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


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

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Heustess v. Kelley-Heustess (8/26/2011) sp-6594

Heustess v. Kelley-Heustess (8/26/2011) sp-6594, 259 P3d 462

        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, email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

ALLEN W. HEUSTESS,                                  ) 
                                                    )   Supreme Court No. S-13375 
                        Appellant,                  ) 
                                                    )   Superior Court No. 3AN-04-12299 CI 
        v.                                          ) 
                                                    )   O P I N I O N 
BONNIE J. KELLEY-HEUSTESS,                          ) 
                                                    )   No. 6594 - August 26, 2011 
                        Appellee.                   ) 
                                                    ) 

                Appeal from the Superior Court of the State of Alaska, Third
 
                Judicial District, Anchorage, Craig Stowers, Judge.
 

                Appearances:  Phyllis A. Shepherd, Law Office of Dan Allan
 
                and Associates, Anchorage, for Appellant.             D. Scott Dattan,
 
                Law Office of D. Scott Dattan, Anchorage, for Appellee.
 

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

                CHRISTEN, Justice.
 
                FABE, Justice, concurring in part and dissenting in part.
 
                WINFREE, Justice, dissenting in part.
 

I.      INTRODUCTION 

                Raising   over   50   separate   points   in   this   second   appeal,   Allen   Heustess 

challenges   the   superior   court's   rulings   on   child   support,   property   distribution,   and 

attorney's fees.  We affirm almost all of the superior court's rulings, with the following 

exceptions:     (1)   Because   the   record   does   not   support   the   superior   court's   finding 

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

regarding Allen's income for 1995 and because the superior court did not deduct federal 

income tax liability from Allen's gross income in its child support calculations for the 

years 1991 to 1996, we reverse the court's calculation of the child support arrearage; 

(2) because the superior court may have considered Allen's vexatious litigation conduct 

when it divided the marital estate and also considered it when it enhanced the award of 

fees   against   Allen,   we   remand   the   superior   court's   property   division   for   additional 

findings; (3) we vacate the portion of the general fee award that is based on the parties' 

relative economic circumstances so it can be reconsidered after the court recalculates 

Allen's child support arrearage and reconsiders the overall property division.                But we 

affirm the superior court's order enhancing the award of fees in Bonnie's favor, and we 

affirm the remaining rulings of the superior court in all respects. 

II.     FACTS AND PROCEEDINGS 

                This is the second time this case has come to our court.             The facts were 
discussed in greater detail in our first opinion Heustess v. Kelley-Heustess (Heustess I),1 

and are therefore only summarized here. Briefly, the parties are the parents of a son born 

in December 1991.        Bonnie purchased a home in Chugiak in 1993 and she and Allen 

began living together in September 1997.  Allen did not financially support the parties' 

child until the parties started living together.       Bonnie and Allen married in June 1999. 

In October 2002 the house Bonnie purchased before marrying Allen was refinanced and 

Allen's name was added to the title.  The proceeds from the refinance were mostly used 

to pay off marital debt, but one of Allen's pre-marital debts was also satisfied with the 

funds.  The couple separated in late 2002 and Bonnie filed for divorce in October 2004. 

                The case was tried in the superior court in July 2005.             Findings of fact, 

conclusions of law, and a decree of divorce were entered in September 2005.  The court 

        1       158 P.3d 827 (Alaska 2007). 

                                                  -2-                                              6594 

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

awarded the family home to Bonnie and land in Palmer to Allen.                     The court found that 

the home was partially transmuted into marital property and valued it as of the date of 

separation.  The marital estate was divided 60/40 in Bonnie's favor.   The court ordered 

Allen to pay child support and granted sole legal and physical custody of the parties' son 

to Bonnie.     Bonnie was also awarded $10,000 in attorney's fees. 

                 In the first appeal, we held that the award of child support for the period 

before the parties married violated Allen's right to due process because Bonnie did not 
request this support until her rebuttal testimony.2         We also determined it was error to find 

that only one-third of the equity in the marital home was transmuted into marital property 

and to value the house as of the date of the parties' separation rather than as of the date 

of trial.  We vacated the property division and remanded the case to the superior court. 

Our   decision   acknowledged   that   an   unequal   division   of   the   marital   estate   might   be 

justified, but we instructed the superior court to consider rental income Bonnie received 

from a separate unit in the marital residence that she rented to third parties after the date 
of separation.3    We also cautioned that the superior court should not "weight[] the scale 

against Allen" even though he misled Bonnie into refinancing the house shortly before 
the parties' separated.4      Because we vacated the property division, we also vacated the 

superior     court's   award    of   attorney's   fees.   We    instructed    the  court   to  follow   the 

established two-step process for awarding attorney's fees on remand and allowed for the 

        2        Id. at 835. 

        3        This   rental   income   was   not   accounted   for   in   the   superior   court's   2005 

findings.  Id. at 833. 

        4        The marital home was transmuted because of Allen's contributions toward 

labor and maintenance, not because Allen's name was added to the title at the time of the 
refinance.  Id. at 831-32. 

                                                    -3-                                              6594
 

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

possibility   that   the   court   might   increase   its   fee   award   based   on   Allen's   vexatious 

litigation conduct. 

                On remand, Allen filed a motion to dismiss Bonnie's claim for child support 

for the period 1991 to 1997, arguing that the statute of limitations barred this claim.  The 

superior   court   denied   the   motion   to   dismiss   and   held   an   evidentiary   hearing   on   the 

remaining issues in January 2008.          In March 2008 the superior court granted Bonnie's 

motion to supplement the record with three exhibits and in October 2008 the superior 

court issued its second set of findings of fact and conclusions of law.  The court valued 

the marital estate at $178,127 and awarded Bonnie 68% of it.  Bonnie received $36,000 

in personal property, the marital residence, and the land in Palmer.              The court awarded 

Allen the remainder of the marital estate.          It also concluded that Allen owed Bonnie a 

child   support   arrearage   totaling   $57,569.40.     The   value   of   the   property   in   Bonnie's 

possession exceeded her share of the marital estate by $12,646.                Rather than ordering 

Bonnie to pay this amount to Allen, the superior court reduced Allen's child support 

arrearage by $12,646. 

                In April 2009 the superior court awarded $31,307.50 in attorney's fees to 

Bonnie - $25,000 based on the parties' relative economic circumstances and $6,307.50 

based on Allen's bad faith conduct and vexatious litigation. 
                Allen raises over 50 issues on appeal.5 

III.    STANDARD OF REVIEW 

                Child support awards are reviewed for abuse of discretion; we do not set 

aside these awards unless a review of the record as a whole leaves us with a definite and 

        5       Allen's issues on appeal fall into three categories:          (1) issues definitively 

resolved in Heustess I; (2) issues raised but not adequately briefed, which are waived, 
see Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410-11 n.8 (Alaska 
1990); and (3) issues that are properly raised and briefed on appeal. 

                                                   -4-                                               6594 

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

firm conviction that a mistake has been made.6            We review the equitable allocation of 

property for abuse of discretion and will not reverse a superior court's allocation unless 
it is clearly unjust.7  We review "legal determinations relevant to property division and 

child support based on an independent judgment standard."8              We review findings of fact 

for clear error.9   A finding is clearly erroneous if "we are left with a definite and firm 

conviction that the trial court has made a mistake."10 

                We   review     de   novo   a   superior   court's  decision   to   deny   a   motion   to 
dismiss.11	   We will uphold an award of attorney's fees absent abuse of discretion12 and 

will not reverse a fee award unless it is "manifestly unreasonable."13 

IV.	    DISCUSSION 

        A.	     Child Support 

                1. 	    The superior court did not err when it ruled that Bonnie's claim 
                        for child support is not barred by the statute of limitations. 

                Allen argues that the superior court erred by denying his motion to dismiss 

Bonnie's claim for child support for the period from 1991 to 1997 because the 10-year 

        6	      Laughlin v. Laughlin, 229 P.3d 1002, 1004 (Alaska 2010) (citing Harvey 

v. Cook, 172 P.3d 794, 797 (Alaska 2007)). 

        7       Green v. Green, 29 P.3d 854, 857 (Alaska 2001). 

        8       Heustess I, 158 P.3d at 831. 

        9       Inman v. Inman, 67 P.3d 655, 658 (Alaska 2003). 

        10      Id. 

        11      Adkins v. Stansel, 204 P.3d 1031, 1033 (Alaska 2009). 

        12      Carr v. Carr, 152 P.3d 450, 457 (Alaska 2007). 

        13      Id.;  Welcome   v.   Jennings,   780   P.2d   1039,   1043   (Alaska   1989)   (citing 

Alaska Placer Co. v. Lee, 553 P.2d 54, 63 (Alaska 1976)). 

                                                  -5-	                                           6594
 

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

statute of limitations in AS 09.10.100 bars the claim.             Bonnie contends that the statute 

of limitations does not bar the claim because AS 09.10.140 tolls the statute of limitations 

during a child's minority. 

                 Generally, the "failure to file a complaint within the statute of limitations 
is grounds for a Civil Rule 12(b)(6) motion to dismiss."14            "We exercise our independent 

judgment when interpreting and applying statutes of limitations." 15 

                 Alaska   Statute   09.10.100(a)   provides   that   "[a]n   action   for   a   cause   not 

otherwise provided for may be commenced within 10 years after the cause of action has 

accrued." This general provision applies to Bonnie's claim for child support because this 

claim is "[a]n action for a cause not otherwise provided for" by a specific statute of 

limitations.  But, as Bonnie suggests, this is the beginning, not the end, of the statute of 

limitations     analysis    because     a  limitations    period    may    be   tolled   under    various 

circumstances. The dispositive consideration here is whether a general limitation period 

is tolled during a child's minority. 

                 Alaska Statute 09.10.140 addresses tolling the statute of limitations for 

claims belonging to a child during the child's minority.  In relevant part, the statute states 

that "if a person . . . [is] under the age of majority . . . the time [during which the person 

is under the age of majority] is not a part of the time limit for the commencement of the 

action."  In State, Department of Revenue, Child Support Enforcement Division ex rel. 
 Valdez v. Valdez, we stated that "[t]he right to [child] support is that of the child."16           And 

        14      Hutton v. Realty Executives, Inc., 14 P.3d 977, 979 (Alaska 2000). 

        15      Koss v. Koss, 981 P.2d 106, 106-07 (Alaska 1999) (quoting McDowell v. 

State, 957 P.2d 965, 968 n.4 (Alaska 1998)). 

        16       941 P.2d 144, 154 n.14 (Alaska 1997).   Many other courts have also held 

that the right to support belongs to the child.  See, e.g., Miller v. Atkinson, 810 So. 2d 
                                                                                          (continued...) 

                                                    -6-                                             6594
 

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

in Grober v. State, Department of Revenue, Child Support Enforcement Division ex rel. 

C.J.W., we held that the tolling provision in AS 09.10.140 applies even when another can 
bring the action on behalf of a   minor.17         We have recognized that the child support 

guidelines in Alaska Civil Rule 90.3 "reflect a paternalistic view toward child support 
agreements."18     In light of these considerations, we hold that under AS 09.10.140 the 

statute of limitations for child support actions is tolled during the child's minority. Other 
states have reached the same conclusion.19         Bonnie's claim for child support is not barred 

        16(...continued) 

799, 800 (Ala. Civ. App. 2001); Fonken v. Fonken, 976 S.W. 2d 952, 955 (Ark. 1998); 
Serio    v.  Serio,  830   So.   2d   278,  280   (Fla.   Dist.  App.   2002);  In    re  Marriage     of 
Vandervoort, 185 P.3d 289, 293 (Kan. App. 2008);Kibble v. Weeks Dredging & Constr. 
Co., 735 A. 2d 1142, 1150 (N.J. 1999); Martin v. Brock, 55 P.3d 1095, 1098 (Okla. Civ. 
App. 2001); Anderson v. Thompson , 176 P.3d 464, 474 n.6 (Utah App. 2008); In re 
Marriage of Pippins, 732 P.2d 1005, 1007 (Wash. App. 1987); State ex rel. Shepard v. 
Holland, 633 S.E. 2d 255, 259 (W.Va. 2006) (per curiam). 

        17      956 P.2d 1230, 1233 (Alaska 1998); see also Hanson v. Kake Tribal Corp., 

939 P.2d 1320, 1326 (Alaska 1997) ("[Alaska Statute 09.10.140(a)] applies to minors, 
even those with guardians . . . . It can be regarded as fundamentally unfair to a minor to 
saddle the minor with the consequences of a custodian's neglect."). 

        18      Laughlin v. Laughlin, 229 P.3d 1002, 1004 (Alaska 2010) (citing Cox v. 

Cox, 776 P.2d 1045, 1048 (Alaska 1989)). 

        19      See   Perez   v.   Singh,   97  Cal.   Rptr.   920,   921   (Cal.   App.   1971)   (citing 

Fernandez v. Aburrea, 183 P. 366, 367 (Cal. App. 1919)) ("[T]he obligation of a father 
to support his child, whether legitimate or illegitimate, is a continuing duty against which 
the statute of limitations does not run during the time the child needs such support."); 
Vice v. Dep't of Human Servs., State of Miss., 702 So. 2d 397, 400 (Miss. 1997) (citing 
Wilson v. Wilson, 464 So. 2d 496, 498-99 (Miss. 1985)) ("[W]here a minor holds the 
legal right, such as to child support from a parent, the statute of limitations does not 
begin to run until the disability of minority is removed."). 

                                                  -7-                                             6594
 

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

by the statute of limitations, and it was not error for the superior court to deny Allen's 
motion to dismiss.20 

                2.	     The      calculation     of   Allen's    child    support     arrearage      was 
                        erroneous, in part. 

                        a.	     Allen     was    not    entitled   to   credit   for   child    support 
                                payments   made   on   behalf   of   a   child   from       a   previous 
                                relationship because the payments were due before the 
                                parties' son was born. 

                Between 1988 and 1994, Allen paid a total of $9,851.92 in child support 

for a daughter from a prior relationship.           Allen argued that all but one of these child 

support   payments   should   be   deducted   from   his   gross   income   before   calculating   the 

amount of the child support arrearage he owes for support of the parties' son.   The 

superior   court   only   deducted   $825   from   Allen's   gross   income.     Allen   maintains   on 

appeal that he is entitled to deduct $9,462 from his gross income before calculating the 

arrearage; Bonnie counters that Allen's argument is unsupported by reason or legal 

authority.   We agree with Bonnie. 

                In   1988   a   Wyoming   court   ordered   Allen   to   pay   child   support   for   his 

daughter beginning January 1, 1988.   The initial order was for $225 per month but it was 

increased to $275 per month beginning April 1, 1991.  Allen's daughter was adopted by 

        20      Allen also argues that Bonnie's claim is barred by res judicata and that 

remand is necessary because the superior court did not articulate its reasons for denying 
the motion to dismiss.        But Bonnie raised her claim for premarital child support in the 
original trial - albeit belatedly - and on appeal we remanded that issue.  Heustess I, 
158 P.3d 827, 835 (Alaska 2007).            Because this claim involves a subsequent appeal in 
the same suit and does not expand the issues in the case, the claim is not precluded. 
Allen is correct that the   superior court did not articulate its reasons for denying his 
motion to dismiss, but the superior court was not obligated to do so.  We independently 
review the denial of a motion to dismiss de novo so the lack of a written decision from 
the superior court on this motion did not prejudice Allen. 

                                                   -8-	                                            6594
 

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

another person on March 3, 1992 and Allen's continuing financial obligations to her 

were extinguished at that time.         Subsequently, the State of Alaska collected $8,912.44 

from Allen in past due support and sent the funds to the State of Montana.  In all, Allen 

paid   $9,626.92   toward   supporting   his   daughter   after   the   parties'      son   was   born   in 
December 1991.21        But only $825 of this total accrued after the parties' son was born; 

the rest was due to be paid before December 1991.                The superior court deducted $825 

from Allen's gross income in its child support calculation; $275 per month for December 

1991, January 1992, and February 1992.               Allen argues that the superior court erred by 

not   deducting   all   of   the   child   support   arrearage   that   accrued   for   the   benefit   of   his 

daughter prior to her adoption, even those payments that became due before the parties' 
son was born.22 

                 For   purposes   of   calculating   child   support,   Rule   90.3(a)   allows   a   non- 

custodial parent to deduct from his or her gross income the amount of support paid to a 
child from a previous relationship.23         Neither Rule 90.3 nor the commentary to the rule 

expressly limits this deduction to the amount actually accrued and paid during the time 

        21       In addition to the funds collected by the State of Alaska, Allen made three 

payments directly to the State of Montana, including one $225 payment in January of 
1988. 

        22       On appeal, Allen asked that his deduction be increased by $8,912.44, but 

he   also   asked   for   a   total   deduction   of   $9,462.44. It   is   undisputed   that   Allen   paid 
$9,851.92 to support his daughter between 1988 and 1994.   Except for one payment of 
$225 made in 1988 before the parties' son was born, we understand Allen to seek credit 
for all of the payments he made to support his daughter, or $9,626.92. 

        23       Alaska R. Civ. P. 90.3(a) instructs that a non-custodial parent's adjusted 

annual income is determined by subtracting from total gross income several mandatory 
deductions,      including     "child   support     and   alimony     payments      arising   from    prior 
relationships   which   are   required   by   other   court   or   administrative   proceedings   and 
actually paid."     Alaska R. Civ. P. 90.3(a)(1)(C). 

                                                    -9-                                              6594
 

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

the support obligation for an earlier-born child overlaps with the support obligation for 

a later-born child.    But this application of the rule is consistent with the rule's purpose: 

"to ensure that child support orders are adequate to meet the needs of children, subject 
to the ability of parents to pay."24         We agree with the superior court that "[t]o give 

[Allen] a deduction for child support collected for his daughter . . . that was owed before 

[the parties' son was born], but not collected until after [Allen's daughter's] adoption, 

would mean that [the parties' son] is being penalized by having to essentially finance his 
father's belated payment for [the daughter's] support."25            We conclude that the superior 

court correctly limited Allen's deduction to $825. 

                        b.	     It   was   error   not   to   deduct   federal   income   tax   liability 
                                from Allen's gross income. 

                Allen   argues   that   the   superior   court   erred   by   failing   to   deduct   federal 

income tax liability from his gross income when it calculated his child support arrearage 

for the years 1991 to 1996. 

                One of the mandatory deductions in Rule 90.3's child support formula is 

the non-custodial parent's "federal . . . income tax."            The superior court's finding for 

1997 characterized Allen's earnings of $29,963 as "adjusted gross income . . . according 

to his 1997 federal income tax return," but it does not appear that the superior court 

deducted federal income tax liability from Allen's gross income for any of the years 

before 1997.     This may have been because Allen could not show that he actually paid 

taxes for those years, but the mandatory deductions set forth in Rule 90.3(a)(1)(A) are 

        24      Alaska R. Civ. P. 90.3., cmt. I.B. 

        25      The flaw in Allen's argument is clear when taken to its logical end.                   A 

parent could receive a 100% mandatory deduction if enough money was paid to support 
a child from a previous relationship, even if the payments accrued many years before and 
even if the parent was fully able to support a later-born child. 

                                                  -10-	                                            6594
 

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

based on liability, not the amount actually paid.26           The mandatory deductions in Rule 

90.3   must   be   made   before    child   support   is   calculated.  We   therefore   remand      the 

calculation of Allen's child support arrearage in accordance with Rule 90.3(a)(1)(A). 

                        c.	     The     finding     regarding     Allen's    1995     income     is  not 
                                supported by the record. 

                Allen argues that the superior court's finding that he earned $40,000 in 

1995 is clearly erroneous.       We agree that this finding is not supported by the record. 

                The superior court found that Allen "testified he earned $40,000 in 1995," 

and used this figure as the basis for calculating Allen's child support obligation.  But as 

Allen points out on appeal, his trial court testimony was that he earned approximately 

$20,000 in 1995, and he filed W-2 forms and a Social Security statement corroborating 

this testimony.     Although at one point Allen testified that he had "no clue" what he 

earned   in   1995,   neither   Bonnie's   brief   on   appeal   nor   the   superior   court's   findings 

identify a place in the record supporting the finding   that he earned $40,000.                   Allen 

testified that he did not work odd jobs around that time, and Bonnie did not testify that 

she had firsthand knowledge of Allen's income in 1995. Allen lived out of state that year. 

The superior court found "the evidence (including [Allen's] testimony) shows he worked 

'under the table' and likely earned income that was not reportable for many years."  But 

aside from the court's general finding that Allen's testimony was not credible, the source 

        26      Alaska R. Civ. P. 90.3(a)(1)(A)(i); Bergstrom v. Lindback, 779 P.2d 1235, 

1236 (Alaska 1989)   ("[A]ctual tax liability under existing Internal Revenue Service 
regulations . . . is the proper basis for determining the amount to be deducted from his 
income."); see also Jeff Atkinson, MODERN CHILD CUSTODY PRACTICE,  11-26 (2d ed. 
2000).    To the extent the court imputed income to Allen from 1991 to 1996, it should 
have allowed mandatory deductions for federal income tax. Shepherd v. Haralovich, 170 
P.3d 643, 650 (Alaska 2007) (citing Rodvik v. Rodvik, 151 P.3d 338, 351 (Alaska 2006)) 
(ordering court to deduct federal income tax from imputed income when calculating 
adjusted annual income under Rule 90.3). 

                                                  -11-	                                           6594
 

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

of   the   court's   finding   that   Allen   earned   income   "under   the   table"   is   unclear.  We 

conclude that the determination of Allen's 1995 income must be reversed and remanded 
for additional findings.27 

                        d.	      The    superior    court    did   not  err   when    it  decided    that 
                                Allen's child support obligation began when the parties' 
                                 son was born. 

                Allen argues that the superior court erred when it decided that his child 

support obligation began the month the parties' son was born, December 1991.  He 

argues that his obligation did not begin until February 2008, when the superior court first 

ruled in Bonnie's favor on the issue of premarital child support.  Allen contends that the 

court's 2008 ruling was the first time he had notice of his support obligation for the years 

1991 to 2002. 

                Allen's argument is contrary to Alaska law. We have repeatedly stated that 
"the duty of parental support begins on the date of [a] child's birth."28                We have also 

recognized   that   "[r]egardless   of   whether   a   [child]   support   order   exists,   a   parent   is 
obligated both by statute and at common law to support his or her children,"29 and that 

        27      On appeal, Allen argued that the superior court imputed income to him "in 

many instances," including years 1991 and 1995.  This is incorrect.  The superior court 
made findings regarding Allen's gross income for each of the years 1991 through 1996. 
Allen correctly argues that where a court imputes income pursuant to Rule 90.3(a)(4), 
mandatory deductions must be made pursuant to Rule 90.3(a)(1).  We recognize that the 
evidence made it difficult to determine Allen's actual income for 1995.                 On remand, if 
the   superior    court   imputes   income     to  Allen   for  1995,   he   shall   be  entitled  to  the 
mandatory deductions in Rule 90.3(a)(1). 

        28      See, e.g., Skinner v. Hagberg, 183 P.3d 486, 490 (Alaska 2008) (citing 

Rubright v. Arnold, 973 P.2d 580, 586 (Alaska 1999)). 

        29      Benson   v.   Benson,   977   P.2d   88,   92   (Alaska   1999)   (citing   Crayton   v. 

Crayton, 944 P.2d 487, 489 (Alaska 1997)) (internal quotation marks omitted). 

                                                  -12-	                                            6594
 

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

"a parent's duty of support commences at the date of the birth of the child."30                 To the 

extent Allen makes a due process   argument based on lack of notice, his claim fails 

because the duty of support commences at birth, and thus a father's actual knowledge of 

the birth of a child for whom he bears legal responsibility is adequate notice of the 
accruing child support debt.31        Allen does not dispute that he knew of his son's birth. 

The superior court did not err by starting Allen's child support obligation in December 

1991, when the parties' child was born. 

                        e.	     The   superior   court   did   not   err   by   allowing   interest   to 
                                accrue while Allen and Bonnie were living together. 

                Allen argues that the superior court erred by awarding prejudgment interest 

on his child support arrearage for the period from September 1997 until October 2002, 

when   Allen   and   Bonnie   lived   together   and   he   was   contributing   toward   the   child's 

support. 

                Alaska Statute 25.27.225 provides that child support payments due pursuant 

to a child support order are treated as judgments; as each periodic payment becomes due 

and goes unpaid, it becomes a judgment.            Interest for past due child support payments 

arising from court orders is controlled by AS 25.27.025.   But where a support arrearage 

accrues before a child support order is entered, prejudgment interest is assessed at the 
rate provided by AS 09.30.070.32 

                Allen offers no principled reason that interest should not be due on the child 

support obligation that accrued prior to the parties' cohabitation period and went unpaid 

        30      Koller v. Reft, 71 P.3d 800, 806 (Alaska 2003) (citing Rubright, 973 P.2d 

at 586) (internal quotation marks omitted). 

        31      Id. 

        32      Ogard v. Ogard, 808 P.2d 815, 817 (Alaska 1991). 

                                                  -13-	                                           6594
 

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

during   the   years   the   parties   lived   together. "The   recognized   purposes   of   awarding 

prejudgment interest are to compensate the successful party for lost use of the money and 
to prevent unjust enrichment of the unsuccessful party who had use of the money."33  We 

conclude that the question is not whether the parties were living together, but whether 

Allen's prior child support obligation had been fulfilled. Because Allen failed to support 

the parties' son from 1991 to September of 1997 and this arrearage remained unpaid 

while the parties were married, we reject Allen's argument that the   court abused its 

discretion by awarding prejudgment   interest for the period from September 1997 to 

October 2002. 

                The child support calculation in this case was complicated.             The superior 

court correctly decided that Allen was not entitled to credit for payments made on behalf 

of another child because that obligation accrued before the parties' son was born.  The 

court did not err when it decided when Allen's child support obligation began, or by 

allowing interest to accrue while the parties lived together.  But because of the need for 

additional findings regarding Allen's 1995 income and the need to include mandatory 

deductions for federal income tax liability in the years 1991 to 1996, we reverse the 

superior     court's   calculation   of   Allen's   child   support   arrearage    and   remand     for 
proceedings consistent with this opinion.34 

        33      Id. (citing Morris v. Morris, 724 P.2d 527, 529-30 (Alaska 1986)). 

        34      Allen has waived the other points he raised on   appeal   relating to child 

support payments because he failed to brief them. Katmailand, Inc. v. Lake & Peninsula 
Borough, 904 P.2d 397, 402 n.7 (Alaska 1995) (citing Adamson v. Univ. of Alaska , 819 
P.2d 886, 889 n.3 (Alaska 1991)). 

                                                 -14-                                           6594
 

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

        B.      Property Division 

                In  Heustess   I,   we   reversed   the   superior   court's   distribution   of   marital 
property.35   After considering additional evidence on remand, the superior court awarded 

Bonnie 68% of the marital estate.36         Allen claims the superior court erred by awarding 

a larger share of the marital estate to Bonnie.           He also contends the unequal property 

division was an abuse of discretion because the court failed to make accurate Merrill 
findings.37    Allen challenges nearly all of the court's factual findings relating to the 

division of property. 

                The   superior   court   has   broad   discretion   to   divide   property   in   divorce 
cases.38  We review the superior court's property division under the abuse of discretion 

standard and will not overturn a property division "unless it is clearly unjust."39              Alaska 

Statute 25.24.160(a)(4) codifies several factors for courts to consider in order to "fairly 

allocate the economic effect of divorce."  These statutory factors are not exhaustive and 

        35       158 P.3d 827, 833 (Alaska 2007). 

        36      Allen incorrectly argues that Bonnie received 75% of the marital estate in 

the 2008 property division. In fact, the superior court decided the total marital estate had 
a value of $178,127, and awarded Bonnie assets totaling $133,772. This represents 75% 
of the marital estate, but Allen fails to account for the court giving him a $12,646 credit 
against his child support arrearage.  Once this portion of Allen's child support arrearage 
is deducted from the assets awarded to Bonnie, her award is $121,126, or 68% of the 
marital estate's total value. 

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

        38      Abood v. Abood , 119 P.3d 980, 984 (Alaska 2005). 

        39      Green v. Green, 29 P.3d 854, 857 (Alaska 2001). 

                                                  -15-                                             6594
 

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

the superior court need not make findings pertaining to each factor,40  but it must make 

sufficient   findings   to   "indicate   the   factual   basis   for   the   conclusion   reached."41 The 

superior court's factual findings are viewed in the light most favorable to the prevailing 
party below.42     We will not reverse a superior court's factual determinations relating to 

equitable division of marital property except upon a finding of clear error.43 

                In    determining     the  appropriate     property    division,   the  superior    court 

considered the factors set forth in AS 25.24.160(a)(4) and concluded that an unequal 

property   division   was   warranted.      The   court   considered   Bonnie's   serious   long-term 

health issues, the parties' respective ages, Allen's greater present income and greater 

future   earning   capacity,   Bonnie's   greater   share   of   child-rearing   duties,   the   parties' 

respective contributions toward maintaining the marital home, Bonnie's rental income 

during the post-separation period, and Bonnie's payments for repairs she made during 

the post-separation period.       After reviewing the record, we conclude that the court did 

not abuse its discretion by awarding Bonnie a larger share of the marital estate, but 

because we cannot determine whether it double-counted Allen's vexatious litigation 

conduct, we remand for additional findings. 

                1.	     The     superior     court   did   not   err   in  its  findings    concerning 
                        Bonnie's income and health. 

                Allen argues the superior court committed clear error by finding Bonnie 

"worked two jobs in 2007, but can no longer do so due to her health."                  He also argues 

        40      Nicholson v. Wolfe, 974 P.2d 417, 422 (Alaska 1999). 
 

        41      Id.
 

        42
     Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003). 

        43      McCoy v. McCoy, 926 P.2d 460, 463 (Alaska 1996) (citing McDaniel v. 

McDaniel, 829 P.2d 303, 305 (Alaska 1992)). 

                                                  -16-	                                            6594
 

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

that the court committed clear error by finding that Bonnie's "income was constrained 

by her injuries" because she was employed as a waitress, clerk, and airport screener, that 

it was error for the court to find that Bonnie "has serious long-term health issues that 

limit her ability to make a living," and that it was clear error to find that as a waitress 

Bonnie "consistently reported income from tips in excess of the required 8% of her gross 

sales." Allen's arguments are precluded by the superior court's previous findings which 
we upheld in the first appeal.44     There, we said, "[t]he record shows that Allen is healthier 

and has greater earning capacity than Bonnie" and "Bonnie's injuries will probably 
require more medical care, and they limit her future employment options."45                   It is true 

that on remand the superior court made more specific findings regarding the parties' 

respective earning histories, but Allen does not point to any error in the court's most 

recent findings that undermine its earlier findings that Allen is younger, has superior 

earning capacity, better health, and a higher income than Bonnie.                 These findings are 

supported by the record, and they are the salient factors for purposes of reviewing the 
court's overall division of the marital estate.46 

        44      Heustess I, 158 P.3d 827, 833-34 (Alaska 2007). 

        45      Id. at 833. 

        46      Allen    also   argues   that   the  superior   court   erred   on   remand    when     it 

determined Bonnie's income for 2005 and 2006.                 But the court's finding for 2005 is 
supported by Bonnie's testimony and the W-2 form she introduced at trial.                    Bonnie's 
2006 W-2 form shows she earned $24,715.51 at Gwennie's; once withheld taxes are 
subtracted the total is $20,598.76.  We agree that it is unclear how the court concluded 
that Bonnie earned "approximately $7,000 from TSA" in 2006.                      The record does not 
contain tax forms for her work at TSA and her testimony was that she began working 
there   in   August   at   the   rate   of   $23,000   per   year   plus   24%   cost   of   living   adjustment 
(COLA).  Assuming she worked a full month in August - the record does not indicate 
exactly when she began - Bonnie would have earned pro rata $9,583 plus 24% COLA 
                                                                                        (continued...) 

                                                  -17-                                            6594
 

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

                Allen also challenges the superior court's 2008 finding that "[t]here is not 

much prospect for [Bonnie] to increase her income" as unsupported by the record.  He 

notes that at TSA Bonnie "earned $11 per hour and a 25% COLA adjustment to her 

salary . . . .  She also said she was going to get a 1% raise."  We disagree with Allen that 

the court's finding is unsupported. First, there was no obligation for the court to consider 

Bonnie's   2008   income.      This   case   was   originally   tried   in   2005   and   the   court   made 

findings concerning Allen's income and earning capacity that we affirmed on appeal. 

Second, Allen incorrectly summarizes the testimony Bonnie gave at the evidentiary 

hearing held on remand.   Bonnie stated she would receive a 1% raise but lose 2% of her 

COLA, and that her injuries limit her ability to work overtime.  In context, the finding 

indicates that it is unlikely that Bonnie will significantly increase her income. A possible 

1% raise does not render the court's finding about Bonnie's future employment prospects 

clearly erroneous. 

                Allen also argues the court abused its discretion by not calculating Bonnie's 

2007 income because "[i]t is error to fail to make a finding as to one party's most current 

earning capacity, especially when it was available from the record." The superior court's 

2008 findings included a determination of Allen's 2007 income, but the superior court 

struck its finding concerning Bonnie's 2007 income with a handwritten edit. It is unclear 

why this finding was crossed out, but we conclude that this is of little significance.  As 

we   have   explained,   the   2005   findings   established   that   Allen's   income   and   earning 

potential are higher than Bonnie's.   There was no need to make new findings on remand 

        46(...continued) 

for 2006.     Still, any error was harmless; the record supports the court's finding that 
Bonnie's 2006 income was less than Allen's.              Allen's argument that the court failed to 
consider PFD income is without merit; the court expressly stated that it took PFD income 
into account. 

                                                  -18-                                            6594
 

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

regarding   the   parties'   respective   earnings   or   earning   capacities.47 The   court   made 

"sufficiently detailed and explicit findings 'to give [this] court a clear understanding of 

the basis of [its] decision, and to enable [this court] to determine the ground on which the 
trial court reached its decision.' "48 

                2.	    The   superior   court's   finding   relating   to   the   parties'   relative 
                       earning capacities was not clearly erroneous. 

                Allen challenges the superior court's 2008 finding that his earning capacity 

has been "much greater" than Bonnie's and that the difference between their relative 

earnings in the future "will probably be greater."  Even if Allen earned $20,000 in 1995 

rather than $40,000, it is undisputed that Allen's reported income has been significantly 

greater than Bonnie's. Allen narrowly focuses on challenging the court's statement that 

"[h]e has consistently earned two or three times as much" as Bonnie.                 Although this 

estimated comparison of the parties' respective incomes is only partially supported in the 

record, the court's overall finding - that Allen has earned and will continue to earn 

substantially more than Bonnie - is not clearly erroneous.               Allen's lack of medical 

benefits and ongoing child support obligations will likely strain his financial outlook, but 

we are persuaded that Bonnie's lower income, work-limiting injuries, and age support 

the court's conclusion that the gap in the parties' income will likely grow wider in the 

future. 

        47      As we have stated, "[s]uccessive appeals should narrow the issues in a case, 

not expand them."  State Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 
873-74 (Alaska 2003). 

        48     Merrill v. Merrill, 368 P.2d 546, 548 (Alaska 1962) (quotingIrish v. United 

States, 225 F.2d 3, 8 (9th Cir. 1955)); see also McCoy v. McCoy, 926 P.2d 460, 463-64 
(Alaska 1996). 

                                                -19-	                                          6594
 

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

               3.	    The superior court's consideration of Bonnie's rental income 
                      was not an abuse of discretion. 

               After the parties separated, Bonnie rented a separate unit in the marital 

home and received some rental income from her tenants. This income was not accounted 

for by the court's 2005 findings, and in our first decision we directed the superior court 
to consider it on remand.49   In 2008, the superior court made findings concerning the rent 

received and costs to repair the rental unit and concluded "[s]ince Bonnie maintained the 

asset from separation through divorce . . . neither . . . rents nor the rental value of the 

residence itself, although considered by this court, measurably affect the court's analysis 

of the appropriate distribution of the marital estate."  Allen argues that the superior court 

did not fulfill our directive on remand.   He raises a number of challenges to the superior 

court's consideration of Bonnie's rental income; none of them is sufficient to conclude 

that   the  superior  court's  treatment   of  the  rental  income   for  purposes   of  property 

distribution was an abuse of discretion. 

               Allen first disputes the superior court's use of the word "measurably" in its 

finding that the rents did not "measurably affect the court's analysis of the appropriate 

distribution of the marital estate."     He faults the court for not describing its method of 

measurement.      But   Allen   misconstrues   the   court's   finding. The   use   of   the   word 

"measurably" here does not require an actual calculation; it only describes a degree of 

influence on the court's decision. 

               Next, Allen claims the superior court failed to value the rental income. 

More specifically, though the court found that the unit rented for $650 for most of the 

months in question, Allen argues that the court should have decided whether the unit was 

       49      We stated, "On remand, the court should reconsider whether and to what 

extent an unequal division of the parties' assets should be made in view of the rental 
income available to Bonnie . . . ."  Heustess I, 158 P.3d at 833. 

                                              -20-	                                          6594 

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

rented at its market value.  We have suggested a court may value rental units at the price 
for which they are rented.50     And there was no showing that Bonnie had an incentive to 

rent the unit below the market rate.  We reject Allen's argument; the express finding that 

the unit was rented for $650 per month included the implicit finding that the unit was 
valued at $650 per month.51 

                Allen also argues that the superior court erred by failing to find that Bonnie 

depleted the marital estate because Bonnie:   (1) did not at all times rent the unit after the 

date of separation; (2) rented the unit to her daughter for less than $650 per month; and 

(3) lived in the unit for a certain period of time.           Alaska Statute 25.24.160(a)(4)(E) 

permits    courts   in  property   division  cases   to  consider   "the   conduct   of  the  parties, 

including whether there has been unreasonable depletion of marital assets."  A hallmark 

of unreasonable depletion is misconduct or "an intent to deprive the other spouse of the 
other's share of the marital property."52      Here, the evidence was that Bonnie rented the 

unit for all of 2005 at the rate of $650 per month.  The tenant continued on until October 

of 2006, when the septic system flooded the unit and forced the tenant to move out. 

After that, Bonnie rented the unit to her adult daughter for a short time at the rate of $500 

per month because her daughter had no other place to live.   Bonnie then moved into the 

unit with the parties' child because a problem with "black mold" in the private residence 

made it impossible to continue living there.        There is no evidence that Bonnie failed to 

        50      Korn v. Korn, 46 P.3d 1021, 1023 (Alaska 2002) ("Because the parties had 

never previously rented out their residence and evidently had no plans to rent it, the 
home had no clearly established rental value."). 

        51      Indeed, Allen seems to concede in his brief that "the rental unit was capable 

of being rented at $650 per month." 

        52     Jones v. Jones, 942 P.2d 1133, 1140 (Alaska 1997). 

                                                -21-                                           6594
 

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

rent the unit at all times or at market value with the intent to deprive Allen of his share 

of the rents. 

                Allen   argues   the   court   abused   its   discretion   by   failing   to   consider   that 

Bonnie's post-separation rental income was a marital asset that earned prejudgment 
interest.   Relying on Morris  v. Morris53  he claims the court should have credited him 

with a percentage of the rental income and prejudgment interest.                Allen is incorrect.    A 
court has discretion to give credit to the party that maintains an asset post-separation.54 

Although Bonnie did not share the rents with Allen in the post-separation period, she 

alone bore the cost of maintaining the unit.   Allen admitted in his testimony that he did 

not help Bonnie repair the rental unit or make mortgage payments post-separation. With 

respect to prejudgment interest, we have held that trial courts have broad discretion in 
making such awards.55           The   case Allen cites states as much.56        In light of Bonnie's 

unassisted efforts to maintain the rental unit post-separation, the court did not abuse its 

discretion by not awarding Allen half the post-separation rents or prejudgment interest 

on the rental income. 

                Allen also raises concerns over   confusion relating to the house's mold 

problem and repairs to the septic tank.           The 2008 findings made reference to a mold 

problem in the rental unit.       Allen is correct that the mold problem was in the personal 

residence, not the rental unit, but since Bonnie and her child had to move from the 

        53      724 P.2d 527, 530 n.11 (Alaska 1986). 

        54      Berry v. Berry, 978 P.2d 93, 96 (Alaska 1999). 

        55      See   Dixon   v.   Dixon,   747   P.2d   1169,   1172   (Alaska   1987)   (holding   that 

superior court need not justify its decision to award or withhold prejudgment interest). 

        56      Morris, 724 P.2d at 530 (emphasizing that superior court is not required to 

award prejudgment interest but rather has broad discretion to do so). 

                                                  -22-                                             6594
 

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

personal residence to the rental unit as a result of the mold problem, the effect of the 

mold problem was the same:           it prevented Bonnie from renting the rental unit. 

                Finally, Allen argues that the   court miscalculated the costs of repair in 

relation to rents.    We are not persuaded by this argument.               Our review of the record 

convinces us that the testimony supported the superior court's finding that the cost of the 
repairs did exceed the rents received during 2005-06.57               We find no merit to Allen's 

challenges to the findings pertaining to Bonnie's rental income. 

                4.	     The superior court did not err in its consideration of the home 
                        refinancing. 

                Allen   challenges   the   superior   court's   finding   that   he   "received   greater 

benefit from the refinance than Bonnie did."           In support of this point, Allen argues that 

the superior court failed to recognize that part of the refinancing was used to pay off 

$20,412 Bonnie owed on her Chevrolet Blazer.                  This issue was resolved by the first 

appeal.   We explained in Heustess I that the vast majority of the refinancing proceeds 

were used to pay off marital debts.           We said, "with the exception of $1,400 that the 

[superior] court found went to pay a pre-existing debt of Allen's, all of the proceeds of 

the   refinancing   were   used   for   marital   purposes   -   mainly   to   pay   debts   on   marital 
property."58    The Blazer was marital property, regardless of which party typically used 

it.59  In   light   of   the   $1,400   benefit   to   Allen,   the   superior   court's   finding   that   Allen 

received a greater benefit from the refinance than Bonnie was not clearly erroneous. 

        57      The septic repair cost $3,700.  Bonnie took out a $30,000 second mortgage 

and paid $9,000 out-of-pocket to finance the work to remedy the mold problem.  The 
total rent received in 2005 and 2006 was approximately $13,650. 

        58      Heustess I, 158 P.3d 827, 831-32 (Alaska 2007). 

        59      The superior court treated the Blazer Bonnie drove   as marital property 

subject to division. 

                                                  -23-	                                            6594
 

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

               5.	     If   the   superior   court   considered   Allen's   vexatious litigation 
                       conduct when it divided the marital estate and when it enhanced 
                       the fee award, it erred. 

               Allen    contends   the  superior   court  erred  in  considering    his  vexatious 

litigation conduct when it awarded Bonnie a larger share of the marital estate in its 2008 

property division.    He argues that the superior court erred "to the extent that the court 

used conduct after the marriage to justify a disproportionate award to the other spouse." 

               The    superior   court  listed  a  number   of  factors  it  considered   when    it 

determined the division of marital property under AS 25.24.160(a)(4).              Among these 

factors, the court noted "neither party has unreasonably depleted marital assets."  But in 

the same paragraph, where the court itemized the findings it did consider when it divided 

the estate, the findings state "[Allen's] conduct during litigation has been vexatious. 

[Allen] has engaged in a number of litigation strategies that have unnecessarily increased 

attorney's fees, such as his refusal to return the truck that belonged to [Bonnie's son] 

Matt and his refusal to provide basic pretrial discovery." 

               Alaska Statute 25.24.160(a)(4)(E) states that in dividing marital property 

a superior court may consider "the conduct of the parties, including whether there has 

been unreasonable depletion of marital assets."        We have stated that "a court may take 

into account economic misconduct under subpart (E), but it may not consider a party's 
moral or legal marital failings which do not amount to economic misconduct."60                  In 

Oberhansley v. Oberhansley,61 we explained that we consistently have considered the 

        60     Jones    v.  Jones,  942   P.2d   1133,  1139    (Alaska   1997).   In  Jones    we 

recognized that the concept of economic misconduct "is broad enough to include social 
or moral misconduct which leads to an unreasonable depletion of marital assets, such as 
domestic violence."  Id. 

        61     798 P.2d 883, 885 (Alaska 1990). 

                                               -24-	                                         6594
 

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

conduct of the parties with respect to the marital property and debts after separation a 

relevant   factor   in   determining   a   just   division.   But   we   have   also   cautioned   that   in 

considering economic misconduct of a party, "the trial court should be on guard not to 
'double count.' "62 

                 Here, conduct the court included in its list of the factors that warranted an 

unequal property division - the failure to return a truck that belonged to Bonnie's son 

Matthew and the failure to comply with discovery requests - is the same conduct the 

court   relied   upon   to   order   enhanced   attorney's   fees.    The   superior   court   has   broad 
discretion   in   fashioning   a   property   division,63    but   we   cannot   tell   whether   the   court 

double-counted   Allen's   vexatious   litigation   conduct   by   considering   it   in   the   overall 

property division and in its award of enhanced fees.               We therefore remand the superior 

court's property   distribution for additional findings.             On remand, the superior court 

should   reconsider   its   distribution   of   the   marital   estate   without   considering   Allen's 

vexatious litigation conduct as a factor.  Based upon the other Merrill factors cited in the 

2008 findings, the court may decide that the division remains fair and equitable, or it may 

adjust the division if it is necessary to do so to "fairly allocate the economic effects of 

divorce" under AS 25.24.160.   To be clear, we do not require or anticipate an additional 

evidentiary   hearing   on   remand.       The   superior   court   should   reconsider   the   property 

division based on the remaining Merrill  factors cited in its 2008 findings of fact and 
conclusions of law, and evidence already admitted into the record.64 

        62       Id. at 1141. 

        63       See, e.g., Abood v. Abood , 119 P.3d 980, 984 (Alaska 2005). 

        64       By failing to brief any of the other points on appeal relating to property 

division, Allen has waived these appeal issues.  Katmailand, Inc. v. Lake & Peninsula 
Borough, 904 P.2d 397, 402 n.7 (Alaska 1995) (citing Adamson v. Univ. of Alaska , 819 
                                                                                           (continued...) 

                                                    -25-                                              6594
 

----------------------- Page 26-----------------------

        C.      Motion To Supplement The Record 

                Allen   argues   the   superior   court   erred   by   granting   Bonnie's   motion   to 

supplement the record.       We disagree. 

                More than a month after the court's hearing on remand, Bonnie moved to 

supplement the record with (1) a letter from Ron Eagley stating that "[d]ue to a conflict 

of interest in scheduling" Bonnie was "no longer an on call employee of Gwennie's"; 

(2)   a   letter   from   Kirby   Holtman   of   Peters   Creek   Chiropractic   stating   that   Bonnie's 

injuries prevented her from working at Gwennie's; and (3) invoices from Rick's Home 

Improvements.       The court granted the motion.         Denying Allen's motion to reconsider, 

the court stated it "granted [Bonnie's motion] primarily because the court also permitted 

[Allen]   to   supplement   the    record    after   trial   .   .   .   . The   court,   in   making   its   final 

determination,   did     not   rely  to  any   appreciable    extent   on  [Bonnie's]   supplemental 

exhibits." 

                Allen claims the court abused its discretion "because issues on employment, 

health and alleged home repairs were all germane to property division statutory factors 

under AS 25.24.160."        He states the court violated his right to due process by allowing 

Bonnie to supplement the record. 

                The right to due process is violated if a party is deprived of "the opportunity 
to be heard at a meaningful time and in a meaningful manner."65             We have concluded that 

a party's due process rights are violated when the record is supplemented with a new 

        64(...continued) 

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

        65      Matson v. State, Commercial Fisheries Entry Comm'n, 785 P.2d 1200, 

1206 (Alaska 1990) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). 

                                                  -26-                                               6594 

----------------------- Page 27-----------------------

rationale to which the party was not able to respond.66        We have likewise determined that 

a party's due process rights are violated when the record is supplemented with evidence 

that the party does not have an opportunity to rebut and the evidence serves as the basis 
for the ultimate decision.67 

                But we reject Allen's argument that his right to due process was violated 

when the court allowed Bonnie to supplement the record in this case.                The documents 

submitted by Bonnie did not introduce a new theory or argument to which Allen was 

unable to respond. They merely corroborate testimony Bonnie gave at the hearing.  The 

letter from Eagley corroborates Bonnie's testimony that she works primarily at TSA and 

less at Gwennie's.     The letter from Holtman corroborates her testimony that she sees a 

chiropractor for her injuries and that she has been advised not to work at Gwennie's. 

The invoices corroborate Bonnie's testimony that Rick's Home Improvement worked on 

the marital home at the time she testified the house was under repair.  These documents 

did not serve as the basis of the court's decision.  In fact, the court stated it "did not rely 

to any appreciable extent" on the exhibits.  Allen's due process rights were not violated 

by Bonnie's supplementation of the record. 

        D.      Attorney's Fees 

                In the initial appeal we vacated the superior court's award of attorney's fees 
because we vacated its property division.68        We reach the same result here as to the trial 

court's general award of fees, but in order to streamline the proceedings on remand, we 

        66      Id. 

        67      Bostic v. State, Dep't of Revenue, Child Support Enforcement Div., 968 

P.2d 564, 569-70 (Alaska 1998). 

        68      Heustess I, 158 P.3d 827, 835-36 (Alaska 2007). 

                                                 -27-                                           6594
 

----------------------- Page 28-----------------------

reach those arguments raised by Allen that we are able to resolve at this juncture, and we 

affirm the superior court's award of enhanced fees. 

                First, we observe that the superior court correctly   applied the two-step 

process on remand:  it determined the award under the general rule based on the parties' 

relative   economic   circumstances,   and   then   considered   whether   the   award   should   be 
increased for Allen's misconduct.69         The record shows that Bonnie's attorney charged 

$68,480 for his services. Citing the parties' relative economic circumstances and Allen's 

bad faith conduct and vexatious litigation, the court awarded $31,307.50 in attorney's 

fees to Bonnie - $25,000 under the general rule and $6,307.50 for Allen's conduct. 

Allen argues the superior court erred in making this award because it referred to Rule 82 

and because it erroneously assessed the parties' relative economic circumstances. 

                1.	     Any error in awarding attorney's fees under Civil Rule 82 was 
                        harmless. 

                A superior court has broad discretion to award attorney's fees in divorce 
cases.70    "We   will   not   reverse   a   trial   court's   ruling   on   attorney's   fees   unless   it   is 

'arbitrary, capricious, or manifestly unreasonable.' "71 

                The court awarded Bonnie attorney's fees "pursuant to AS 25.24.140 and 

Civil Rule 82."     Allen argues the court erred because "Civil Rule 82 does not apply to 

divorce cases." Allen is correct that the "prevailing party" rule of Rule 82 generally does 

        69      Id. at 836. 

        70      Carr v. Carr, 152 P.3d 450, 457 (Alaska 2007) (citingSloane v. Sloane, 18 

P.3d 60, 64 (Alaska 2001)). 

        71      Id. at 457 (quoting Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004)). 

                                                  -28-	                                           6594
 

----------------------- Page 29-----------------------

not apply to divorce actions, except in the context of some post-judgment motions.72  But 

the court in this case awarded the attorney's fees under both AS 25.24.140 and Rule 82; 

its mistaken reference to Rule 82 was harmless   if the fee award was justified under 
AS 25.24.140.73 

                2.	     The     superior     court's    assessment      of   the   parties'    relative 
                        economic circumstances must be reconsidered on remand, but 
                        the   court    correctly    considered     Allen's    greater    income    and 
                        income-earning capacity. 

                Allen contends the court abused its discretion by basing its general fee 

award on the parties' relative economic circumstances, because:  (1) in 2007 the parties 

earned similar income; (2) Bonnie's income has increased, whereas Allen's fluctuates; 

(3) the court erroneously relied on Allen's failure to pay child support; and (4) the court 

erroneously neglected to consider that it had awarded Bonnie most of the marital estate. 

Bonnie counters that the fee award was less than half of her actual fees and that Allen's 

complaints over his current financial situation center on "support for a child he failed to 

support." 

                The purpose of AS 25.24.140 in a divorce proceeding is to "assure that both 
spouses have the proper means to litigate the divorce action on a fairly equal plane."74 

"We have repeatedly stated that cost and attorney's fees awards in divorce cases are to 

be based primarily upon the relative economic situations and earning capacities of the 

        72	     Siggelkow v. Siggelkow, 643 P.2d 985, 988 (Alaska 1982). But see McGee 

v. McGee, 974 P.2d 983, 992 (Alaska 1999) (quoting Lowe v. Lowe, 817 P.2d 453, 460 
(Alaska    1991))   ("   '[T]he   divorce   judgment   exception   to   Rule   82   does   not   apply   to 
post-judgment modification and enforcement motions.' "). 

        73      Cf. Siggelkow, 643 P.2d at 988. 

        74      Sanders v. Sanders, 902 P.2d 310, 319 (Alaska 1995) (quoting Kowalski 

v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991)). 

                                                 -29-	                                           6594
 

----------------------- Page 30-----------------------

parties."75  Relative economic situations include both earning capacity and income.76  We 

have suggested that the effects of a property division as well as the expenditure of fees 
should be considered as relevant economic circumstances.77              Finally, in Heustess I we 

observed that Bonnie "bore most of the burden of supporting [the child] while [Allen] 
failed to pay interim child support contrary to the [superior] court's order,"78 and we 

noted that "Allen's failure to pay interim child support is relevant to Bonnie's economic 
circumstances" for purposes of assessing attorney's fees.79 

                We can dispose of Allen's first two arguments because the superior court's 

findings regarding the parties' relative income and earning capacity are well supported 

by the record, and they are consistent with an award of fees in Bonnie's favor. 

                But   we   cannot   reach   Allen's   remaining   two   arguments.      The    overall 

property     division   must   be  reconsidered     on  remand    to  determine    whether    Allen's 

vexatious litigation conduct was double-counted, and Allen's child support arrearage 

must be recalculated. We do not decide Allen's argument that the fee award would make 

him "effectively bankrupt because if he sells all of the assets he got from the marriage, 

he would still owe significant child support arrearages," but we observe that absent his 

        75      Dodson v. Dodson, 955 P.2d 902, 914 (Alaska 1998). 

        76      See Fernau v. Rowdon, 42 P.3d 1047, 1060 (Alaska 2002);Doyle v. Doyle, 

815 P.2d 366, 373 (Alaska 1991). 

        77      See Fernau, 42 P.3d at 1060   (noting, in considering whether the court 

abused its discretion in awarding attorney's fees, that "[t]he parties were not placed on 
an equal economic plane through the property division"); Johnson v. Johnson, 564 P.2d 
71, 77 (Alaska 1977) ("At least the division of property and possibly the expenditure of 
fees have bearing [on the] relative economic standing of the parties."). 

        78      158 P.3d 827, 835 n.26 (Alaska 2007). 

        79      Id. 

                                                 -30-                                           6594
 

----------------------- Page 31-----------------------

liability for the child support arrearage, Allen would have received $57,001 of the marital 

estate,   (32%   of   $178,127)   over   twice   the   amount   of   fees   awarded   to   Bonnie   under 

AS 25.24.140. 

                The premise of Allen's remaining two arguments concerning the parties' 
respective financial circumstances may change after remand.80               We therefore vacate the 

general fee award and remand for reconsideration consistent with this opinion. 

                3.	     The superior court did not err in increasing the attorney's fee 
                        award       based    on   Allen's    bad-faith     conduct     and    vexatious 
                        litigation. 

                The superior court enhanced its fee award by $6,307.50 based on Allen's 

bad-faith conduct and vexatious litigation.          Allen argues that the superior court clearly 

erred by finding that he refused to return a truck owned by Bonnie's son Matthew and 

that the court abused its discretion in relying on this finding to increase the award of 

attorney's fees.    We find no merit to these arguments. 

                On February 24, 2005, the superior court ordered Allen "to transfer title [to 

the truck] to Matthew and [Bonnie] within ten days of the date of this Order." (Emphasis 

in original.)   Allen had not complied with the order by March 9 - more than ten days 

after the court's order -   so   Bonnie filed a motion to show cause and a motion for 

sanctions and attorney's fees.       On March 15, Allen signed over the title, but he did not 

deliver it to Bonnie; he delivered it to his attorney, who delivered it to Bonnie's attorney, 

on March 29. 

                Allen failed to comply with the superior court's order to transfer the title 

within ten days, and failure to comply with a court order supports a finding of vexatious 

        80      The court may or may not adjust the overall property division on remand, 

but   Allen's   child   support   arrearage   will   be   adjusted   after   his   income   for   1995  is 
determined and federal income tax liability is deducted from his gross income for each 
of the years in question. 

                                                  -31-	                                              6594 

----------------------- Page 32-----------------------

conduct.81    Contrary to Allen's argument, this is true even if the court chose not to hold 

Allen in contempt.82   The court did not abuse its discretion by increasing the award of 

fees for Allen's conduct involving Matthew's truck. 

                 Allen also argues that the superior court erred by increasing the award for 

his conduct during discovery.          On July 2, 2007, Bonnie submitted a discovery request 

for Allen's federal income tax returns from 1991 to 1997.                   On October 29 the court 

orally ordered Allen to "fully respond to all" requests. Allen executed a release to obtain 

the returns from the IRS on November 5.               On November 20 Bonnie's attorney sent a 

letter to Allen's attorney, stating, "[O]btaining the tax returns of Mr. Heustess from the 

IRS   is   not   possible.   Therefore,   request   is   hereby   made   for   the   wage   and   income 

transcript for the years you have indicated he has them. . . .               If you don't provide the 

information, it can be left up to CSSD."   It seems no such information was produced by 

Allen as of the date of the hearing. 

                 Allen suggests that he waited to produce his returns until Bonnie formally 

amended   her   complaint   to   assert   a   claim   for   premarital   child   support.     He   further 

contends his litigation conduct was not vexatious because the Internal Revenue Service 

destroys records after seven years and because Bonnie suffered no detriment.                      Allen's 

argument is unpersuasive.  Allen was on notice since our decision in the first appeal that 
premarital child support would be at issue on remand.83             And although IRS records might 

be   destroyed   after   seven   years,   the   superior   court   was   well   within   its   discretion   to 

        81       See Ward v. Urling, 167 P.3d 48, 53 (Alaska 2007); Beard v. Beard, 947 

P.2d 831, 835 (Alaska 1997). 

        82       See   Rodvik   v.   Rodvik,    151   P.3d    338,  352    (Alaska    2006)    (upholding 

determination   of   vexatious   conduct   where   defendant   asked   that   plaintiff   be   held   in 
contempt but court chose not to do so). 

        83      Heustess I, 158 P.3d at 835-36. 

                                                   -32-                                              6594
 

----------------------- Page 33-----------------------

conclude that Allen had an obligation to provide substitute income information and that 

his failure to do so was deliberate and vexatious.  The superior court carefully traced the 

amount of fees Bonnie incurred in response to the dispute involving Matthew's truck and 
the discovery dispute over Allen's income tax information.84  Although the superior court 

will have to reassess its general fee award on remand, that portion of the fees awarded 

for Allen's vexatious conduct is supported by the record, and we affirm it. 

V.      CONCLUSION 

                We REVERSE the superior court's calculation of Allen's child support 

arrearage and REMAND for recalculation under Rule 90.3.  We REMAND the superior 

court's   property   division   for   additional   findings   consistent   with   this   opinion.  We 

VACATE   the   superior   court's   general   award   of   attorney's   fees   and   REMAND   for 

proceedings consistent with this opinion, but AFFIRM its order enhancing the fees.  We 

AFFIRM the remainder of the superior court's rulings in all respects. 

        84      On    its  Order   Awarding      Attorney's    Fees,   the  superior    court   wrote, 

"Matthew's truck - issue fees: $1,415" and "avoiding discovery-hiding income fees 
$4,892.50" for a total of $6,307.50 in additional fees. Our review of the record confirms 
that these sums correspond to the amounts Bonnie was actually billed for her lawyer's 
work on these issues. 

                                                 -33-                                           6594
 

----------------------- Page 34-----------------------

FABE, Justice, concurring in part and dissenting in part. 

                I agree with the court's opinion in all respects but one:  I do not see a need 

to remand this case to the superior court for additional findings to clarify the basis or 

extent of its unequal distribution of the marital estate.             I would affirm both the trial 

court's decision to award the greater share of the marital assets to Bonnie and its decision 

to enhance attorney's fees based on Allen's vexatious behavior during litigation. 

                The     court   correctly   concludes     that  the  trial  court  "did   not   abuse   its 
discretion by awarding Bonnie a larger share of the marital estate."1  This conclusion is 

well supported by the trial court's careful consideration of such relevant factors as the 

parties' relative ages; Bonnie's serious long-term health issues, which limit her ability 

to increase her income; Allen's significantly greater earning capacity; Bonnie's conduct 

in paying most, if not all, of the marital debts; and Bonnie's payments of the mortgage 

and   all   repairs   for   the   marital   home   after   separation. Indeed,   the   trial   court   made 

thoughtful and detailed factual findings that amply support its decision to divide the 

marital estate in an unequal manner: 

                         17.     In order to determine how best to allocate the 
                economic effects of divorce between the parties the court has 
                considered the factors specified in AS 25.24.160(a)(4) in the 
                division of marital property. 

                         (a)     During     the  six  years   of   marriage    (and   two 
                additional      years   of   co-habitation)     the   parties   acquired 
                personal property, debts and land in Palmer. 

                         (b)     Ms. Kelley-Heustess is five years older than the 
                defendant and has serious long-term health issues that limit 
                her ability to make a living. 

                         (c)     Defendant's earning capacity is much greater 
                than that of Ms. Kelley-Heustess. He has consistently earned 

        1       Slip Op. at 16. 

                                                   -34-                                               6594 

----------------------- Page 35-----------------------

                two or three times as much and the earnings discrepancy in 
                the future will probably be greater. 

                        (d)     All of the defendant's debts were paid when Ms. 
                Kelley-Heustess refinanced her home.              As a result, she has 
                been    paying    most,   if  not  all,  of  the  marital  debts   while 
                retaining the residence. 

                        (e)     Neither party has unreasonably depleted marital 
                assets.    Defendant's       conduct    during    litigation   has  been 
                vexatious.    Defendant has engaged in a number of litigation 
                strategies that have unnecessarily increased attorney's fees, 
                such as his refusal to return the truck that belonged to Matt 
                and his refusal to provide basic pretrial discovery. 

                        (f)     The family home was awarded to Ms. Kelley- 
                Heustess and should be awarded to her because she has sole 
                custody of the parties' minor child . . . - and defendant has 
                not paid child support for most of the child's life. 

                        (g)     Ms. Kelley-Heustess' income is constrained by 
                her injuries.    She now works for TSA.           There is not much 
                prospect for her to increase her income. 

                        (h)     Ms.   Kelley-Heustess'   home   in   Chugiak   was 
                acquired   by   her   prior   to   the   marriage. She   has   made   all 
                payments and repairs since divorce in 2005. 

                        (i)     From     time   to   time   Ms.   Kelley-Heustess   has 
                received rental income. The black-mold problem in the rental 
                has or will cost as much or more to remediate than she has 
                received in rents over the past two or three years. 

                         18.    Taking these factors into consideration, it is the 
                Court's   intention to deviate from equal distribution of the 
                marital   estate    and  award    a  greater   share   to  Ms.   Kelley- 
                Heustess. 

Yet, after concluding that the trial court did not abuse its discretion in fashioning an 

unequal   distribution      of   marital   property,   the  court   remands    the  property    division, 

                                                  -35-                                             6594
 

----------------------- Page 36-----------------------

requiring   additional   findings   because   it   "cannot   determine   whether   [the   trial   court] 
double-counted Allen's vexatious litigation conduct."2 

                The court focuses on a single observation by the trial court - in the same 

subparagraph   as   its   explicit   finding   that   "[n]either   party   has   unreasonably   depleted 

marital    assets"   -    noting    that  Allen's   vexatious     "litigation   strategies   .  .  .  have 

unnecessarily increased attorney's fees . . . ." (Emphasis added.)  But nothing in the trial 

court's analysis indicates that this finding played any role in the trial court's division of 

property:     The trial court expressly indicated that this finding related to an increase in 

attorney's   fees.    I   interpret   the   placement   of   this   finding   within   the   subparagraph 

determining that neither party had unreasonably depleted marital assets as designed to 

signal that the positive finding of no dissipation should not be taken as overlooking 

Allen's problematic behavior in a different context.             After this preview, the trial court 

then proceeded, quite properly, to take Allen's litigation conduct into consideration in 

its award of attorney's fees. 

                In   sum,   I   see   no   evidence   of the   "double-count[ing]   Allen's   vexatious 

litigation conduct" that troubles the court.         The trial court's findings are thorough and 

clear.   The trial court correctly recognized that Allen's vexatious litigation strategies 

"ha[d] unnecessarily increased attorney's fees," but there is no indication that the trial 

court took this fact into account in dividing the marital estate.             I would affirm the trial 

court's property division and enhanced attorney's fee award, and I therefore respectfully 

dissent from this aspect of the court's opinion. 

        2       Id. 

                                                  -36-                                               6594 

----------------------- Page 37-----------------------

WINFREE, Justice, dissenting in part. 

                I respectfully disagree with the court's ruling regarding application of the 

statute of limitations to Bonnie's reimbursement claim for child-rearing expenditures 

incurred when no child support order was in place.   As the court states, AS 09.10.100(a) 
sets out a ten-year   statute of limitations for the claim.1          In my view the court over- 

stretches existing precedent and creates inconsistencies in our case law by holding that 

the claim actually belongs to the child and is tolled during the child's minority under 
AS 09.10.140.2       The claim belongs to Bonnie and the ten-year statute of limitations 

should apply. 

                In State, Department of Revenue, Child Support Enforcement Division ex 

rel.   Inman    v.   Dean we    consolidated     two   appeals   arising   from   the  Child   Support 

Enforcement Division's (CSED) attempts to reduce to judgment child support arrearages 
owed by non-custodial parents.3         In each case the superior court ruled CSED could not 

        1       AS   09.10.100(a)   provides   that   "[a]n   action   for   a   cause   not   otherwise 

provided   for   may   be   commenced   within   [ten]   years   after   the   cause   of   action   has 
accrued." 

        2       AS 09.10.140 provides in relevant part:           "if a person entitled to bring an 

action . . . is at the time the cause of action accrues . . . under the age of majority . . . the 
time [during which the person is under the age of majority] is not a part of the time limit 
for the commencement of the action." 

        3       902 P.2d 1321, 1322-23 (Alaska 1995).             CSED relied on AS 25.27.226, 

which provides: 

                To collect the payment due, the custodian of a child, or the 
                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 
                                                                                        (continued...) 

                                                  -37-                                            6594
 

----------------------- Page 38-----------------------

recover     support    installments     that  were    more    than   ten  years   old,   reasoning     that 

"AS 09.10.040, the statute of limitations applicable to 'an action upon a judgment,' bars 

the   collection   of   past-due   child   support   when   a   judicial   enforcement   action   is   not 
commenced within ten years of the missed payment."4 

                 On appeal we held the superior courts misapplied AS 09.10.040.5                      We 

began by noting that the cases involved enforcement of existing child support orders and 
that   by   statute   each   unpaid   support   obligation   is   considered   a   judgment.6  We   then 

rejected the superior courts' application of AS 09.10.040 because CSED "did not initiate 

a new 'action' to establish the non-custodial parent's liability.  Rather, CSED sought to 
collect a valid, unsatisfied domestic judgment . . . ."7          We explained that execution on a 

judgment is not a commencement of an entirely new civil action, and that AS 09.35.020 

        3(...continued) 

                 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. 

        4       Dean, 902 P.2d at 1322 (footnote omitted). 

        5       Id. at 1323. 

        6       Id. at 1323-24 (noting AS 25.27.225). 

        7       Id. at 1324 (emphasis in original). 

                                                   -38-                                             6594
 

----------------------- Page 39-----------------------

provides the relevant time limitations on judgment executions.8  Because CSED's efforts 

to collect the owed support were "in aid of enforcement of a judgment which was already 

in existence" and "executing upon a judgment does not operate to commence an entirely 
new civil action," we vacated the superior courts' decisions.9 

                In State, Department of Revenue, Child Support Enforcement Division ex 

rel. Valdez v. Valdez, as part of Alfonzo and Linda Valdez's 1983 divorce, Alfonzo was 
ordered to pay child support.10         In 1994 Linda moved to modify the original support 

order.11   The superior court granted the motion, increasing Alfonzo's ongoing support 

        8       Id.  AS 09.35.020 provides: 

                When a period of five years has elapsed after the entry of 
                judgment   and      without   an   execution    being   issued    on  the 
                judgment,   no   execution   may   issue   except   by   order   of   the 
                court in which judgment is entered.   The court shall grant the 
                motion      if  the  court   determines     that  there   are  just   and 
                sufficient     reasons   for   the  failure   to  obtain   the   writ   of 
                execution within five years after the entry of judgment. 

        9       Dean, 902 P.2d at 1324, 1326.           We also noted that the legislature in 1994 

had amended AS 09.10.040 to add a subsection specifically controlling actions to collect 
child support arrearages, but that the statutory change became effective after CSED filed 
its original motions. Id. at 1322 n.1 (citing AS 09.10.040, as amended by ch. 86,  1-2, 
SLA 1994). The added subsection provided that "[a]n action may be brought to establish 
a judgment for child support payments that are 30 or more days past due under a support 
order . . . if the action is commenced by the date on which the youngest child covered by 
the   support   order   becomes   21   years   of   age."   Ch.   86,      2,   SLA   1994   (codified   at 
AS 09.10.140(b)).       This subsection was repealed effective June 1998.               Ch. 132,  54, 
SLA 1998. 

        10      941 P.2d 144, 146 (Alaska 1997). 

        11      Id. at 147. 

                                                  -39-                                             6594
 

----------------------- Page 40-----------------------

obligation.12    But that court also considered Alfonzo's motion to clarify the amount of 

his   support   arrearages,   entering   an   order   stating   CSED   "may   not   attempt   to   collect 
arrearages older than June 1, 1984."13 

                 On appeal we relied on Dean and held that AS 09.10.040 did not bar CSED 

from   attempting   to   collect   pre-June   1984   arrearages   owed   under   the   existing   child 

support order, and noted that any assessment of timeliness under AS 09.35.020 was 
"premature."14       We   then   considered   the   doctrines   of   laches,   estoppel,   and   waiver.15 

Although we determined that the doctrine of laches was unavailable in the context of 

child support collection actions, we acknowledged that Alfonzo's arguments concerning 
waiver and estoppel had support in the record.16              But we stated in a footnote: 

                         Where   CSED         is  acting   on  behalf   of   the  custodial 
                 parent to collect child support which is then passed through 
                 to that parent, CSED's conduct cannot amount to waiver or 
                 estoppel.    The right to support is that of the child and thus 
                 cannot   be   waived      by   CSED.     However,   where   CSED          is 
                 collecting support as reimbursement to the State for AFDC 
                 payments      made     to  the  custodial    parent,   the   doctrines    of 
                 waiver or estoppel may apply.[17] 

                 Today the court relies on Valdez's footnoted statement that "[t]he right to 

support   is   that   of   the   child"   to   hold   the   statute   of   limitations   for   Bonnie's   claim   is 

         12      Id.
 

        13       Id. (emphasis in original).
 

         14
     Id. at 151-52. 

         15      Id. at 152-54. 

         16      Id. 

         17      Id. at 154 n.14 (emphasis added). 

                                                    -40-                                               6594
 

----------------------- Page 41-----------------------

tolled,18 but  Valdez is distinguishable:       in  Valdez the initial support order was already 

established, while the case before us concerns the establishment of an initial order and 

the reimbursement of past child-rearing expenses.              The court ignores this distinction. 

The   court   then   builds   on   its Valdez  reliance   with   Grober   v.   State,   Department   of 

Revenue,   Child   Support   Enforcement   Division   ex   rel.   C.J.W.,   stating   that   there,   in 

connection with an action to establish paternity, "we held that the tolling provision in 
AS 09.10.140 applies even when another brings the action on behalf of a minor."19                   But 

the court ignores Grober's subject matter - paternity establishment, not child support.20 

                The application of Valdez and Grober to a reimbursement claim for child- 

rearing expenditures incurred absent a support order is unsustainable.               Assume that no 

child support order is ever established during a child's minority and that a reimbursement 

claim actually belongs to the child and can be brought after the child reaches the age of 

majority.    It follows that the child may reach majority, file an action against a non- 

supporting parent, and obtain a judgment for the amount of the Alaska Civil Rule 90.3 

child support that would have been due the custodial parent during the child's minority 

        18      The court also notes that "[o]ther states have reached the same conclusion." 

But this approach is not universal.        See, e.g., Kimble v. Ellis, 101 P.3d 950, 953 (Wyo. 
2004) ("[W]e conclude that the right to obtain support is not waived by the custodial 
parent's inability to act, inaction, or acquiescence to the nonpayment of child support if 
an action is brought within the statute of limitations." (quoting Hammond v. Hammond, 
14 P.3d 199, 202-03 (Wyo. 2002))). 

        19      956 P.2d 1230, 1232 (Alaska 1998) (holding that "child, upon reaching the 

age of majority, may bring a paternity action, and that prior to the age of majority a 
parent or guardian ad litem may maintain a paternity action on behalf of a child"). 

        20      Id. 

                                                  -41-                                            6594
 

----------------------- Page 42-----------------------

had a support order been in place.21        Yet the custodial parent incurred the child-rearing 

expenses,   not   the   child.  The   simple   fact   is   that   a   reimbursement   claim   belongs   to 
whomever incurred the expenses - in this case Bonnie - not the child.22 

                Today's decision undermines the rationale behind statutes of limitations, 

which serve "to encourage promptness in the prosecution of actions and thus avoid the 

injustice which may result from the prosecution of stale claims . . . [and] attempt to 

protect against the difficulties caused by lost evidence, faded memories and disappearing 
witnesses."23     As   this   case   aptly   demonstrates,   it   is   difficult   to   acquire   or   recreate 

financial records from 10 to 20 years earlier to calculate reimbursement under Rule 90.3. 

                Today's decision also creates inconsistencies with other case law.                Under 

the court's application of Grober, the custodial parent's failure to seek reimbursement 

for child-rearing expenses prior to a support order's establishment cannot be a waiver of 

the reimbursement claim.  Yet we have previously held that a custodial parent's failure 

to properly assert a reimbursement claim for such expenses constituted a waiver of that 

claim.    In Harvey v. Cook a mother listed a reimbursement claim in a counterclaim 
against the father, but did not pursue the claim at trial.24         She argued on appeal that she 

        21      In  Vachon v. Pugliese, 931 P.2d 371, 381-82 (Alaska 1996), we held that 

reimbursement of child-rearing expenses during periods where no child support order 
is in place is calculated under Rule 90.3. 

        22      We     recognized     this  in Valdez  by     noting    that  the  State   could   waive 

reimbursement of child support it provided indigent custodial parents even when a child 
support order was in place.        941 P.2d at 154 n.14. 

        23      Alakayak   v.   British   Columbia   Packers,   Ltd.,   48   P.3d   432,   461   n.121 

(Alaska 2002) (quoting Byrne v. Ogle, 488 P.2d 716, 718 (Alaska 1971)). 

        24       172 P.3d 794, 802 (Alaska 2007). 

                                                  -42-                                             6594
 

----------------------- Page 43-----------------------

was entitled to the reimbursement.25       Relying on the rule that "issues not properly raised 

in the trial court will not ordinarily be considered on appeal," we held the mother waived 
her claim to the reimbursement.26       Likewise, in Jaymot v. Skillings-Donat, a mother did 

not raise a reimbursement claim in her pre-trial pleadings or at trial.27        We concluded the 

mother waived the claim, stating "[w]e recognize that a parent may not waive the right 

to receive   child support payments by acquiescence or private agreement unless that 

agreement is approved by the court. But when a parent does not assert a right to past-due 
support payments at trial, that right cannot be considered on appeal."28           It is inconsistent 

to hold that a parent cannot waive a reimbursement claim by failing to bring it within the 

statute of limitations but can waive it by failing to raise it at trial. 

                For    the   foregoing    reasons,    I  would     reverse   the   superior    court's 

determination that Bonnie's claim was not limited by AS 09.10.100(a)'s ten-year statute 

of limitations. 

        25      Id. 

        26      Id. at 802-03. 

        27      216 P.3d 534, 546 (Alaska 2009). 

        28      Id. at 546-47 (citing Paxton v. Gavlak, 100 P.3d 7, 13 (Alaska 2004)). 

                                                 -43-                                             6594 
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

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