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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Williams v. Williams (5/27/2011) sp-6561

Williams v. Williams (5/27/2011) sp-6561, 252 P3d 998

        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 

PHYLLIS WILLIAMS,                               ) 
                                                )       Supreme Court No. S-13527 
                        Appellant,              ) 
                                                )       Superior Court No. 3AN-00-11199 CI 
        v.                                      ) 
                                                )      O P I N I O N 
DeJEAUX WILLIAMS,                               ) 
                                                )      No. 6561 - May 27, 2011 
                        Appellee.               ) 
                                                ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial   District,   Anchorage,   William   F.   Morse   and   John 
                Reese, Judges. 

                Appearances: Phyllis Williams, pro se, Anchorage, Appellant. 
                DeJeaux Williams, pro se, El Paso, Texas, Appellee. 

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

                CARPENETI, Chief Justice. 

I.      INTRODUCTION 

                A divorced mother appeals the superior court's denial of four motions to 

reconsider   child   support,   visitation   arrangements,   appointment   of   a   court   custody 

investigator, and her share of her ex-husband's military retirement pay.              We affirm the 

superior court's decision on each issue except for visitation, which we decline to reach 

on mootness grounds.        We also reject the mother's claim that the superior court judge 

handling the case exhibited bias against her. 

----------------------- Page 2-----------------------

II.     FACTS AND PROCEEDINGS 

               After 14 years of marriage, Phyllis and DeJeaux Williams divorced in 2000. 

They have one child, Camerin, born November 23, 1995.               Phyllis and Camerin live in 

Alaska and DeJeaux lives in Texas.   The relationship between the parties is contentious, 

and the past ten years have seen near-constant litigation on the issues of child support, 

visitation, custody, and property division.       Phyllis raises similar types of issues in her 

appeal to this court.   Both she and DeJeaux are pro se. 

        A.     Military Retirement 

               DeJeaux was in the military during the parties' entire 14-year marriage. 

However, the property settlement provisions of the parties' original divorce decree, 

issued    in  December     2000,   did  not  specifically   address   DeJeaux's    future   military 

retirement pay.    In July 2001, the superior court amended the decree to hold that upon 

DeJeaux's retirement, Phyllis was entitled to "one half (½) times 170 months of married 

military service divided by the total number of months defendant eventually serves in the 

military."    It   appears   DeJeaux   retired   sometime   in   2006. In   June   2007,   citing   the 
Uniformed Services Former Spouses' Protection Act1 (USFSPA), the court awarded 

Phyllis 35% of DeJeaux's retirement pay.  The court explained how it reached this 

percentage as follows: "50% x (months of military service during marriage) Ć· (total 

months of active service)[,] more fully defined as: 50% x 168 months Ć· 240 months = 

35%." 

               In January 2009, citing generally to the USFSPA, Phyllis asked the superior 

court to increase her entitlement to DeJeaux's military retirement pay from one-third to 

50%.     The court denied Phyllis's request, explaining that the 35% determination was 

        1       10 U.S.C. § 1408. 

                                                -2-                                             6561 

----------------------- Page 3-----------------------

properly "based upon the number of years the parties were married and the number of 

years DeJeaux was in the military." 

                On April 3, 2009, Phyllis again moved to increase her share of the military 

retirement to 50%, this time invoking Alaska Civil Rule 60(b) and arguing, in part, that 

new evidence had been discovered.             Phyllis did not say what the new evidence was, 

though she may have been referring to a copy of the pamphlet entitled "Uniformed 

Services Former Spouses' Protection Act: Dividing Military Retired Pay," a publication 

of the Defense Finance and Accounting Service that Phyllis referenced on one of the two 

pages of her motion.  Phyllis filed a similar motion three days later, this time including 

the aforementioned pamphlet.          DeJeaux opposed the motion, arguing that the original 

determination was proper and nothing had changed since it was made.  At an April 23, 

2009 hearing, the superior court denied Phyllis's motion, explaining that the court's 

previous division of the marital portion of the retirement was correct.              A written order 

denying the motion was issued the same day.  Phyllis appeals this determination. 

        B.      Visitation 

                Camerin was five years old when the parties divorced in 2000.                   In the 

original divorce proceeding, the parties agreed that Phyllis would have sole legal and 

physical custody of Camerin, and DeJeaux would have "reasonable rights of visitation 

as   the   parties   may   amicably   agree   to." In   July   2001,   finding   that   the   parties   were 

incapable of informally managing DeJeaux's visitation rights in Camerin's best interests, 

the superior court began formally setting visitation.  At the time, DeJeaux was supposed 

to transfer out of Alaska around October 2011.  The court ordered that once DeJeaux 

moved, visitation would be permitted during half of summer vacations and on various 

alternating holidays; the court also ordered that Camerin be accompanied on all flights 

due to his age.      In January 2002, the court ordered DeJeaux to pay two-thirds of all 

visitation-related travel expenses.   It appears at least one visit took place before 2003. 

                                                  -3-                                            6561
 

----------------------- Page 4-----------------------

                In October 2006, DeJeaux filed a motion to enforce his visitation rights. 

DeJeaux alleged that Phyllis was preventing him from speaking to Camerin, refusing to 

return calls, and interfering with his attempts to plan visitation.  DeJeaux stated that he 

had not seen Camerin in two years.  Phyllis responded that she had not interfered in any 

way, and that the lack of visitation was because DeJeaux did not want to spend the time 

or money required. 

                In November 2006, the court noted that it was unclear what visitation had 

occurred in the previous five years, that the parties disagreed about the reasons for the 

lack of visitation, and that it could not "determine whether a party has been disobeying 

the visitation order or whether there were other reasons for the current dispute."                 The 

court ordered Phyllis to cooperate with DeJeaux in setting up the Christmas visit to 

which DeJeaux was entitled under the 2001 visitation order, and it set a hearing for the 

following January to reevaluate the situation. Because the parties could not agree on the 

location of the Christmas visit, the visit did not take place. 

                At the January 2007 hearing, DeJeaux said that although he could not afford 

to pay travel expenses for the spring visit to which he was entitled, he did want Camerin 

to visit in the summer.  The court ordered that Camerin could visit DeJeaux in Texas in 

summer 2007, but only after DeJeaux traveled to Alaska and spent time with Camerin 

there.    The   court   explained   that   this   was   necessary   because   "Camerin   has   not   seen 

DeJeaux for so long and . . . is somewhat apprehensive about traveling to see DeJeaux," 

and    this  arrangement     would    permit    Camerin     to  "become     more   comfortable      with 

DeJeaux." 

                At an April 2007 status conference, the parties acknowledged that they had 
not been in phone contact since the previous hearing, but they disagreed about why.2 

        2       DeJeaux said he had been calling Phyllis and produced phone records, some 

                                                                                        (continued...) 

                                                  -4-                                               6561 

----------------------- Page 5-----------------------

DeJeaux told the court that if he paid for a ticket to fly to Alaska, the expense of the 

flight would limit the activities he and Camerin could do together.  The court questioned 

DeJeaux at length about his finances, then ordered that he must spend four days in 

Alaska, but could then spend 17 days in Texas with Camerin.  It is unclear whether this 

visit ever took place. 

                In March 2008, DeJeaux filed another motion seeking an order requiring 

Phyllis to cooperate with his efforts to interact with Camerin.             Phyllis did not respond, 

and the court staff found that her phone number was out of service.                      In July 2008, 

DeJeaux moved again to establish a visitation schedule, stating that he had not spoken 

to Camerin in a year because he did not know Phyllis's phone number.  The court set a 

hearing, ordered Phyllis not to bring Camerin to the hearing, and said that it would 

"consider appointing a child custody investigator for the limited purpose of speaking to 

Camerin   in   an   informal   and   less   threatening   setting   to   learn   his   preferences   about 

visitation." 

                At a July 2008 hearing, DeJeaux said he wanted to bring Camerin to Texas 

in August, but he had only reserved a one-way ticket for his son.  Phyllis objected, and 

the court said it would consider the visit if DeJeaux also bought a return ticket.                   The 

hearing was continued to the next day. At that hearing, DeJeaux said he could not afford 

the return ticket and therefore would not go through with the summer visit.                  The court 

then considered the possibility of a Christmas 2008 visit; the court ordered that flight 

details   be   arranged   in   advance,   that   DeJeaux   pick   up   Camerin   in   Alaska,   and   that 

        2       (...continued) 

of them showing calls at unusual hours, and Phyllis said that she did not pick up the 
phone for unknown numbers, that she did not receive many of the calls, and that Camerin 
told her not to answer the phone if DeJeaux called.             But Phyllis also at an earlier point 
said that her phone did not display the number of the person calling. 

                                                   -5-                                             6561
 

----------------------- Page 6-----------------------

                                                  3 
Camerin could then fly home by himself.   The court said to DeJeaux:   "If you do not get 

the   travel   arrangements   made   and   financed,   then   I'm   likely   to   cancel   your   future 

visitations."     Phyllis   asked   the   court   to   appoint   a   custody   investigator   to   determine 

Camerin's preference, but the court did not respond to this proposal. 

                 At a hearing in October 2008, DeJeaux said that he could not afford the 

Christmas visit, but that he hoped for a visit in the summer of 2009.                  In January 2009, 

Phyllis moved for an order to eliminate all visits in Texas.  She seemed to argue that the 

long gaps in communication and Camerin's visit-related anxiety meant out-of-state visits 

were not in Camerin's best interest.          She also argued that Camerin did not want to see 

DeJeaux and he was "old enough to know how he feels and why."  The court denied the 

motion on the grounds that there were no changed circumstances that would justify 

modifying the visitation order. 

                 At an April 2009 hearing, the parties began discussing the logistics for 

Camerin's summer 2009 visit; Phyllis said she planned to take Camerin to Japan for the 

summer and DeJeaux said he wanted a summer visit in Texas.  The court suggested that 

Camerin   visit   DeJeaux   in   Texas   on   the   way   from  Japan,   and   ordered   the   parties   to 

research the cost of changing the flights to accomplish this.               Around this time, Phyllis 

sought the court's intervention; she argued that visitation in Texas would not be in 

Camerin's       best  interests   and    requested    appointment       of  a  custody    investigator     to 

determine whether visitation was in Camerin's best interests.  She alleged that Camerin 

and DeJeaux had no bond with each other and had not spoken in over a year, and that the 

last visit in Texas had not gone well.            DeJeaux responded that he loved Camerin and 

        3        In a written order following the hearing, the court specified that DeJeaux 

had to propose dates by October and pay 60% of Camerin's travel costs, as well as 100% 
of his own. 

                                                    -6-                                                 6561 

----------------------- Page 7-----------------------

wanted a relationship, but that Phyllis had interfered with his attempts to communicate 

with his son. 

                On April 23, 2009, the court denied Phyllis's requests to cancel visitation 

and appoint a custody investigator.   Phyllis appeals this order. 

        C.      Child Support 

                The parties' initial divorce decree required DeJeaux to pay $548 per month 

in child support.     Since then, the amount of the support obligation has fluctuated in 

response to changes in DeJeaux's income.            In June 2004, the court granted a motion of 

the Child Support Services Division (CSSD) to increase support to $709 per month, 

minus a medical insurance credit of $5.67.  In June 2006, not long after DeJeaux retired, 

the court granted a CSSD motion to decrease support to $381. In January 2007, the court 
granted   a   CSSD   motion   to   increase   support   to   $556   per   month4    based   in   part   on 

DeJeaux's receipt of a VA school stipend in the amount of $922 per month.  The court 

ordered that this change be effective as of July 1, 2006. 

                In June 2007, however, the court expressed concern that its most recent 

support order was incorrect; specifically, the court questioned whether the VA school 

stipend should have been included in the calculations.            The court asked the parties and 

CSSD to revisit the calculation and "file a report of their reconsideration of the proper 

child   support."     In   response,   CSSD   revised   its   calculation   of   DeJeaux's   monthly 

obligation to $359 per month. However, because this was less than a 15% decrease from 

DeJeaux's prior obligation of $381, CSSD asked the court to leave the June 2006 order 
intact.5   The   court   agreed   and   in   September   2007   ordered   that   DeJeaux's   "monthly 

        4       This figure did not include a medical insurance credit, as DeJeaux had not 

given CSSD "sufficient information to calculate said credit." 

        5       See Alaska R. Civ. P. 90.3(h)(1) ("A final child support award may be 

                                                                                        (continued...) 

                                                  -7-                                               6561 

----------------------- Page 8-----------------------

obligation of $381 will be reinstated effective 1 July 2006, the date the order of 19 

January 2007 made the erroneous increase effective." 

               In January 2009, Phyllis moved for an increase in child support.  The court 

ordered DeJeaux to provide updated income data.             DeJeaux complied, and the court 

considered the new data in February 2009. Using the new data, the court determined that 

DeJeaux's annual income "translates to a monthly child support obligation of $587." 

However, the court found that "[t]he current order is for $556.         That increase of $31 is 

less than 15% of the current obligation, therefore the potential increase is not great 

enough to warrant modification."  On that basis, the court denied Phyllis's motion. 

               In February 2009, Phyllis filed a motion informing the court of an error in 

its earlier decision.   Phyllis pointed out that the court had based its decision on the fact 

that the existing support order was for $556, while in fact the support order then in effect 

was for $381.     In early March, Phyllis filed additional documents in support of her 

motion to increase support to $587. Later that month the court issued an order indicating 

that it believed Phyllis was correct about the court's error and the need for an increase, 

and    gave  DeJeaux    time   to respond.     DeJeaux    opposed    the  increase   but  did  not 

specifically  dispute  that  the   court  had   used  an  incorrect  figure  in   its  February  4 

calculation.    In   April   2009,   the   court   increased   DeJeaux's   monthly   child   support 

obligation to $587. 

               A few days after the court increased DeJeaux's support obligation, Phyllis 

filed a new motion concerning child support.  Phyllis   asked the court to increase child 

support even beyond $587, alleging that the $587 figure did not reflect funds from 

        5      (...continued) 

modified upon a showing of a material change of circumstances . . . .  A material change 
of circumstances will be presumed if support as calculated under this rule is more than 
15 percent greater or less than the outstanding support order."). 

                                               -8-                                            6561 

----------------------- Page 9-----------------------

DeJeaux's VA school stipend and that DeJeaux's retirement pay had increased again. 

Phyllis asked that any increase be made effective either November 2006, February 2008, 

or July 2008, dates on which Phyllis had previously submitted documents to the court 

concerning child support. She also asked the court to require DeJeaux to provide updated 

income   data   and   for   a   signed   release   allowing   the   court   to   access   DeJeaux's   bank 

statements and other financial documents.  DeJeaux opposed any increase, arguing that 

the previous order was correct and that he could not afford to pay any more.                  In April 

2009, the court denied Phyllis's motion without any explanation.                 Phyllis appeals this 

decision. 

        D.      Dental Expenses 

                In   June   2004,   the   superior   court   ordered   DeJeaux   to   provide   dental 

insurance for Camerin. In August 2006, Phyllis incurred $232 in dental bills for Camerin 

arising from a routine cleaning and cavity filling.  DeJeaux claimed that he had Camerin 

covered by insurance at that time; the court ordered DeJeaux to show proof of insurance, 

but DeJeaux did not comply.  The parties addressed this issue at a hearing in May 2007. 

The court then ordered DeJeaux to show proof of insurance, and to "reimburse Phyllis 

for the $232 that would likely have been covered by a dental plan."                   At a July 2008 

hearing,   Phyllis   alleged   that   DeJeaux   had  not   yet   paid   her   the   money.    DeJeaux 

responded that he had paid by money order but did not have a receipt or any other proof 

of payment.  The court ordered DeJeaux to pay the $232 and show proof of payment. 

                In   February   2009,   Phyllis   filed  a   motion   for   contempt,   alleging   that 

DeJeaux still had not complied with the court order to pay her the $232.  DeJeaux again 

responded that he had paid, but still produced no proof of payment.                 At an April 2009 

hearing, DeJeaux was evasive on the subject of proof of payment, but continued to claim 

he had already paid.       By the hearing on April 23, 2009, DeJeaux still had not provided 

proof of payment. 

                                                  -9-                                             6561
 

----------------------- Page 10-----------------------

              An order on Phyllis's motion for contempt was issued on May 20, 2009, 
two weeks after her appeal was filed.6 

       E.      Superior Court Bias 

              The Williamses' case was initially assigned to Superior Court Judge John 

Reese, on October 12, 2000.   Judge Reese  retired in 2004.   In May 2006, the case was 

ultimately reassigned to Superior Court Judge William F. Morse.        Audio recordings of 

the hearings in this case suggest that Phyllis's exchanges with Judge Morse may have 

been tense. In her July 13, 2008 motion to change child support, she requested that there 

be no hearing and attached an explanatory letter that said, in part, "I'm scare[d] of you 

judge, [s]orry!"  Her brief seems to accuse Judge Morse of bias in favor of DeJeaux 

rather than looking out for Camerin's best interests, of ignoring or overlooking crucial 

information that would have led to a different outcome, and of not following through on 

statements that he made during hearings. 

III.   STANDARD OF REVIEW 

              We review a trial court's equitable division of marital property under the 
abuse of discretion standard; we will not disturb it unless the result is clearly unjust.7 

Whether the trial court applied the correct legal rule in exercising this discretion is a 
question of law that we review de novo.8 

       6      Phyllis     Williams     v.   DeJeaux     Williams    trial    court    docket, 

http://www.courtrecords.alaska.gov/pa/pa.urd/pamw2000.docket_lst?75464493               (last 
visited April 18, 2011). 

       7       Walker v. Walker, 151 P.3d 444, 447 (Alaska 2007). 

       8       Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994). 

                                            -10-                                       6561
 

----------------------- Page 11-----------------------

              A trial court's ruling on an Alaska Civil Rule 60(b) motion is reviewed for 

abuse of discretion; it will not be disturbed unless we are left with "the definite and firm 
conviction on the whole record that the judge ha[s] made a mistake."9 

              The question of whether to deny a motion to modify visitation without a 
hearing is a matter of law we review de novo.10      We generally review the trial court's 

decision to appoint or not appoint a custody investigator for abuse of discretion.11 

              Decisions to modify a child support award are generally reviewed for abuse 
of discretion.12 We review factual findings regarding a party's income when awarding 

child support for clear error.13 

IV.    DISCUSSION 

              Since filing her appeal, Phyllis has filed a number of additional motions  in 

the superior court covering custody issues similar to those that were the subjects of the 

April 23, 2009, written orders and hearing.  In some cases, Phyllis's brief addresses the 

substance of these more recent motions and rulings, rather than the April 2009 decisions. 

Under the appellate rules, we cannot review these issues. Appellate Rule 204(b) permits 

       9       Thomas v. Thomas, 581 P.2d 678, 679 (Alaska 1978) (quoting Gravel v. 

Alaskan Vill., Inc., 423 P.2d 273, 277 (Alaska 1967)). 

       10     Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999) (quoting C.R.B. v. 

C.C., 959 P.2d 375, 378 (Alaska 1998)). 

       11     D.D. v. L.A.H., 27 P.3d 757, 761 (Alaska 2001);Pearson v. Pearson, 5 P.3d 

239, 242 (Alaska 2000). 

       12     State, Dep't of Revenue, Child Support Enforcement Div., ex rel. Husa v. 

Schofield, 993 P.2d 405, 407 (Alaska 1999). Cf. Tillmon v. Tillmon, 189 P.3d 1022, 1026 
(Alaska 2008) ("Whether a trial court applied the correct method of calculating child 
support is a matter of law to which we apply our independent judgment."). 

       13     Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003) (citingRouth v. Andreassen, 

19 P.3d 593, 595 (Alaska 1998)). 

                                            -11-                                       6561
 

----------------------- Page 12-----------------------

an appeal from a "final order or judgment," but this final order must be specified in the 
notice of appeal.14     As Phyllis's appeal was filed on May 4, 2009, and her jurisdictional 

statement states that she is appealing from "the April 23, 2009 final judgment," we have 

confined our review to the oral and written decisions issued on April 23, 2009. 

        A.	      The Superior Court Did Not Abuse Its Discretion By Denying Phyllis's 
                 Rule 60(b) Motions. 

                 In April 2009, Phyllis filed two motions for reconsideration of military pay 

under Alaska Civil Rule 60(b) - one on April 3 and a second on April 6.   Judge Morse 

issued   two   written   denials   on   April   23.    He   denied   Phyllis's   motions   for   lack   of 

timeliness, as well as on the merits, writing, "The motion . . . is untimely.                But even if 

timely, the Court would deny the motion.  The Court can only divide the marital portion 

of the retirement benefit and none of the disability benefit."  The superior court did not 

err by denying Phyllis's motions, whether on the grounds of timeliness or on the merits. 

                 1.	     Phyllis's   60(b)   motions   to   reconsider   allocation   of   DeJeaux's 
                         military retirement were untimely. 

                 In a divorce proceeding where marital property has been divided, a divorce 

decree   incorporating   a   property   judgment  constitutes   a   final   judgment   and   may   be 
modified      to   the   same     extent   as   any    equitable    decree     of  the   court.15   Under 

AS   25.24.160(a)   a   court   has   authority   to   divide   property,  but   the   statute   does   not 

authorize a court to distribute assets on a "piecemeal basis" when the parties' property 
rights have been incorporated into a final judgment.16   Other than a Civil Rule 77(k) 

motion for reconsideration, which must be made within ten days of the court's order, an 

        14       Alaska R. App. P. 204(b). 

        15       O'Link   v.   O'Link,   632   P.2d   225,   228   (Alaska   1981)   (citing  Thomas   v. 

Thomas, 581 P.2d 678, 679 n.4 (Alaska 1978)). 

        16      Lowe v. Lowe, 817 P.2d 453, 456 (Alaska 1991). 

                                                   -12-	                                             6561
 

----------------------- Page 13-----------------------

Alaska Civil Rule 60(b) motion provides the only available means for seeking relief from 
a final judgment of property division.17        Rule 60(b) allows relief from a final judgment 

or order only for specified reasons: 

                (1) mistake, inadvertence, surprise or excusable neglect; 
                (2) newly discovered evidence which by due diligence could 
                not have been discovered in time to move for a new trial 
                under Rule 59(b); 
                (3)   fraud    (whether    heretofore    denominated       intrinsic   or 
                extrinsic),    misrepresentation,      or  other   misconduct     of  an 
                adverse party; 
                (4) the judgment is void; 
                (5) the judgment has been satisfied, released, or discharged, 
                or a prior judgment upon which it is based has been reversed 
                or   otherwise   vacated,   or   it   is   no   longer   equitable   that   the 
                judgment should have prospective application; or 
                (6) any other reason justifying relief from the operation of the 
                judgment. 

It is not necessary that the ex-spouse specify which of these reasons the 60(b) motion 
falls under.18 

                Though Phyllis raised several different grounds for relief in her April 3 and 

April 6 motions, her appeal is primarily concerned with only one of these grounds.  She 

contends that the superior court misinterpreted the USFSPA when dividing DeJeaux's 

military retirement pay. If true, this would fall under Rule 60(b)(1), which applies when 
the trial court has made a mistake of law.19         While Rule 60(b)(1) claims must normally 

        17      Id. 

        18      Clauson v. Clauson, 831 P.2d 1257, 1259-61 (Alaska 1992) (granting relief 

to ex-wife under 60(b)(6) though she had cited no statute for her motion to modify a final 
divorce decree). 

        19      See Alaska Truck Transp., Inc. v. Berman Packing Co., 469 P.2d 697, 699 

(Alaska 1970). 

                                                  -13-                                            6561
 

----------------------- Page 14-----------------------

be filed within one year,20 claims that the trial court has made a mistake of law constitute 

a   special   exception,   and   become   time-barred   after   30   days.21    Though   it   is   unclear 

whether   Phyllis   is   appealing   the   July  2001   amended   divorce   decree   in   which   the 

calculation was formalized, or the June 2007 order in which numbers were assigned to 

the calculation, she filed her 2009 motions well over 30 days after the final judgment. 

Her motion was therefore untimely, and the superior court did not err by dismissing the 

motions on that basis. 

                2.	     The   superior   court   did   not   abuse   its   discretion   by   awarding 
                        Phyllis 35% of DeJeaux's overall military retirement pay.22 

                Phyllis contends on appeal that the superior court misapplied the law by 

awarding her "one-third" of DeJeaux's military retirement pay.  DeJeaux claims that the 

current calculation is correct under the law.   DeJeaux is correct. 

                The USFSPA allows a court to divide military retirement pay between 

spouses if one spouse served at least ten years of active duty during the marriage, but 

caps the former spouse's share at 50% of the service member's disposable retired pay, 
that is, gross retired pay minus authorized deductions.23  When the parties divorce prior 

to the service member's retirement, a formula is typically used as the basis for calculating 

        20	     Alaska R. Civ. P. 60(b). 

        21      Alaska Truck Transp., Inc., 469 P.2d at 700 (holding that Rule 60(b)(1) 

claims for errors of law should be subject to a 30-day time limitation). 

        22      As just explained, Phyllis's Rule 60(b) motions were untimely and could 

be dismissed on this basis. In light of Phyllis's pro se status, we nevertheless take this 
opportunity to explain how the superior court calculated the military retirement pay 
division. 

        23       10 U.S.C. § 1408(a)(4), (e)(1). 

                                                  -14-	                                            6561
 

----------------------- Page 15-----------------------

the ex-spouse's award.24       The current version of the pamphlet Phyllis appended to her 

motion provides a useful explanation of the governing law: 

                A formula award is an award expressed in terms of a marital 
                fraction, where the numerator covers the period of the parties' 
                marriage      while   the   member      was   performing      creditable 
                military service, and the denominator covers the member's 
                total   period    of  creditable    military    service.   The    former 
                spouse's     award    is  usually   calculated    by  multiplying     the 
                marital fraction by ½.[25] 

In other words, the marital fraction represents the percentage of the retirement pay that 

may be considered marital property.  The numerator is expressed in whole months, and 
is provided by court order.26       The Department of Defense supplies the denominator "in 

terms of whole months of service creditable for retirement eligibility."27  We have upheld 

this   calculation   -   one-half   times   the   marital   fraction   -   as   fairly   representing   the 
proportion a spouse should receive.28 

        24      DEPARTMENT OF DEFENSE FINANCIAL MANAGEMENT REGULATIONS, Ch. 

29,   Vol.   7B,   at   290601(E),  http://comptroller.defense.gov/fmr/07b/07b_29.pdf   (last 
visited May 18, 2011) ("If the former spouse and the member were divorced before the 
member became entitled to receive military retired pay, then the retired pay award may 
be   expressed   as   a   formula   or   hypothetical   retired   pay   award   in   accordance   with 
paragraphs 290607 and 290608."). 

        25      DEFENSE FINANCE &ACCOUNTING SERVICEUNIFORMED SERVICES FORMER 

SPOUSES' PROTECTION ACT ATTORNEY INSTRUCTION:                         DIVIDING MILITARY RETIRED 
PAY,   6   (2010),  http://www.dfas.mil/garnishment/retiredmilitary/AttorneyInstruction­ 
01-04-10.pdf (last visited Nov. 24, 2010). 

        26      Id. at 7. 

        27      Id. 

        28      See Doyle v. Doyle, 815 P.2d 366, 370 (Alaska 1991) (calculating the wife's 

share of her ex-husband's military pension as one-half of 19/20, because husband and 
                                                                                         (continued...) 

                                                  -15-                                               6561 

----------------------- Page 16-----------------------

                Citing to the USFSPA, Phyllis maintains that she is entitled to 50%, not 

35%, of DeJeaux's military retirement pay.  But she is not entitled to 50% of DeJeaux's 
military retirement pay - only 50% of the portion earned during the marriage.29                      The 

current judgment already awards Phyllis 50% of the marital fraction, using the following 

calculation: "50% x (months of military service during marriage) Ć· (total months of 

active service) more fully defined as: 50% x 168 months Ć· 240 months = 35%." Though 

this gives Phyllis 35% of DeJeaux's disposable retired pay overall, it is also 50% of the 
marital portion, and 50% of the marital assets is presumed to be an equitable division.30 

                The   trial   court   may   overcome   the   presumption   of   fairness   of   a   50/50 
division   of   marital   property   by   applying   the Merrill31    factors   to   give   the   divorcing 

spouses unequal shares.32       Though she mentions the Merrill factors in passing, however, 

Phyllis states no facts or reasons why she is entitled under that case to more than 50% of 

the marital portion.      Rather, her sole reason seems to be that 50% of the disposable 

retired pay is her statutory entitlement, which is not actually the case.  The current order 

        28      (...continued) 

wife were married for 19 of the 20 years that the husband served in the army); Chase v. 
Chase, 662 P.2d 944, 945-46 (Alaska 1983) (upholding an award of one-half of 19/20 
of the retiree's military retirement pay, where the divorcing husband had entered the 
military one year prior to the marriage and retired after 20 years of service). Notably, 
Phyllis cites Chase in support of her claim, indicating that she may have misinterpreted 
the ruling. 

        29      Retirement pay earned outside the marriage is DeJeaux's, but the money 

earned for time served during the marriage belongs to both DeJeaux and Phyllis. 

        30      Tybus v. Holland, 989 P.2d 1281, 1286 (Alaska 1999). 

        31      Merrill     v.   Merrill,     368    P.2d    546,    547-48     n.4   (Alaska      1962). 

AS 25.24.160(a)(4) codifies and expands on these factors. 

        32      See, e.g., Tybus, 989 P.2d at 1286. 

                                                  -16-                                             6561
 

----------------------- Page 17-----------------------

is consistent with the requirements of the USFSPA and is not clearly unjust.33  Therefore, 

we will not disturb the superior court order. 

        B.      Phyllis's Appeal Concerning The Summer 2009 Visit is Moot. 

                Phyllis appeals the denial, without a hearing, of her motion to terminate the 

summer 2009 visit.  That issue is now moot.  "A claim is moot if it has lost its character 
as   a   present,   live   controversy,"34  and   the   summer   of   2009   has   passed.  As   no   live 

controversy exists, and no exception to the mootness doctrine appears applicable to this 
case, we decline to reach the question of whether the denial was appropriate.35 

        C.	     The Superior Court Did Not Abuse Its Discretion In Not Appointing 
                A Custody Investigator. 

                In July 2008, in response to a motion by DeJeaux to establish a visitation 

schedule, the superior court issued an order which mentioned, in part, that the court 

would   "consider   appointing   a   child   custody   investigator   for   the   limited   purpose   of 

speaking to Camerin in an informal and less threatening setting to learn his preferences 

about visitation."   In April 2009, Phyllis moved to appoint a custody investigator for the 

        33      McCoy v. McCoy, 926 P.2d 460, 463 (Alaska 1996) ("The superior court's 

distribution will not be disturbed unless it is so clearly unjust as to constitute an abuse 
of discretion."). 

        34      See Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532, 535 (Alaska 

2005) (quoting Kodiak Seafood Processing Ass'n v. State, 900 P.2d 1191, 1195 (Alaska 
1995)). 

        35      After   Phyllis   filed   this   appeal   in   May   2009,   she   filed   new   motions   in 

September 2009 and February 2010 seeking to end future visits.  But Phyllis's appeal is 
limited to decisions made by the superior court in April 2009.  The September 2009 and 
February 2010 post-appeal motions and accompanying decisions are not properly before 
this court, as they were filed well after Phyllis's appeal. We therefore decline to reach the 
merits of these motions. 

                                                  -17-	                                            6561
 

----------------------- Page 18-----------------------

purpose of determining Camerin's visitation preferences.               The superior court denied 

Phyllis' motion on April 23, 2009. Phyllis challenges this decision of the superior court. 

                A    trial  court  has   wide   discretion    to  decide   when    a  child   custody 
investigation is appropriate.36    The purpose of these investigations is to assist trial judges 

in determining a child's best interests.37       To that end, "[u]nless it can be shown that a 

court    would    be  unable    to  determine    the  child's   best  interest  without    a  custody 

investigation, a trial court does not abuse its discretion when it decides not to appoint an 
investigator."38 

                Though Phyllis's argument regarding the custody investigator is unclear, 

she appears to have two main contentions.  First, she claims that an investigator should 

be   appointed   because   Judge   Morse   said   he  would   consider   it.  This   argument   fails 

because there is no requirement in the law that a judge appoint a custody investigator 

simply because he said he would consider it. 
                Second, she cites toBrooks v. Brooks,39 in which we stated that trial courts 

facing "hearsay-based allegations [of domestic violence] have the option to order a child 

custody investigator to interview the child or children and to consider the investigator's 
report in deciding whether to hold a hearing on the basis of those allegations."40                But 

Brooks does not support Phyllis's claims.          The portion she quotes supports rather than 

        36      D.D. v. L.A.H., 27 P.3d 757, 761 (Alaska 2001) (citingPearson v. Pearson, 

5 P.3d 239, 242 (Alaska 2000)). 

        37      Id. 

        38      Id. 

        39      Mem. Op. & J. No. S-13544, 2010 WL 143494 (Alaska, Jan. 13, 2010). 

        40      Id. at *3. 

                                                 -18-                                           6561
 

----------------------- Page 19-----------------------

defeats the discretionary standard granted to the trial court, giving the trial court the 
"option" of appointing a custody investigator rather than making it mandatory.41 

                Phyllis offers no evidence to support the notion that the superior court 

cannot determine Camerin's best interests without a child custody investigator. Because 

Phyllis has not made a showing that Judge Morse abused his discretion, she has failed 

to show any error. 

        D.	     The     Superior     Court    Did   Not    Err   In   Its  Handling     Of   Matters 
                Concerning Child Support. 

                1.	     Calculation 

                Modifications of child support are generally governed by AS 25.24.170, 
Civil Rule 90.3, and this court's precedent.42         When a party moves to increase a child 

support obligation, the burden lies upon the moving party to show by a preponderance 
of the evidence that there has been a "material and substantial change in income."43 

Absent this showing, a court may reject a motion to modify without a  hearing.44                    A 

material   change   of   circumstances   is   presumed   where   the   support   calculated   is   15% 
greater    or  less  than   the   existing   support  order.45     In   considering    the  proposed 

        41      Id. 

        42      See, e.g., Tillmon v. Tillmon, 189 P.3d 1022, 1027-28 (Alaska 2008). 

        43      Routh v. Andreassen, 19 P.3d 593, 596 (Alaska 2001) (citing Dewey v. 

Dewey, 886 P.2d 623, 629 (Alaska 1994)). 

        44      Acevedo v. Burley, 944 P.2d 473, 475-76 (Alaska 1997). 

        45      Ward v. Urling, 167 P.3d 48, 52 (Alaska 2007). 

                                                 -19-	                                          6561
 

----------------------- Page 20-----------------------

modification of child support, the court evaluates the child's needs, the parents' needs, 
and the parents' financial capabilities.46 

                Phyllis claims on appeal that the amount of child support currently ordered 

is incorrect, and that the tax returns used in the calculation reflect neither Dejeaux's 

military benefits nor his disability benefits.  But her evidence falls short of meeting her 

burden of proof.  Her evidence consists of allegations that DeJeaux has more assets than 

reported in his income tax returns, but she produces no facts or written documentation 

showing this.      Nor does she produce any calculation showing that DeJeaux has had a 

change in circumstances that would increase her entitlement by at least 15%.  In support 

of Phyllis's claim, she cites an Iowa case holding that veterans' disability benefits are 

income even though they are tax-exempt. Yet that is not in dispute: The superior court's 

order includes veterans' disability benefits in the child support calculation. 

                Though this court has acknowledged the validity of concerns that income 
tax returns might not be reflective of true income,47 "a court cannot presume a party is 

obstructive   per   se   when   the   party   provides   a   substantial   response   to   requests   for 
evidence."48    The trial court is only required to arrive at a " 'reasonable assessment' of 

the obligor's earning capacity"; though there must be "sufficient evidence from which 
the court can make informed calculations,"49 perfect evidence is not required.                   In this 

case, the superior court had a variety of documents from which to calculate child support, 

including, as it noted, DeJeaux's "2007 tax return, a document showing his retirement 

        46      Dewey, 886 P.2d at 629 (citing Curley v. Curley, 588 P.2d 289, 292 (Alaska 

1979)). 

        47      Routh, 19 P.3d at 596 (citing Ogard v. Ogard, 808 P.2d 815, 819 (Alaska 

1991)). 

        48      Id.
 

        49
      Ward, 167 P.3d at 54. 

                                                  -20-                                             6561
 

----------------------- Page 21-----------------------

pay effective 2 January 2009, and a letter showing that he will be getting a reduction in 

his disability pay in November 2009."            From this the superior court could reasonably 

calculate DeJeaux's earning capacity.   Phyllis has not shown that the court clearly erred 

in its valuation of DeJeaux's child support payments. 

                2.      Alleged cancellation of past-due child support payments 

                Phyllis claims that DeJeaux was nearly $4,000 behind in child support 

payments      when    Judge    Reese    retired  and   that  Judge    Morse    improperly     cancelled 

DeJeaux's arrears.   Phyllis appears to feel that she has a second claim of arrears as well, 

for a different time period: A copy of a CSSD audit of DeJeaux's child support payments 

is included in Phyllis's excerpt of record, and she has drawn an arrow to a balance of 

$3,493 in October 2007, then another arrow to a zero balance in July 2008, following an 

"adjustment" of $2,878.74 that occurred in October 2007.  In her brief she refers to it as 
"where in fact Mr. Williams' arrears were zero[ed] out."50 

                As a procedural matter, a party seeking to collect past-due child support 

payments      must    first  reduce   the   arrears   to  a  judgment     in  the   trial  court,  under 
AS 25.27.226.51     Once this has occurred, the custodian may begin proceedings to enforce 

        50      As discussed in Part II.C, supra, there is evidence in the record suggesting 

that DeJeaux overpaid his child support amount in 2006 and 2007, paying $556 per 
month   when   he   should   have   paid   $381   per   month.   In   a   September   2007   order,   the 
superior court corrected the error, then suggested that DeJeaux was "entitled to a credit 
towards his future child support" to the extent that he had overpaid, though it noted that 
it did not know how CSSD handled these credits. CSSD made the $2,878.74 adjustment 
one month later.  Though Phyllis claims that this is an instance where DeJeaux's arrears 
were cancelled, it appears that the alleged cancellation is in fact an adjustment that CSSD 
made to account for DeJeaux's overpayment of child support. 

        51      AS 25.27.226 outlines the procedure for collecting past-due payments. The 

statute provides: 

                                                                                         (continued...) 

                                                  -21-                                               6561 

----------------------- Page 22-----------------------

that judgment.  The Child Support Enforcement Division can also initiate the process of 

obtaining a judgment for arrears, and the original divorce decree between Phyllis and 

DeJeaux actually states that "[a]ny issue as to Mr. Williams' arrears since the October 

 10, 2000 effective date of the interim Child Support Order can be dealt with by the Child 

Support Enforcement Division." 

                 Nothing   in   the   record   indicates   that   the   superior   court   ever   entered   a 

judgment for the alleged arrears, nor that Phyllis attempted to obtain such a judgment and 

was denied.   As there is no judgment in the superior court to appeal, the issue of arrears 

is not properly before this court. 

         E.	     Phyllis   Did   Not   Show   That   Judge   Morse   Was   Personally   Biased 
                 Against Her. 

         51	     (...continued) 

                 To collect the payment past due, the custodian of a child, or 
                 the [Child Support Services] agency on behalf of that person, 
                 shall file with the court (1) a motion requesting establishment 
                 of a judgment; (2) an affidavit that states that one or more 
                 payments of support are 30 or more days past due and that 
                 specifies the amounts past due and the dates they became past 
                 due; and (3) notice of the obligor's right to respond.  Service 
                 on    the  obligor    must    be  in  the   manner     provided     in  AS 
                 25.27.265.  The child's custodian, or the agency on behalf of 
                 the custodian, shall file with the court proof of service of the 
                 petition, affidavit, and notice.       The obligor shall respond no 
                 later than 15 days after service by filing an affidavit with the 
                 court. If the obligor's affidavit states that the obligor has paid 
                 any of the amounts claimed to be delinquent, describes in 
                 detail the method of payment or offers any other defense to 
                 the petition, then the obligor is entitled to a hearing. After the 
                 hearing,   if   any,   the   court   shall   enter   a   judgment   for   the 
                 amount   of   money   owed.   If   the   obligor   does   not   file   an 
                 affidavit under this section, the court shall enter a default 
                 judgment against the obligor. 

                                                    -22-	                                             6561
 

----------------------- Page 23-----------------------

                To prove a claim of judicial bias, the claimant must show that the judge 

formed an opinion of her from extrajudicial sources, resulting in an opinion other than 
on the merits.52     Phyllis has not made this showing.           Merely making decisions that a 

plaintiff considers unfavorable is not bias, and though Phyllis accuses Judge Morse of 

not looking out for Camerin's best interests, Judge Morse's rulings are supported by the 
record.   Forming an opinion from available evidence does not constitute personal bias.53 

                In addition, while Phyllis quotes Judge Morse and impliedly accuses him 

of not following through on assertions he made at the hearings, she relies on the summary 

of proceedings rather than the actual hearing tapes.  The summary is not a transcript; it 

is intentionally truncated.        For instance, citing the July 31, 2008 hearing, she quotes 

Judge Morse as saying to DeJeaux, "sir if no travel arrangements made and financed I 

will   cancel   future   visitation,"   which   is   how   his   words   appear   in   the   Summary   of 

Proceedings.       Judge     Morse's    actual   words    were,   "If   you   do  not   get  the   travel 

arrangements made and financed, then I'm likely to cancel your future visitations."  His 

actual statements are not as Phyllis claims, and provide no grounds for concluding that 

Judge Morse behaved improperly, or made promises to her that he did not keep. 

        F.      Other Claims 

                The issue of unpaid dental expenses recurs in Phyllis's brief, appearing in 

her Table of Contents, her Statement of the Case, and in her Argument section (although 

not in her Statement of Points on Appeal).  Her essential claim is that DeJeaux owes her 

$232 in unpaid dental expenses; the superior court has not disputed this, though she has 

been unable to collect the money.          In February 2009, she filed a motion for contempt 

against DeJeaux. According to the trial docket, the superior court issued an order on this 

        52      Peterson v. Ek, 93 P.3d 458, 467 n.20 (Alaska 2004) (citing United States 

v. Grinnell Corp., 384 U.S. 563, 583 (1966)). 

        53      Id. 

                                                  -23-                                               6561 

----------------------- Page 24-----------------------

motion on May 20, 2009, two weeks after Phyllis filed the present appeal.54 The ruling 

is outside the scope of Phyllis's appeal, and so we decline to reach the issue of dental 

            55 
expenses. 

                It is possible that Phyllis has raised other issues in her brief.  To the extent 

that she has, we have not discussed them because we are unable to discern an argument, 

or because the statement was made too briefly or in the absence of meaningful context. 

We   have   held   that   even   for   pro   se   litigants,   "[w]here   a   point   is   given   only   cursory 

statement   in   the   argument   portion   of   a   brief,   the   point   will   not   be   considered   on 
appeal."56   Arguments not appearing above have been waived. 

V.      CONCLUSION 

                Because Phyllis's two 60(b) motions were untimely and lacked merit, we 

AFFIRM the superior court's order denying the motions to reconsider the military pay 

division. Because the motion concerning 2009 visitation is moot, we DISMISS Phyllis's 

appeal of the superior court's order denying reconsideration of visitation.               Because the 

superior court correctly calculated child support and did not cancel past-due support 

amounts, we AFFIRM the court's orders regarding child support.                     We AFFIRM the 

superior     court's   denial   of  Phyllis's    motion    for  appointment      of  a  child   custody 

investigator because the superior court did not err in deciding not to appoint a custody 

        54      Phyllis      Williams       v.   DeJeaux        Williams     trial     court     docket, 

http://www.courtrecords.alaska.gov/pa/pa.urd/pamw2000.docket_1st?75464493                           (last 
visited April 18, 2011). 

        55      To the degree that Phyllis has a valid claim, she may be able to obtain 

assistance from Child Support Services pursuant to AS 25.27.107-.225. In part, these 
provisions provide litigants a means of requesting an audit for overdue child support 
payments, reducing this amount to a judgment, and having the amount collected. 

        56      A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (citingAdamson v. Univ. of 

Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991)). 

                                                  -24-                                            6561
 

----------------------- Page 25-----------------------

investigator. Finally, we determine that Phyllis's claim that Judge Morse was improperly 

biased against her lacks merit. 

                                          -25-                                     6561
 
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