Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Joymot v. Skillings-Donat (9/25/2009) sp-6417

Joymot v. Skillings-Donat (9/25/2009) sp-6417, 216 P3d 534

     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

SARAH JAYMOT, )
) Supreme Court No. S- 13204
Appellant,)
) Superior Court No. 3AN-08- 4681 CIV
v. )
) O P I N I O N
)
ELIJAH SKILLINGS-DONAT, ) No. 6417 - September 25, 2009
)
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Andrew Josephson,  Law  Offices
          of   G.   R.   Eschbacher,   Anchorage,   for
          Appellant.   Phyllis A. Shepherd, Law  Office
          of  Dan  Allan & Associates, Anchorage,   for
          Appellee.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti, Winfree, and Christen, Justices.

          WINFREE, Justice.

I.   INTRODUCTION
          This appeal concerns child custody, child support,  and
property  disputes  between two parents who  lived  together  for
several  years  but never married, then separated and  agreed  to
share  custody  of their minor child.  Three years  later,  after
moving  to Oregon, the mother filed suit seeking sole custody  of
their  child and a share of proceeds from the sale of the  family
house.   The  superior court granted the father  sole  legal  and
primary  physical custody, entered a child support award  in  the
fathers  favor, and denied the mothers claim to a  share  of  the
house-sale proceeds.  We affirm the custody ruling as within  the
superior courts discretion, affirm the denial of a child  support
arrearage  award because the claim was not raised at  trial,  but
vacate the property ruling and remand for further proceedings  to
establish necessary factual findings.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Sarah   Jaymot  and  Elijah  Skillings-Donat   met   in
California in 1999.  They moved to Alaska together in August 1999
and  settled in Anchorage, where they lived together  until  July
2002.
          Sarah  and  Elijahs daughter was born in January  2002.
That  summer  the family moved to Haines, and in  the  fall  they
moved  into a house purchased for $80,000.  Sarah testified  that
she  contributed her Permanent Fund Dividend to the  down-payment
on  the  house and that the proceeds from the sale of a  jointly-
owned  travel trailer were also spent on the house.  Sarahs  name
was  not placed on the title, nor was she an obligor on the house
loan.   She testified that she asked Elijah several times  during
their  relationship to place her name on the title,  but  he  did
not.   Elijah testified that he was always extremely clear  about
not putting [Sarahs] name on the title of anything, and never did
so.   Substantial improvements were made to the house  while  the
couple  lived  there  together, but the parties  dispute  whether
Sarah contributed to those improvements.
          While  living  together, Sarah paid the couples  bills.
But  the  parties  dispute Sarahs actual financial  contribution.
Sarah testified:
          I  paid  all the monthly bills.  I, at least,
          took  care  of it.  Received them; sent  them
          out  in  the  mail.  Sometimes theyd  all  be
          written out of his bank account, and he would
          sign the checks, and sometimes they would get
          written  out of my bank account, and  we  put
          money  in.  Sometimes they just got paid  out
          of my bank account.
          
Elijah  testified that he made out checks on his personal account
to Sarah for the purpose of paying bills:
          [S]he  offered  to  pay the  bills.   So  she
          always  usually would pay the bills.   But  I
          didnt  want to spend the time to do the math,
          and write all the checks, and everything,  so
          she  would do that, and I would write  her  a
          check  for the amount of the bills  that  she
          was going to be writing.  I did that on --  I
          did  it just for efficiency, and, then, also,
          when  I was out of town, or wouldnt be there,
          I would sign blank checks.  And then you will
          notice  that  much  of the writing  on  these
          checks  is her writing.  I believe  there  is
          only one or two that were written by me,  but
          theyre all signed by me.
          
At  trial  Sarah  produced  checks  showing  mortgage  and  truck
payments  made from her account, and Elijah produced checks  made
out to Sarah from his account.
          In  June 2005 Elijah and Sarah ended their relationship
and  Sarah moved out of the house.  They entered into an informal
agreement for equal shared custody of their daughter.  They  both
continued to reside in Haines.
          In  August 2007 Sarah informed Elijah that she would be
moving   to  Portland,  Oregon.   On  August  22,  2007,  Elijahs
girlfriend had an altercation with Sarah and her mother, who  was
visiting  in  Haines.   Sarahs  mother  testified  that   Elijahs
girlfriend  arrived at Sarahs workplace and began to  argue  with
Sarah,  pushed Sarahs mother and told her to get out of the  way,
and  then  grabbed  Sarahs daughters arm  and  told  her,  [y]our
grandmother  is  trying to take you away from us,  and  were  not
going to let that happen.  Sarah petitioned for domestic violence
protective orders against Elijah and his girlfriend, even  though
Elijah was not present when the altercation occurred.  Sarah  was
granted  an ex parte protective order against Elijahs girlfriend,
but  she was denied a protective order against Elijah.  On August
30  Sarah  filed  a  request to dissolve  the  protective  order,
explaining  her reason as consent to mediation for child  custody
if order is dropped.
          In  early  September 2007 Sarah and  Elijah  signed  an
agreement  to share legal and physical custody of their daughter,
who  was  to rotate between Haines and Portland every six months.
Their daughter remained in Haines with Elijah during the fall  of
2007  while  Sarah  moved to Portland.   In  January  2008  their
daughter moved to Portland to begin her six months with Sarah.
          On  January  11,  2008,  Elijah sent  Sarah  an  e-mail
stating  that he would take their daughter for a vacation  during
her  spring  break.   Elijah and Sarah  argued  via  e-mail  over
whether  Elijah would be allowed to see their daughter then  and,
if  so,  for how long.  In response to Elijahs January 25  e-mail
stating  that he would arrive in Portland the following  Thursday
to take their daughter for the weekend, Sarah directed all future
communications  to her attorney.  She filed this  action  shortly
thereafter.
     B.   Proceedings
          In  March  2007 Sarah filed a petition with the  Alaska
Department of Revenue, Child Support Services Division (CSSD) for
child  support  from Elijah.  In August 2007 CSSD  served  Elijah
with  a  child support order requiring him to pay $524 per month,
as well as $3,144 in arrears from March 1, 2007.
          In  January  2008 Sarah filed suit seeking  sole  legal
custody, primary physical custody, increased child support, and a
share  of  property  acquired during the course  of  the  couples
relationship.  Elijah moved for interim relief in the form  of  a
temporary  grant  of  primary  physical  custody  requiring   the
daughter  to  return  to Alaska.  Sarah opposed  the  motion  for
interim  relief  and  moved  for the  appointment  of  a  custody
investigator.   The  superior court  denied  Elijahs  motion  but
modified  the parties existing custody agreement, ordering  Sarah
to  return  the daughter to Alaska on June 14, 2008.   The  court
also denied Sarahs motion for a custody investigator.
          A  bench trial was held in late June 2008.  On July  1,
2008,  the  court awarded Elijah sole legal and primary  physical
custody.   The court found both parents were capable of providing
for  their  daughters needs, but also found they  had  difficulty
communicating  and  compromising with  one  another.   The  court
stated that [t]o the extent the emotional capacity of the parents
to  properly parent is an issue, it appears from the testimony of
them  on  the stand, that the father is more composed and capable
of  extracting himself from the anger of the moment and concluded
this factor tipped slightly in [Elijahs] favor.
          The  court  found  that:   (1) regarding  each  parents
ability  to  foster a relationship between the daughter  and  the
other  parent,  the evidence tends to show that [Sarah]  is  less
capable  of  doing so, in part it seems due to  her  anger  about
[Elijahs]  unwillingness to marry her and  her  belief  that  she
should  get  the benefits of his property; (2) Sarah  refuses  to
speak  with  [Elijah] and fails to promote communication  .  .  .
refused  reasonable requests to visit and only grudgingly  allows
contacts with the father; (3) as to [Sarahs] ability to meet  the
emotional  and  social needs of the child (which  requires  close
connection  with  the father) and willingness to  facilitate  and
encourage close contact with the other parent, [Sarah] provides a
less  satisfactory  environment for the  child;  (4)  Elijah  and
Sarahs  daughter was too young to express a preference for either
parent and appeared to love both; and (4) there was no history of
domestic violence or drug abuse by either parent.
          The  court concluded that it was in the daughters  best
interests to be primarily in Elijahs custody.  The court  ordered
that:   (1)  the  daughter reside with Elijah during  the  school
year;  (2) Sarah have visitation from the first Sunday after  the
end of school until two weeks before the start of the next school
year;  (3) the parents alternate winter and spring holidays  with
the  daughter;  and (4) Elijah continue to have  custody  of  the
daughter  for the remaining summer months of 2008, with Sarah  to
have visitation during the first week of August.
          As  to  property acquired during the relationship,  the
court  found  that  Sarah and Elijah did not have  an  intent  to
engage in a domestic partnership and that their property and debt
remains separate property.
          Sarah  moved  for reconsideration of the  trial  courts
custody order, arguing that the court:  (1) failed to account for
the  fact  that [she] very well could move back to . . .  Haines,
Alaska  and  failed to rule in the alternative that should  [she]
return  to  Haines,  Alaska,  [fifty-fifty]  custody  should   be
ordered;  (2)  should have ordered that transportation  costs  be
split  fifty-fifty;  (3) should have ordered  that  the  daughter
spend  the remaining weeks of summer 2008 with Sarah; (4)  failed
to  consider  the possibility that Sarah may be able to  exercise
more  visitation  should  she come to Alaska  during  the  school
[year];  (5) should have granted Sarah spring break and Christmas
visitation  every  year;  (6)  failed  to  consider  Thanksgiving
vacation;  and  (7)  erred by not granting shared  legal  custody
because there is no indication that this animosity will continue.
The court denied the motion for reconsideration without comment.
          The  court entered a final custody order mirroring  its
earlier findings of fact and conclusions of law.  On September 8,
2008,  the  court  entered a final child support order  requiring
Sarah to pay Elijah $395 per month.
          Sarah  appeals  both the courts custody order  and  its
decision not to award her any property acquired while the parties
cohabited.   Sarah  also contends that the  court  erred  by  not
ordering Elijah to pay additional child support arrears.

III. STANDARD OF REVIEW
          A  trial  courts resolution of child custody issues  is
reviewed  for  abuse  of discretion, and its  underlying  factual
findings are reviewed for clear error.1  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.  2   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. 3
We 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.4
          A  trial  courts  determination of the  parties  intent
regarding ownership of property they acquired during cohabitation
is an application of law to facts that is reviewed de novo.5
          Child   support  awards  are  reviewed  for  abuse   of
discretion  and  will not be set aside unless  a  review  of  the
record  as  a whole leaves us with a definite and firm conviction
that a mistake has been made. 6
IV.  DISCUSSION
          Sarah  raises  numerous  points  on  appeal,  but   her
arguments  can  be categorized into seven separate  points.   She
argues  that  the  trial  court:  (1) failed  to  indicate  which
factors  it  considered  important in its custody  determination;
(2) abused its discretion by not awarding shared legal custody of
the daughter; (3) abused its discretion by determining it was  in
the  daughters  best interests to award Elijah  primary  physical
custody; (4) abused its discretion by not ordering an alternative
custody arrangement in the event Sarah moved back to Haines;  (5)
abused  its  discretion  by  not awarding  the  visitation  Sarah
requested;  (6)  erred by ruling that Sarah and  Elijah  did  not
intend to share equally the equity in the house while they  lived
there  together; and (7) erred by entering a child support  order
that did not account for arrears dating back to 2005.
     A.   Custody Issues
          
          1.   The trial court clearly indicated which factors it
               considered important in its custody determination.
               
          The  trial  court is to determine custody in accordance
with  the best interests of the child by considering the list  of
statutory  factors  set forth at AS 25.24.150(c).7   [T]he  trial
court  need  not make express findings on all statutory  factors;
instead,  its findings must either give us a clear indication  of
          the factors which the superior court considered important in
exercising  its discretion or allow us to glean from  the  record
what considerations were involved. 8  Sarah argues that the trial
courts ruling fails to do so.
          In  its  findings of fact and conclusions  of  law  the
trial  court  found  that:  (1) the daughter does  not  have  any
unusual  needs;  (2)  both parents are mentally  and  financially
capable  of  meeting  their daughters  needs,  but  that  Elijahs
emotional  capacity to parent is slightly greater; (3)  Sarah  is
less  willing to facilitate and encourage close contact with  the
other  parent than is Elijah; (4) the daughter is too  young  for
her  preference  to  be  given weight but appears  to  love  both
parents;  and (5) there is no history of drug abuse  or  domestic
violence  by  either parent.  The court made  clear  two  factors
tipped  the  balance  in favor of granting Elijah  custody:   his
greater  willingness to allow the other parent  to  have  contact
with   the  daughter  and  his  greater  emotional  self-control,
allowing  him  to better meet the daughters social and  emotional
needs.
          Because we can easily identify the factors important to
the  courts  custody determination, the order is  not,  as  Sarah
argues, foundationally flawed.
          2.   Declining  to  order joint legal  custody  of  the
               daughter was not an abuse of discretion.
               
          Joint  legal  custody  means that  both  parents  share
responsibility  in  the making of major decisions  affecting  the
childs welfare.9  The legislature has expressed a preference  for
joint legal custody,10 and a court may award joint custody if  it
is  in  the best interests of the child.11  However, joint  legal
custody  is  only appropriate when the parents can cooperate  and
communicate  in  the childs best interest.12  The superior  court
found  that  both  parents are arrogant  and  selfish,  and  that
[affects] their communication and ability to compromise with each
other.  The court further found that Sarah refuses to speak  with
the father and fails to promote communication.  Both findings are
supported by the record:  Sarah stated in an affidavit that  [i]t
has  been  clearly proven that in the decision on [the daughters]
custody  arrangement  the  two parents  cannot  communicate,  and
therefore  cannot jointly make decisions that affect the  outcome
of [the] daughters life.
          It  was therefore within the trial courts discretion to
decide  that  awarding sole legal custody is in the  childs  best
interests.
          3.   It  was not abuse of discretion to determine  that
               granting  Elijah  sole legal and primary  physical
               custody was in the daughters best interests.
               
          The  trial court granted Elijah sole legal and  primary
physical custody of the daughter after concluding [i]t is in  the
best  interest  of  the  child to be  primarily  in  the  fathers
custody.   Sarah  argues  the  court  abused  its  discretion  by
reaching  this  conclusion,  specifically  by  determining  that:
(1) Elijah is better able to meet the daughters needs; (2) Elijah
          is more willing to allow her contact with their daughter than
vice-versa; and (3) there is no evidence of domestic violence  in
Elijahs household.
               a.   It  was  not  error to find  that  Elijah  is
                    better  able to meet the daughters  physical,
                    emotional,  mental,  religious,  and   social
                    needs.
                    
          To  determine a childs best interests, the trial  court
must  consider the capability and desire of each parent  to  meet
the  childs  physical, emotional, mental, religious,  and  social
needs.13   The  court found that both parents  are  mentally  and
financially  capable of providing for their daughter and  meeting
her  needs, but that Elijah is better able to meet the  daughters
emotional  and  social  needs because he  is  more  composed  and
capable  of  extracting himself from the anger of the moment  and
because  Sarah  refuses to speak with the  father  and  fails  to
promote communication.
          Sarah  asserts that this finding is erroneous,  arguing
primarily  that Elijah does not require their daughter to  attend
school  as  regularly as she should, has not  historically  taken
care  of their daughters medical needs, has a work schedule  that
will interfere with raising their daughter, and has underutilized
his custody time.
          Sarah   produced   the  daughters  fall   2007   school
attendance  record, when Elijah had custody under their  informal
agreement,  showing the daughter missed eighteen days  of  school
during  a  single semester while in Elijahs custody.  Sarah  also
points  to a portion of Elijahs testimony suggesting he does  not
make  his children (their daughter and  his girlfriends daughter,
who  resides with Elijah and his girlfriend) go to school if they
do  not  want  to  go.   But  Elijah made  this  statement  while
discussing  his effort to supplement formal education  with  home
instruction;  he  was referring to his girlfriends  daughter  and
explaining  that  a  decision had not  yet  been  made  on  home-
schooling.   Elijah  testified that he  was  satisfied  with  the
Haines  public  school  and would send his  and  Sarahs  daughter
there:   But, with [her], its clear.  She wants to go  to  school
really  bad.  She thrives in the social environment, so  I  think
public school is the best thing for her.  He also testified  that
ten  of  the  daughters absences from school were due  to  family
trips   taken   to   Whitehorse  and  Connecticut.    The   court
specifically  found that [t]he parties both value  education  and
promote it, the fathers numerous trips with his daughter  .  .  .
notwithstanding.  This finding is not clearly erroneous.
          Sarah  argues  that  she had the historic  practice  of
caring  for the [daughters] medical needs and implies that Elijah
did  not adequately do so.  She points to Elijahs testimony  that
he  had never brought her to the clinic, except for her teeth and
asserts he was unaware that the daughter had contracted Hand-Foot-
and-Mouth Disease.  There is no evidence in the record  that  the
daughter  actually  suffered  from or  was  diagnosed  with  this
disease,14 and the full context of Elijahs statement that he never
took his daughter to the clinic is as follows:  Ive never brought
          her to a doctor.  Shes been very healthy.  Sarah brought her to
the  clinic quite often, and felt, regularly, like she  was  sick
and  having problems.  I never brought her to the clinic,  except
for  her  teeth.   This evidence does not prove  that  Elijah  is
incapable  or less capable than Sarah of meeting their  daughters
physical or medical needs.
          Sarah  points  to her testimony regarding Elijahs  work
schedule  to  suggest that he is less able to meet the  daughters
needs because of frequent travel.  Sarah testified that while she
and Elijah lived together he traveled for work during the spring,
summer,  and  fall months.  Elijah, on the other hand,  testified
that  his  field  work season is in the summer.  He  stated  that
[s]ummer  is a more difficult time for me because of  my  career,
but  I  work from home, and Im in my house all day long for  that
entire  school year.  The court made no explicit finding on  this
issue,  but the custody and visitation framework appears  to  fit
Elijahs work schedule.
          Sarah  asserts  that Elijah did not fully  utilize  his
custody  time  with their daughter.  She explains that  when  she
decided  to move to Portland and the couple agreed on a  rotating
custody  schedule, Elijah agreed that his six  months  would  run
from  July  1 to December 31, 2007, notwithstanding that  it  was
already  September 7, 2007 when the parties agreement was signed.
Considering that the daughter would already have begun school  in
Haines  by  that  time and a move would have been disruptive  for
her,  Elijahs  decision does not necessarily suggest  ambivalence
towards having custody, especially in light of his later attempts
to visit her in Portland.
          Sarah also argues that Elijah took frequent trips after
their  separation, during which times Sarah took  their  daughter
for  additional periods of custody lasting from a few days to two
weeks.   Sarahs  testimony  on  this  point  is  insufficient  to
establish that Elijah did not value his time with the daughter.
          In  determining that Elijah is better able to meet  the
daughters  physical,  emotional, mental,  religious,  and  social
needs,  the superior court relied heavily on evidence  of  Sarahs
negative behavior.  Sarah called the police three times  in  2007
to  report  that  Elijah had not returned their daughter  to  her
custody  on  time, as per their informal agreement.   The  August
police report states:
          Sarah  JAYMOT reporting her ex, Elijah DONAT,
          has not returned her daughter to her.  JAYMOT
          stated there is no custody agreement that has
          been  written  up,  they have  had  a  verbal
          agreement for the past 2 years that they  are
          to  exchange  their  daughter  every  Sunday.
          JAYMOT  stated  she  would  only  like   this
          documented  as she is going to  court  for  a
          custody battle.
          
The other two reports similarly exhibit Sarahs desire to document
Elijahs  breach  of  the informal custody  agreement.   She  also
sought a domestic violence restraining order against Elijah after
the  incident  with  his girlfriend even though  Elijah  was  not
present.   In light of these incidents, the trial courts findings
that  Elijah  is more composed and capable of extracting  himself
from  the anger of the moment and that Sarahs anger and inability
to  get along with Elijah demonstrate her inability to meet  [the
daughters] need for healthy modeling are not clearly erroneous.
          The  evidence Sarah presented to show Elijahs inability
to  meet their daughters needs is unconvincing.  It was not error
to  determine  that Sarahs confrontational and negative  behavior
rendered  Elijah  the parent better able to meet their  daughters
needs.
               b.   It  was not error to find that Elijah was the
                    parent  more  willing to  encourage  a  close
                    relationship  between the  daughter  and  the
                    other parent.
                    
          The  trial  court  must consider  the  willingness  and
ability  of each parent to facilitate and encourage a  close  and
continuing relationship between the other parent and the child in
determining  the  childs  best interests.15   In  this  case  the
superior  court  determined  that both  parents  are  intelligent
enough  to give lip service to promoting the others contact  with
the child, but that the evidence showed Sarah is less capable  of
doing  so.   The  court noted that Sarah refuses  to  speak  with
[Elijah]  and  fails to promote communication.  She  has  refused
reasonable requests to visit and only grudgingly allows  contacts
with   [Elijah].   Sarah  argues  that  the  courts  finding   is
erroneous.
          We    do   not   agree   with   the   superior   courts
characterization  of Elijahs visitation requests  as  reasonable.
Less  than  a  week after transferring their daughter  to  Sarahs
custody, Elijah sent a terse e-mail stating:  What are the  dates
of  [the daughters] spring break?  I plan to be there with a  car
to  spend  the  week  with her.  I need the dates  to  plan  now.
Elijah  then  told  Sarah he had already  purchased  tickets  and
threatened to file for custody in court if she did not honor  the
intent of the agreement to support [the daughters] right to visit
her  father.   He also stated that he would be visiting  Portland
the  following  week to take the daughter for the whole  weekend.
These  were  commands,  not requests, without  prior  notice  and
paired  with  a  threat of litigation.  The  finding  that  Sarah
refused reasonable requests to visit is clearly erroneous.
          On  the other hand the courts finding that Sarah  fails
to  promote  communication with Elijah is not clearly  erroneous;
there  is evidence that Sarah hindered Elijahs contact with their
daughter.   Elijah testified that Sarah regularly  threatened  to
take  their daughter away from him as a bargaining chip  when  he
was  trying  to  leave  her.  In March  2008  Sarah  purchased  a
telephone line so Elijah could speak with their daughter  at  his
convenience, but Elijah testified that he frequently  was  unable
to get through to her and that its extremely clear when I talk to
her  that  she  is  on  speaker phone, and that  [Sarah  and  her
boyfriend] are direct[ ] participant[s] to the dialogue.  It  was
not  clearly  erroneous to conclude that Sarah fails  to  promote
communication between the daughter and Elijah, and that she  also
          has tried to limit it.
          Sarah argues the trial court erred in finding Elijah is
the  parent  most  willing to foster communication,  pointing  to
evidence  that  Elijah sometimes failed to  timely  return  their
daughter to Sarah per their informal custody agreement,  that  he
did  not  notify  Sarah before taking the  child  on  a  trip  to
Connecticut,  and  failure to initiate phone contact  with  their
daughter.   Although there is conflicting evidence on Elijah  and
Sarahs  respective capacities to put aside their differences  and
foster a relationship between the child and the other parent,  we
are  not left with a definite and firm conviction the court erred
in determining that Elijah is more capable in this regard.
          The trial court relied heavily on this determination in
making  its custody ruling.  It is essential to have a  custodial
parent  willing  to foster an open relationship  with  the  other
parent when a great distance separates the [child] from the  non-
custodial parent, and it is reasonable for the superior court  to
place  enhanced  importance  on  this  factor  when  making   its
decision.16  Given the physical distance between mother and father
at  the time of trial, it was not an abuse of discretion to place
substantial  weight  on  this factor when  determining  the  best
interests of the child.


               c.   It  was not error to find a lack evidence  of
                    domestic  violence in the proposed  custodial
                    household.
                    
           The trial court must consider any evidence of domestic
violence, child abuse, or child neglect in the proposed custodial
household  in  determining  the  childs  best  interests.17   The
superior court in this case found no history of domestic violence
.  .  .  by  either parent.  Sarahs opening brief  discusses  the
altercation between Elijahs girlfriend, Sarah, and Sarahs mother,
then observes that the court did not discuss the incident in  its
factual  findings.   In  her reply brief Sarah  disputes  Elijahs
argument   that  her  attempt  to  obtain  a  domestic   violence
restraining order against Elijahs girlfriend was unjustified (the
magistrate  chose  to grant her a stalking protective  order)  by
contending that there was a domestic relationship at issue:   the
relationship  between  .  .  .  [Elijahs  girlfriend]  and   [the
daughter]  . . . . [T]hey were household members as the [domestic
violence] statute defines it.  Sarah thus implies that  there  is
evidence of domestic violence in Elijahs home.
          Sarah   is  correct  that  the  daughter  and   Elijahs
girlfriend  were  household members as defined  by  the  domestic
violence statute:  adults or minors who live together or who have
lived together.18  Domestic violence is defined in relevant  part
as  the commission of a crime listed in AS 11.41 by one household
member  against  another.19  Alaska Statute  11.41  includes  the
crimes  of assault,20 custodial interference,21 and kidnapping.22
Assuming  Elijahs girlfriend committed assault,  it  was  against
Sarahs  mother, not against Sarah and Elijahs daughter.   Elijahs
girlfriends   conduct  as  described  in  the  protective   order
          application and the trial testimony  grabbing Sarah and Elijahs
daughters  hand  and telling the child that she would  not  allow
Sarahs  mother to take the child away  is not assault,  custodial
interference,  or  kidnapping.23  The finding that  there  is  no
history  of  domestic  violence by either party  is  not  clearly
erroneous.
          4.   It was not abuse of discretion to decline to order
               an  alternative custody arrangement in  the  event
               Sarah moved back to Haines.
               
          Sarah argues that the trial court abused its discretion
when  it  failed to order an alternative schedule  when  one  was
requested  by  [Sarah],  in the event that  [Sarah]  returned  to
Haines,  Alaska.  Sarah did not make such a request in  her  pre-
trial pleadings or at trial, nor did her trial testimony indicate
that  she might consider moving back to Haines.  She first raised
this  possibility  in  her motion for reconsideration.   She  now
asserts that she moved back to Haines in September 2008.
          A  trial  court is under no obligation to  consider  an
issue raised for the first time in a motion for reconsideration.24
An  issue  raised in this manner is untimely and is not  properly
before  the  court on appeal.25  Because Sarah neither  made  the
argument  nor  introduced any evidence that would support  it  at
trial, the argument is waived.26
     B.   Property Issues
          
          The trial court found that the parties did not have  an
intent  to  engage  in  a  domestic partnership  and  that  their
property  and debt remains separate property.  Sarah argues  this
is erroneous.
          When   two   people  reside  together  in  an  intimate
relationship,  the property they acquire while cohabiting  should
be  distributed  according  to the  parties  express  or  implied
intent.27  We have rejected in such cases the rule that the party
who  has title or possession is necessarily entitled to ownership
of  property,  because  that  rule tends  to  operate  purely  by
accident  or  perhaps  by  reason of  the  cunning,  anticipatory
designs  of  just  one  of the parties.28   [A]bsent  an  express
agreement, courts should closely examine the facts in evidence to
determine  what  the  parties  implicitly  agreed  upon.29   This
determination is an application of law to facts that is  reviewed
de novo.30
          It  is  undisputed that Sarah and Elijah cohabited  and
shared  an  intimate relationship for several years.  Only  their
intent regarding property ownership is at issue in this appeal.
          In  Bishop  v. Clark, we identified several factors  to
consider when determining the cohabiting parties intent:
          [W]hether  the  parties have (1)  made  joint
          financial arrangements such as joint  savings
          or   checking  accounts,  or  jointly  titled
          property;  (2) filed joint tax  returns;  (3)
          held themselves out as husband and wife;  (4)
          contributed  to  the  payment  of   household
          expenses;  (5) contributed to the improvement
          and maintenance of the disputed property; and
          (6) participated in a joint business venture.
          Whether they have raised children together or
          incurred joint debts is also important.[31]
          
Bishop involved a property dispute between a couple who had dated
and lived together for thirteen years; they had two children, but
never  married.32  Between 1981 and 1995 they worked two  fishing
permits as a joint enterprise, and the woman gave the man all  of
her  fishing  permit  proceeds, keeping  only  a  small  personal
allowance.33   They filed separate income tax returns.   The  man
purchased  real property using the parties commingled funds,  but
titled  it  in  his  name.34  The trial court found  an  implicit
agreement  of  the parties to live together indefinitely  and  to
share  in  the  fruits of that relationship as though  they  were
married  and  awarded the woman a one-half interest  in  disputed
property, including real property titled only in the mans name.35
We  affirmed that decision in light of the couples use  of  joint
checking  and savings accounts for payment of household expenses,
commingling  of  business income with the mans  separate  account
from which household expenses were paid, and raising two children
together.36
          Our  decision in Tolan v. Kimball addressed a  property
dispute between a couple who dated and lived together for roughly
eight years.37  The woman purchased a house and titled it in  her
name  only; the man testified that he contributed $3,600  to  the
down  payment  and closing costs.38  He also testified  that  the
couple  chose not to place his name on the title because  he  had
defaulted on a previous mortgage.39  He paid the woman  $200  per
week, an amount greater than the monthly mortgage.  The woman did
not  declare the payments as rent on her tax return.40   Finally,
the man made extensive home renovations demonstrating the kind of
significant  planning and design decisions .  .  .  that  only  a
homeowner would make.41
          We affirmed the trial courts decision awarding one-half
the  value  of  the  house to each party on the  ground  that  it
reflected the parties intent to share the property equally.42  We
observed  that  the woman had later expressly  refused  the  mans
request to put his name on the title and stated that such refusal
could  be an indicator of intent not to share an interest of  the
property,  but  we also noted that the woman had made  statements
suggesting that her refusal to place the mans name on  the  title
was   a  cunning, anticipatory design  on her part alone,  rather
than an indicator of the parties mutual intent.43
          In   this   case  it  appears  undisputed  that   Sarah
contributed  a  Permanent Fund Dividend and her share  of  monies
from  the  sale of a jointly-owned travel trailer  to  the  down-
payment  on  the house, yet the trial court concluded that  Sarah
and Elijah did not intend to share ownership of property as would
a married couple.  We cannot determine whether this conclusion is
correct because there are no findings on several factors relevant
to their intent.
          The  court  found that Sarah and Elijah did  not  title
their  property in joint title except for a vehicle that [Elijah]
          inherited from an uncle that [Sarah] put in both their names, and
according to the parties testimony, they neither kept joint  bank
accounts nor filed joint tax returns.  The court also found  that
Elijah  provided  the  funds for many bills  that  were  paid  by
[Sarah], though she acted as the household bookkeeper while  they
were together.
          There  was no finding whether Sarah contributed to  the
payment  of  household  expenses.44  According  to  both  parties
testimony, Sarah would write herself a check on Elijahs  account,
have  him  sign it, and then pay the bills from her own  checking
account:
          Sometimes  [checks for monthly  bills  would]
          all  be written out of his bank account,  and
          he  would sign the checks, and sometimes they
          would get written out of my bank account, and
          we  put  money in.  Sometimes they  just  got
          paid out of my bank account.
          
The  evidence  could  support a finding  that  Sarah  and  Elijah
maintained  a  de  facto joint checking account from  which  both
contributed  to  expenses, or that Sarah  was  merely  a  conduit
through which Elijah paid the mortgage and household expenses.
          The  evidence showed that substantial improvements were
made on the house during the time the parties cohabited, but  the
trial courts findings do not address whether Sarah contributed to
the  improvements or maintenance on the house.45  Sarah contended
she  purchased materials and contributed a substantial amount  of
labor.   Although she could not remember how many hours  of  work
she  put  in,  she stated that ninety percent of the  renovations
were  completed  by the time she moved out and that  30,  35%  of
whatever was cleared after the sale of that property would  be  a
fair  estimation  of  her contributions in both  cash  and  sweat
equity.   She  stated that because she worked as a waitress,  her
earnings  were primarily in cash and she was therefore unable  to
show  how much money she contributed to the renovations.   Elijah
contended  that  he made the house improvements  and  that  Sarah
lacked the necessary skills to contribute.
          The  court  further  failed to find whether  Sarah  and
Elijah held themselves out as husband and wife.46  The court noted
Elijahs  testimony  that  Sarah would  represent  the  couple  as
getting  married  but that he never intended marriage  and  would
correct  Sarah  in  front of others.  The  court  did  not  state
whether it credited this testimony, which Sarah contradicted.
          Because  the  evidence  is conflicting  on  key  Bishop
factors  and because there are not sufficient findings  to  allow
our  review of its determination of the parties intent, we vacate
the  property distribution decision and remand the issue  to  the
trial  court  for  further  proceedings  and  additional  factual
findings.
          C.   Child Support Issue
               
          The trial court entered a child support order requiring
Sarah  to  pay Elijah about $400 per month.  Sarah observes  that
the  order  does not account for child support she  is  allegedly
owed for the period between July 2005, when the couple separated,
and   March   2007,  when  CSSDs  child  support   order   became
retroactively  effective.   Because  a  parent  is  obligated  to
support  his  or her child regardless of whether a support  order
exists,47 Sarah contends the court erred by failing to account for
the  child  support allegedly owed her during the period  between
July 2005 and March 2007.
          Sarah  did not raise the issue of child support arrears
for  that  period in her pre-trial pleadings or at trial.48   The
trial  court granted custody to Elijah and ordered that [i]f  the
parties cannot agree on the amount of child support, and  if  new
child  support guidelines affidavits are needed, then the parties
are  to  prepare  and file them, but there is no  evidence  Sarah
raised  the  arrearage  issue  at  that  time.   Her  motion  for
reconsideration does not mention child support.
          Because  Sarah did not raise the issue of child support
arrears  in proceedings below, she has waived it.49  We recognize
that  a  parent may not waive the right to receive child  support
payments  by  acquiescence  or  private  agreement  unless   that
agreement is approved by the court.50  But when a parent does not
assert a right to past-due support payments at trial, that  right
cannot be considered on appeal.
V.   CONCLUSION
          The custody and child support orders are AFFIRMED.   We
VACATE the decision regarding property distribution and REMAND to
the   superior  court  for  further  proceedings  and  additional
findings of fact and conclusions of law.
_______________________________
     1     Millette v. Millette, 177 P.3d 258, 261 (Alaska  2008)
(citing Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000)).

     2     Id.  (quoting  Gratrix v. Gratrix,  652  P.2d  76,  80
(Alaska 1982)).

     3     Id.  (quoting Dingeman v. Dingeman, 865  P.2d  94,  96
(Alaska 1993)).

     4     Id.  (quoting  Ebertz v. Ebertz,  113  P.3d  643,  646
(Alaska 2005)) (internal citations and quotation marks omitted).

     5     Bishop  v.  Clark, 54 P.3d 804, 810-11  (Alaska  2002)
(citing  Wood v. Collins, 812 P.2d 951, 955-56, 955  n.4  (Alaska
1991)).

     6     Harvey  v.  Cook,  172  P.3d 794,  797  (Alaska  2007)
(quoting Moore v. Moore, 893 P.2d 1268, 1269 (Alaska 1995)).

     7    AS 25.24.150(c) provides in part:

          In  determining  the best  interests  of  the
          child the court shall consider
          
          (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 . . .
          
          (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.
          
     8     Chesser v. Chesser-Witmer, 178 P.3d 1154, 1158 (Alaska
2008)  (quoting  Smith  v. Weekley, 73 P.3d  1219,  1225  (Alaska
2003)).

     9     Farrell  v.  Farrell, 819 P.2d 896, 899 (Alaska  1991)
(quoting  17  A.L.R.  4th  1015 n.1)  (internal  quotation  marks
omitted).

     10    Id. at 898 n.1 (quoting ch. 88,  1(a), SLA 1982).

     11    AS 25.20.060(c).

     12    Farrell, 819 P.2d at 899.

     13    AS 25.24.150(c)(1)-(2).

     14    On cross-examination Sarahs counsel asked Elijah, Didnt
[the  daughter]  just have Hoof-Foot-and-Mouth [sic]  disease  in
October?   Wasnt she diagnosed with that in October  and  had  to
miss  some school for that?  Do you recall that?  Elijah answered
that  he  did  not.  No evidence of this illness was produced  at
trial.

     15    AS 25.24.150(c)(6).

     16    Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005).

     17    AS 25.24.150(c)(7).

     18    AS 18.66.990(5)(B).

     19    AS 18.66.990(3)(A).

     20    AS 11.41.200-.230.

     21    AS 11.41.320-.330.

     22    AS 11.41.300.

     23    See AS 11.41.200-.230, .300, .320-.330.

     24     Blackburn, 103 P.3d at 906 (quoting J.L.P. v. V.L.A.,
30  P.3d  590, 597 n.28 (Alaska 2001)) (internal quotation  marks
omitted).

     25     Id. (citing Stadnicky v. Southpark Terrace Homeowners
Assn, Inc., 939 P.2d 403, 405 (Alaska 1997)).

     26     We note that if Sarah has returned to Haines, nothing
prevents her from moving to modify the custody order.  Cooper  v.
State,  638  P.2d  174, 179 (Alaska 1981)  (A  motion  to  modify
custody may be made at any time during the minority of the  child
involved,  and the superior court has an obligation  to  consider
such a request.).

          In  her  list  of points on appeal, Sarah contends  the
trial  court abused its discretion by not awarding her visitation
(1)  every winter and spring break (instead of every other winter
and  spring break), (2) Thanksgiving break, and (3) in the  event
she travels to Alaska.  Her brief points to no evidence and makes
no  argument  why  the visitation awarded  her  is  an  abuse  of
discretion.   The  argument  is therefore  waived.   However  the
specifics  of  the visitation framework also may  be  subject  to
modification if she has returned to Haines.

     27    Bishop 54 P.3d at 811 (quoting Wood, 812 P.2d at 956).

     28    Tolan v. Kimball, 33 P.3d 1152, 1156 (Alaska 2001) (per
curiam)  (quoting  Beal v. Beal, 577 P.2d 507,  509  (Or.  1978))
(internal quotation marks omitted).

     29    Bishop, 54 P.3d at 811 (quoting Wood, 812 P.2d at 956).

     30    Id. at 810-11, 811 n.11.

     31    Id. at 811 (internal citations omitted).

     32    Id. at 807.

     33    Id.

     34    Id.

     35    Id. at 808.

     36    Id. at 811.

     37    33 P.3d at 1152-53.

     38    Id.

     39    Id. at 1153.

     40    Id.

     41    Id. at 1154.

     42     Id. at 1155-56.  The superior court found the parties
had  formed an informal but express agreement that each party was
entitled to one-half the value of the house.  Id.

     43    Id.  at 1156 (quoting Beal, 577 P.2d at 509).

     44    See Bishop, 54 P.3d at 811.

     45    See id.

     46    See id.

     47    Skinner v. Hagberg, 183 P.3d 486, 489-90 (Alaska 2008).

     48    Sarah states that Elijah raised the issue of the [child
support]  start date during trial.  However Elijah was  referring
to  the  2007  date on which CSSD first charged  him  with  child
support obligations in discussing a $60 per month credit  to  his
obligation.  This credit reduced his arrears for the period  from
September  2007  to February 2008 by roughly $360.   Neither  the
notice  of adjustment nor Elijahs testimony raised the  issue  of
potential arrears for the period before Sarah contacted  CSSD  in
March 2007.

     49     See Harvey, 172 P.3d at 802  (holding that parent who
listed cause of action for child support arrears in complaint but
who  submitted  no  motions on the claim and  failed  to  present
evidence  or request findings regarding past support  during  the
custody hearing itself waived the claim).

     50    Paxton v. Gavlak, 100 P.3d 7, 13 (Alaska 2004).

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC