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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wilson v. Wilson (3/9/2012) sp-6656

Wilson v. Wilson (3/9/2012) sp-6656

        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 



IRENE M. BEDARD WILSON,                            ) 

                                                   )    Supreme Court No. S-14149 

                        Appellant,                 ) 

                                                   )    Superior Court No. 3AN-10-09881 CI 

        v.	                                        ) 

                                                   )    O P I N I O N 

DENNIS E. WILSON, JR.,                             ) 

                                                   )   No. 6656 - March 9, 2012 

                        Appellee.	                 )
 

                                                   )
 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Andrew Guidi, Judge. 



                Appearances:         Michelle      V.   Minor,     Law    Offices     of 

                Michelle  V.   Minor,   P.C.,   Anchorage,   for   Appellant.       No 

                Appearance by Appellee. 



                Before: Carpeneti, Chief Justice, Fabe, Winfree, and Stowers, 

                Justices.  [Christen, Justice, not participating.] 



                WINFREE, Justice. 



I.       INTRODUCTION 



                A wife left her husband in Ohio and moved with their son to Alaska, where 



she filed for divorce.     	The husband filed for divorce in Ohio.        The parties agreed Ohio 



had child custody and property division jurisdiction.           The superior court dismissed the 



wife's divorce action and the wife appeals, arguing that not granting a divorce was error 



regardless of the pending Ohio litigation.         Because the superior court did not abuse its 



discretion in declining to grant the divorce, we affirm. 


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

II.     FACTS AND PROCEEDINGS
 



                Irene Bedard Wilson and Dennis Emett Wilson, Jr. married in 1993.  Irene 



and Dennis have one child, a son born in 2003.  The family moved to Ohio in September 



2008 and resided there until July 2010, when Irene left Dennis and moved to Alaska with 



their son.   Dennis remained in Ohio. 



                In August 2010 Irene filed for divorce in Alaska.              In September Dennis 



moved for dismissal of Irene's divorce action, asserting that four days after Irene filed 



in Alaska he had filed a divorce and custody action in Ohio.  Dennis argued the superior 



court   lacked   personal   jurisdiction   over   him   under   AS   09.05.015(a)(12)   because   the 



parties    had   not   lived   together    in  Alaska.1    Dennis     also   argued    that  under    AS 



25.30.300(a), the superior court lacked subject matter jurisdiction as to child custody 



because Ohio had home state jurisdiction over their son.2 



                At   a   September   hearing   the   superior   court   considered   whether   it   had 



jurisdiction   over   the   divorce   and   child   custody   issues.   The   court   indicated   it   had 



jurisdiction to issue a divorce.       Dennis argued "there's no jurisdiction over anything 



except for the divorce and that the whole thing should be dismissed and everything heard 



in Ohio."   Irene did not pursue the issue further at that point in the hearing.  Later in the 



hearing Irene agreed the Ohio court would decide whether it was the appropriate forum 



to resolve the divorce and custody issues. 



                After the hearing the parties agreed to defer child custody jurisdiction to the 



Ohio court's determination, recognizing Dennis's position that Ohio retained home state 



        1       AS   09.05.015(a)(12)   (establishing   grounds   for   personal   jurisdiction   in 



divorce proceedings). 



        2       AS 25.30.300(a) (establishing grounds for subject matter jurisdiction in 



child custody determinations). 



                                                   -2-                                               6656 


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

jurisdiction over their son and Irene's pending motion asking the Ohio court to decline 



jurisdiction because it was an inconvenient forum.  The agreement "respectfully asked" 



the Ohio court to determine whether it had and would exercise jurisdiction. The superior 



court indicated it would "defer and bind itself to the Ohio court's determination." 



                 In October the superior court held another hearing to consider Dennis's 



motion to dismiss, but the Ohio court had not yet made a jurisdictional decision.                     Irene 



clarified "[w]e didn't defer to Ohio's jurisdiction, we deferred to Ohio's decision making 



about which was the appropriate forum." Dennis agreed. Dennis also noted the superior 



court   "does,   technically,   have   jurisdiction   over   the   divorce   itself   but   it   seems   most 



appropriate to deal with the divorce where all the divorce issues are being dealt with." 



The court did not rule on the motion, pending the Ohio court's decision.                        The court 



denied Irene's motion for temporary custody pending the divorce, stating "[t]he [c]ourt's 



jurisdiction to decide custody is undetermined and quite possibly, non-existent." 



                 In November the superior court held another hearing. By this time the Ohio 



court   had   issued   orders   requiring   the   parties'   son's   presence   in   Ohio   for   a   pre-trial 



interview and providing for temporary shared custody.                  Irene conceded Alaska's child 



custody jurisdiction was tenuous, but requested the case remain open because it was 



unclear whether property division issues might require adjudication in Alaska. Irene also 



requested the superior court grant a divorce, arguing personal jurisdiction over Dennis 



was   not    required.3     Dennis   argued   Alaska   "technically"   had   jurisdiction   to   issue   a 



divorce, but under Alaska's bifurcation statute, "the court should not unless the parties 



         3       Irene   argued   "the   Supreme   Court   has   .   .   .   dealt   with   a   case   that   was 



incredibly similar to this one,"   in   which "the other portions were dismissed but the 

divorce   itself   was   granted."    Irene   later   indicated   she   was   referring   to Vanvelzor   v. 

 Vanvelzor, 219 P.3d 184 (Alaska 2009). 



                                                     -3-                                                 6656 


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

agree or unless there are special circumstances [to] end the marriage while other issues 



are still pending."4     The court noted "it appears that [Ohio has] decided that it is an 



appropriate forum and, clearly, has [custody] jurisdiction" and that it was "pretty inclined 



to grant the dismissal." The court also noted "Alaska, technically, may have jurisdiction 



but it's . . . rather tenuous in this case" and because the Ohio court was "taking control 



of the litigation," Ohio was "the appropriate forum." 



                The superior court later dismissed the divorce proceeding, finding "that 



(i) it lacks personal jurisdiction over the defendant, (ii) it lacks subject-matter jurisdiction 



over custody of the minor child, and (iii) the Courts of Ohio have jurisdiction over the 



parties and subject-matter of this divorce." 



                Irene   moved   for   reconsideration,   arguing   the   superior   court   failed   to 



consider Vanvelzor v. Vanvelzor.  The court denied Irene's motion for reconsideration, 



recognizing jurisdiction was authorized under  Vanvelzor but finding "no compelling 



reason or good cause" to retain jurisdiction.         The court relied on Husseini v. Husseini ; 



in that case we held it was an abuse of discretion for the superior   court to bifurcate 



divorce proceedings from property distribution proceedings without a showing of good 



cause by the moving party and without finding the opposing party's interests would not 



be jeopardized by the delay or reservation.5        The superior court distinguished Vanvelzor 



because   "Ohio   has   already   asserted   jurisdiction   over   the   parties'   divorce,   property 



distribution, and child support and custody matters" and "there is great benefit to the 



        4       Dennis cited Perito v. Perito , holding "Alaska courts have jurisdiction over 



a divorce action when one of the parties is domiciled in Alaska," 756 P.2d 895, 898 

(Alaska   1988)   (citing  State   v.   Adams,   522   P.2d   1125,   1131-32   (Alaska   1974)),   but 

argued that the case has been superceded by statute. See ch. 76,  2, SLA 1991 (enacting 

bifurcation statute codified at AS 25.24.155(a)). 



        5       230 P.3d 682, 686 (Alaska 2010). 



                                                  -4-                                            6656
 


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

consistency of one forum."   The court noted that the divorce date could affect the entry 



of qualified domestic relations orders and the valuation and distribution of marital assets. 



The court concluded that "retaining jurisdiction in this case . . . is, in essence, creating 



a bifurcation across state lines, and [the court] is disinclined to do so in the absence of 



a showing of good cause." 



                Irene appeals the superior court's dismissal of her divorce action.  Dennis 



has not participated in this appeal. 



III.    STANDARD OF REVIEW 



                Irene argues we should apply de novo review because this case involves 



subject matter jurisdiction and "[j]urisdictional issues are questions of law subject to this 



court's independent judgment."6         But this appeal does not concern whether the superior 



court had jurisdiction to grant a divorce; the parties agreed and the superior court ruled 



that it had jurisdiction to grant a divorce.   This appeal arises because the court declined 



jurisdiction, and we review that decision for an abuse of discretion. 7                "An   abuse of 



discretion occurs when we are left with the definite and firm conviction on the whole 



record that the judge had made a mistake."8 



        6       See McCaffery v. Green, 931 P.2d 407, 408 n.3 (Alaska 1997); see also 



Barlow v. Thompson , 221 P.3d 998, 1001 (Alaska 2009) ("Whether a superior court has 

jurisdiction is a question of law that we review de novo." (citing Atkins v. Vigil , 59 P.3d 

255, 256 (Alaska 2002))). 



        7       See Rexford v. Rexford , 631 P.2d 475, 479 (Alaska 1980) ("[W]e hold that 



the Alaska Superior Court did not abuse its discretion in deferring to California in this 

case and staying the Alaska proceedings."). 



        8       Richard   v.   Boggs ,   162   P.3d   629,   632   (Alaska   2007)   (quoting Juelfs   v. 



Gough, 41 P.3d 593, 596 (Alaska 2002)). 



                                                  -5-                                            6656
 


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

IV.     DISCUSSION
 



                The parties did not dispute the superior court had jurisdiction to grant a 



divorce.     The real issue is whether, as Irene states, that court was required to do so: 



"Fundamentally, the [superior] court views its authority as discretional, while [Irene] 



believes that the application of  Vanvelzor and appurtenant authority mandates that she 



is entitled to a simple divorce if, as a resident of Alaska, she requests one." 



                In Vanvelzor a husband filed in Alaska for divorce from his wife, an Ohio 



resident.9   The wife moved "to change venue," essentially arguing the superior court 



lacked jurisdiction.10  We stated "Alaska courts have jurisdiction over the termination of 



a marriage if one of the parties is in Alaska and intends to remain, even if the court does 



not have personal jurisdiction over the other party."11           We further stated "the Alaska 



court has jurisdiction only over the marriage; Alaska does not have jurisdiction over 



spousal support, child custody or support, property division issues, or other personal 



claims between the parties."12      We held it was error to dismiss the divorce proceedings; 



we noted the superior court erred by dismissing "on the grounds that it could not grant 



the full relief . . . requested" because "Alaska law does not require that full relief can be 



granted before jurisdiction to grant a divorce will be found."13 



        9       219 P.3d at 185. 



        10      Id. 



        11      Id. at 191 (citing  Crews v. Crews, 769 P.2d 433, 435-36 (Alaska 1989) 



(holding "[a]n action for divorce is essentially a proceeding in rem")). 



        12      Id. at 191 (citing Crews, 769 P.2d at 435-36). 



        13      Id. at 191 & n.30.    Our primary authority in  Vanvelzor was Crews.  Id. at 



191 (discussing Crews, 769 P.2d at 435-36).           In Crews a husband filed for divorce and 

                                                                                      (continued...) 



                                                 -6-                                            6656
 


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

                 Irene contends  Vanvelzor is directly on point, and relies on our statement 



that if the husband "wanted an Alaska annulment or divorce, even if he would have to 



adjudicate his other claims in Ohio, there is no reason that the Alaska court should refuse 



to hear it."14   Irene also points to AS 25.24.010, which is entitled "Right of action for 



divorce" and provides that "[a] husband or wife may maintain an action against the other 



for divorce or to have the marriage declared void."   Irene maintains this creates a "right 



to a divorce" and that "[d]eprivation of a person's right to access the courts of Alaska is 



a violation of due process of laws."            With respect to the superior court's bifurcation 



analysis, Irene argues:       (1) AS 25.24.155 "is not a jurisdictional statute, but rather a 



statute outlining a process of adjudicating issues separately"; and (2) the bifurcation rules 



do not apply in this case because "[a]ll of the issues being adjudicated . . . are those 



already existing within the ambit of the court's jurisdiction."15 



        13       (...continued) 



child custody in Florida after his wife absconded to Alaska with their child.  Crews, 769 

P.2d at 433.   After the Florida court had awarded the husband temporary child custody, 

the wife filed for divorce in Alaska.         Id. at 433-34.      On appeal we held that the Alaska 

court   lacked   jurisdiction   over   the   custody   dispute,   but   "[a]n   action   for   divorce   not 

complicated by alimony, property division, or child custody issues may be maintained 

in the superior court whenever one of the parties is physically present in the state with 

an intent to remain indefinitely."  Id. at 435-36 (citing Perito , 756 P.2d at 897-98).  We 

added that "[d]ismissal of the child custody issue and the personal claims against [the 

husband]      leaves    only   a  divorce    action    to  be   adjudicated"     and   remanded      for   a 

determination on whether the wife intended to remain in Alaska.  Id. at 436. 



        14       Vanvelzor, 219 P.3d at 191. 



        15       Irene also interprets the superior court's dismissal as based on forum non 



conveniens.  She contends that "[b]ecause the defenses to divorce claims in Alaska are 

provided   in   AS   25.24.120   and   25.24.130,   no   further   valid   defenses   exist   under   the 

doctrine of expressio unius est exclusio alterius."              AS 25.24.120 lists defenses when 

                                                                                           (continued...) 



                                                    -7-                                              6656
 


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

                 We   conclude   the   superior   court   has   the   authority   to   stay   or   dismiss   a 



divorce action like Irene's if:        (1) the person seeking a divorce decree has an adequate 

and reasonable alternative forum to obtain a divorce decree;16 and (2) issuing a divorce 



decree in Alaska might significantly impact either child custody or property division 



proceedings   in   the   alternative   forum.      We   are   unaware   of   any   authority   overriding 



judicial discretion to decline jurisdiction simply on the basis that a statute provided a 



cause of action.  And neither Vanvelzor nor Crews presented the complicating factors of 



divorce-related   litigation   in   an   alternative   forum.      Husseini   highlights   the   need   for 



discretion in this context, with AS 25.24.155(a) also providing an appropriate analytical 



framework for the superior court's decision:   the party seeking an Alaska divorce decree 



with child custody or property proceedings pending in another jurisdiction must show 

good cause and no prejudice to the other party.17              Although a superior court's decision 



         15      (...continued) 



divorce is initiated on adultery grounds and AS 25.24.130 lists defenses in other divorce 

actions, including express forgiveness and procurement. Irene argues that because forum 

non conveniens is not specified as an authorized defense, the legislature did not intend 

to allow a divorce action to be dismissed on those grounds.  This argument fails because 

the superior court based its decision on the bifurcation statute and Husseini , neither of 

which stems from the forum non conveniens doctrine. 



         16      Cf.   Bromley   v.   Mitchell,   902   P.2d   797,   803   (Alaska   1995)   (requiring 



superior court to ensure suit dismissed on forum non conveniens grounds would be 

allowed to proceed in different jurisdiction). 



         17      AS 25.24.155(a) provides in relevant part: 



                 The court may not delay or reserve a custody decision . . . or 

                 an issue of property division . . . unless 



                         (1) each party . . . expressly agrees on the record . . . or 



                         (2)	  a   party   who    moves     for  an   order   of  delay    or 

                                                                                            (continued...) 



                                                     -8-	                                              6656
 


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

is reviewed only for abuse of discretion, the court should make appropriate findings of 



fact supporting its decision, which are reviewed only for clear error. 



                Here   the   superior   court   recognized   that   it   could   grant   a   divorce. But, 



referring specifically to Dennis's representations at earlier hearings that the parties had 



at   least   one   deferred   compensation   account,   the   court   ultimately   found   "the   date   of 



divorce is important for the valuation and distribution of marital assets and property" and 



"the potential delay between a decree issued in Alaska and the division of property and 

other remaining issues in Ohio could prejudice the parties."18               Irene has not pointed to 



any impediment to obtaining a divorce decree in the Ohio proceedings, and the superior 



court's dismissal of Irene's divorce action did not preclude Irene from obtaining an Ohio 



divorce decree.      The superior court's reasoning was sound; declining jurisdiction and 



dismissing the divorce action was not an abuse of discretion. 



V.	     CONCLUSION 



                The superior court's decision is AFFIRMED. 



        17	     (...continued)
 



                reservation shows good cause and the court finds that the
 

                interests    of   a  party    opposing     the  motion     will   not   be
 

                jeopardized by the delay or reservation.
 



        18      Irene asserts that under Alaska law property classification relates to the time 



of   separation,   which   has   already   occurred.    Because   Ohio   has   jurisdiction   over   the 

parties' property division, Ohio law likely controls - we note that Ohio law defines 

marital property as property acquired "during the marriage."                OHIO REV . CODE ANN .  

3105.171(A)(3)(a) (West 2010).   "During the marriage" continues "through the date of 

the final hearing in an action for divorce," unless the court determines that end date 

would be inequitable, in which case the court has discretion to determine an equitable 

date. OHIO REV . CODE ANN .  3105.171(A)(2)(a)-(b) (West 2010). But the fundamental 

problem is not one of classification or its timing - the fundamental problem is the 

potential time gap between Alaska's divorce decree and Ohio's order dividing marital 

assets, particularly retirement plans. 



                                                   -9-	                                               6656 

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