superior court denied his  motion.   The
father  appeals.   We  affirm.  Because the Ohio  court  has  not
relinquished  its exclusive jurisdiction and because  the  father
still  resides  in Ohio, AS 25.30.320, part of the Uniform  Child
Custody  Jurisdiction  and Enforcement Act (UCCJEA),  denied  the
superior court jurisdiction to modify the Ohio order.  The father
also challenges a superior court order requiring him to serve and
file  his 2006 income tax returns.  Because his tax returns  were
relevant  to child support, the superior court did not abuse  its
discretion in ordering their production.
II.  FACTS AND PROCEEDINGS
          Douglas Robertson and Cher Riplett married in July 1994
and  divorced in August 2001 in Ohio.  They have a son,  born  in
January  1995, and a daughter, born in January 1997.  As part  of
the  Ohio divorce proceedings, Robertson and Riplett entered into
a  shared parenting plan that, among other things, provided  that
Ripletts  residence would be the childrens primary residence  and
that Robertson would have visitation on alternating weekends  and
at least one evening each week.
          Riplett later filed a motion in the Common Pleas  Court
of  Clark  County,  Ohio  to  restrict  or  terminate  Robertsons
visitation.  An evidentiary hearing was held and Ripletts  motion
was  granted.   The  presiding  magistrate  suspended  Robertsons
visitation  and ordered him to undergo a psychological assessment
and  attend  and  complete  an anger  management  program  before
petitioning the court to reinstate his visitation.
          But because Robertson had not received proper notice of
the  initial hearing, Common Pleas Court Judge Thomas  J.  Capper
held  a two-day supplemental evidentiary hearing and conducted  a
best-interests-of-the-child     analysis     under     subsection
  3109.051(D) of the Ohio Revised Code.  Judge Capper  ultimately
found  in his February 19, 2003 order that Mr. Robertson has  had
no  visitations or parenting time with the parties  children  for
approximately  eight  months and the  totality  of  the  credible
evidence  suggests  that  the childrens overall  development  has
dramatically  improved during this period of time.  Judge  Capper
suspended   Robertsons  visitation  rights.   He   also   ordered
Robertson  to  complete  a psychological  assessment  and  attend
follow-up  counseling, if recommended, and to complete  an  anger
management program before petitioning the court to reinstate  his
visitation rights.
          Approximately  one month after Judge  Capper  suspended
Robertsons visitation rights, Robertson filed a motion asking the
Ohio court to lift all restrictions on his visitation.
          Approximately three months later, Riplett, her  present
husband,  and  the  children moved to  Alaska  when  Riplett  was
assigned here by the U.S. Air Force.
          Judge  Capper  conducted  an  evidentiary  hearing   in
January  2004  on  Robertsons pending motion to  lift  visitation
restrictions.   Judge Capper again considered the best  interests
factors  and  determined in his order of February 24,  2004  that
Robertson had presented no credible evidence to suggest that  [he
had]  taken any positive steps to address the concerns set  forth
in  [the] Courts February 19, 2003 Order.  After determining that
two  of  Robertsons  witnesses were not  credible,  Judge  Capper
concluded  that it seems only fair for [the] Court to afford  Mr.
Robertson  the  opportunity  to be  professionally  evaluated  by
specific  qualified professionals selected by [the] Court.  Judge
Cappers  February 24, 2004 order:  (1) appointed an Ohio attorney
as  guardian  ad  litem  (GAL)  for the  children,  and  required
Robertson  to  pay all resulting costs, including  $1,000  as  an
initial deposit cost by April 15; (2) ordered Robertson, Riplett,
and  the  children to submit to psychological evaluations  by  an
Ohio  psychologist, and required Robertson to pay all  associated
costs;  and  (3) ordered Robertson and Riplett to  submit  to  an
anger  management assessment by an Ohio clinical psychologist  at
Robertsons  expense.   The  order  also  stated  that  Robertsons
appointments  to facilitate the orders must take place  within  a
one  week period of time in the month of July, 2004 and that  the
appointment dates had to be provided to Riplett by June 1, 2004.
          In  early  2007  Robertson filed an  affidavit  in  the
superior court in Alaska seeking registration of the Ohio  Agreed
Judgment  Entry and Decree of Divorce and the Ohio Agreed  Decree
of  Shared Parenting.  It appears that Robertson attached to  his
affidavit  a  child  custody  jurisdiction  affidavit,  the  Ohio
divorce  decree, the Ohio order incorporating the parties  shared
parenting  plan,  and the February 2003 and  February  2004  Ohio
custody   and   visitation  orders.   Robertsons  child   custody
jurisdiction  affidavit  acknowledged that  the  Ohio  court  had
suspended his visitation.
          Riplett  initially contested Alaska jurisdiction.   The
superior court conducted a hearing on Robertsons motion.  Riplett
withdrew  her  opposition and consented to registering  the  Ohio
decrees,  and  the  superior court confirmed their  registration.
Riplett  informed the superior court during the hearing that  the
Air  Force would soon transfer her to Mississippi.  The  superior
court  ordered  Riplett  to inform Robertson  of  any  change-of-
station orders.
          Robertson  thereafter filed a superior court motion  to
change custody, support, or visitation.  In support he attached a
letter   to   the  court  and  2002,  2003,  and  2005  character
references.   Robertson also filed what he called  a  Motion  for
Expedited  Request of Signature on Release of Claim,  seeking  to
enforce  his right under the shared parenting plan to  claim  the
parties  son as his dependent for every year in which  Robertsons
gross  income is less than $29,000.  Robertson also filed various
other motions, including a motion to sanction Riplett for failing
to  send Robertson her change-of-station orders and a motion  for
an order to prevent the children from being removed from Alaska.
          The superior court summarily denied Robertsons motions.
It denied Robertsons Motion for Expedited Request of Signature on
Release  of  Claim  without prejudice, as  being  premature,  and
ordered him to serve and file copies of his 2006 federal and Ohio
state income tax returns in order to permit the proper review  of
child  support  collection  and  charges/obligations.   It   also
ordered Robertson to comply with each and every particular of the
February 2003 and February 2004 orders entered by the Ohio court,
including  the requirements of psychological and anger management
assessments  and  the retention of a GAL, before  filing  further
pleadings  seeking modification of visitation.   Robertson  twice
unsuccessfully moved for reconsideration.
          Robertson appeals the denial of his modification motion
and  the order compelling him to provide his tax information  for
child support review.
III. DISCUSSION
     A.   The  Superior Court Did Not Have Jurisdiction To Modify
          the Ohio Custody Orders.
          
          We  first  consider  whether  the  superior  court  had
subject  matter  jurisdiction to consider  Robertsons  motion  to
modify Ohio custody orders.  Whether the court had subject matter
jurisdiction is a question of law that we review de novo.1
          When  the  parties  divorced in 2001,  the  Ohio  court
provided  its  initial child custody and visitation determination
by  incorporating  the  parties shared parenting  plan  into  the
divorce  decree.  The Ohio court modified the original  order  in
February  2003  when  Judge  Capper granted  Ripletts  motion  to
suspend  Robertsons visitation.  In February 2004 the Ohio  court
again exercised its jurisdiction when it denied Robertsons motion
to reinstate visitation.
          Alaska  courts  have limited powers to  modify  foreign
child  custody orders.  Alaska adopted the Uniform Child  Custody
Jurisdiction  and  Enforcement Act  (UCCJEA)  in  1998.2   Alaska
Statute  25.30.320, in accordance with the UCCJEA, denies  Alaska
courts authority to modify child custody decrees of another state
unless conditions specified in section .320 are met.  Per section
.320, the superior court could have modified the Ohio custody  or
visitation orders only if at least one of two alternative sets of
conditions had been met.3
          First,  the  superior court would have had jurisdiction
in  2007  to  modify  the Ohio orders if both  of  the  following
conditions had been satisfied: Alaska had jurisdiction to make an
initial custody determination and, per AS 25.30.320(1), the  Ohio
court  either had declined jurisdiction or had determined that an
Alaska  court  provided  a  more  convenient  forum.   The  first
condition was satisfied because Alaska had jurisdiction  to  make
an   initial   custody  determination.4   But  neither   of   the
alternatives for the second condition was satisfied  here:  there
is  no  indication in the record that the Ohio court had declined
jurisdiction or that it had determined that an Alaska court would
be  a  more convenient forum.  Instead, an Ohio statute  provides
that  Ohio courts exercise exclusive continuing jurisdiction over
child custody determinations until the [Ohio] court or a court of
another state determines that the child, the childs parents,  and
any  person  acting as a parent do not presently reside  in  this
state.5
          Second,  an Alaska court would alternatively  have  had
jurisdiction  in  2007 to modify the Ohio  order  if  Alaska  had
jurisdiction to make an initial custody determination and, per AS
25.30.320(2),  neither parent nor the children  resided  in  Ohio
during  the  Alaska proceeding.  But again, the second  condition
was  not  satisfied here because it is undisputed that  Robertson
still  resided  in  Ohio  when the  Alaska  court  ruled  on  his
modification  motion  and, indeed, that he still  resides  there.
The  Ohio  court therefore had exclusive continuing  jurisdiction
over  the child custody determinations in this case at all  times
relevant to this appeal.
          That  Robertson  chose to file suit in Alaska  was  not
          sufficient to give the superior court jurisdiction to modify the
Ohio  custody  determinations.6  As a court which does  not  have
subject  matter jurisdiction is without power to decide  a  case,
this issue cannot be waived.7

          Although  the  superior court did not  deny  Robertsons
modification  motion on jurisdictional grounds, we may  affirm  a
judgment  on  any grounds that the record supports, even  if  not
relied  on  by  the  superior court.8  It is not  surprising  the
superior  court  did not address whether it had  jurisdiction  to
modify  the  custody order; Riplett did not raise  the  issue  of
jurisdiction  below  or in her briefing to this  court.   Subject
matter  jurisdiction, however, may be raised at any stage of  the
litigation  and  if noticed must be raised by the  court  if  not
raised by the parties.9
          Normally the appellees failure to raise subject  matter
jurisdiction would make it desirable for us to order supplemental
briefing on the topic.  But in this case, the resolution  of  the
subject  matter  jurisdiction is so  self-evident  that  ordering
supplemental briefing would merely delay the resolution  of  this
expedited  appeal.   The absence of subject  matter  jurisdiction
requires  us  to  affirm  the denial of  Robertsons  modification
motion.   This  makes it unnecessary to consider  the  merits  of
Robertsons modification argument.
     B.   The Superior Court Did Not Err in Ordering Robertson To
          Submit His Income Tax Returns.
          
          The superior court ordered Robertson to submit his 2006
income tax returns to Ripletts counsel and file the returns  with
the court to permit the proper review of child support collection
and  charges/obligations.  The issue of child support  was  first
raised  by  Riplett;  she argued in opposing Robertsons  superior
court  modification motion that no proof as to currency of  child
support  has  been provided by the father, as is  incumbent  upon
him.   We  review  a  superior courts  decision  regarding  child
support for abuse of discretion.10
          Robertson first argues that the superior court erred in
entering the order because he contends that the support order has
not  been  registered in Alaska.  The superior courts April  2007
order confirmed registration of the Ohio decree incorporating the
parties  shared  parenting  plan; the  plan  also  contained  the
parties  child  support agreement.  Although  Robertson  did  not
separately move to register the support order under AS 25.25.609,11
the  child  support order was nonetheless properly registered  in
Alaska.
          Robertson also argues that because he resides in  Ohio,
the  superior  court lacked jurisdiction under  AS  25.25.613  to
order  him to submit tax information. Robertsons reliance  on  AS
25.25.613 is misplaced.  That statute states that [i]f all of the
individual  parties reside in this state and the child  does  not
reside  in  the  issuing  state, a tribunal  of  this  state  has
jurisdiction  to enforce and to modify the issuing  states  child
support order in a proceeding to register that order.12  But that
statute  does  not require that all parties reside in  Alaska  to
          enforce a foreign support order without modification.13  The
superior  court did not modify the Ohio support orders.   It  was
authorized  to enforce the Ohio support orders, and  it  did  not
abuse  its discretion in requiring Robertson to provide  his  tax
return as an aid to enforcing his child support obligation.
          Robertson  further asserts that, per Alaska Civil  Rule
90.3,  Riplett  should  be  required to  submit  her  income  tax
information  first.  It appears that Robertson  is  referring  to
Civil  Rule  90.3(e)(2), which requires that  a  party  making  a
written  request  to  another party for  documents  such  as  tax
returns submit documentation of his or her annual income for  the
same  period at the time the request is made.  This rule provides
an  informal method either parent can use, while a support  order
is  in  effect,  to learn whether there has been a  large  enough
change  in  the other parents income to justify a change  in  the
amount of child support.14  Civil Rule 90.3(e)(2) is inapplicable
here  because  Riplett  did not raise the  issue  of  income  tax
information  in  the context of seeking a modification  in  child
support.  She only sought to enforce the Ohio support orders.  We
therefore hold that Riplett is not required to produce her income
tax information.
          We  accordingly affirm the order requiring Robertson to
submit  his tax information. We deny Robertsons request  that  we
order Riplett to submit her tax information.

IV.  CONCLUSION
          We therefore AFFIRM both the denial of the modification
motion  and  the  order requiring Robertson to  submit  his  2006
income tax information.
_______________________________
     1    B.B. v. D.D., 18 P.3d 1210, 1212 (Alaska 2001) (holding
that  superior court had jurisdiction under Alaska Uniform  Child
Custody  Jurisdiction  Act [repealed in 1998  and  replaced  with
Uniform Child Custody Jurisdiction and Enforcement Act] to modify
Oregon child custody determination).

     2    Ch. 133,  2, SLA 1998, codified as AS 25.30.300-.910.

     3    AS 25.30.320 provides in pertinent part:

          [A]  court  of  this state may not  modify  a
          child  custody determination made by a  court
          of another state unless a court of this state
          has   jurisdiction   to   make   an   initial
          determination under AS 25.30.300(a)(1),  (2),
          or (3) and
          (1)   the court of the other state determines
          it   no   longer  has  exclusive,  continuing
          jurisdiction  under provisions  substantially
          similar  to AS 25.30.310 or that a  court  of
          this  state would be a more convenient  forum
          under provisions substantially similar to  AS
          25.30.360; or
          (2)   a court of this state or a court of the
          other  state  determines  that  neither   the
          child, nor a parent, nor a person acting as a
          parent presently resides in the other state.
          
     4      Had   there   been  no  prior  Ohio   child   custody
determination, Alaska would have had jurisdiction in 2007 to make
an  initial determination under AS 25.30.300(a)(1) because Alaska
was  the  childrens  home state when the  Alaska  proceeding  was
commenced  (when  Robertson moved in  superior  court  to  modify
visitation).

     5    Ohio Rev. Code Ann.  3127.16.

     6     See  Vannatta v. Boulds, 81 P.3d 480, 483 (Mont. 2003)
(holding Montana court did not have jurisdiction to modify  North
Dakota  order  even though father, who resided in  North  Dakota,
attempted to invoke jurisdiction in Montana).

     7    Wanamaker v. Scott, 788 P.2d 712, 714 n.2 (Alaska 1990)
(citing  Mundy & Mundy, Inc. v. Adams, 602 P.2d 1021, 1024  (N.M.
1979)).

     8    Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996,
1001  (Alaska  2005); cf. Hoffman Constr. Co. of Alaska  v.  U.S.
Fabrication  &  Erection, Inc., 32 P.3d 346,  351  (Alaska  2001)
([W]e  will consider any matter appearing in the record, even  if
not  passed  upon  by  the  superior court,  in  defense  of  the
judgment.  However, we will not consider arguments that were  not
raised  below,  unless the issues establish plain error,  or  the
issues  (1) do not depend upon new facts, (2) are closely related
to other arguments at trial, and (3) could have been gleaned from
the pleadings. (internal citations omitted)).

     9     Stone  v.  Stone, 647 P.2d 582, 584 n.1 (Alaska  1982)
(citing OLink v. OLink, 632 P.2d 225, 226 n.2 (Alaska 1981)); see
Alaska  R.  Civ.  P.  12(h)(3).  Under the corresponding  federal
rule, [i]f the court determines at any time that it lacks subject
matter jurisdiction, the court must dismiss the action.  Fed.  R.
Civ. P. 12(h)(3); see Rice v. Rice Found., 610 F.2d 471, 474 (7th
Cir. 1979) ([A] federal court, including a court of appeals, must
raise  the issue of subject matter jurisdiction on its own motion
where the parties fail to bring it to the courts attention.); see
also State, Dept of Fin. & Admin. v. Tedder, 932 S.W.2d 755,  756
(Ark.  1996) (noting that state supreme court can raise issue  of
subject matter jurisdiction on its own motion).

     10     Bennett  v.  Bennett, 6 P.3d 724, 726  (Alaska  2000)
(holding that superior courts retroactive child support award  to
father was abuse of discretion because, although father was court-
designated custodial parent, mother had de facto custody).

     11    AS 25.25.609 provides that [i]f a party . . . seeks to
modify, or to modify and enforce, a child support order issued in
another  state  but not registered in this state,  the  party  or
agency shall register that order in this state in the same manner
provided in AS 25.25.601-.608.

     12    AS 25.25.613(a).

     13     See  AS  25.25.601  (A support  order  or  an  income
withholding  order issued by a tribunal of another state  may  be
registered in this state for enforcement.).

     14    Alaska R. Civ. P. 90.3 cmt. VIII.B.

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