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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
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.
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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).
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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).
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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
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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)).
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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...)
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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...)
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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...)
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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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