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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barlow v. Thompson (12/18/2009) sp-6443

Barlow v. Thompson (12/18/2009) sp-6443

     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


ELKAM BARLOW, )
) Supreme Court No. S- 13206
Appellant, )
) Superior Court No. 3AN-07-08383 CI
v. )
) O P I N I O N
TRACY THOMPSON, )
) No. 6443 December 18, 2009
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Stephanie E. Joannides, Judge.

          Appearances:    Elkam   Barlow,    pro    se,
          Anchorage.  No brief filed by Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          I.   Elkam Barlow appeals a custody determination granting
Tracy  Thompson sole legal and primary physical custody of  their
daughter.   Barlow argues that the superior court  did  not  have
jurisdiction to hear the case; that the judge impermissibly acted
as  lay counsel for the mother; that the court was biased against
him;   and   that   the   court  disregarded  Thompsons   alleged
interference with Barlows visitation.  We affirm as  to  each  of
these arguments.
          Barlow  also argues that the court erred in calculating
the amount of child support he owed.  Because the record does not
contain the findings necessary to support an imputation of income
to Barlow, we remand this issue for further proceedings.
II.  FACTS AND PROCEEDINGS
          A  daughter was born in October 1996 to Tracy  Thompson
and  Elkam  Barlow.  Thompson and Barlow never married but  lived
together  for a short time after their daughter was  born.   When
their   daughter   was   two-and-a-half   years   old,   Thompson
unilaterally  moved  out of state with her, returning  to  Alaska
when  the child was approximately five years old.  At some point,
Thompson married Joshua Thompson, her current husband.
          In  July 2007 Thompson filed a complaint for custody of
the child.  When Barlow filed his answer, he marked on the answer
form  that  he  disagree[d] that the court  has  jurisdiction  to
decide custody.
          In  December 2007 Barlow filed a motion to dismiss  for
lack   of  jurisdiction.   Superior  Court  Judge  Stephanie   E.
Joannides denied the motion, citing AS 25.30.300 as the basis for
jurisdiction.    Barlow   continued  to  challenge   the   courts
jurisdiction, both at a February 2008 hearing and through various
written filings.
          Barlow  also  filed  a  Notice of Dismissal  for  Bias,
asking that the judge be removed from the case.  The judge denied
this  motion,  and Superior Court Judge Patrick  J.  McKay  later
affirmed  the  denial.   Pending Judge  McKays  decision  on  the
recusal  issue,  the case was referred to Superior  Court  Master
Jonathon Lack.
          The master conducted a custody, visitation, and support
hearing  attended by both parties pro se.  The master recommended
that  Thompson  have  sole  legal custody  and  primary  physical
custody of their daughter, and that Barlow pay $452 per month  in
child  support.  The master also proposed a visitation  schedule,
recommending  that the court not implement part of  the  schedule
until  Barlow had completed an anger management assessment and  a
co-parenting course at his expense.  Judge Joannides approved the
masters report and signed the final child support order.
          Barlow appeals.  He argues that: (1) the superior court
did  not have jurisdiction to hear the case; (2) the court  erred
in  calculating the amount of child support owed; (3)  the  judge
impermissibly  acted as lay counsel for Thompson; (4)  the  judge
and  the  master  were  biased  against  him;  and  (5)  Thompson
repeatedly  disregarded  the courts orders  and  interfered  with
Barlows visitation with their daughter.
III. DISCUSSION
     A.   Standard of Review
          Whether a superior court has jurisdiction is a question
of law that we review de novo.1
          A  superior  court has broad discretion in  determining
child  custody,  and  we  will not  set  aside  a  child  custody
determination unless the superior court has abused its discretion
or its relevant factual findings are clearly erroneous.2  We will
set  aside the courts factual findings as clearly erroneous  only
if review of the entire record leaves us with a definite and firm
conviction that a mistake has been made.3  We review for abuse of
discretion  a  superior  courts evidentiary  rulings.4   We  also
review  for abuse of discretion the weight given by the  superior
court to the factors in AS 25.24.150(c) for determining the  best
          interest of a child.5
          A  superior courts factual findings regarding a  partys
income when awarding child support are reviewed for clear error.6
A  courts  factual findings imputing income to  a  child  support
obligor  are reviewed for clear error.7  We will vacate  a  child
support  award  based on imputed income and  remand  for  further
proceedings  if  there  are  insufficient  findings  for  us   to
determine whether it was error to impute income.8
     B.   Whether the Superior Court Had Jurisdiction
          A.   Barlow argues that the superior court did not have
jurisdiction  to  hear  this case.  He  argues  that  because  he
indicated  on  his  response  to  Thompsons  complaint  that   he
disagree[d]  that the court has jurisdiction to  decide  custody,
subject matter jurisdiction was not granted to the court by  both
parties.  He cites Alaska Civil Rule 12(h)(3), which states  that
[w]henever  it appears by suggestion of the parties or  otherwise
that the court lacks jurisdiction of the subject matter the court
shall dismiss the action.  He also argues that the superior court
denied him procedural due process by not dismissing the case.
          Barlows jurisdictional arguments are without merit.  To
exercise  jurisdiction  over a case, a court  must  have  subject
matter  jurisdiction  over  the  claims  asserted9  and  personal
jurisdiction over the parties.10  Alaska Statute 22.10.020 grants
the superior court general subject matter jurisdiction over these
kinds of cases.11  And the Uniform Child Custody Jurisdiction and
Enforcement   Act  grants  the  superior  court  subject   matter
jurisdiction to hear certain child custody disputes.12  As  Judge
Joannides  noted in her order denying Barlows motion  to  dismiss
for  lack  of jurisdiction, the custody dispute over the  parties
child  is  such a dispute.  Alaska Statute 25.30.300 provides  in
relevant part: [A] court of this state has jurisdiction  to  make
an  initial child custody determination only if . . . this  state
is the home state of the child on the date of the commencement of
the  proceeding.  The record shows that the child lived in Alaska
when  Thompson filed her complaint for custody and that the child
had lived in Alaska for approximately six years before the filing
date.   Barlow does not contest these facts.  The superior  court
therefore had subject matter jurisdiction over the dispute.
          The  superior court also had personal jurisdiction over
Barlow.   Although consent of the party is one of the traditional
grounds for personal jurisdiction,13 a defendants consent is  not
usually  necessary for personal jurisdiction to lie.14  Under  AS
09.09.015(a)(1)(A),  for  example, Alaska  courts  have  personal
jurisdiction  over any defendant who is a natural person  present
in [Alaska] when served.  Because Barlow was served in Alaska, he
could  not  deprive  the superior court of personal  jurisdiction
over him by withholding his consent.
          It  may be that Barlow believes that the text of  Civil
Rule  12(h)(3)  entitled  him to a dismissal  merely  because  he
raised  a suggestion that the court lacked jurisdiction.  If  so,
he misreads the rule.  The rule provides that a party may raise a
question  about  jurisdiction.  If there is no jurisdiction,  the
court must dismiss the action.  But if the court determines there
is  jurisdiction,  it  must  reject the  partys  suggestion.   In
          effect, the rule simply establishes that the court must consider
the  partys  suggestion and must dismiss  if  the  suggestion  is
meritorious.   The rule does not state or imply  that  the  court
must dismiss if the suggestion, as here, is without merit.
          The   superior  court  correctly  ruled  that  it   had
jurisdiction  regardless of Barlows attempts to deny jurisdiction
to the court.
     C.   Whether the Superior Courts Child Support Calculations Were
          Erroneous
          
          The masters report states that Barlow is in arrears  in
excess  of  $25,000 in child support and the final child  support
order  requires Barlow to pay $452 per month.  Barlow objects  to
both  of these amounts because they are based on calculations  by
the  Alaska  Child  Support Services Division (CSSD),  which,  he
argues,  incorrectly  listed Thompson as the  custodial  guardian
even  though custody had not at that point been determined  by  a
court.  He also argues that the court erroneously calculated  his
monthly support obligation because the court based its figure  on
Barlow having full-time employment that paid fifteen dollars  per
hour,  and  it can easily be determined that [his] wage  has  not
been  high  enough  to  substantiate such an  outrageous  monthly
obligation.
          Any  error  in the arrearages calculation is  harmless.
The  issue  of arrearages was not before the superior  court  and
there  is  no  indication  the amount  of  unpaid  child  support
affected the courts child support or custody determinations.  The
arrearages  calculation affected the masters recommendation  that
Thompson  be  allowed to collect their daughters  permanent  fund
dividend,  but Barlow does not appeal this aspect of the  support
order.
          Nonetheless, requiring Barlow to pay $452 per month  in
child  support was reversible error.  It appears this figure  was
largely based on an imputation to Barlow of annual income in 2008
of  $31,200,  calculated at fifteen dollars per hour,  for  forty
hours  of work per week, for fifty-two weeks a year.  But  Barlow
testified  only that he had earned fifteen dollars per hour  when
he  last  worked full time, approximately one year  earlier.   An
affidavit  from a CSSD employee showed that Barlow  had  actually
received income of $5,946.75 in 2007 and $10,548.08 in 2006.
          A  court  can in its discretion impute income  where  a
party  is  voluntarily  and unreasonably  underemployed.  15   In
deciding  whether  an obligor is unreasonably underemployed,  the
court  must  consider the totality of the circumstances,  .  .  .
[which]  include  such  factors as whether the  obligors  reduced
income is temporary, whether the change is the result of economic
factors  or of purely personal choices, the childrens needs,  and
the  parents needs and financial abilities.16  The masters report
states  that Barlow testified that he was unemployed  because  he
was  waiting  for  a job which was suitable [so]  that  he  could
support  himself and [their daughter].  That would  imply  Barlow
was   voluntarily   underemployed,  but  the   master   did   not
specifically    find   that   Barlow   was   also    unreasonably
underemployed.   Such a finding would have had  to  address  work
          history, job qualifications, and job opportunities.17  We are
therefore  unable to determine whether the implied imputation  of
income  is  clearly erroneous.18  We vacate the  monthly  support
award  of $452 and remand to the superior court for recalculation
of  Barlows monthly child support obligation.  If the award is to
be based on imputed income, the requisite findings for imputation
must be made.
     D.   Whether the Superior Court Acted Improperly
          Barlow argues that Judge Joannides and the master acted
improperly  in a variety of ways.  These arguments are  addressed
briefly below.
          1.   The superior courts citation to AS 25.30.300
          Barlow  challenges  Judge  Joannidess  citation  to  AS
25.30.300 in the order denying Barlows motion to dismiss for lack
of jurisdiction.  Barlow first argues that Thompson alone had the
responsibility to provide legal arguments opposing his motion  to
dismiss,  that  Thompson failed to do so, and that therefore  any
legal  authority cited by the judge was insufficient to deny  his
motion.   He  also argues that by citing the statute,  the  judge
impermissibly  acted  as lay counsel for Thompson.   Finally,  he
argues  that  the courts citation to the statute shows  that  the
judge was biased against him.
          These  arguments are without merit.  As Judge Joannides
noted in her order denying Barlows motion to dismiss for lack  of
jurisdiction: A court is entitled to cite to the Alaska  Statutes
in  its  decision.  The court recognizes that [Thompson] did  not
address   [Barlows]  jurisdictional  objections   by   opposition
(written).   Nonetheless a court must base its decisions  on  the
law.  We agree.  And it was entirely appropriate for the court to
cite  a  statute that controlled the disputed issue, even  though
the parties did not.  The parties had a full opportunity to brief
the   jurisdictional  dispute.   Judge  Joannides  did  not   act
impermissibly, and correctly and properly rejected Barlows motion
to dismiss.
          2.   The masters evidentiary rulings and factual findings
          1.   Barlow argues that two of the masters evidentiary rulings
and  six of the masters factual findings show that the master was
biased  against  him.  First, Barlow argues that the  master  was
biased  because  the  master  allowed  testimony  from  Thompsons
witnesses,  who  had not interacted with Barlow  for  over  eight
years,  but disregarded . . . Barlows testimony referring  to  10
years  ago.  Barlow did not object to the testimony of  Thompsons
witnesses, and he does not specify what part of his own testimony
the  master allegedly disregarded.  The master properly sustained
two  of  Thompsons hearsay objections to Barlows testimony;  both
objections  concerned  Barlows proposed  testimony  about  events
their  daughter  had  described to  him,  but  that  he  had  not
witnessed  himself.19  There is no indication  that  any  of  the
exceptions to the hearsay rule applied here.  The master was also
permitted  to resolve factual disputes and assess the credibility
of witnesses.20
          Second,  Barlow  argues  that  the  master  was  biased
because  he allowed Thompsons witnesses to give hearsay testimony
but  did  not  allow Barlow to play a recording  of  what  Barlow
          describes as their daughters first hand testimony.  The master
explained  that, when there is no objection to hearsay testimony,
the testimony comes in; but he also emphasized that he would base
his  report  and  recommendations only  on  admissible  evidence.
Barlow  raised  no  hearsay  objections  to  Thompsons  witnesses
testimony at the hearing.  And Barlow has not plausibly explained
on appeal what testimony should have been excluded and why it was
inadmissible  hearsay  under Alaska  Evidence  Rule  801(c).   He
therefore has not demonstrated it was an abuse of discretion  for
the master to admit or consider the testimony of any of Thompsons
witnesses.
          Barlow  has  likewise failed to plausibly  explain  why
excluding  the  childs out-of-court statements was  an  abuse  of
discretion.  In excluding the recording of the daughter answering
Barlows  questions about her home life, the master  characterized
Barlows   questions   as   more   appropriate   for   a   custody
investigation.  The master also noted that the judge had  ordered
a  custody investigation but that one or more of the parties  had
refused   to  cooperate.   Regardless  of  whether  the   masters
characterization  was  accurate, Barlow has  not  identified  any
potential   hearsay  exception  applicable  to  the  out-of-court
statements  of  their  daughter,  who  is  not  a  party.   These
evidentiary  rulings were not an abuse of the masters discretion,
and the rulings do not show bias.
          Finally,  Barlow challenges six of the factual findings
in  the  masters  report and argues that the  master  was  biased
because  he  did  not  equally weigh the  factors  listed  in  AS
25.24.150  when  the  master  made  his  custody  recommendation.
Testimony  at the hearing supports each of the masters challenged
proposed  findings.   The  masters  findings  are  therefore  not
clearly erroneous.
          Also,  nothing in the masters weighing of the statutory
factors  suggests  that  the master was  biased  against  Barlow.
Although we will find the superior court abused its discretion if
it  .  . . assigned disproportionate weight to particular factors
while ignoring others, 21 courts have considerable discretion  in
determining  the  importance  of each  statutory  factor  in  the
context  of  a specific case.22  The master was not  required  to
weigh  the factors equally.23  The factual findings therefore  do
not reflect an abuse of discretion, much less any bias.
          3.   The anger management assessment
          Barlow  argues that Judge Joannides was biased  against
him because she ordered Barlow, but not Thompson, to complete  an
anger  management assessment at his own expense.  He argues  that
the  court based the order exclusively on allegations of domestic
violence,  and that allegations have been made by both parties.
          The  master  not Judge Joannides  first recommended  an
anger  management assessment.  And the masters  report  does  not
mention  any allegations that Barlow committed domestic violence.
Moreover,  the report states that it is apparent that Mr.  Barlow
has  significant  communication deficiencies in that  he  becomes
argumentative when he does not get his way, indicating  that  the
anger  management assessment requirement stemmed from the masters
personal  observations of Barlows behavior, not from  allegations
          raised by Thompson.
          The  masters report also states that Barlow raised  one
incident of domestic violence in the Thompson household,  but  he
had  no direct knowledge and as such the testimony was of limited
value  to  the  court.  The master was in the  best  position  to
evaluate  the witnesses credibility and testimony,24 and  it  was
permissible  for  him to recommend that only Barlow  complete  an
anger  management  assessment.  Barlow has not demonstrated  that
requiring  him, and not Thompson, to complete an anger management
assessment shows bias or was error.
          4.   Thompsons alleged interference with Barlows visitation
               
          Barlow argues that Thompson repeatedly disregarded  the
courts  visitation  order in an alleged  attempt  to  damage  the
relationship  between Barlow and their daughter.   His  appellate
brief mentions three specific incidents, two of which he did  not
present to the superior court and therefore did not preserve  for
appeal.  During Barlows testimony about the one incident  he  did
raise, Master Lack stated: Nothing could be more clear to me than
the  two of you cant get along and cant talk to each other.  This
statement indicates that the master took into account the parties
inability to cooperate, and that the master could have found that
the  alleged interference was simply a result of that  inability.
The  master  was in the best position to evaluate  the  witnesses
credibility and testimony,25 and the custody order was permissible
despite   Thompsons  alleged  interference.    Barlow   has   not
demonstrated that there was an abuse of discretion by the  master
or the superior court.
IV.  CONCLUSION
          We  therefore AFFIRM the superior courts custody  order
but VACATE the amount of the support award and REMAND for further
proceedings regarding child support.
_______________________________
     1    Atkins v. Vigil, 59 P.3d 255, 256 (Alaska 2002).

     2     Dragseth  v.  Dragseth, 210 P.3d  1206,  1207  (Alaska
2009).

     3    Id.

     4    In re D.J.A., 793 P.2d 1033, 1036 n.2 (Alaska 1990).

     5     Puddicombe v. Dreka, 167 P.3d 73, 75 (Alaska 2007) (In
child  custody cases, we will find the superior court abused  its
discretion  if  it  considered improper  factors  in  making  its
custody  determination, failed to consider  statutorily  mandated
factors,   or  assigned  disproportionate  weight  to  particular
factors while ignoring
others.  )  (quoting Silvan v. Alcina, 105 P.3d 117, 120  (Alaska
2005)).

     6     Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003) (citing
Routh v. Andreassen, 19 P.3d 593, 595 (Alaska 2001)).

     7     Sawicki  v.  Haxby, 186 P.3d 546,  550  (Alaska  2008)
(citing Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998)).

     8     OConnell  v. Christenson, 75 P.3d 1037,  1041  (Alaska
2003)  (The absence of specific findings that justify imputing  .
.  .  income  .  .  .  renders it impossible for  this  court  to
determine whether the [lower] court was clearly erroneous in  its
imputation  decision.   For  this reason,  we  vacate  the  child
support  award  and remand the question of imputed income.);  see
also Nass v. Seaton, 904 P.2d 412, 418-19 (Alaska 1995).

     9    Nw. Med., Inc. v. State, Dept of Revenue, 151 P.3d 434,
438  (Alaska 2006) (Subject matter jurisdiction is a prerequisite
to a courts ability to decide a case . . . .).

     10     Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(discussing federal constitutional constraints on courts  ability
to subject a defendant to a judgment in personam).

     11     AS  22.10.020(a) provides in relevant part that [t]he
superior  court is the trial court of general jurisdiction,  with
original   jurisdiction  in  all  civil  and  criminal   matters,
including probate and guardianship of minors and incompetents.

     12    AS 25.30.300.910.

     13    See Intl Shoe, 326 U.S. at 318.

     14     Alaskas long-arm statute, AS 09.05.015, grants Alaska
courts personal jurisdiction over parties in  any case . .  .  in
which  the  exercise  of  jurisdiction is permissible  under  the
Fourteenth  Amendment.   Polar Supply Co. v. Steelmaster  Indus.,
Inc., 127 P.3d 52, 55 (Alaska 2005) (quoting Cramer v. Wade,  985
P.2d 467, 471 (Alaska 1999)).  AS 09.05.015 provides in part:

          (a)    A   court   of   this   state   having
          jurisdiction  over  the  subject  matter  has
          jurisdiction  over  a  person  served  in  an
          action  according  to  the  rules  of   civil
          procedure
               (1)  in an action, whether arising in or
          out  of this state, against a defendant  who,
          when the action is commenced,
               (A)  is a natural person present in this
          state when served;
               (B)   is  a natural person domiciled  in
          this state;
               (C)  is a domestic corporation; or
               (D)   is engaged in substantial and  not
          isolated  activities in this  state,  whether
          the   activities   are   wholly   interstate,
          intrastate, or otherwise . . . .
          
     15    Tillmon v. Tillmon, 189 P.3d 1022, 1030 (Alaska 2008).
See  Alaska R. Civ. P. 90.3(a)(4) (The court may calculate  child
support  based on a determination of the potential  income  of  a
parent   who  voluntarily  and  unreasonably  is  unemployed   or
underemployed.  . . .  Potential income will be  based  upon  the
parents work history, qualifications, and job opportunities.).

     16     Sawicki  v.  Haxby, 186 P.3d 546, 550  (Alaska  2008)
(internal citations and quotation marks omitted).

     17    See Tillmon, 189 P.3d at 1030.

     18    See OConnell v. Christenson, 75 P.3d 1037, 1041 (Alaska
2003).

     19     Alaska  Evidence Rule 801(c) provides: Hearsay  is  a
statement,  other than one made by the declarant while testifying
at  the trial or hearing, offered in evidence to prove the  truth
of the matter asserted.

     20     See  Bowman v. Blair, 889 P.2d 1069, 1072 n.5 (Alaska
1995)  (We review the . . . masters [factual] findings under  the
clearly erroneous standard . . . .  Due regard shall be given  to
the  opportunity  of the master to judge the credibility  of  the
witnesses.) (citations omitted); see also Alaska R. Civ. P. 52(a)
(Findings  of  fact  shall  not  be  set  aside  unless   clearly
erroneous,  and  due regard shall be given to the opportunity  of
the  trial court to judge the credibility of the witnesses.   The
findings  of a master, to the extent that the court adopts  them,
shall be considered as the findings of the court.).

     21     Puddicombe  v. Dreka, 167 P.3d 73, 75  (Alaska  2007)
(quoting Silvan v. Alcina, 105 P.3d 117, 120 (Alaska 2005)).

     22    See Michele M. v. Richard R., 177 P.3d 830, 838 (Alaska
2008) (Trial courts have discretion in determining what weight to
give  a  childs  preference  [under AS 25.24.150].);  Jenkins  v.
Handel, 10 P.3d 586, 591 (Alaska 2000) ([T]he superior court  did
not  abuse  its  discretion in giving  greater  weight  to  other
important  factors  [than to the childrens preferences  under  AS
25.24.150]  .  . . .); Bird v. Starkey, 914 P.2d 1246,  1249  n.4
(Alaska 1996) (stating that trial courts findings regarding  best
interests of child under AS 25.24.150 need not be extensive,  but
must  .  . . give us a clear indication of the factors which  the
superior   court   considered   important   in   exercising   its
discretion).

     23     See Michele M., 177 P.3d at 838; Jenkins, 10 P.3d  at
591; Bird, 914 P.2d at 1249 n.4.

     24    See Evans v. Evans, 869 P.2d 478, 481 (Alaska 1994).

     25     See Bowman, 889 P.2d at 1072 n.5 (Due regard shall be
given  to  the opportunity of the master to judge the credibility
of the witnesses.) (citations omitted).

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