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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Osterkamp v. Stiles (6/25/2010) sp-6481

Osterkamp v. Stiles (6/25/2010) sp-6481, 235 P3d 178

     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

KENNETH M. OSTERKAMP, )
) Supreme Court Nos. S- 13297/13317
Appellant/Cross-Appellee, )
) Superior Court No. 3AN-07- 06424 CI
v. )
) O P I N I O N
KATTARYNA STILES, )
) No. 6481 June 25, 2010
Appellee/Cross-Appellant. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Jack Smith, Judge.

          Appearances:  Mary A. Gilson and  Allison  E.
          Mendel,  Mendel & Associates, Anchorage,  for
          Appellant/Cross-Appellee.   Robert  C.  Erwin
          and  Roberta C. Erwin, Robert C. Erwin,  LLC,
          Anchorage, for Appellee/Cross-Appellant.

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

          CHRISTEN, Justice.

I.   INTRODUCTION
          Kenneth  Osterkamp appeals the award of  sole  physical
and  legal  custody  of  Simon Stiles1 to  his  adoptive  mother,
Kattaryna  Stiles.  Ken and Kattaryna were Simons foster  parents
from  one week after Simon was born until Kattaryna adopted Simon
when  he was sixteen months old.  Ken and Kattaryna continued  to
raise  Simon together as domestic partners until Simon was twenty
months  old, at which point Kattaryna separated from Ken.   After
Kattaryna  began limiting Kens visitation, he filed  a  complaint
          for custody and visitation.  The superior court denied Ken
custody,   concluding  that  he  did  not  meet  the  substantive
requirements for a third party seeking custody over the objection
of  the  legal  parent.   It  concluded  that  between  the  time
Kattaryna adopted Simon and the time Ken filed suit, Ken had  not
established psychological parent status.  The superior court  did
not  reach  the  question  of whether  Ken  met  the  substantive
requirements for a third party seeking visitation.  We affirm the
superior  courts award of legal and physical custody to Kattaryna
because  we  agree  that  Ken  did not  establish  by  clear  and
convincing evidence that awarding sole custody to Kattaryna would
be clearly detrimental to Simon; it was not clearly erroneous for
the  superior  court to conclude that at the time Ken  filed  his
complaint  he  was  not Simons psychological parent.   Given  the
already  protracted  length of these proceedings,  we  reach  the
merits  of  the visitation issue and conclude that  Ken  did  not
prove by clear and convincing evidence that it would be in Simons
best  interests for the court to order visitation over Kattarynas
objection.
          Ken  also  appeals the superior courts credit  of  loan
payments to Kattaryna,  the award of attorneys fees to Kattaryna,
and  the  issuance of a writ of assistance without proper notice.
Kattaryna  cross-appeals the superior courts order requiring  her
to  repay  money she received from Kens parents.  We  affirm  the
superior  courts  rulings on property issues and attorneys  fees,
but  conclude  that  it was error to issue a writ  of  assistance
without  providing  both  parties  with  proper  notice  and   an
opportunity to be heard.
II.  FACTS AND PROCEEDINGS
     A.   Custody And Visitation
          Kenneth  Osterkamp  and Kattaryna  Stiles  met  in  the
spring   of   2002  and  became  romantically  involved   shortly
thereafter.   They  began living together,  first  in  Kattarynas
apartment  and then in a condominium they purchased  together  in
2003.   They bought a home together in late 2004 where they lived
until  separating  in  March  2007.   Ken  and  Kattaryna   never
married, but they considered themselves to be domestic partners.
          In   2004  Ken  and  Kattaryna  became  foster  parents
together,  successively  serving as  foster  parents  to  several
infants.   On September 1, 2005, the Office of Childrens Services
(OCS)  placed Simon with Kattaryna and Ken.  Simon  was  born  on
August  25,  2005 and is an Indian child under the  Indian  Child
Welfare Act (ICWA).2
          Ken and Kattaryna began taking steps to adopt Simon  in
early  2006,  even  as they began to experience  difficulties  in
their  relationship.  They dispute whether they decided to  adopt
Simon  as a couple, although a home study for joint adoption  was
conducted in spring 2006.  Kattaryna claims she always planned to
adopt  Simon on her own but a social worker advised putting  Kens
name  on  the  home  study in case they later  decided  to  adopt
together.  Ken claims that the plan was always for joint adoption
and  he only agreed to remove his name from the adoption petition
after  Kattaryna  insisted  that  they  wait  and  see  if  their
relationship  improved  before  including  his  name.   Ken   and
          Kattaryna agreed that if Ken ultimately did not adopt Simon, he
would  be  like a beloved uncle and continue to have  a  role  in
Simons  life.   Once  it was decided that,  at  least  initially,
Kattaryna  would adopt Simon by herself, a second adoption  study
was  completed  taking these changed circumstances into  account.
Both adoption studies recommended that the adoption proceed.
          On  December  28,  2006,  the court  held  an  adoption
hearing and issued an adoption decree.3  Simon was sixteen months
old  and  had spent all but one week of his life living with  Ken
and  Kattaryna.  Ken attended the hearing and did not  raise  any
objections  or  concerns  over his  name  not  appearing  on  the
adoption decree.  Nor did he request to reserve any post-adoption
rights.   After the adoption, Ken, Kattaryna, and Simon continued
to live together as a family unit for three months.
          Kattaryna  separated from Ken in  March  2007  after  a
heated argument, but she testified that she had been planning  to
leave  for  many months.  The parties initially agreed Ken  would
have   visitation  with  Simon  but  Kattaryna   began   limiting
visitation  to once every two or three weeks, with no overnights.
Kattaryna also forbade Simons social worker and daycare providers
from  referring  to Ken as dad or father, and  forbade  Ken  from
doing the same.
          In  April  2007, Ken filed a complaint for joint  legal
and  physical  custody.  He claimed that as Simons  psychological
father  and as someone who had acted in loco parentis for  Simon,
he  had  a  right  to joint custody.  Ken also  sought  an  order
compelling Kattaryna to consent to his joint adoption  of  Simon.
The superior court ordered interim visitation while the complaint
for  custody was pending, but Kattaryna retained sole  legal  and
primary physical custody.  In response to a motion filed by  Ken,
the court appointed a custody investigator in June 2007.
          In  March 2008, eleven months after filing his  initial
complaint, Ken filed a motion in limine to determine his standing
to  seek  custody or visitation.  He asked the court to determine
before trial whether he was a psychological parent to Simon.  The
court partially granted the motion in April 2008, allowing Ken to
proceed  to  trial  but  deferring until trial  the  question  of
whether Ken was Simons psychological parent.
          The  custody investigator filed a report in  June  2008
explaining that it is guesswork to determine whether a person  is
a  psychological  parent  to  a toddler.   But  because  Ken  and
Kattaryna  were Simons only caregivers during the first  nineteen
months of his life, the investigator concluded  one can be fairly
certain  that Simon had more or less equal emotional  attachments
to each of them.  Similarly, a psychological evaluation completed
at  the request of the custody investigator observed  that  Simon
had  positive interactions with both Ken and Kattaryna  and  that
both  Ken  and Kattaryna demonstrated parental love and affection
towards Simon.
          Ken   and   Kattaryna  experienced   great   difficulty
cooperating  with  each other to implement the courts  visitation
schedule.   Kattaryna repeatedly expressed to  both  the  custody
investigator  and  psychological evaluator  that  she  no  longer
wanted  Ken  in Simons life.  This led to conflict, sometimes  in
          front of Simon.
          A  bench trial was held in early July 2008.  The  court
entered an oral ruling on August 22, 2008 awarding Kattaryna sole
legal  and physical custody of Simon. Although the superior court
found Ken had established psychological parent status by the time
of  trial,  the court ruled that the period from the adoption  in
December  2006  until  the custody suit in  April  2007  was  the
dispositive  time  period for purposes of assessing  Simons  bond
with   Ken.   The  court  concluded  that  Ken  was  not   Simons
psychological parent as of the time the parties separated and Ken
filed  his complaint.  The court also concluded that Ken had  not
shown  by clear and convincing evidence that it would be  clearly
detrimental to Simon to remain in Kattarynas custody.  The  court
was silent on Kens claim for visitation rights.
          After  the court read its oral ruling into the  record,
the  court,  at the suggestion of Kattarynas attorney,  discussed
and  issued a writ of assistance to Kattaryna to obtain  physical
custody of Simon.  Because the court had failed to send notice to
the parties informing them when the ruling would be read, Ken and
his  attorney were not present during the discussion or  issuance
of  the  writ  of  assistance; Kattarynas  attorney  was  present
because she noticed the proceeding scheduled on CourtView.4
          In October 2008 Ken unsuccessfully requested visitation
pending  appeal.  He has had no contact with Simon  since  August
2008.
          Ken  appeals the superior courts denial of  custody  as
well  as  its  failure  to determine if he  met  the  substantive
requirements for visitation.  He also appeals its issuance  of  a
writ of assistance without proper notice.
     B.   Property Issues
          In  2004 Kens parents gave Kattaryna and Ken $44,000 to
finance  the  purchase of their home.5  Kens parents issued  gift
letters  of  $22,000  each to Kattaryna and Ken.   These  letters
purported  to require no repayment.  Nonetheless, Kattaryna  made
monthly payments to Kens parents from October 2005 until February
2007,  writing  home  loan on each check.   Ken  and  his  mother
testified  that the expectation was for both $22,000 payments  to
be  paid  back, but with no interest and without a  deadline  for
repayment.  Kattaryna argued the $22,000 payment was a  gift  and
that her monthly payments were made out of moral obligation only.
          In  its  August 2008 oral ruling, the court found  that
Kens  parents loaned $44,000 to the parties.  The court  credited
Kattaryna  $4,200  for  payments she had made  on  her  loan  and
ordered her to repay the remaining $17,800.  After accounting for
Kattarynas loan payments, Kens home improvements, and the  amount
owing  on the mortgage, the court found Kattarynas share  of  the
home equity to be $50,132, and Kens share to be $78,883.75.   The
court  ordered  that  the parties refinance the  home  to  remove
Kattaryna  from  the mortgage obligation, and that  they  equally
share the cost of refinancing.
          Ken  appeals  the superior court order  crediting  only
Kattaryna for payments she made to Kens parents.  Kattaryna cross-
appeals the superior courts order requiring that she repay a loan
she received from Kens parents.
     C.   Attorneys Fees
          In   October  2006  Kattaryna  successfully  moved  for
interim  attorneys fees under AS 25.24.140(a)(1),  which  permits
interim fee awards in divorce or dissolution actions.  At  trial,
the  court  found the interim fee award continued to be justified
because  Ken  was living in the parties home and  had  a  greater
income.  Ken appeals the superior courts award of attorneys  fees
to Kattaryna.
III. STANDARD OF REVIEW

           The  superior  court has broad discretion  in  custody
awards.6    We  will  reverse  a  superior  courts  custody   and
visitation  determination only if the superior court  has  abused
its discretion or if its controlling findings of fact are clearly
erroneous.7   The  superior court abuses its discretion  when  it
consider[s] improper factors in making its custody determination,
fail[s]  to  consider statutorily mandated factors, or  assign[s]
disproportionate  weight  to particular  factors  while  ignoring
others.8  We review factual findings, including determinations of
psychological parent status, for clear error.9  A factual finding
is  clearly erroneous when a review of the record leaves us  with
the definite impression that a mistake has been made.10
          Whether  factual findings are sufficient to support  an
award  of  custody to a third party is a legal issue to which  we
apply  our independent judgment.11  Likewise, [w]hether the court
applied  the  correct standard in a custody  determination  is  a
question of law we review de novo.12
          Interim    attorneys   fee   awards   in   divorce-like
proceedings are reviewed for abuse of discretion.13  We will  not
reverse  such  an  award  unless  it  is  arbitrary,  capricious,
manifestly unreasonable, or stems from an improper motive.14
IV.  DISCUSSION
     A.   The Standing Issue
          Prior  to  trial,  Ken  filed a  Motion  in  Limine  to
Determine  Plaintiffs Standing.  He asked the court to determine,
before trial, whether he was the psychological parent of [Simon].
The  superior court did not decide prior to trial whether Ken was
Simons   psychological parent; the court ordered that  Ken  would
have  to  prove  his  case at trial.  Because Kattaryna  did  not
challenge  Kens  standing  to  bring  a  claim  for  custody   or
visitation  in  her  Partial Opposition to Motion  in  Limine  to
Determine Plaintiffs Standing  she asked only that the court rule
that   former  foster  parents  like  Ken  could  not   establish
psychological  parent status  the superior court never  expressly
ruled on the issue of standing.  But on cross-appeal before  this
court,  Kattaryna argues that Ken does not have standing to  seek
post-adoption  custody or visitation because any  rights  he  may
have  had  based  on his relationship with Simon were  terminated
when Kattaryna adopted Simon.
          In  Buness v. Gillen we considered whether a stepparent
had standing to seek custody over the objection of the biological
parent.15   We  held  that a non-parent  who  has  a  significant
connection  with  a  child has standing to  assert  a  claim  for
custody.16   In  Evans v. McTaggart we question[ed]  whether  the
          significant connection test was intended to be merely another way
of  expressing  psychological parent or in loco parentis  status,
but  we  declined  to  flesh out the meaning of  the  significant
connection  test  for standing because the biological  father  in
Evans  had not objected to the maternal grandparents intervention
or custody motion on standing grounds.17  Here, because Kattaryna
did  not  make  a specific negative averment before the  superior
court  that she wishe[d] to raise an issue as to the capacity  of
[Ken] to sue,18  Kattaryna is precluded from raising an objection
to standing on appeal.19
     B.   The  Superior Court Did Not Err By Concluding That  Ken
          Failed  To  Establish By Clear And Convincing  Evidence
          That  Awarding  Sole  Custody  To  Kattaryna  Would  Be
          Clearly Detrimental To Simon.
          
          Ken  concedes that under AS 25.23.130(a)(2)  Kattarynas
adoption  of  Simon resulted in the legal creation of  a  parent-
child  relationship between Simon and Kattaryna as  if  she  were
Simons  biological parent.20  We agree; once the adoption  decree
was  finalized on December 28, 2006, Kattaryna became Simons sole
legal  parent.  Kens legal relationship to Simon has always  been
that  of a third party, both before and after Kattarynas adoption
of  Simon.   The question here is whether Ken, as a third  party,
may obtain custody or visitation against the wishes of Kattaryna,
Simons legal parent.
          We   previously  discussed  questions  of  third  party
custody and visitation in Evans v. McTaggart.21  Evans involved a
claim  by  a  childs maternal grandparents for custody  over  the
objections  of the childs biological parents.22  The grandparents
also  sought  visitation with their grandchilds half-sibling  who
was not biologically related to them.23  The Evans trial court did
not  find  the  grandparents to be the psychological  parents  of
either child.24  Addressing the custody issue in Evans, we stated
that:
          in  order to overcome the parental preference
          [in  an  initial  custody contest  between  a
          parent  and  a non-parent] a non-parent  must
          show  by  clear and convincing evidence  that
          the  parent  is unfit or that the welfare  of
          the  child  requires the child to be  in  the
          custody of the non-parent.25
Ken  argues that the superior court erred by concluding  that  he
did  not  meet  his evidentiary burden for a third party  seeking
shared  custody.  The basis of Kens custody argument is that  the
welfare  of  the child requires that he continue to have  contact
with  Simon  not that Kattaryna is an unfit parent.  Our  inquiry
therefore focuses on whether Ken was able to meet his evidentiary
burden  to show that the welfare of the child requires the  child
to be in the custody of the non-parent.26  Kattarynas fitness as a
parent is not in dispute.
          We explained the welfare of the child component of this
analysis in Evans, where we decided that to be awarded custody  a
non-parent must show that the child would suffer clear  detriment
if  placed in the custody of the parent.27  We clarify that  this
          analysis is not limited to examining the childs relationship with
the  legal  parent; courts may take into account the relationship
between a child and a third party in determining whether awarding
custody  to  the legal parent  and denying custody to  the  third
party   would result in clear detriment to the child.28
          The  clear  detriment Ken alleges is the  harm  [Simon]
will  experience if his relationship with a psychological  parent
is  ended.   Ken cites to our decisions in Buness v.  Gillen  and
Todd  v.  Todd in support of this argument.  In Buness, we  noted
that  severing the bond between the psychological parent and  the
child may well be clearly detrimental to the childs welfare.29  In
Todd  v.  Todd,  we  acknowledged that when  a  childs  strongest
psychological  bonding  is  with  third  parties,  it  would   be
detrimental to [the child] to destroy those bonds.30
          To  determine whether Ken met his evidentiary burden to
show  clear  detriment,  we  first  review  the  superior  courts
determination that Ken was not Simons psychological parent at the
time  he  filed  suit for custody and visitation.   Because  Kens
clear  detriment argument rests on the assertion that he  has  at
all relevant times been Simons psychological parent, his argument
ends  where  it  begins unless he can demonstrate he  was  Simons
psychological  parent at the relevant time.   Second,  we  review
Kens clear detriment argument in light of our decisions in Buness
and Todd.
          1.   The  superior court did not err by concluding that
               Ken   was  not  Simons  psychological  parent  for
               purposes of this custody dispute.
               
          We have explained that a psychological parent is:
          one  who,  on  a  day-to-day  basis,  through
          interaction,  companionship,  interplay,  and
          mutuality,  fulfills the childs psychological
          needs  for  an adult. This adult  becomes  an
          essential focus of the childs life, for he is
          not only the source of the fulfillment of the
          childs physical needs, but also the source of
          his emotional and psychological needs.31

The  superior  court  ruled that Ken did not demonstrate  he  was
Simons  psychological parent during the relevant time period  for
this  custody action.  And the court ruled that the relevant time
period  was from December 28, 2006  when Kattaryna adopted  Simon
to April 12, 2007  when Ken filed suit for custody.32
          Ken  disputes the superior courts decision  that  these
three  and a half months constitute the relevant time period  for
assessing  his status as Simons psychological parent.  He  argues
that  the superior court should have made its determination based
on  all  the  evidence  from the moment Ken became Simons  foster
parent  in September 2005 until trial in July 2008.  Ken  further
argues  that  even if the superior court was correct to  consider
only  the  interval between the entry of the adoption decree  and
the  filing of the complaint in this action, it was still clearly
erroneous  to conclude that Ken had not established psychological
parent  status  by the time he filed his complaint  for  custody.
          Kattaryna counters that Ken cannot be Simons psychological parent
because  he  is  a former foster parent whose legal  rights  were
extinguished  by  his failure to join in Kattarynas  adoption  of
Simon.
          The issue of what time period the court should look  to
in   determining  psychological  parent  status  is  particularly
significant  in  this case.  The superior court found  there  was
insufficient  evidence  that  Ken had  established  psychological
parent status as of the date Ken filed suit for custody, but  the
superior courts oral findings included the statement that it  was
unequivocal that as of the time of trial, July 2008, [Ken] was  a
psychological  parent to [Simon].33  We consider  separately  the
time  before Kattaryna adopted Simon and the time after Ken filed
his complaint for custody.
               a.   The   superior  court  correctly  began   its
                    analysis  at  the  moment  Kattaryna   became
                    Simons sole legal parent.
                    
          The superior court concluded that no rights accrued  to
[Ken]  during the period of his foster parenting . . . such  that
the  rights  of  a  psychological parent  would  have  developed,
observing  that  Ken  voluntarily allowed  [Kattaryna]  to  adopt
[Simon] in December of 2006.  Ken argues that the superior  court
erred  as a matter of law by not considering the entire time  Ken
served  as Simons foster parent when it decided whether  Ken  met
his burden of showing psychological parent status.34  We disagree.
          The  purpose of an adoption decree is to vest all legal
parental  rights  with the adoptive parent  or  parents,  to  the
exclusion of all others.35  The same policy reasons that motivate
AS 25.23.130 militate against recognizing a former foster parents
claims  for  custody  or visitation against  the  wishes  of  the
adoptive parent based upon psychological bonds established during
the  period  of  foster  care.  Just as the relationship  between
adoptive  parents and adoptive children should be protected  from
post-adoption   disruptions  by  biological  parents   who   have
surrendered  children  for adoption, it must  also  be  protected
against  post-adoption disruptions from foster parents  or  other
third parties, particularly when these individuals did not oppose
the  adoption  or seek to reserve any rights under  the  adoption
decree.
          Allowing  Ken to establish psychological parent  status
based upon time he served as a foster parent is also inconsistent
with  the basic premise of our foster care and adoption programs.
Discussing  the  related concept of de facto parent  status,  the
American Law Institute has cautioned, [r]elationships with foster
parents  are . . . generally excluded . . . because inclusion  of
foster  parents  would  undermine the integrity  of  a  state-run
system  designed  to provide temporary, rather  than  indefinite,
care for children.36
          Ascertaining  whether  a  foster  parent  has  attained
psychological  parent status also presents special  difficulties.
As  we stated in Carter v. Brodrick, the psychological parent  is
one  who  love[s],  value[s], appreciate[s], and  view[s]  as  an
essential  person the child for whom he or she  is  caring.37   A
          foster parent serves a vital but inherently temporary role in a
childs  life.  The ultimate goal in foster care is for the  child
to  either  be returned to the biological parents in  appropriate
circumstances  or  adopted, either by the foster  parents  or  by
another  third party.  The temporary nature of foster care  along
with  the  compensation for services associated with it  make  it
more difficult to ascertain whether a foster parent has become  a
psychological  parent  or  is  serving  the  childs  needs  in  a
different capacity.
          Given  these considerations, we hold that the  superior
court was correct not to consider the time prior to the entry  of
the  adoption decree for purposes of determining whether Ken  was
Simons psychological parent.
          Kattaryna is correct that the time Ken served as Simons
foster  parent may not be considered for purposes of establishing
psychological  parent status, but she is incorrect  that  Ken  is
barred  from subsequently establishing such status.  The adoption
decree   gave   Ken  a  clean  slate  upon  which  to   establish
psychological  parent status.  While it made Ken  a  stranger  to
Simon in the eyes of the law as of the moment of the adoption, in
this  case  that moment was short-lived.38  Kattaryna  and  Simon
continued  living  together with Ken after the adoption  and  the
superior court was obliged to evaluate the nature and quality  of
the  relationship  that Ken developed with  Simon  following  the
entry of the decree.
          At  least initially, Kattaryna promoted and fostered  a
relationship  between  Ken and Simon  after  the  adoption.   The
custody  investigator  reported that Kattaryna,  Simon,  and  Ken
still lived together as a family unit after the adoption, a  fact
the  superior court found significant.  The superior  court  also
pointed  to  a  new  will Kattaryna drafted in  January  2007  as
evidence  that  after the adoption she envisioned  Ken  being  in
[Simons] life.  The will identified Ken (or Kens relatives if Ken
did  not survive Kattaryna) as guardian and conservator of Simon,
and left Kattarynas interest in the parties house to Ken.
          Given   Kens   continuing  relationship   with   Simon,
encouraged  or  at  least  accepted by Kattaryna,  the  difficult
question  before  the  superior court  was  whether  or  not  Ken
established psychological parent status in the period  subsequent
to the adoption.
               b.   The   superior  court  correctly  ended   its
                    analysis  at  the point when  Ken  filed  his
                    complaint for custody.
                    
          The  superior  court  concluded that  the  end  of  the
relevant  period for determining psychological parent status  was
when  Ken  filed his complaint for custody.  Ken argues that  the
superior  court  erred as a matter of law by not considering  any
facts  after Ken filed his complaint.  We agree with the superior
court.
          There  are  important policy reasons why  the  parental
status of parties to custody and visitation cases should be fixed
at  the time they file suit: a third party should not be able  to
establish psychological parent status against the wishes  of  the
          legal parent as a result of court-ordered interim visitation.
Interim  visitation is meant to help maintain and promote already
existing  psychological  parent-child bonds;  it  should  not  be
converted  into  a tool for establishing such bonds.   If  courts
considered  the interim period, litigants in Kattarynas  position
would   have  an  incentive  to  withhold  or  oppose   pre-trial
visitation,  a  potentially harmful result to a  child  genuinely
bonded  to  a  third  party  psychological  parent.   Conversely,
litigants  in  Kens  position would have an  incentive  to  delay
resolution  of  the  case  in  the hope  a  psychological  parent
connection  could be established by exercising visitation  during
the  interim period.  The latter result could also be harmful  to
the  child,  in addition to being contrary to the wishes  of  the
legal  parent.   For these reasons, we hold that in  third  party
custody  or  visitation actions, the relevant point in  time  for
establishing  psychological parent status  is  the  time  when  a
complaint for custody or visitation is filed.39
               c.   It was not clearly erroneous for the superior
                    court  to decide that Ken failed to establish
                    psychological   parent  status   during   the
                    relevant time period.
                    
          The  superior  court  did not  find  [Ken]  to  be  the
psychological parent of [Simon], between the time of the adoption
on  December  28, 2006 and the date [Ken] filed the Petition  for
Custody  on  April 12, 2007.  The court based its  conclusion  on
three primary considerations.  First, it concluded that the  time
period  between  the adoption and Kens custody  complaint   about
three  and  a  half  months   was simply too short  to  establish
psychological parent status.  Second, it pointed to  Simons  very
young  age at the time of separation  between nineteen and twenty
months   as  a factor weighing against establishing psychological
parent  status.  Finally, the court emphasized the importance  of
the fact that Ken voluntarily agreed to let Kattaryna adopt Simon
alone  just  three and a half months before filing his  complaint
for  joint custody.  We review a finding of psychological  parent
status for clear error.40
          The  superior court did not clearly err when  it  found
that  three  to  four  months is not  long  enough  to  establish
psychological parent status, particularly given Simons young age.41
As  the  custody investigator stated, until a child is old enough
to  say shes my mom and hes my dad, it is guesswork to figure out
who   [the   child]   views   as  his  psychological   parent(s).
Furthermore, even though there is disputed evidence in the record
suggesting  it was Kens intention to eventually adopt Simon,  the
superior  court did not err when it considered Kens decision  not
to  adopt  Simon  when he may have had the chance  to  do  so  as
weighing  against his claim.  We do not find the superior  courts
decision that Ken failed to establish psychological parent status
at  the  time he filed suit for custody to be clearly  erroneous.
We  do  not  accept  Kens  invitation  to  reconsider  whether  a
psychological  parent  seeking custody  or  visitation  over  the
objections  of  a  legal parent should be  held  to  a  different
substantive  standard or evidentiary burden  than  another  third
          party seeking similar rights.
          2.    Buness  and  Todd are distinguishable  from  this
case.
          Ken  argues that Buness v. Gillen42 and Todd v.  Todd43
support his argument that it will be clearly detrimental to Simon
if  his  bond with Ken is broken.  We do not find either decision
to  be  inconsistent with the superior courts ruling.  The  third
party  relationships that were at issue in Buness  and  Todd  are
both  distinguishable from Kens relationship  with  Simon.   Most
prominently, the third party relationships with the  children  in
Buness  and  Todd were significantly longer than the relationship
between  Ken  and  Simon.   In Buness, the  third  party  seeking
custody had been the childs stepfather and primary care-giver and
father  figure for ten years.44  In Todd, the childs grandparents
sought  custody  and they had been the childs primary  caregivers
for about seven years.45  Kens entire relationship with Simon was
only  twenty  months in duration when he filed suit for  custody,
and only three and a half of those months post-dated the adoption
decree.   Another important distinction is that the  children  in
Buness  and Todd were significantly older than Simon;  the  third
parties in Buness and Todd had raised the children in those cases
throughout much of their childhood.  In contrast, Simon was still
a toddler when Ken filed suit for custody.
          In  light of these considerations, we do not find  that
the  superior court was clearly erroneous in concluding that  Ken
failed  to demonstrate by clear and convincing evidence  that  it
would  be  clearly detrimental to Simon if Ken  was  not  awarded
custody.46
          C.   Ken Did Not Prove By Clear And Convincing Evidence
          That  It  Would  Be  In Simons Best Interest  To  Order
          Visitation Over Kattarynas Objection.
          
          The  superior  court did not rule on Kens  request  for
third  party  visitation, which was argued by the parties  below.
Because  this case already has a protracted history, because  the
parties  need  finality, and because Ken presented his  case  for
visitation  to  the  superior court, we resolve  Kens  claim  for
visitation   on  the  merits  rather  than  remand  for   further
proceedings.47   We held in Evans that to obtain visitation  over
the objection of a legal parent, a third party must show by clear
and  convincing  evidence that visitation is in the  childs  best
interests.48  This heightened burden of proof reflects our  long-
standing custodial preference for parents over non-parents.49
          In  Evans, we noted the statement from the plurality in
the  United  States Supreme Courts decision Troxel  v.  Granville
that  special weight must be given to a fit parents determination
as  to  the desirability of visitation with third parties.50   We
concluded  that  a presumption of parental fitness  to  determine
what  is in a childs best interests could be ensured by requiring
that  a  third party prove by clear and convincing evidence  that
such  visitation  is in the best interests of the  child.51   The
result  of  establishing this heightened standard, we  concluded,
was  to provide effective protection for a parents choice, except
where the choice is plainly contrary to a childs best interests.52
          In  this  case, Kattaryna has repeatedly expressed  her
preference  that Ken no longer have a role in Simons  life.   She
has  actively told others that they are forbidden to refer to Ken
as  Simons father.  The psychological evaluator noted in a follow
up  report prepared shortly before trial that [i]t remains clear,
as  it  was at the time of my original evaluation, that Kattaryna
wants Ken out of [Simons] life.
          This  is  a  difficult case and it is a close  question
whether  it would be in Simons best interests to order visitation
with  Ken over Kattarynas fervent objections.  On one hand, there
is  evidence  in  the  record of a close and loving  relationship
between  Simon  and Ken as of the time of trial.  On  the  other,
both  the  custody  investigator and the psychological  evaluator
acknowledged Simon could be harmed by continued exposure  to  the
toxic relationship between Ken and Kattaryna.53  Ultimately, Kens
inability  to  establish psychological parent status  once  again
undercuts his chief argument  that removing Ken from Simons  life
would  be  detrimental  to  Simon.  We  also  disagree  with  Ken
regarding  the weight to be given to Kattarynas unwillingness  to
foster his relationship with Simon; special consideration must be
given  to  a fit parents determination regarding the desirability
of  visitation  with  third  parties.54   Having  considered  the
evidence  presented at trial, we find that Ken did not  meet  his
burden  to prove by clear and convincing evidence that Kattarynas
preference  that he no longer have a relationship with  Simon  is
plainly contrary to the childs best interests.
     D.   The  Superior Court Did Not Err By Requiring  Kattaryna
          To  Repay  A Loan From Kens Parents Or By Not Crediting
          Her Loan Payments To Both Parties.
          
          On  cross-appeal, Kattaryna argues the  superior  court
erred  in  finding that Kens parents loaned $22,000 to  Kattaryna
and  $22,000  to Ken.  She argues the parties called and  treated
the  payments  gifts.  Ken disagrees and also  argues  the  court
erred by not crediting Kattarynas loan payments to both parties.
          There  is  a  rebuttable presumption that transfers  of
funds  between close relatives are not actual debts.55  We review
the  superior courts characterization of such transfers of  funds
as loans or gifts for clear error.56
          There  is  conflicting  evidence  as  to  whether   the
transfer  of funds from Kens parents were loans or simply  gifts.
Kens  parents issued gift letters stating [n]o repayment of  this
gift  is  expected or implied either in the form of  cash  or  by
future  services  of the recipient, and Kattaryna  testified  she
made  payments  out  of  a moral obligation  only.   Kens  mother
testified the payments were interest-free and without a  specific
payment term, but that the payments were loans, and that the gift
part  of  the transaction was making the loans interest-free  and
not  requiring  a  specific payment term or schedule.   She  also
testified  they  made  similar loans to Kens  siblings,  and  the
record  contains documents showing payments made on those  loans.
Kattaryna  made  sixteen payments to Kens parents,  generally  in
installments  of  $250, and wrote home loan on her  checks.   Ken
testified  the  payments from his parents  were  loans  and  that
          Kattarynas installments were payments made on behalf of both of
them because he was paying the mortgage.
          The  presumption that transfers of funds between  close
relatives  are  not  actual debts is rebutted  in  this  case  by
weightier evidence that the money from Kens parents was  intended
to  be repaid.  We conclude that the court did not clearly err in
finding  the  payments from Kens parents were legally enforceable
loans.57
          We also conclude the superior court did not clearly err
by crediting Kattaryna for the loan payments she made, and by not
crediting Ken for the mortgage payments.58  [P]roperty accumulated
during  cohabitation should be divided by determining the express
or  implied intent of the parties.59  Although Ken testified that
Kattaryna  made payments on the parents loans for  both  of  them
because  he was paying the mortgage, the record shows  the  loans
were  made  to Kattaryna and Ken individually.  The  record  also
supports  the  superior courts factual finding that  the  parties
intended  Ken to pay the mortgage, and that Kattaryna  would  pay
utilities  and incidentals because Ken had a higher income.   The
courts   property  division  was  in  accord  with  the   parties
intentions, as reflected in the record.
     E.   The  Superior  Court Did Not Err By Granting  Kattaryna
          Interim Attorneys Fees.
          
          Ken argues on appeal that the superior court abused its
discretion when it ordered him to pay Kattaryna interim attorneys
fees.   He  argues  the court made no findings  to  support  this
decision  and  claims that the fact he has  lived  in  the  house
throughout  the  litigation does not support  awarding  Kattaryna
interim attorneys fees.
          The  court  reduced its original award of interim  fees
from  $10,000 to $5,000, finding the award justified because  Ken
had  a  greater income and occupied the home  the parties largest
and only significant equity  throughout the action.
          [I]n  actions  between unmarried couples that  resemble
divorce  proceedings the rules governing the award  of  attorneys
fees in divorce cases will be applied.60  In such cases, an award
of  costs  and fees is based on the relative economic  situations
and earning powers of the parties.61  The  purpose of such awards
is  to ensure the parties can litigate on a fairly equal plane.62
We   review  an  interim  attorneys  fee  award  in  divorce-like
proceedings  for  abuse of discretion and will  not  reverse  the
award    unless   it   is   arbitrary,   capricious,   manifestly
unreasonable, or stems from an improper motive.63
          Here,  the  court  did  not  abuse  its  discretion  in
awarding  Kattaryna $5,000 in fees.  Contrary to Kens  assertion,
the  court  made findings and its findings were relevant  to  the
determination.  It considered the parties respective incomes  and
other  sources of equity, including Kens continued possession  of
the  house,  the  parties  sole significant  asset.   The  record
supports  these findings.  The courts findings were  not  clearly
erroneous, it considered appropriate factors, and the  award  was
not arbitrary, capricious, or manifestly unjust.
     F.   The  Superior Court Should Have Provided Notice To  Ken
     Before Issuing A Writ Of Assistance To Kattaryna.
          
          Ken  contends  the  superior courts communication  with
opposing counsel following its oral ruling and its issuance of  a
writ of assistance outside of his presence was error.
          The  purpose  of the courts proceedings on  August  22,
2008  was  to issue the courts oral ruling on record.   While  no
notice  was  sent  to counsel, the date for the decision  on  the
record  appeared  on the CourtView calendar, which  both  parties
could  access.  Kattarynas counsel saw the date on CourtView  and
attended.  Ken and his counsel did not have notice and they  were
not  present.   There is no evidence that the court  intended  to
address  the  issue of a writ of assistance at these  proceedings
this issue came up when Kattarynas counsel asked if the court was
going  to issue an order for the return of Simon.  But the  court
ended  up  granting Kattarynas request for a writ  of  assistance
without  providing an opportunity for Ken to be  heard.   Ken  is
correct  that the writ of assistance should not have been  issued
under these circumstances. As Ken notes, however, the damage  has
been done.  Ken did not request additional relief.
IV.  CONCLUSION

          For the reasons stated above, with the exception of the
courts  issuance  of a writ of assistance, the decisions  of  the
superior court are AFFIRMED.

_______________________________
     1     This  opinion uses a pseudonym to protect  the  minors
privacy.

     2    25 U.S.C.  1903(4) (2006).

     3      Simons   biological  mothers  parental  rights   were
terminated and his biological father voluntarily relinquished his
parental  rights.   The  tribes with which  Simon  is  affiliated
received  notice of the adoption hearing and filed no  objection;
the  court  found  good  cause to deviate  from  ICWAs  placement
preferences.

     4     CourtView  is  the  trial  courts  electronic,  online
docketing and calendaring system.

     5     The superior court observed that the total loan amount
was actually $48,000, but found that only $44,000 was related  to
the  home.  Because it did not find that the remaining $4,000 was
related  to  the  home, it did not include  this  amount  in  its
calculations.  Neither party appeals this decision.

     6     In  re Adoption of Missy M., 133 P.3d 645, 648 (Alaska
2006)  (quoting Elton H. v. Naomi R., 119 P.3d 969,  973  (Alaska
2005)) (internal quotation marks omitted).

     7     R.I.  v. C.C., 9 P.3d 274, 277 (Alaska 2000) (internal
citations  omitted); see also Skinner v. Hagberg, 183  P.3d  486,
489  (Alaska  2008)  (reviewing visitation orders  for  abuse  of
discretion) (citing Lone Wolf v. Lone Wolf, 741 P.2d  1187,  1190
(Alaska 1987)).

     8     In  re  Missy M., 133 P.3d at 648 (quoting  Fardig  v.
Fardig, 56 P.3d 9, 11 (Alaska 2002)).

     9    Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002).

     10    In re Missy M., 133 P.3d at 648.

     11    J.W. v. R.J., 951 P.2d 1206, 1209 (Alaska 1998) (citing
R.R. v. State, 919 P.2d 754, 755 n.1 (Alaska 1996)), overruled on
other  grounds  by Evans v. McTaggart, 88 P.3d  1078,  1085  n.34
(Alaska 2004).

     12     Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska 2005)
(quoting  Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316  (Alaska
2001)).

     13    See Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003).

     14     See  id. (quoting Zimin v. Zimin, 837 P.2d  118,  124
(Alaska 1992)) (internal quotation marks omitted).

     15     781  P.2d 985, 986 (Alaska 1989), overruled on  other
grounds by Evans, 88 P.3d at 1085 n.34 (Alaska 2004).

     16    Id. at 988.
          
     17     Evans,  88  P.3d  at  1082.  We  recognize  that  the
statement  in  Evans  questioning the  relationship  between  the
significant  connection  test  and  psychological  parent  status
caused  confusion.   To  clarify, a third party  need  not  prove
psychological parent status in order to have standing to bring  a
claim  for  custody  or visitation.  As we  suggested  in  Evans,
establishing  psychological parent status is more demanding  than
the significant connection status that a third party must have in
order  to seek custody. Id.  Significant connection status  is  a
threshold  question;  it relates to whether  a  third  party  has
standing  to  assert a claim for custody or visitation.   Buness,
781 P.2d at 988.  Psychological parent status does not entitle  a
third party to custody or visitation, but this status can help  a
third party prove that it would be clearly detrimental to a child
to  deny  third party custody, or that it would be in the  childs
best  interests to grant visitation to a third party.  See, e.g.,
id. at 989 n.8.

     18     Brown  v.  Music Inc., 359 P.2d 295,  300-01  (Alaska
1961).   The failure to raise the issue of capacity to sue  below
results  in  a waiver of that defense.  Moore v. State,  Dept  of
Natural  Res.,  992  P.2d 576, 577 n.5 (Alaska  1999);  see  also
Jackson v. Nangle, 677 P.2d 242, 250 n.10 (Alaska 1984); King  v.
Petroleum Servs. Corp., 536 P.2d 116, 118 (Alaska 1975).

     19     Questions  of standing should be raised  and  decided
during  the  initial stages of litigation.  Given  the  emotional
burden  custody and visitation litigation places on children  and
litigants,  trial  courts should resolve issues  of  standing  as
early as possible in the pre-trial phase of litigation.

     20    In relevant part, AS 25.23.130(a)(2) provides:

          (a)  A final decree of adoption . . . has the
          following  effect    . . . (2) to create  the
          relationship  of  parent  and  child  between
          petitioner and the adopted person, as if  the
          adopted   person  were  a  legitimate   blood
          descendant   of  the  petitioner,   for   all
          purposes . . . .
          
     21    88 P.3d 1078, 1079 (Alaska 2004).

     22    Id. at 1081.

     23    Id. at 1087.

     24    Id. at 1082.

     25    Id. at 1085.

     26    Evans, 88 P.3d at 1085.

     27    Id.

     28     See J.W. v. R.J.,  951 P.2d 1206, 1211 (Alaska  1998)
([T]he  court may take the relationship [between a  child  and  a
third  party] into account, however, in deciding whether awarding
custody  to  the  biological parent would be detrimental  to  the
child.),  overruled on other grounds by Evans  v.  McTaggart,  88
P.3d 1078, 1085 n.34 (Alaska 2004).

     29    781 P.2d 985, 989 (Alaska 1989).

     30    989 P.2d 141, 143 (Alaska 1999).

     31    Evans, 88 P.3d at 1082 (quoting Carter v. Brodrick, 644
P.2d 850, 853 n.2 (Alaska 1982)).

     32     The superior court made conflicting statements  about
whether  it considered the time of suit or the time of separation
to  be  the  relevant point for determining psychological  parent
status.   We  conclude that although the superior  court  treated
these events somewhat interchangeably, it ultimately decided that
the  date  Ken  filed his complaint for custody was the  relevant
date for purposes of determining his psychological parent status.

     33     The  superior  courts written findings  of  fact  and
conclusions of law only state that (1) the court did not find Ken
to  be  the  psychological parent of Simon between  the  time  of
adoption and the date he petitioned for custody; and (2)  Ken  is
not the psychological parent of Simon.

     34    Because Ken argues psychological parent status to meet
the  clear  detriment requirement in his claim  for  third  party
custody,  the  evidentiary burden he must meet to establish  this
status is clear and convincing evidence.  Evans, 88 P.3d at  1085
(holding  that  a heightened standard of proof is appropriate  in
initial  custody  contests between parents and  non-parents,  and
that  the  heightened standard should be a clear  and  convincing
evidence standard.).

     35     See  AS 25.23.130.  There is a spousal exception  for
instances where a stepparent who is married to the natural parent
adopts the natural parents child. Id.

     36     ALI Principles of the Law of Family Dissolution  2.03
comment c(ii).

     37    644 P.2d 850, 853 n.2 (Alaska 1982).

     38     See, e.g., In re Adoption of S.K.L.H., 204 P.3d  320,
326 n.23 (Alaska 2009) (AS 25.23.130(a) clearly provides, however
harshly,  that  the  final [adoption] decree has  the  effect  of
making  an  adopted  child a stranger to the  former  relatives.)
(internal citations omitted).

     39     Ken  points  to our ruling in Evans  to  support  his
argument   that   the  superior  court  should  have   made   its
determination on psychological status based on his entire history
with  Simon  up  to the time of trial.  In Evans, we  vacated  an
award  of custody and visitation to the grandparents of two half-
brothers,  ordering that if on remand the grandparents visitation
and   custody  could  not  be  sustained  on  previously-admitted
evidence,  the superior court was to hold an evidentiary  hearing
to  get  updated facts.  88 P.3d 1078, 1091 (Alaska  2004).   The
issue   in   Evans  was  not  the  nature  of  the   grandparents
relationship  to the children  the superior court held  they  had
not  established psychological parent status, Id.  at  1082   the
issue was the ability of the childrens biological parents to meet
the childrens physical, emotional and intellectual needs. Id.  at
1080.   The  question of parental fitness or home environment  is
often  an  evolving assessment.  If a parent has gone from  being
fit  to  unfit or the home environment has deteriorated over  the
course of litigation, a superior court may consider these changed
circumstances when determining custody or visitation.

     40    Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002).

     41    The American Law Institute standard for establishing de
facto parent status requires that a person live with a child  for
a  significant  period  of time not less  than  two  years.   ALI
Principles of Family Dissolution  2.03, comment c(iv).  We do not
establish   any   minimum   length  of  time   for   establishing
psychological parent status, but we do agree with  the  ALI  that
[t]he  length of time that constitutes a significant period  will
depend on many circumstances, including the age of the child, the
frequency of contact, and the intensity of the relationship.  Id.

     42    781 P.2d 985, 989 (Alaska 1989).

     43    989 P.2d 141, 145 (Alaska 1999).

     44    781 P.2d at 989.
          
     45    989 P.2d at 145.

     46    Kens argument that remand is necessary on the issue of
clear  detriment because it is not possible to discern the  basis
of  the  superior courts decision also fails.  Because we  affirm
the   superior   courts  finding  that  Ken  did  not   establish
psychological  parent  status during  the  relevant  period,  and
psychological   parent   status  is  Kens   sole   argument   for
establishing clear detriment, remand is not appropriate.

     47     See, e.g., In re Estate of Johnson, 119 P.3d 425, 436
n.43  (Alaska 2005) (Due to the lengthy delays in this  case,  we
are reluctant to remand the case for further proceedings.); State
v.  Kenaitze  Indian  Tribe, 83 P.3d  1060,  1071  (Alaska  2004)
([G]iven  the  long  delays in this  litigation  .  .  .  we  are
reluctant to remand to the superior court to carry out  the  same
review that we have already conducted.  We therefore think it  is
better in this case for us to consider the merits of whether  the
regulation is invalid, rather than remand to the superior  court,
with the potential for further appeals.).

     48    Evans v. McTaggart, 88 P.3d 1078, 1089 (Alaska 2004).

     49     See,  e.g.,  Turner v. Pannick, 540 P.2d  1051,  1055
(Alaska 1975) (stating that  parental custody [is] preferable and
only  to be refused where clearly detrimental to the child);  see
also Kinnard v. Kinnard, 43 P.3d 150, 154 (Alaska 2002) (Even  in
custody  disputes  between  parents  and  stepparents,  the  best
interests  standard is rejected in favor of the  Turner  parental
preference.); J.W. v. R.J., 951 P.2d 1206 (Alaska 1998) (applying
the  parental  preference principle established in  Turner  to  a
custody  dispute between a legal parent and a stepparent who  had
established psychological parent status).

     50    Evans, 88 P.3d at 1089 (citing Troxel v. Granville, 530
U.S. 57, 70 (2000)).

     51     Id.   We also found that visitation could be  ordered
over  the objection of a legal parent if the court found by clear
and  convincing  evidence  that the  parent  was  unfit  to  make
visitation  decisions.  Id. at 1090.  Ken has  not  alleged  that
Kattaryna is unfit to make visitation decisions, so we  need  not
consider this here.

     52    Id. at 1089.

     53    As the custody investigator concluded, [i]f [Kattaryna]
is  unable to accept [Ken] as [Simons] father, then any  kind  of
custody/visitation schedule has the great potential to  create  a
horrific existence for [Simon] as hes the object of a lifetime of
conflict between [Ken] and [Kattaryna].  Even Ken admitted to the
psychological  evaluator that he has seriously considered  bowing
out of [Simons] life if it is determined that Kattaryna would  be
unable to cooperate with him in coparenting [Simon], although  he
loves [Simon] and does not want to do this.

     54    We 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  a  custody  dispute
between  two  parents. AS 25.24.150(c)(6)   But  this  is  not  a
dispute  between  two parents.  Consistent with  our  opinion  in
Evans,  the  parental preference may only be overcome  if  it  is
determined, by clear and convincing evidence, that it would be in
the best interests of the child to award third party visitation.

     55     Ware  v.  Ware,  161 P.3d 1188,  1192  (Alaska  2007)
(quoting Dixon v. Bradsher, 779 S.W.2d 727, 732 (Mo. App. 1989));
Fortson  v. Fortson, 131 P.3d 451, 462 n.34 (Alaska 2006) (citing
Charles C. Marvel, Annotation, Unexplained Gratuitous Transfer of
Property  From One Relative to Another as Raising Presumption  of
Gift,  94 A.L.R.3d 608 (1979); 59 Am.Jur.2d Parent and Child   92
(2002)).

     56     See Fortson, 131 P.3d at 461 (upholding finding  that
loans from former wifes parents were not legally enforceable).

     57    See id. at 462 (The trial court is the factfinder, and
given  the  evidence in the record supporting its decision  [that
payments from the former wifes parents were gifts], we cannot say
that  its  finding  that  the loans were not  marital  debts  was
clearly erroneous.).

     58     The superior court found the parties intended to  own
the  house equally, although it recognized the payments had  been
unequal.  It credited Ken for home improvements.  It ordered  the
parties  to  refinance  and to split  those  costs  equally.   It
concluded that ultimately, Ken would be entitled to $78,883.75 in
equity  and  Kattaryna  to  $50,132  (taking  into  account   the
improvement credit to Ken and the debt to his parents), less half
the refinancing costs.

     59     Bishop  v.  Clark,  54 P.3d 804,  811  (Alaska  2002)
(quoting Wood v. Collins, 812 P.2d 951, 956 (Alaska 1991)).

     60     Id.  at 813 (citing Bergstrom v. Lindback,  779  P.2d
1235,  1238 (Alaska 1989)).  AS 25.24.140(a) permits a  court  to
award interim attorneys fees to a spouse.

     61    Bergstrom, 779 P.2d at 1238 (citing L.L.M. v. P.M., 754
P.2d 262, 263-64 (Alaska 1988)).

     62     Sanders  v.  Barth, 12 P.3d 766,  769  (Alaska  2000)
(citing  Lone  Wolf  v. Lone Wolf, 741 P.2d  1187,  1192  (Alaska
1987)).

     63    Koller v. Reft, 71 P.3d 800, 808 (Alaska 2003) (citing
Zimin v. Zimin, 837 P.2d 118, 124 (Alaska 1992)).

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