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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Berry v. Berry (6/1/2012) sp-6678

Berry v. Berry (6/1/2012) sp-6678

        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 



MICHAEL S. BERRY,                               ) 

                                                )       Supreme Court No. S-14008 

                        Appellant,              ) 

                                                )       Superior Court No. 4FA-09-01965 CI 

        v.                                      ) 

                                                )       O P I N I O N 

APRIL L. BERRY,                                 ) 

                                                )      No. 6678 - June 1, 2012 

                        Appellee.               ) 

                                                ) 



                Appeal   from     the  Superior    Court   of   the  State  of   Alaska, 

                Fourth Judicial District, Fairbanks, Michael A. MacDonald, 

                Judge. 



                Appearances:       Michael     S.   Berry,   pro    se,  North    Pole, 

                Appellant.    April L. Berry, pro se, Fairbanks, Appellee. 



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

                Stowers, Justices. [Christen, Justice, not participating.] 



                CARPENETI, Chief Justice. 



I.      INTRODUCTION 



                A father appeals various procedural actions taken by the superior court in 



his divorce and custody proceeding. Appearing pro se, the father alleges that the court's 



expedited procedures violated his due process rights and reflected judicial bias.  The 



father also argues that the court abused its discretion in its award of attorney's fees. 



Because the court's procedures did not violate the father's due process rights and the 



father has not shown that the court was biased against him, we affirm the procedural 


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

decisions   of   the   superior   court. But   because   the   superior   court   did   not   follow   the 



established process for the award of attorney's fees, we reverse the superior court's 



attorney's fees order and remand for further proceedings. 



II.     FACTS AND PROCEEDINGS 



                Michael and April Berry were married on November 20, 2004.  They have 



two children, born in 2006 and 2008.          The couple separated in June 2009. 



                On June 16, 2009, April filed a complaint for divorce.            The first hearing 



took place on August 28, 2009.   At that hearing, the superior court set September 25 as 



the date for a "scheduling conference and appearance with counsel."                  Throughout the 



proceedings   before   the   superior   court,   April   was   represented   by   an   attorney,   while 



Michael represented himself. 



                In the four weeks between the first hearing, on August 28, and the next one, 



on September 25,       the parties filed numerous motions.         At the September hearing, the 



court reviewed the status of the parties' motions and noted that because another case had 



settled, the court would be able to hold a hearing to resolve all outstanding motions on 



the following Tuesday, September 29.  The court made a number of factual findings and 



rulings at that hearing. 



                The trial itself began on June 28, 2010.        It was originally intended to last 



two days, but extended over five. 



                Michael,   pro    se,   appeals  the  court's  procedural   decisions     on  various 



grounds, as well as the court's award of attorney's fees. 



III.    STANDARD OF REVIEW 



                Michael's "constitutional arguments present questions of law, which we 



                                                  -2-                                           6678
 


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review   de   novo;   we   will   adopt   the   rule   of   law   that   is   most   persuasive   in   light   of 

precedent, reason, and policy."1 



                "We     review    procedural     decisions    of  the  superior   court   for  abuse    of 

discretion."2   Under this standard, "[w]e will reverse a ruling for abuse of discretion only 



when left with a definite and firm conviction, after reviewing the whole record, that the 

trial court erred in its ruling."3 



                "The award of attorney's fees in a divorce action . . . rests within the broad 



discretion of the trial court and will not be disturbed on appeal unless it is 'arbitrary, 

capricious, or manifestly unreasonable.' "4 



IV.     DISCUSSION 



                Michael raises ten issues on appeal.           Several of Michael's claims allege 



violations     of  due   process.     His   brief  invokes    due   process    under   the   Fourteenth 



Amendment   of   the   U.S.   Constitution   and   under   article   I,   section   7    of   the   Alaska 



Constitution.  We have stated in general that "[t]he crux of due process is opportunity to 

be heard and the right to adequately represent one's interests."5           "Due process is satisfied 



        1        VinZant v. Elam, 977 P.2d 84, 86 (Alaska 1999) (citing Keane v. Local 



Boundary Comm'n , 893 P.2d 1239, 1241 (Alaska 1995)). 



        2       Prentzel v. State, Dep't of Pub. Safety , 169 P.3d 573, 592 (Alaska 2007) 



(citing Balough v. Fairbanks N. Star Borough , 995 P.2d 245, 254 (Alaska 2000)). 



        3       Id. (quoting Ruckle v. Anchorage Sch. Dist. , 85 P.3d 1030, 1034 (Alaska 



2004)) (internal quotation marks omitted). 



        4       Ferguson v. Ferguson , 195 P.3d 127, 130 (Alaska 2008) (quoting Hopper 



v. Hopper , 171 P.3d 124, 129 (Alaska 2007)). 



        5       Matanuska Maid, Inc. v. State , 620 P.2d 182, 192-93 (Alaska 1980) (citing 



Hansberry v. Lee , 311 U.S. 32, 42 (1940)). 



                                                   -3-                                             6678
 


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if the statutory procedures provide an opportunity to be heard in court at a meaningful 

time and in a meaningful manner."6 



                Several of Michael's claims also allege judicial bias.   "In order to prove a 



claim of judicial bias," a party must show that the judge "formed an opinion of him from 

extrajudicial sources."7      Because Michael has provided no evidence that the superior 



court relied on extrajudicial sources in forming any of its opinions, and because nothing 



in the record suggests that the superior court did so, we conclude that all of Michael's 



allegations of judicial bias are without merit. 



                Michael argues that the only way to remedy the violation of his due process 



rights   and the superior court's judicial bias "is for the Supreme Court to reverse all 



findings,   vacate   all   orders   issued   by   the   Superior   Court   and  remand     the   case   for 



reassignment and retrial."        In the sections that follow, we   review each of Michael's 



arguments.     For the reasons stated in each section, we instead affirm the superior court 



in all respects except its attorney's fees award. 



        A.      Michael Did Not Preserve The "Accelerated Motion Practice" Issue. 



                Michael argues that the superior court violated Rule 77 of the Alaska Rules 



of   Civil   Procedure     by  ordering    an  accelerated     briefing   schedule    at  a  hearing   on 



September 25, 2009, and in doing so violated his due process rights. 



                The September 25 hearing was scheduled on August 28 as a "scheduling 



conference   and   appearance   with   counsel,"   in   order   to   "pick     a   time   to   resolve   the 



        6       Keyes v. Humana Hosp. Alaska, Inc. , 750 P.2d 343, 353 (Alaska 1988) 



(citing Mathews v. Eldridge , 424 U.S. 319, 333 (1976)). 



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



Grinnell   Corp.,   384   U.S.   563,   583   (1966)   ("The   alleged   bias   and   prejudice   to   be 

disqualifying must stem from an extrajudicial source and result in an opinion on the 

merits on some basis other than what the judge learned from his participation in the 

case.")). 



                                                   -4-                                             6678
 


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differences if they're not resolved." In the period between August 28 and September 25, 



both parties filed numerous motions and supporting documents. 



                At the September 25 hearing, the superior court reviewed the state of the 



parties' briefing and   asked   whether any of the motions were not ready for decision 



because oppositions or replies had not yet been filed.  After April's attorney noted a few 



oppositions and replies that she still intended to file, the superior court stated that "a case 



has folded," so that the court would be able to hold a hearing to address all the motions 



early the next week. The court proposed holding a hearing on Tuesday morning at which 



"we'll close out all the motions.   Anybody [who] has any pleadings to file in that regard, 



they should file them and serve them on the other party with a chambers copy by the end 



of the business day on Monday." 



                Shortly thereafter, April's attorney stated:  "The idea is just make them all 



ripe on Monday afternoon."         The court replied: 



                Yeah, well, ripe or not they're going.   I think . . . everybody's 

                opposing positions are clear, so we don't have to exhaust the 

                civil procedural rules.  Everybody is pretty well doing a good 

                job of making it clear what their position is on the different 

                subjects, and so I'll take what everybody has up to the time 

                of the hearing, and then you can supplement whatever you 

                have at the hearing and we'll do the best we can Tuesday 

                morning at 10 o'clock.  Okay?  Anything else Mr. Berry until 

                then? 



                In the audio recording of the September 25 hearing Michael's reply is not 



clearly   audible,   but   it   appears   from   the   superior   court's   response   that   he   raised   no 



objection.    Nor does Michael's brief identify any subsequent objection by him to the 



superior court's accelerated briefing schedule. 



                Michael argues on appeal that the court's accelerated briefing schedule 



"grossly deviated" from Alaska Civil Rule 77 and in doing so violated his due process 



                                                  -5-                                             6678
 


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

rights.   Michael argues that the motion schedule announced by the superior court on 



September   25   was   a   violation   of   Civil   Rule   77(d),   which   states   that   "[r]eply   and 



supplemental materials and memoranda, if any, may be served and filed by the moving 



party within five days of the date of the service of the opposition to the motion."  We 



interpret   Michael's   argument   to   be   that   the   superior   court   abused   its   discretion   and 



violated his due process rights by not allowing him a full five days to reply to two of 



                                                                     8 

April's oppositions which were filed on September 28,  giving Michael less than five 

days to file a reply prior to the September 29 hearing.9 



                 We decline to rule on the merits of this claim because Michael failed to 



preserve it for appeal. Michael was given an opportunity to object to the superior court's 



proposed briefing schedule when the court asked him:                  "Anything else Mr. Berry until 



then?"  Michael made no objection.  We have held in other contexts that "failure to make 



the   appropriate   objection   during   the   hearing   waives   the   right   to   appeal   procedural 

errors."10   Michael's failure to object waives this issue on appeal.11 



        8        On September 28, April filed her Opposition to Motion To Establish Bank 



Account To Protect Minor Children's Permanent Fund Dividend, and her Opposition to 

Motion for Plaintiff To Only Have Supervised Visitation.  Michael also suggests in his 

reply brief that he did not receive April's reply to his opposition to her motion for a 

restraining order until September 29, the day of the hearing, which "limited [his] ability 

to adequately prepare to address this motion."   But April's reply was filed on September 

25.  Michael's reply brief identifies no requirement in the Civil Rules that replies must 

be filed more than four days before a hearing at which they will be considered. 



        9        Michael actually succeeded in filing replies to these two oppositions on 



September 28, but we do not accord great weight to this fact.  A litigant who filed an ill- 

considered reply under an improper deadline could be prejudiced no less than a litigant 

who filed no reply at all. 



        10       Williams v. Abood, 53 P.3d 134, 148 & n.66 (Alaska 2002) (citing among 



others Far N. Sanitation, Inc. v. Alaska Pub. Utils. Comm'n , 825 P.2d 867, 873 n.8 

                                                                                           (continued...) 



                                                    -6-                                              6678
 


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

        B.	      The Superior Court Cured Any Error That Resulted From Signing 

                 Temporary Orders Before Considering Michael's Arguments. 



                 Michael next argues that the superior court violated Alaska Civil Rule 77 



by   signing   temporary   orders   and   a   child   support   order   drafted   by   April's   attorney 



without   first   considering   Michael's   timely   filed   response,   and   in   doing   so   violated 



Michael's due process rights. 



                 At the conclusion of the September 29 hearing, the court made various 



factual findings and rulings.       After discussing what evidence was available concerning 



the parties' incomes, the superior court stated:              "I'll instruct that within days [April] 



submit a child support calculation and proposed order.  Mr. Berry, you have ten days to 



object to the calculation and the proposed order." The court later invited April's attorney 



to "prepare the temporary orders as just described by the court." 



                 On October 1, April's attorney filed proposed orders based on the court's 



oral orders at the September 29 hearing.  On October 13, Michael filed a brief two-page 



opposition to the proposed orders.            Also on October 13, the superior court signed the 



proposed   orders.      At   a   later   hearing,   the   court   conceded   that   it   had   not   considered 



Michael's opposition before signing the orders. 



                 If we assume out of deference to Michael's pro se status that the court's 



orally   announced   ten-day   deadline   applied   to   Michael's   responses   to   April's   draft 



temporary orders, and not only to her child support calculations and draft interim child 



        10       (...continued) 



(Alaska 1992) (concluding that "Far North's failure to object or raise the point before the 

Alaska Public Utilities Commission constitutes waiver, because any other result would 

inevitably create an incentive for dilatory failure to assert error")). 



        11       Although we uphold the superior court's action in accelerating the briefing 



schedule, we note that it would have been preferable for the court to explain in greater 

detail to this pro se litigant the consequences of accelerating the schedule. 



                                                    -7-	                                             6678
 


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

support order,12     Michael's responses to the proposed orders would by default have been 



due on October 12.13       But April's attorney served Michael the proposed orders by mail. 



Under Alaska Civil Rule 6(c), "[w]henever a party has the right or is required to act 



within a prescribed period after the service or distribution of a document, . . . and the 



document is served or distributed by mail, three calendar days shall be added to the 



prescribed   period."      Thus,   Michael   would   have   had   until   October   14   to   respond   to 



April's proposed orders. 



                 But   even   if   we   assume   the   applicable   deadline   to   be   October   14,   the 



superior court cured any error by subsequently reconsidering its October 13 orders in 



light of Michael's arguments.           Our cases have established that when a court overlooks 



        12       Otherwise,   the   deadline   for   Michael's   response   to   the   draft   temporary 



orders would have been governed by Alaska Civil Rule 78(b), which states that a party 

may file objections to another party's proposed orders within five days after service of 

the proposed orders. 



        13       Alaska Civil Rule 6(a) states: 



                 In computing any period of time prescribed or allowed by . . . 

                 order of court, . . . the day of the act . . . from which the 

                 designated period of time begins to run is not to be included. 

                 The   last day   of the period   is to   be included, unless it is   a 

                 Saturday, a Sunday, or a legal holiday, in which event the 

                 period   runs   until   the   end   of   the   next   day   which   is   not   a 

                 Saturday, Sunday, or legal holiday. 



Day   ten   for   Michael's   objections   would   thus   have   arrived   on   Sunday,   October   11. 

October 12, 2009, was Columbus Day, but this is not a legal holiday in Alaska.                          See 

AS 44.12.010 (legal holidays). (It is true that AS 44.12.010(a)(13) states that "every day 

designated by public proclamation by the President of the United States . . . as a legal 

holiday" constitutes a legal holiday in Alaska, and that President Obama designated 

October 12, 2009, by public proclamation as Columbus Day.  Proclamation No. 8437, 

74 Fed. Reg. 53,147 (Oct. 9, 2009).  But the President's proclamation did not define 

Columbus   Day   as   a   "legal   holiday,"   or   indeed   a   holiday   of   any   kind.    Id.   Thus, 

October 12, 2009, was not a legal holiday under AS 44.12.010(a)(13).) 



                                                    -8-                                               6678
 


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a   party's   timely   filings   and   issues   a   premature   order,   the   resulting   prejudice   may 



generally be cured by the court subsequently reconsidering its decision in light of the 

party's arguments.14      The superior court did this in the present case.         After the superior 



court conceded at the November 13, 2009 hearing that it had signed April's proposed 



orders without first considering the opposition Michael had filed on October 13, Michael 



filed a motion to vacate the orders.  In a handwritten note on the February 5, 2010 order 



denying Michael's motion to vacate, the court expressly noted that it had considered 



Michael's supplemental child support and income-related information yet still reaffirmed 

its prior child support order.15      Though the superior court does not expressly state that 



it considered Michael's one-paragraph argument against the proposed temporary orders 



as well, such an express statement is not necessary for us to infer that the superior court 



read and considered Michael's two-page opposition in full. 



        14      See Mullins v. Local Boundary Comm'n, 226 P.3d 1012, 1016 (Alaska 



2010) (citing Johnson v. Johnson , 544 P.2d 65, 71 (Alaska 1975) (holding that no due 

process violation occurs where party who was denied opportunity to be heard on issue 

is   later   afforded    opportunity      to  brief   and    argue    merits   through     motion     for 

reconsideration)); Gallant v. Gallant, 945 P.2d 795, 799-800 (Alaska 1997) ("[W]hile 

the superior court erred by ruling on [one party's] motion prematurely, that error was 

harmless," because the party's subsequent "motion for reconsideration apprised the court 

of the additional information and arguments he would have presented in his reply."). 



        15      In addition, at the July 23, 2010 hearing, the court explained to Michael at 



length that it did not reject or fail to consider his opposition to April's proposed child 

support calculations, even though the original calculations were signed before the court 

received Michael's response. 



                                                  -9-                                             6678
 


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

                Thus,    Michael     received    an  adequate    opportunity     to  be  heard   and   to 



represent his interests regarding the orders signed on October 13.                   His right   to   due 

process was not violated.16 



        C.	     The Superior Court Did Not Violate Michael's Due Process Rights In 

                Orally Issuing Temporary Child Custody Orders During A Scheduling 

                Conference. 



                Michael argues that the superior court violated his due process rights by 



orally issuing temporary child custody orders at the August 28 scheduling conference. 

At the outset, we note that the oral delivery of orders is wholly ordinary and proper.17 



                The superior court stated at the conclusion of the August 28 hearing that 



Michael      would    have   visitation   with   the  children    over   weekends,     as  well   as  on 



Wednesday        evenings,   and   could   visit   the   children   at   daycare. This   order   largely 



continued the status quo.  In addition, the order remained in effect only from August 28 



to September 29, when the court orally delivered more comprehensive rulings regarding 



custody and other matters. 



                Michael accurately notes that he did not receive notice that the court  might 



issue a temporary child custody order at the August 28 hearing.                 But Michael fails to 



identify any legal support for the claim that a superior court may not issue oral orders 



        16      For the same reasons, we reject Michael's argument that the superior court 



violated his due process rights by not granting his motion to vacate the orders signed 

October 13.      We are also not persuaded by Michael's suggestion that there is evidence 

that the superior court did not, in fact, consider the opposition he filed on October 13. 

Nor is Michael correct in his argument that the superior court erred under Alaska Civil 

Rule 77(d) in inviting April to file a late reply to Michael's October 13 opposition.  Rule 

77(d) does not prohibit a judge from allowing additional filing time. 



        17      See, e.g., First Nat'l Bank of Anchorage v. State, Office of Pub. Advocacy , 



902 P.2d 330, 335 (Alaska 1995) (rejecting claim that "superior court erred in denying 

.   .   .   Rule   60(b)   motion   because   the   court   failed   to   provide   any   written   statement 

explaining its decision"). 



                                                  -10-	                                           6678
 


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

governing temporary custody at a pre-trial hearing in an action concerning divorce and 



child custody.    Nor does he identify any evidence that April's temporary custody over 



the children gave her an advantage in arguing for permanent custody.  In fact, April did 



not even receive the custody ordered by the court, because Michael violated the order. 



                Alaska Statute 25.24.150(a) states:   "In an action for divorce . . . , the court 



may, . . . during the pendency of the action, . . . make, modify, or vacate an order for the 



custody of or visitation with the minor child that may seem necessary or proper . . . ." 



The statute includes no hearing requirement.   We have held in the past that due process 

requires   an   evidentiary   hearing   before   custody   modification,18    even   though   Alaska 



statutes do not.    But procedural due process analysis involves a balancing in which the 

importance of a party's interest plays a significant role.19      Because our precedents do not 



imply   that   a   one-month   temporary   custody   order   largely   extending   the   status   quo 



requires notice and a hearing under principles of due process, we hold that the order did 



not violate Michael's right to due process. 



        D.	     Michael's   Arguments   Concerning   The   Domestic   Violence   Finding, 

                Reliance On The Custody Investigator's Testimony, And The Failure 

                To Make Additional Findings Are All Without Merit. 



                1.	     The domestic violence finding 



                Michael     argues   that  the  superior   court   erred   in  finding,  during    the 



September 29, 2009 pre-trial hearing, that Michael committed domestic violence against 



        18	     We have reiterated this conclusion in numerous cases. See, e.g.,Lashbrook 



v. Lashbrook , 957 P.2d 326, 328 (Alaska 1998).   It can ultimately be traced back to the 

due process analysis in Cushing v. Painter, 666 P.2d 1044, 1046 (Alaska 1983). 



        19      See Smith v. Groleske, 196 P.3d 1102, 1106 (Alaska 2008) (quoting Alyssa 



B. v. State, Dep't of Health & Soc. Servs., 123 P.3d 646, 649 (Alaska 2005)) (setting out 

three-part balancing test between private interest, government interest, and value of 

additional process in reducing error). 



                                                -11-	                                          6678
 


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

April    and   in  issuing    a  domestic    violence    protective     order   against   him.    Michael 



misunderstands the order issued by the superior court.                It was not a domestic violence 



protective   order   issued   under   AS   18.66.100;   it   was   a   protective   order   issued   under 



AS 25.24.140(b)(1) and (4). Those statutory sections provide that the court may, during 



the pendency of a divorce, issue orders "providing for the freedom of each spouse from 



the control of the other spouse" and "restraining a spouse from communicating directly 



or indirectly with the other spouse."  The order issued by the superior court was limited 



to these areas.     And, while AS 25.24.140(b)(1) and (4) do not require a hearing before 



an   order   is   issued,   Michael   was   afforded   notice   of   April's   reasons   for   seeking   the 



protective order and a full opportunity to question April about the basis for the sought- 



after order. 



                 2.      Reliance on the custody investigator's testimony 



                 Michael   attacks   the   superior   court's   award   of   sole   legal   and   primary 



physical custody to April on various grounds, including the due process and judicial bias 



claims that have already been discussed above.               But Michael dedicates the majority of 



his argument to the claim that the superior court relied improperly on the testimony of 



the custody investigator in this case. 



                 As part of its written findings of fact at the conclusion of the case, the 



superior court found that "the custody investigator's testimony with regard to the father 



and the effect the father's conduct is having on the children to be credible and reliable." 



The court also noted that it "shares the custody investigator's concerns that the children's 



environment is not stable or satisfactory."   Finally, the court disagreed with the custody 



investigator's recommendation that Michael's visitations should be supervised, while at 



the   same   time   recognizing   that   the   investigator   "is   right   to   express   concerns   in   this 



regard" and was justified in making the recommendation. 



                                                    -12-                                              6678
 


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

                Trial courts may choose to rely on the testimony of court-appointed custody 

investigators   in making custody determinations.20            Michael's brief on appeal simply 



reiterates the unsuccessful efforts he made to impeach the credibility of the custody 



investigator before the superior court.   But this is not enough, for "[w]e give 'particular 



deference' to the trial court's factual findings when they are based primarily on oral 



testimony, because the trial court, not this court, performs the function of judging the 

credibility of witnesses and weighing conflicting evidence."21              We find no error in the 



superior court's reliance on the custody investigator's testimony and recommendation. 



                3.      Failure to make additional factual findings 



                Michael argues that the superior court erred when it "failed to make any 



findings   of   fact   beyond   those   that   specifically   supported   [its]   custody   and   property 



decisions."    For example, Michael criticizes the superior court for not making findings 



regarding his allegation that "this case was a pre-meditated act on the part of Mrs. Berry 



and that she acted in contempt of [court] and committed perjury . . . throughout the entire 



proceedings." 



                These arguments are meritless. A trial court is under no obligation to make 



findings on every factual assertion raised by the parties, provided that the court has 



        20      See, e.g., Cusack v. Cusack, 202 P.3d 1156, 1160 (Alaska 2009) (affirming 



trial court's heavy reliance on findings of custody investigator). 



        21      Ebertz v. Ebertz , 113 P.3d 643, 646 (Alaska 2005) (quoting In re Adoption 



of A.F.M., 15 P.3d 258, 262 (Alaska 2001)). 



                                                  -13-                                              6678 


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

"resolved each critical factual dispute."22     Here, the court's findings are sufficient for our 



review under Alaska Civil Rule 52.23 



        E.       It Was Error To Award Attorney's Fees. 



                Michael argues that the superior court should not have awarded attorney's 



fees to either party. 



                In its findings of fact and conclusions of law, the superior court noted that 



the parties' 



                estate has a value of approximately  -$54,012.           The parties 

                have made things worse by conducting their affair such that 

                $32,747 in attorney's fees has been added to their financial 

                problems. Although the husband was recalcitrant throughout 

                the   divorce,   the   wife   behaved  irresponsibly   by   taking   on 

                $32,747 in attorney[']s fees . . . . 



                The court ordered Michael to bear 71.5% of the marital debt and to pay 



April $6,000 in attorney's fees: 



                With this payment the parties will bear the current negative 

                value    of  the  estate  plus  attorney's     fees  in  approximate 

                proportion to their income and the husband will bear all post 

                separation     debt    payments.      This     award    is   made    in 

                consideration of the husband's recalcitrant behavior and the 

                wife's    financial   irresponsibility   in  taking   on   such   large 

                attorney's fees debt. 



        22      See Urban Dev. Co. v. Dekreon, 526 P.2d 325, 328 (Alaska 1974) (holding 



that rule does not require findings to be made on all questions so long as trial court 

"resolved each critical factual dispute"). 



        23      Rule 52(a) provides, in relevant part:        "In all actions tried upon the facts 



without a jury or with an advisory jury, the court shall find the facts specially and state 

separately its conclusions of law thereon . . . ." 



                                                 -14-                                           6678
 


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

                 We have held that "[t]he award of attorney's fees in a divorce action . . . 



rests within the broad discretion of the trial court and will not be disturbed on appeal 

unless    it  is  'arbitrary,   capricious,    or  manifestly     unreasonable.'      "24   We     recently 



summarized the law governing attorney's fees in divorce cases as follows: 



                         A prevailing party in a civil case is normally entitled 

                 to an award of attorney's fees, per Rule 82. Divorce cases are 

                 usually    excepted     from    this  general    rule;  fees   awards    in 

                 divorce   cases   are   typically   based   on   the   parties'   relative 

                 economic       situations     and   earning     powers,      rather   than 

                 prevailing party status.  This "divorce exception" to Rule 82 

                 is based on a broad reading of AS 25.24.140(a)(1), and on the 

                 reality that there is usually no prevailing party in a divorce 

                       [25] 

                 case. 



                 We   have   also   noted   that   "[t]he   purpose   of   awarding   attorney's   fees   in 



divorce proceedings is to level the playing field, which means taking into account not 



only earning capacities and separate resources, but also the distribution of marital assets 

itself."26  "[W]hen the parties' economic status is generally equal, it is ordinarily error 



to make any award of costs or fees."27           As we explained in Edelman v. Edelman: 



                         The     trial  court    may    also   increase    an   award     of 

                 attorney's     fees  where     a  party   has  acted    in  bad   faith  or 

                 vexatiously.     The court must follow a two-step   process to 



        24       Ferguson v. Ferguson , 195 P.3d 127, 130 (Alaska 2008) (quoting Hopper 



v. Hopper , 171 P.3d 124, 129 (Alaska 2007)). 



        25       Johnson v. Johnson , 239 P.3d 393, 399 (Alaska 2010) (footnotes omitted). 



        26       Dragseth v. Dragseth , 210 P.3d 1206, 1212 (Alaska 2009) (citing 



Tybus v. Holland, 989 P.2d 1281, 1289 (Alaska 1999); Money v. Money , 852 P.2d 

1158, 1165 (Alaska 1993); Siggelkow v. Siggelkow, 643 P.2d 985, 989 (Alaska 

1982)). 



        27       Edelman v. Edelman , 61 P.3d 1, 5 (Alaska 2002) (quoting L.L.M. v. P.M. , 



754 P.2d 262, 264 (Alaska 1988)). 



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                make   an   award   of   enhanced   fees:   It   must   determine   the 

                appropriate fee award under the general rule and then it may 

                increase   that   award   to   account   for   a   party's   misconduct. 

                "Failure    to  follow   this  two-step    process    is  an  abuse   of 

                discretion."    Additionally,   the   court   "must   make   explicit 

                findings of bad faith or vexatious conduct and clearly explain 

                its reasons for deviating from the general rule."         "When the 

                court finds that one spouse's misconduct has unnecessarily 

                increased the other spouse's costs, the court must identify the 

                nature and amount of these increased costs."[28] 



                In this case only April hired an attorney; by the end of the proceedings she 



had incurred $32,747 in legal fees.        The superior court ordered Michael to pay $6,000 



to April for her attorney's fees "in consideration of" both parties' misconduct. 



                In making this decision, the superior court did not follow the two-step 



procedure we have established.         First, it should have determined how much of April's 



$32,747 in attorney's fees would have been allocated to each party under "the general 

rule,"29 without considering misconduct - that is, how much of the fees each party 



would have had to bear in order "to level the playing field."30          Next, it should have made 



explicit findings of bad faith or vexatious conduct by either party.31 



        28      Id. at 5-6 (footnotes omitted). 



        29      Id. at 6. 



        30      Dragseth , 210 P.3d at 1212. 



        31      See Kowalski v. Kowalski, 806 P.2d 1368, 1373 (Alaska 1991).  Indeed, as 



to the court's suggestion that Michael should have to bear some of April's fees due to his 

recalcitrance, we stated in Kowalski that "mere . . . contentiousness over difficult issues" 

does not, in itself, "constitute bad faith or vexatious conduct."  Id. at 1373.  Nor should 

April's decision to hire legal counsel be held against her or factored into the award of 

fees. 



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

                We held in Kowalski that failure to follow the two-step process of reasoning 

is an abuse of discretion.32     We thus reverse and remand the superior court's attorney's 



fees award.  Ordinarily, an error by the trial court in the award of attorney's fees would 



not require reexamination of the property division. But because the superior court's 



division of the marital assets and debts in this case was based in part upon its attorney's 

fees award,33 we remand the division of marital property as well in order to allow the 



superior   court   to   adjust   the   property   division   if   necessary   following   its   decision   on 



attorney's fees. 



V.      CONCLUSION 



                We AFFIRM the superior court in all respects but one. We REVERSE the 



superior court's attorney's fees order and REMAND for further proceedings consistent 



with this opinion. 



        32      Id. 



        33      In response to Michael's concern that the superior court treated April's 



attorney's fees as part of "the marital debt," we also take this opportunity to clarify that 

attorney's fees incurred in a divorce proceeding do not constitute part of the marital 

estate in Alaska.     AS 25.24.160(a)(4), which governs the division of marital property, 

limits the division to property "acquired only during marriage" unless "the balancing of 

the equities" requires invasion of separate property. See McDougall v. Lumpkin, 11 P.3d 

990, 993 (Alaska 2000); see also Sampson v. Sampson , 14 P.3d 272, 276 (Alaska 2002). 

In   general,   we   have   stated   that   "the   date   for   segregating   marital   from   post-marital 

property is ordinarily the date of the functional termination of the marriage." Hanlon v. 

Hanlon , 871 P.2d 229, 231 (Alaska 1994) (citing Schanck v. Schanck, 717 P.2d 1, 3 & 

n.7 (Alaska 1986)).  Thus attorney's fees such as April's, which were incurred after the 

couple's effective separation, do not form part of the marital estate. 



                                                  -17-                                               6678 

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