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. Ronny M. v. Nanette H. (5/31/2013) sp-6783

Ronny M. v. Nanette H. (5/31/2013) sp-6783

        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  


RONNY M.,                                      ) 

                                               )       Supreme Court No. S-14558 

                Appellant,                     ) 

                                               )       Superior Court No. 3AN-10-11884 CI 

        v.                                     ) 

                                               )       O P I N I O N 

NANETTE H.,                                    ) 

                                               )       No. 6783 - May 31, 2013 

                Appellee.                      ) 


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

                Judicial District, Anchorage, Eric A. Aarseth, Judge. 

                Appearances:       Ronny     M.,   pro  se,  Lake   Placid,   Florida, 

                Appellant.    Nanette H., pro se, Palmer, Appellee. 

                Before:   Fabe, Chief Justice, Stowers and Maassen, Justices. 

                [Carpeneti and Winfree, Justices, not participating.] 

                STOWERS, Justice. 


                This appeal concerns the custody and child support arrangement between 

Ronny M. and Nanette H.1 with respect to their two minor children, Ronny Jr. and Lavar, 

both of whom were born in Florida.   Ronny and Nanette dated for several years after the 

births of their children but broke up in 2002 following a significant history of domestic 

        1       To protect the family's privacy, we use initials instead of full last names. 

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

violence     by   Ronny    against    Nanette,    including    at  least  three  domestic     violence 

convictions.  In 2002 the Florida Department of Children and Families became involved 

in the matter and set up a case plan that significantly limited Ronny's visitation rights. 

Ronny complied with the case plan and eventually worked his way up to unsupervised 

visitation with the children, but in 2007 he stopped seeing or contacting them altogether. 

In   2009   Nanette   married   and   moved   to   Alaska   with   the   children   without   informing 


                In   2010   Nanette   filed   a   complaint   in   which   she   sought   sole   legal   and 

primary physical custody of the children. Nanette also requested child support.  Ronny 

opposed, requesting that the parties share joint legal custody and that he be awarded 

primary physical custody. The superior court held an evidentiary hearing over the course 

of two days in May and August 2011. At the conclusion of the hearing the superior court 

awarded primary physical custody to Nanette and a modified form of joint legal custody 

to Nanette and Ronny, with Nanette having final decision-making authority should the 

parties fail to agree on major decisions affecting the children's welfare.              The superior 

court also granted Ronny summer visitation rights, provided that he pay for the travel 

expenses, and ordered Ronny to pay child support.             Ronny appeals. 

                For   the   reasons   explained   below,   we   affirm   the   superior   court's   child 

custody award. We affirm the child support award but reverse and remand regarding the 

allocation of visitation expenses.       We affirm the superior court in all other respects. 


        A.      Facts 

                Ronny M. and Nanette H. began dating in Florida in 1998 when they were 

both 16.  They are the parents of two minor children: Ronny Deion Jr., born in October 

1999 in Lake Placid, Florida, and Lavar Eugene, born in November 2000, also in Lake 

Placid.   Ronny and Nanette dated intermittently for five years; they never married. 

                                                  -2-                                            6783

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

              Nanette    testified  that  Ronny  was  abusive  toward   her  throughout   the 

duration of their relationship.2 In June 2002 Ronny was arrested for assaulting Nanette. 

That   same   month   Nanette   obtained  a  temporary   injunction  for  protection  against 

domestic violence that prohibited Nanette and Ronny from contacting one another and 

that granted Nanette temporary custody of the children. Nanette subsequently reconciled 

with Ronny and sought to have the injunction dismissed, but it appears her efforts were 

unsuccessful. Later that year Ronny was twice arrested for committing two separate acts 

of domestic violence against Nanette.    Ronny was convicted in all three instances. 

              The Florida Department of Children and Families (Department) intervened 

following Ronny's third arrest in September 2002 and petitioned a Florida court for an 

emergency shelter hearing.  The court allowed Nanette to retain custody of the children, 

provided that she did not contact Ronny or allow him to see the children.      Nanette and 

the boys moved into a shelter per court order and remained there for a few months. 

              The Department set up a case plan with which both Ronny and Nanette 

substantially complied. Ronny completed a batterer's intervention program, a parenting 

program, and a psychological evaluation as required by the case plan.       In 2003 Ronny 

was awarded supervised visitation with the children, and he soon worked his way up to 

unsupervised visitation every other weekend. 

              Ronny remained involved in the boys' lives until April 2007, at which point 

he stopped seeing them altogether.  Nanette obtained her nursing degree in 2008, and in 

2009   she   married her husband, Robert H.     Nanette, Robert, and the boys moved to 

       2      Nanette testified that Ronny was first arrested for assaulting her when she 

was pregnant with Lavar and spent ten months incarcerated for the incident, but she was 

unable to obtain certified copies of the records because Ronny was a juvenile at the time 

of his arrest and incarceration. 

                                             -3-                                        6783 

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

Alaska later in 2009, and Robert and Nanette had their own child in Alaska in 2010.3 

Nanette did not inform Ronny of their move.            Ronny continues to live in Florida. 

        B.      Proceedings 

                In November 2010 Nanette filed a complaint with the superior court in 

Anchorage seeking primary physical and sole legal custody.                 She also requested child 

support.  Ronny filed an answer and asked that he be awarded primary physical custody 

and that the parties share joint legal custody. 

                In January 2011 Ronny moved for interim relief asking for "weekly or open 

phone communication" and shared physical custody.                 Ronny asserted that Nanette had 

made     it  impossible    for  him   to  communicate      with   his  children,   but  he  wanted     to 

reestablish involvement in their lives. Nanette opposed Ronny's motion and argued that 

the   children   should   stay   in   her   custody,   citing   Ronny's   multiple   domestic   violence 

convictions.  Nanette also expressed fear that if the boys were sent to Florida to visit 

Ronny, he might never send them back to Alaska.  In addition to the motion for interim 

custody, Ronny filed a motion to show cause   and a motion to transfer the case to Collier 

County, Florida; Nanette moved for appointment of a guardian ad litem. 

                In   April   2011   Superior   Court   Judge   Eric   A.   Aarseth   granted   Ronny's 

motion in part.   Noting the history of domestic violence and the geographic separation, 

the superior court awarded Nanette interim sole legal and primary physical custody.  The 

court awarded Ronny telephonic visitation with the boys two times per week between 

6:00 p.m. and 7:00 p.m.       The court denied the other three motions. 

                The superior court held a two-day evidentiary hearing in May and August 

2011 at which Nanette appeared with limited representation and Ronny appeared pro se. 

At the first hearing Nanette reiterated her request for sole legal and primary physical 

        3       Nanette also has a son from another relationship. 

                                                  -4-                                               6783 

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

custody, with either no visitation or supervised visitation for Ronny.               Nanette testified 

that it was in the boys' best interests to remain in her custody because they had been in 

her care for their entire lives and were very bonded with her.  Nanette also testified that 

it was in   the   children's best interests to   relocate   to   Alaska.      Nanette   stated   that   her 

husband, Robert, worked on the North Slope, and moving to Alaska enabled them to stop 

paying for plane tickets between Alaska and Florida.              Nanette also stated she was able 

to earn a higher wage as a nurse in Alaska, though in the past few years she had only 

been working six days a month in order to spend more time with her family.                      Nanette 

testified that both of the boys had been falling behind in school in Florida and had to be 

held back, but that their grades   had   significantly improved since moving to Alaska. 

Nanette stated that the boys were involved in Boy Scouts, basketball, track, and football, 

and were doing "wonderful." 

                Nanette   also   testified   that   Ronny   voluntarily   chose   not   to   exercise   his 

visitation   rights   during   the   last   two   years   she   and   the   boys   were   living   in   Florida. 

Nanette stated that Ronny initially complied with the visitation schedule set up by the 

Florida case plan, but after the case closed Ronny stopped picking up the boys at the 

specified times.     Nanette testified that she did not tell Ronny she and the children were 

leaving Florida or immediately inform him of their whereabouts because he had not 

exercised his visitation rights for the two previous years and because she was afraid of 


                At    the  conclusion     of  her   testimony    Nanette    reconsidered      her  initial 

statements regarding visitation.        Nanette stated that the reason she did not want Ronny 

to have regular visitation with the boys was because he had often disappointed them in 

the past and she was concerned they would be hurt again.  Nanette explained that when 

the interim visitation was first ordered the boys did not want to talk to their father, but 

they had recently become increasingly interested in reestablishing a bond   with him. 

                                                   -5-                                             6783

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

Nanette testified that if she and the boys were to travel to Florida to visit her family, she 

would agree to allow the boys to see their father. 

                Ronny testified telephonically from Florida.  He requested shared physical 

custody, with the children spending six months in Florida and six months in Alaska. 

When pressed as to what the children would do for school under his proposed custody 

schedule, Ronny requested that the boys spend every other year and alternate holidays 

with each parent. 

                Ronny testified that he was involved in his children's lives to the extent that 

Nanette and the court would allow him.  Ronny stated that he had tried to communicate 

with Nanette as soon as the no-contact order was lifted, but he did not know her contact 

information.      Ronny explained that Nanette's father informed him in August 2010 that 

Nanette and the boys had moved to Alaska, but her father would not give him their 

address.  Ronny testified that he had tried to file a custody action in Florida, but he had 

no address at which to serve Nanette.          Ronny asserted that he was doing everything he 

could to reach out to his boys and to be a part of their lives, but Nanette was making it 


                The parties also disputed the extent to which Ronny was exercising his 

interim    visitation   rights.  Nanette     submitted     her  phone    records   in  support   of  her 

testimony that Ronny often waited until the end of the designated hour to call or failed 

to call altogether.  Nanette acknowledged that she typically did not answer her phone if 

Ronny called outside of the designated times.            Ronny accused Nanette of violating the 

interim order and asserted that Nanette would often interrupt his phone calls with the 

boys by telling them to do things while he was on the phone.   Ronny also explained that 

he   did   not   call   right   at   the   time   specified   by   the   order   because   he   wanted   to   give 

Nanette's family a chance to eat dinner and because he sometimes had to get his other 

children to bed in Florida. 

                                                  -6-                                             6783

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

                The parties also discussed child support.   Nanette testified that Ronny only 

paid $274 per child in 2010, all of which came from his social security payments.  Ronny 

testified that he was completely unable to work because of renal failure and he relied 

entirely on social security and disability payments for his income. 

                Ronny also attempted to submit into evidence a tape of a December 1, 2010 

phone conversation he had with Nanette's father, Donald P., which was recorded without 

Donald's permission.   Ronny alleged that Donald stated on the recording that he would 

not give Nanette's address in Alaska to Ronny because Nanette did not want him to have 

it, and that Donald acknowledged on the recording that he did not condone Nanette's 

actions.  The superior court elected to call Donald to testify rather than to play the tape. 

                Donald testified that Nanette had a very good relationship with her sons, 

and he described her as a loving parent.         When asked if he thought the move to Alaska 

was in the children's best interests, Donald stated that he knew the boys were in a good 

environment       and   happy    there.   Donald      testified  that  he   thought,    given   the  job 

opportunities,   Nanette   made   the   right   choice   for   her   family   by   moving   to   Alaska. 

Donald asserted that Ronny was not providing for the boys and had not "stepped up to 

the plate" insofar as they were concerned. 

                Ronny's girlfriend, Nichole S., also testified telephonically from Florida. 

She stated that she and Ronny started dating in 2001 and had three children together. 

Nichole testified that Ronny Jr. and Lavar had very good relationships with their father, 

with their half-brothers, and with her. 

                Nichole     testified  that  Ronny     and   Nanette    initially  did  not  have    any 

problems sharing custody of the boys in Florida, with Ronny and Nichole taking the boys 

every other weekend, and that she would often communicate with Nanette since Ronny 

and Nanette were prohibited from contacting one another.                  But, Nichole testified, in 

April 2007 Nanette and Ronny had a miscommunication about picking the boys up from 

                                                  -7-                                             6783

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

school.  According to Nichole, Nanette got frustrated with the situation and sent Nichole 

a text message stating that Ronny would not see his boys again.                 Nichole asserted that 

she   and   Ronny   called,   texted,   and   left   messages   with   Nanette   to   see   if   they   could 

reestablish visitation, but their efforts proved unsuccessful. Nichole testified that Ronny 

had consulted various attorneys in order to try to reestablish contact with the boys, but 

they "never got anywhere." 

                At the conclusion of the May hearing Judge Aarseth stated he had more 

questions     for  Nanette    and   Ronny     and   scheduled     another    evidentiary    hearing    for 

August 4, 2011. 

                Two days before the continued evidentiary hearing was scheduled to take 

place, Ronny filed a motion to compel compliance with the visitation order in which he 

argued that Nanette "has unilaterally abrogated [his] parental rights without cause" by 

disconnecting her phone and blocking his Skype calls.  Ronny accused Nanette of "using 

the children as pawns for her own selfish interests"; he further alleged that Nanette had 

"set[] the stage for the onset of Parental Alienation Syndrome (PAS) to develop in the 

children's   minds."      Nanette   denied   Ronny's   allegations   and   countered   that   she   had 

allowed the boys to have unlimited contact with their father rather than follow the rigid 

court-ordered schedule.       Nanette explained: 

                I thought that allowing the boys to have as much contact with 

                their   dad   as   they   want   was   good   for   the   boys. But   when 

                Ronny uses it against me, and tries to make me look bad in 

                court when I am trying to do what's right and what is best for 

                my boys, then I have to reconsider what I am doing.                I am 

                willing to restrict the boys' contact with their dad to what the 

                court ordered, up to 1 hour, twice a week, during the week, 

                and one hour of Skype on the weekend. I am willing to stick 

                strictly and exactly to the court order. Whether that is best for 

                the boys, I don't know. 

                                                   -8-                                             6783

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

Nanette argued that Ronny's motion was made in bad faith and requested he pay her 

attorney's fees incurred in defending against his motion. 

                Nanette missed the August 4, 2011 evidentiary hearing, so the superior 

court rescheduled the hearing for later that month.               After hearing the parties' closing 

arguments,   the   superior   court   awarded   primary   physical   custody   of   the   children   to 

Nanette and "a form of joint legal custody" to Nanette and Ronny, under which the 

parties were ordered to communicate and attempt to agree on major decisions affecting 

the   children's   welfare,   but   Nanette   would   have   ultimate   decision-making   authority 

should   they   fail   to   agree. The   court   further   ordered   that:  (1)   Ronny   was   awarded 

telephonic or electronic visitation two days per week during the school week for one 

hour   each   day,   and   one   hour   on   weekends;   (2)   Ronny   could   see   the   children   when 

Nanette visited Florida later that year, should she choose to make them available for a 

visit; (3) Ronny could have the boys in Florida for two to three weeks during the summer 

in 2012 and up to six weeks in subsequent summers on the condition that he pay all of 

their airfare and travel expenses; (4) Ronnie was to file a DR-250 Financial Declaration 

so that his child support obligation could be determined; (5) Nanette was entitled to 

claim both boys as dependents on her tax return; (6) Nanette was authorized to use the 

boys' Alaska Permanent Fund Dividends (PFDs) at her discretion; and (7) Ronny was 

to be listed as a parent and an emergency contact on the boys' school and other activity 

contact cards. 

                 The superior court also addressed Ronny's motion to compel compliance 

with visitation.     It found that the motion was made without good faith and described it 

as   a   "blow[]   below   the   belt." The   court   also   noted   that,   but   for   Ronny's   financial 

situation   and   inability   to   work,   Ronny   would   have   been   ordered   to   pay   Nanette's 

attorney's fees for the time necessary to respond to his frivolous motion. 

                                                    -9-                                              6783

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

                On November 17, 2011, the superior court issued a child support order. 

Ronny appeals both the final custody order and the child support order.               Both parties 

proceed pro se. 


               Whether a superior court has jurisdiction is a question of law that we review 

de novo.4 

                "The trial court has broad discretion in child custody decisions."5        We will 

set aside a superior court's resolution of child custody issues "only if the entire record 

demonstrates that the controlling findings of fact are clearly erroneous or that the trial 

court abused its discretion."6      An abuse of discretion exists where the superior court 

"considered improper factors in making its custody determination, failed to consider 

statutorily mandated factors, or assigned disproportionate weight to particular factors 

while ignoring others."7      "A factual finding is clearly erroneous when a review of the 

record leaves the court with a definite and firm conviction that the superior court has 

made a mistake."8      "We give 'particular deference' to the trial court's factual findings 

when they are based primarily on oral testimony," because it is the function of the trial 

        4      Barlow v. Thompson , 221 P.3d 998, 1001 (Alaska 2009) (citing Atkins v. 

Vigil, 59 P.3d 255, 256 (Alaska 2002)). 

        5      Hamilton v. Hamilton , 42 P.3d 1107, 1111 (Alaska 2002). 

        6      Id. 

        7      Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998). 

        8      Fardig v. Fardig , 56 P.3d 9, 11 (Alaska 2002) (internal quotation marks 


                                                - 10-                                         6783

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

court, not of this court, to judge the credibility of witnesses and to weigh conflicting 


                "Child support awards are reviewed for abuse of discretion and 'will not 

be set aside unless a review of the record as a whole leaves us with a definite and firm 

conviction that a mistake has been made.' "10 Allocation of travel expenses are also 

reviewed for abuse of discretion.11 

                Additionally, an abuse of discretion exists if the superior court's decision 

denied a substantial right to or substantially prejudiced a party.12 


        A.      The Superior Court Had Jurisdiction To Hear The Case. 

        In his appellate reply brief,13 Ronny argues:   "Under the Uniform Child Custody 

Jurisdiction and Enforcement Act . . . children must reside in a state for six consecutive 

months   before   that   state   can   become   their   legal   domicile.  Alaska   and   Florida   are 

signatories to this act.     During the initial six month period, the children were under 

        9       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)). 

        10      Harvey   v.   Cook ,   172   P.3d   794,   797   (Alaska   2007)   (quoting Moore   v. 

Moore , 893 P.2d 1268, 1269 (Alaska 1995)). 

        11      Skinner v. Hagberg, 183 P.3d 486, 489 (Alaska 2008). 

        12      House v. House , 779 P.2d 1204, 1206 (Alaska 1989). 

        13      Although Ronny did not raise this issue in his opening appellate brief, we 

have consistently held that subject matter jurisdiction "may be raised at any stage of the 

litigation   and   if   noticed   must   be   raised   by   the   court   if   not   raised   by   the   parties." 

Robertson v. Riplett , 194 P.3d 382, 386 (Alaska 2008) (quoting Stone v. Stone, 647 P.2d 

582, 584 n.1 (Alaska 1982)). 

                                                  -11-                                            6783

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

Florida jurisdiction.  This is the reason why [Nanette's] stealthful crossing of state lines 

was unlawful." 

                Ronny's assertion appears to be a continuation of the argument he made to 

the superior court that Alaska lacked jurisdiction over the proceedings.  In the superior 

court Ronny argued that he did not consent to the State of Alaska exercising jurisdiction 

because "Alaska is an inconvenient forum for him and more importantly, his children 

were kidnapped by their mother who moved them to Alaska without his knowledge or 

consent."    Ronny also filed a motion to transfer the case to Florida. 

                1.	     The    superior     court   had   jurisdiction    over   the   child  custody 


                The federal Parental Kidnapping Prevention Act14 (PKPA) and Alaska's 

version of the Uniform Child Custody Jurisdiction and Enforcement Act15 (UCCJEA) 

govern jurisdiction over child custody proceedings in Alaska when a parent alleges a 

state   other   than   Alaska   has   jurisdiction   over   the   children.16 "These   statutes   were 

promulgated   in   an   effort   to   encourage   courts   considering   child   custody   matters   to 

cooperate in order to arrive at a fully informed judgment transcending state lines and 

considering all claimants, residents and nonresidents, on an equal basis and from the 

standpoint of the welfare of the child."17       The UCCJEA assigns children "home states" 

        14	     28 U.S.C.  1738A (2006). 

        15      Ch. 133,  2, SLA 1998.  Alaska's UCCJEA is codified in title 25, chapter 

30 of the Alaska Statutes, AS 25.30.300-25.30.910. 

        16      Atkins v. Vigil , 59 P.3d 255, 257 (Alaska 2002) (citing Rogers v. Rogers , 

907 P.2d 469, 471 (Alaska 1995)).           If these statutes conflict, the PKPA preempts the 

UCCJEA.  Id. at 258. 

        17      Id. (internal quotation marks omitted). 

                                                 -12-	                                           6783

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

in order to determine which state has principal jurisdiction.18          "Home state" is defined 

in part as "the state in which a child lived with a parent or a person acting as a parent for 

at   least   six   consecutive   months"   immediately   before   the   commencement   of   a   child 

custody proceeding.19 

                The    record   shows    that  Nanette    and   the  boys   moved     to  Alaska   on 

May 21, 2009, over 17 months before the child custody proceedings commenced in 

Alaska. Ronny does not dispute these facts. Thus, Alaska was the children's home state, 

and the superior court had jurisdiction to make the initial custody determination. 

                Ronny argues, however, that Alaska lacked jurisdiction because Florida had 

already assumed jurisdiction over the matter.          The PKPA requires a state to recognize 

and enforce a child custody determination made by a court of another state,20 and the 

UCCJEA "severely limit[s]" a state's ability to modify another state's child custody 

determination.21    Alaska Statute 25.30.909(3) defines "child custody determination" as 

"a judgment, decree, or other order of a court providing for the legal custody, physical 

custody, or visitation with respect to a child, including a permanent, temporary, initial, 

and modification order, except that the term does not include an order relating to child 

        18      AS 25.30.300(a). 

        19      AS 25.30.909(7). 

        20      28 U.S.C.  1738A (2006). 

        21      S.B. v. State, Dep't. of Health & Soc. Servs., Div. of Family & Youth Servs., 

61    P.3d   6,  10  (Alaska    2002).    "Modification"       is  defined   as  "a   child  custody 

determination that changes, replaces, supersedes, or is otherwise made after a previous 

determination concerning the same child, whether or not it is made by the court that 

made the previous determination." AS 25.30.909(11). 

                                                -13-                                           6783

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

support or other monetary obligation of an individual."22 

                Here, there was no Florida child custody determination that the superior 

court was required to enforce. The parties submitted three Florida court orders that could 

arguably be considered Florida child custody determinations: a June 2002 temporary 

injunction for protection against domestic violence; a September 2002 shelter order; and 

a   June   2003    judicial   review   order.   All   three   orders   were   no  longer    effective   or 

enforceable at the time of the superior court proceedings in Alaska.  It is undisputed that 

the Florida no-contact order and the shelter order expired years ago, and it appears that 

Florida has not exercised jurisdiction over the parties' child custody or child support 

matters in any respect since 2004.         Thus, there was no Florida "existing, ongoing child 

custody determination," and the superior court properly assumed jurisdiction. 

                2.	      The superior court had jurisdiction over the child 

                         support matter. 

                Ronny also asserted throughout the proceedings that the superior court 

lacked jurisdiction over child support.  In his initial answer Ronny argued that a Florida 

court   "reserve[d]   juris[d]iction   on   child   support   which   [Nanette]   receives."     Ronny 

additionally filed a motion to transfer the case to Florida, arguing there was a standing 

child support order in place in Florida. 

                The Uniform Interstate Family Support Act23  (UIFSA) and the Full Faith 

        22      The PKPA similarly defines the term as "a judgment, decree, or other order 

of a court providing for the custody of a child" and expressly includes "permanent and 

temporary orders, and initial orders and modifications" within the statutory definition. 

28 U.S.C.  1738A(b)(3). 

        23      Unif.    Interstate   Family    Support    Act     603(c),    9  U.L.A.    245   (2001) 

(providing   that   a   state   asked   to   enforce   another   state's   child   support   order   "shall 

recognize and enforce, but may not modify, a registered order if the issuing tribunal had 

jurisdiction"). 42 U.S.C.  666(f) (2006) requires states to adopt the UIFSA.  See also 

                                                  -14-	                                            6783

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

and Credit for Child Support Orders Act24 (FFCCSOA) govern jurisdiction over child 

support matters and require states to enforce other states' child support judgments in 

order to create uniformity in interstate judgments.25         But here, there was no Florida child 

support   judgment   that   the   superior   court   could   have   enforced.      The   2004   Florida 

"standing order" to which Ronny refers did not relieve Ronny of his obligation to pay 

child support; the order expressly stated that Ronny is the boys' natural biological father 

"and as such owes a duty of support . . . ."           However, the order did not set any dollar 

amount to be paid.  Thus, no valid final judgment or child support order existed to which 

the superior court was obligated to give full faith and credit, and   the   superior court 

properly exercised jurisdiction over the child support issues. 

        B.	     Custody Issues 

                1.	     The   superior   court   did   not   abuse   its   discretion   in   awarding 

                        primary physical custody to Nanette and joint legal custody to 

                        Ronny and Nanette. 

                The superior court must determine custody in accordance with the best 

interests   of   the   children   and   must   consider   the   list   of   statutory   factors   set   forth   in 

AS 25.24.150(c).26      The superior court "need not make express findings on all statutory 


AS 25.25.101-25.25.903. 

        24	     28 U.S.C.  1738B(a) (2006). 

        25      Bartlett v. State, Dep't. of Revenue ex rel. Bartlett , 125 P.3d 328, 330-31 

(Alaska 2005). 

        26      AS 25.24.150(c) provides nine factors to be considered in determining the 

best interests of the child: 

                (1)   the   physical,   emotional,   mental,   religious,   and   social 

                needs of the child; 


                                                  -15-	                                            6783

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

factors; instead, its findings 'must either give us a clear indication of the factors which 

the superior court considered important in exercising its discretion or allow us to glean 

from the record what considerations were involved.' "27 

                 The superior court granted primary physical custody to Nanette and "a form 


                 (2)  the   capability   and   desire   of   each   parent   to   meet   these 


                 (3) the child's preference if the child is of sufficient age and 

                 capacity to form a preference; 

                 (4) the love and affection existing between the child and each 


                 (5)   the  length    of  time   the   child   has   lived  in   a  stable, 

                 satisfactory environment and the desirability of maintaining 


                 (6) the willingness and ability of each parent to facilitate and 

                 encourage a close and continuing relationship between the 

                 other   parent   and   the   child,   except   that   the   court   may   not 

                 consider this willingness and ability if one parent shows that 

                the    other   parent    has   sexually    assaulted     or  engaged     in 

                 domestic violence against the parent or a child, and that a 

                 continuing relationship with the other parent will endanger 

                the health or safety of either the parent or the child; 

                 (7) any evidence of domestic violence, child abuse, or child 

                neglect in the proposed custodial household or a history of 

                violence between the parents; 

                 (8) evidence that substance abuse by either parent or other 

                members of the household directly affects the emotional or 

                physical well-being of the child; 

                 (9) other factors that the court considers pertinent. 

        27       Chesser v. Chesser-Witmer, 178 P.3d 1154, 1158 (Alaska 2008) (quoting 

Smith v. Weekley, 73 P.3d 1219, 1225 (Alaska 2003)). 

                                                   -16-                                              6783

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

of   joint   legal   custody"   to   Nanette   and   Ronny   after   finding   that:  (1)   there   was   no 

evidence that the boys had special needs; (2) Nanette had been the primary custodian of 

the boys and had done "a good job" of meeting their needs; (3) there was love and 

affection between the boys and both parents; (4) Nanette had provided "a stable home 

with a positive environment for the boys"; (5) Nanette had gone "above and beyond" in 

fostering a relationship between the boys and their father, but Ronny had not done the 

same; (6) there had been a significant history of domestic violence by Ronny against 

Nanette, but Ronny had overcome the statutory presumption against awarding custody 

to   the perpetrator of domestic violence; and (7) there was no evidence of substance 


                Ronny contends that the superior court abused its discretion in awarding 

primary   physical   custody   to   Nanette   and   a   modified   form   of   joint   legal   custody   to 

Nanette and Ronny.  His argument is threefold:  (1) it was not in the boys' best interests 

to move to Alaska with Nanette; (2) the superior court erred in finding that Nanette was 

more willing and able than Ronny to facilitate and encourage the relationship between 

the children and the other parent; and (3) it was an abuse of discretion for the superior 

court   to   give   Nanette   ultimate   decision-making   authority   in   its   award   of   joint   legal 


                        a.      Relocation to Alaska 

                Ronny argues that Nanette's relocation to Alaska was not in the children's 

best interests and was instead intended to subvert Ronny's relationship with his children. 

Ronny argues that the children "were unnecessarily 'uprooted' from a warm and familiar 

environment   to   a   cold   and   unfamiliar   one."   Ronny   further   contends   that   Nanette's 

"relocation to Alaska was by design with the intent to put as much distance as she could 

between Ronny . . . and his children." 

                Nanette responds that she "moved to Alaska for a better opportunity for 

                                                  -17-                                             6783

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

[her] family." Nanette argues that the move made sense financially because her husband 

was employed on the North Slope and had to fly back and forth between Alaska and 

Florida every two weeks, and because she could earn more money as a nurse in Alaska. 

Nanette   also   argues   that   she   and   the   boys   lived   less   than   two   miles   from   Ronny   in 

Florida but he chose "not to see the boys for 2 years prior to us moving." 

                We have previously considered the related standards that govern a custody 

determination when one parent chooses to move out of Alaska.28                 We have held that "a 

court    must   consider    the  best  interests   of  the  children   by   applying    the  criteria  in 

AS 25.24.150(c), and in doing so should consider whether there is a legitimate reason 

for the move."29    "[A] proposed move is legitimate if it 'was not primarily motivated by 

a desire to make visitation . . . more difficult.' "30         We have emphasized that the best 

interests of the child remain paramount, such that child custody determinations "are 

based upon the facts and circumstances of each particular case."31             This analysis applies 

to the circumstances of this case. 

                Nanette testified that she had a legitimate reason for moving to Alaska:  She 

wanted to live closer to her husband's place of employment, and she was able to secure 

a higher-paying job for herself in Alaska. Nanette also testified that the move was in the 

boys' best interests:      Their   grades have improved since moving to Alaska, they are 

involved in Boy Scouts, football, basketball, and track, and they live in a nice home with 

        28      Vachon      v.   Pugliese,  931   P.2d   371,   379   (Alaska    1996);  McQuade       v. 

McQuade , 901 P.2d 421, 423 (Alaska 1995). 

        29      Vachon, 931 P.2d at 379 (quoting McQuade , 901 P.2d at 424) (internal 

quotation marks omitted). 

        30      Moeller-Prokosch v. Prokosch , 27 P.3d 314, 316 (Alaska 2001) (quoting 

House v. House , 779 P.2d 1204, 1208 (Alaska 1989)). 

        31      McQuade , 901 P.2d at 424. 

                                                  -18-                                            6783

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

a big yard.  Nanette's testimony that Ronny voluntarily stopped exercising his visitation 

rights two years before she and the boys relocated to Alaska also suggests that the move 

was not primarily motivated by a desire to hinder Ronny's visitation rights. 

                The superior court did not expressly find that the relocation to Alaska was 

in the children's best interests, but it credited Nanette's testimony as outlined above in 

making its custodial best interest findings.         These findings are supported by the record 

and   are   sufficient   to   conclude   that   Nanette's   reasons   for   relocating   to   Alaska   were 

legitimate and not primarily motivated by a desire to hinder Ronny's visitation with the 


                        b.	     The      superior     court's     finding    as   to   each    parent's 

                                willingness   to   encourage   a   relationship   with   the   other 

                                parent was not clearly erroneous. 

                The superior court must consider "the willingness and ability of each parent 

to facilitate and encourage a close and continuing relationship between the other parent 

and the child" in determining the child's best interests.33          Here, the court found that this 

factor "overwhelmingly favors" Nanette. The court explained that "[t]here has been one 

parent supporting the relationship between the other parent and the children, and that is 

[Nanette]."     The court further found that "[d]espite the fact that she is the victim of 

        32      Ronny does more than impute an improper motive for Nanette's relocation 

to Alaska:     He alleges that Nanette "kidnapped the minor children for her own selfish 

interests."    On appeal Ronny asserts that (contrary to his testimony) he only found out 

that Nanette moved to Alaska when he hired an attorney "to serve Nanette Florida court 

papers" because he thought she and the children were still living in Florida.                 The issue 

of kidnapping is not properly on review before this court. Moreover, there was no court 

order prohibiting Nanette from relocating to another state.               Nanette was the custodial 

parent with legal custody of the children, so she could not have kidnapped the children 

as a matter of law. 

        33      AS 25.24.150(c)(6). 

                                                  -19-	                                            6783

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

multiple acts of domestic violence from [Ronny], she clearly let that part of her past stay 

in the past," and "is going above and beyond that required by the court to maintain the 

relationship between the children and their father." 

                 Ronny       argues     that   the    superior     court     improperly      found      that 

AS 25.24.150(c)(6) weighs in Nanette's favor. Ronny's argument is twofold: He argues 

that Nanette moved to Alaska to subvert his relationship with the boys, discussed above, 

and that Nanette failed to follow the interim visitation schedule, as alleged in his motion 

to compel visitation, which was denied by the superior court. 

                 Ronny argues that Nanette violated the interim order and that he was unable 

to contact his children for a five-week period between the two evidentiary hearings. 

Ronny argues that Nanette informed the court that she was in the process of obtaining 

additional phone records to disprove Ronny's accusations, but "these records were never 

submitted to the court . . . ."   According to Ronny, these records "coincide and cover the 

five week period that [Ronny] had no contact with his children."  Ronny further alleges 

that Nanette disconnected her phone and subsequently failed to attend the evidentiary 

hearing, such that "[a]ny reasonable person in [Ronny's] position would clearly think 

that Nanette . . . took off with his children . . . ." 

                Nanette   submitted   her   home   phone   records   to   the   superior   court   and 

testified   that,   although   she   and   Ronny   were   no   longer   adhering   to   the   rigid   interim 

visitation schedule between May and August 2011, she was allowing the boys to have 

frequent and unlimited contact with Ronny via Xbox Live and Skype. Nanette explained 

that the boys enjoyed having open communication with their father, and she gave them 

total freedom with the phone because "that is what the boys are wanting, they want to 

have a relationship with their dad."          Nanette stated that the children often called their 

father   on   his   home   phone   number,   records   which   Ronny   did   not   submit.        Nanette 

testified that she was unable to obtain a month's worth of records for her old cellular 

                                                   -20-                                              6783

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

phone, but she submitted records for her new cellular phone to show that she had texted 

her new number to Ronny. Nanette further testified that there was a period for which she 

did not have records because Ronny and the boys were talking via Xbox Live and Skype, 

and she could not obtain records for these methods of communication.           With regard to 

the missed evidentiary hearing, Nanette testified that she did not appear because she "had 

November second in her head," and apologized for her mistake. 

               The superior court found unpersuasive Ronny's allegations that Nanette 

was trying to alienate the children and "accept[ed] [Nanette's] testimony regarding her 

efforts to maintain the connection between the children and their father."  The superior 

court's findings were not based on phone records that Nanette stated she would submit 

in the future, but rather on Nanette's testimony, which the superior court found credible, 

and on the admitted exhibits.     The court's finding that Ronny's motion lacked a good 

faith basis is also supported by the record and further supports its finding that Nanette 

was more willing than Ronny to foster the relationship between the other parent and the 

children.  As discussed above, the court's findings regarding Nanette's relocation were 

not   clearly   erroneous,   and   Nanette's   relocation   does  not   establish  her  present 

unwillingness to facilitate and encourage Ronny's relationship with his children.  Thus, 

the superior court's finding that Nanette was more willing than Ronny to facilitate and 

encourage a close and continuing relationship between the children and the other parent 

is supported by ample evidence and was not clearly erroneous. 

                      c.	    It was not an abuse of discretion to order a modified form 

                             of joint legal custody. 

               Ronny argues that the superior court abused its discretion by awarding the 

parties a modified form of joint legal custody, under which they must communicate with 

each other and attempt to agree on major decisions   affecting the boys' welfare, but 

Nanette is given final decision-making authority should they fail to agree. Ronny further 

                                             -21-	                                        6783

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

argues that because the visitation schedule may be modified in writing by the parties, 

Nanette "will always have the last say concerning modifying visitation." 

                An award of joint legal custody means that the parents share responsibility 

in   the   making   of   major   decisions   affecting   the   children's   welfare.34   These   major 

decisions include choices regarding the children's education, non-emergency health care, 

morals,   and   religion.35    "The   legislature   has   expressed   a   preference   for   joint   legal 

custody, and a court may award joint custody if it is in the best interests of the child."36 

However, "joint legal custody is only appropriate when the parents can cooperate and 

communicate in the child's best interest."37 

                The superior court found that the case had generally moved in a positive 

direction and that Ronny and Nanette had "made enormous strides in terms of where they 

are in relationship to each other as parents."  But it also expressed concern over Ronny's 

desire to adhere to a rigid visitation schedule rather than accept a more flexible approach, 

and it found that Ronny had made unfounded and frivolous allegations against Nanette. 

These findings are supported by the record and show that, while Ronny and Nanette's 

relationship     has  improved,     Ronny    has   at  times  failed   to  take  reasonable    steps   to 

communicate and cooperate with Nanette. 

                The    superior    court   has   broad   discretion    in  making    a  legal   custody 

        34      Farrell v. Farrell , 819 P.2d 896, 899 (Alaska 1991) (quoting Bell v. Bell , 

794 P.2d 97, 99 (Alaska 1990)). 

        35      Elton H. v. Naomi R., 119 P.3d 969, 975 (Alaska 2005) (citing 3 ARNOLD 

H. RUTKIN , FAMILY LAW AND PRACTICE  32.08[2] (2004)). 

        36      Jaymot v. Skillings-Donat , 216 P.3d 534, 540 (Alaska 2009). 

        37      Farrell , 819 P.2d at 899. 

                                                  -22-                                            6783

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

determination.38       It   is   a   permissible   exercise   of   that   discretion   to   order   the   kind   of 

modified shared legal custody the court ordered here.  We commend the court for trying 

to involve both parents in major decisions affecting the children's welfare, even where 

the parties have some difficulty communicating with one another.  The court's approach 

is reasonably intended to encourage both parents to communicate and attempt to make 

decisions about their children, but it also practically recognizes that if they cannot make 

a   decision,   then   one   of   them   must   be   given   that   responsibility   and   authority.   The 

superior court did not abuse its discretion by ordering this modified form of joint legal 


                 Ronny     is  incorrect    that  the  custody    order   gives    Nanette    the  right   to 

unilaterally modify visitation.  The custody order gives Nanette ultimate authority with 

regard to major decisions affecting the children's welfare, but it does not give her the 

authority   to   abrogate   the   court's   custody   order   or   to   change   the   terms   of   Ronny's 

visitation.  Nanette is required to allow Ronny his court-ordered visitation, and if Ronny 

feels that Nanette is denying him his visitation rights, he is free to file a motion with the 

superior court. 

        C.	      Child Support Issues 

                 1.	     The   superior   court   did   not   abuse   its   discretion   by   ordering 

                         Ronny to pay child support. 

                 Ronny argues that the superior court should not have awarded child support 

to   Nanette.    Ronny   contends   that   he   is   not   "attempting   to   skirt   his   child   support 

obligation," but "[h]e simply doesn't have the dollars" and the boys do not need his 

support.    Ronny further argues that he "has made a proper showing for a good cause 

        38       Hamilton v. Hamilton , 42 P.3d 1107, 1111 (Alaska 2002). 

                                                   -23-                                                 6783 

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

variance to the child support requirements as listed in Alaska Rule of Civil Procedure 


                Alaska Civil Rule 90.3 states that where one parent is awarded primary 

physical custody, a child support award will be calculated "as an amount equal to the 

adjusted annual income of the non-custodial parent multiplied by a percentage specified 

in sub-paragraph (a)(2)."39      Civil Rule 90.3(c)(1) also provides that "[t]he court may vary 

the child support award as calculated under the other provisions of this rule for good 

cause upon proof by clear and convincing evidence that manifest injustice would result 

if the support award were not varied."  What constitutes "good cause" will depend on the 

circumstances of each case,40   with emphasis on the needs of the children.41              The statute 

lists examples of exceptional circumstances that might amount to good cause, but this list 

is not exhaustive.42 

                As the parent who has been awarded primary physical custody, Nanette is 

entitled to child support from Ronny, the non-custodial parent.43            Both parties submitted 

updated Child Support Guidelines Affidavits, as required by Civil Rule 90.3.                   Nanette 

reported an adjusted annual income of $26,870 on her affidavit.                  Ronny reported an 

adjusted annual income of $9,444 on his affidavit.  The superior court correctly applied 

        39      Alaska R. Civ. P. 90.3(a).   Rule 90.3(a)(2) provides that for two children, 

the   non-custodial   parent's   adjusted   income   must   be   multiplied   by   27%   in   order   to 

calculate the child support award. 

        40      Alaska R. Civ. P. 90.3 cmt. VI.A. 

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

        42      See Alaska R. Civ. P. 90.3(c)(1). 

        43      Alaska R. Civ. P. 90.3(a); see Matthews v. Matthews , 739 P.2d 1298, 1299 

(Alaska 1987) ("A parent is obligated both by statute and at common law to support his 

or her children."). 

                                                  -24-                                            6783

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

the formula provided by Rule 90.3 to calculate that Ronny owes Nanette $215 per month 

to support their two children. 

                Ronny did not argue to the superior court that he was entitled to a Civil 

Rule   90.3(c)(1)   good   cause   exception;   thus,   this   argument   is   waived.44     Moreover, 

Ronny did not present any evidence that would warrant a good cause finding.  Ronny 

repeatedly argued to the superior court that he was indigent and disabled, but Civil Rule 

90.3 expressly defines "income" to include social security and disability benefits.45                And 

Civil Rule 90.3 already takes into account Ronny's low income in its calculation of child 

support payments. The fact that Nanette earns more money than Ronny does not amount 

to the type of "manifest injustice" required for a good cause finding. 

                2.	      The superior court did not abuse its discretion in declining to 

                         impute income to Nanette. 

                Ronny   argues   that   the   superior   court   should   have   imputed   income   to 

Nanette because, as a nurse, Nanette should be working more than six days a month. 

Ronny   argues   that   Nanette   is   voluntarily   underemployed,   whereas   he   cannot   work 

because he is disabled.       Ronny asserts that if Nanette was "gainfully employed at the 

standard 40 hour work week, her adjusted annual income would be significantly higher 

than $26,870.16; instead she has forever quashed her nursing career in the pursuit of 

extracting child support dollars from the disabled and the disadvantaged." 

                As discussed above, where one party is awarded primary physical custody, 

Alaska Civil Rule 90.3(a) requires the superior   court to base its child support order 

exclusively on the non-custodial parent's income.               In such circumstances, the statute 

does   not   contemplate   that   the   custodial   parent's   income   will   factor   into   the   court's 

        44      See  Harvey   v.   Cook ,   172   P.3d   794,   802   (Alaska   2007)   ("[I]ssues   not 

properly raised in the trial court will not ordinarily be considered on appeal."). 

        45      Alaska R. Civ. P. 90.3 cmt. III.A. 

                                                  -25-                                                6783 

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

calculation.   It is true that Alaska Civil Rule 90.3(a)(4) gives the superior court the 

discretion to "calculate child support based on a determination of the potential income 

of a parent who voluntarily and unreasonably is unemployed or underemployed," but this 

provision does not apply where the obligee is awarded primary physical custody.46 

                Here, because Nanette was awarded primary physical custody, the superior 

court could not permissibly impute potential income to her pursuant to Alaska Civil Rule 

90.3(a)(4).   Thus, Nanette's employment situation was irrelevant and properly did not 

factor into the superior court's child support award. 

                3.	     It was an abuse of discretion to order Ronny to pay 100% of the 

                        children's visitation expenses. 

                Ronny argues that the superior court erred when it ordered him to pay for 

the boys' visitation expenses.  Ronny argues that, although the custody order grants him 

yearly visitation with his sons in Florida, he will never see them unless they travel to 

Florida with their mother because "he can't afford their round trip air fare to Florida." 

Ronny asserts that it would cost him $2,200 to fly his boys to Florida for two weeks, and 

the court "knew ahead of time that Ronny . . . could not afford 'in person' visitation." 

                The superior court noted that Nanette and the boys were planning to travel 

to Florida the following summer and left it to Nanette's discretion to allow Ronny to see 

the boys during their trip.     With regard to in-person visitation in subsequent years, the 

superior court ordered that Ronny be allowed to have the boys for two to three weeks 

during the summer of 2012 and up to six weeks in the summer of 2013 if the other trips 

went   well.   But   the   superior   court   conditioned   Ronny's   in-person   visitation   on   his 

payment of one-hundred percent of airfare and other travel expenses, stating: 

        46      The superior court may consider the custodial parent's income where a 

good cause variance is warranted.   Alaska R. Civ. P. 90.3 cmt. VI.  As discussed above, 

Ronny is not entitled to a good cause variance. 

                                                 -26-	                                            6783 

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

                 I'm just not going to put [Nanette] in a position where it's her 

                 job to finance the visitation.  That's not appropriate under the 

                 circumstances.       First   of   all,   she's   not   making  that   much 

                 money.     Secondly, she's not getting much in terms of child 

                 support,   so    it's  not   as  if  that   money   exists  to  really   do 

                 that. . . . I'd like to see if [Ronny] can foot the bill to be able 

                 to have the boys for a couple weeks in the summertime. 

                 Alaska Civil Rule 90.3(g) provides:  "After determining an award of child 

support under this rule, the court shall allocate reasonable travel expenses which are 

necessary to exercise visitation between the parties as may be just and proper for them 

to contribute." 

                 It does not appear that the superior court considered the mandate of Alaska 

Civil   Rule   90.3(g)   to    allocate   reasonable   visitation     expenses.     The   superior   court 

implicitly found that it was in the children's best interests to visit Ronny by awarding 

him two to three weeks of visitation in 2012 and up to six weeks in 2013, and Nanette 

agreed that the boys benefitted from increased contact with their father.  But the record 

before   the   superior   court   clearly   indicates   that   an   order   granting   Ronny   in-person 

visitation rights would potentially be rendered meaningless if Ronny were required to 

pay all the visitation expenses.         The record shows that Ronny has an adjusted annual 

income   of   $9,444,   twenty-seven   percent   of   which   was   awarded   to   Nanette   as   child 

support.     After   payment   of   child   support,   Ronny's   adjusted   annual   income   will   be 

approximately $6,894.          The record also shows that Nanette earns significantly more 

money than Ronny, and that she has the potential to earn additional income.47                      Nanette 

also has access to the boys' PFDs, to be used at her discretion.  Given these facts, it was 

        47       Although   Alaska   Civil   Rule   90.3(a)   precludes   the   superior   court   from 

considering the obligee's income in awarding child support where one parent is awarded 

primary physical custody, nothing in the rule prohibits a court from considering potential 

income in allocating visitation expenses. 

                                                    -27-                                                 6783 

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

neither "reasonable" nor "just and proper" for the superior court to require Ronny to pay 

for all the visitation expenses, and it was an abuse of discretion to condition his visitation 

on his ability to pay. 

                We   reverse   the   visitation   expense    order   and   remand   for   the   court   to 

reconsider     what   constitutes    a  reasonable,    just,  and  proper   allocation    of  visitation 

expenses.  On remand the superior court may, in its discretion, take additional evidence 

regarding the parties' finances.        And as we discuss next, the court may require Nanette 

to use some or all of the boys' PFDs to contribute toward visitation expenses. 

                4.	     The superior court did not abuse its discretion by authorizing 

                        Nanette to use the boys' PFDs as needed. 

                As part of its final custody order, the superior court authorized Nanette "to 

apply for and receive the boys' Alaska Permanent Fund Dividends, and to use them as 

needed, in her discretion, because she is receiving so little child support."  Ronny asserts 

that, rather than giving Nanette discretion to use the boys' PFDs, "the trial court could 

have ordered that 50% of those annual dividends would be used for airfare to Florida 

toward the children's summer visitation with their father with the remainder of the airfare 

to be paid by Ronny . . . ."      Ronny asserts that this "type of a visitation order would be 

affordable and within [his] reach." 

                Alaska Statute 43.23.005(c) authorizes a parent to claim a PFD on behalf 

of an unemancipated minor, but the law is silent as to a parent's responsibilities once 

those funds are distributed.48     We have previously recognized the superior court's broad 

discretion to decide which parent would better serve the children's best interests in being 

responsible   for   management   of   their   PFDs.49     The   superior   court   did   not   abuse   its 

        48      Hayes v. Hayes , 922 P.2d 896, 900-01 (Alaska 1996). 

        49      Helen S.K. v. Samuel M.K. , 288 P.3d 463, 477 (Alaska 2012). 

                                                  -28-                                              6783 

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

discretion in declining to order Nanette to use their PFDs in a particular manner.  On 

remand, however, the superior court may in its discretion order the boys' PFDs to be 

applied in whole or in part to their travel expenses. 

        D.	     The   Superior   Court   Did   Not   Abuse   Its   Discretion   In   Declining   To 

                Admit The Tape Recording Of Ronny's Conversation With Nanette's 


                During the evidentiary hearing Ronny attempted to enter into evidence a 

tape recording of a telephone conversation he had with Nanette's father, Donald, that 

was made without Donald's knowledge.              The superior court declined to play the tape, 

stating that it had no way of doing so, and instead found that the appropriate approach 

was to call Donald to testify live.       Ronny did not object, and both Nanette and Ronny 

were given the opportunity to examine Donald. 

                On appeal Ronny argues that the superior court had   a duty to play the 

tape.50  Ronny argues that "[h]ad the tape been played, [Donald] may have recalled some 

things he said that were not recorded."   Ronny contends that the recording would show 

that Ronny "was solely concerned about the welfare of his boys and that [Nanette] may 

be intentionally alienating the boys from him." Ronny further argues that "[h]ad the tape 

been admitted, the outcome of Judge Aarseth's ruling could have been different . . . ." 

                In   his   offer   of   proof   to   the   superior   court,   Ronny   stated   that   the   tape 

recording was important to his case in several ways.  Ronny argued that the tape would 

show Nanette never intended for him to have her address or to regain contact with the 

children and that Nanette's allegations of domestic violence were false.                  Ronny also 

claimed that Donald stated that Nanette did not want Ronny to have her address, and that 

        50      Ronny argues numerous grounds as to why the tape recording was legal 

even though it was made without Donald's permission.   The superior court never found 

that the tape was illegally recorded; it declined to play the tape without making any 

findings as to its admissibility. 

                                                  -29-	                                             6783 

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

Donald acknowledged that he did not condone Nanette's behavior. 

                Nanette admitted that she did not want Ronny to have her physical address 

because of the history of domestic violence, so the tape was not necessary to show that 

Nanette instructed Donald not to give Ronny her address.                Also, Ronny was convicted 

of    domestic     violence    and   is  thus   collaterally    estopped     from    relitigating   these 

convictions,51 so the tape could not be used to show that Ronny did not commit domestic 

violence against Nanette.       The tape could therefore only be used, if at all, to show that 

Donald     had   previously     stated  that   he  did  not   condone    Nanette's   behavior     and   to 

potentially impeach Donald. 

                Alaska Rule of Evidence 801(d)(1) allows prior statements of a witness to 

be admitted if the declarant testifies at the hearing and the statement is  inconsistent with 

the declarant's testimony. " 'Inconsistency' does not necessarily require textual conflict; 

other circumstances, including lack of memory at trial, may suffice."52 

                Theoretically,      Donald's     statement     on   the  recording     was   potentially 

admissible   as   a   prior   inconsistent   statement.   The   superior   court   did   not   make   any 

evidentiary findings in declining to play the tape, and the record only indicates that the 

superior court declined to play the recording because it was unable to do so.  It is unclear 

whether     this  indicates    a  logistical  or  technical    inability,  or  some    other   inability. 

Assuming without deciding that it was error not to admit the tape, Alaska Civil Rule 61 

provides that errors in the admission or exclusion of evidence are to be judged under the 

        51      See Lamb v. Anderson , 147 P.3d 736, 742 (Alaska 2006) (holding that "a 

conviction based on a no contest plea will collaterally estop the criminal defendant from 

denying   any   element   in   a   subsequent   civil   action   against   him   that   was   necessarily 

established by the conviction, as long as the prior conviction was for a serious criminal 

offense and the defendant in fact had the opportunity for a full and fair hearing"). 

        52       Vaska v. State, 135 P.3d 1011, 1015 (Alaska 2006). 

                                                  -30-                                             6783

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

harmless error rule:      "A party appealing the exclusion of evidence must show not only 

that such exclusion was improper, but also that it resulted in prejudice to that party."53 

Here, Ronny has not shown that he was in any way prejudiced by the exclusion of the 

tape recording.      Ronny's offer of proof indicated that the   tape was only relevant to 

impeach Donald's statement that Nanette did the right thing by moving to Alaska.  But 

the court's findings did not rely on Donald's opinion regarding Nanette's move, and it 

is highly improbable that Donald's opinion would even be a relevant factor for the court 

to consider on this issue.   Ronny was not prejudiced by his inability to impeach Donald. 

        E.      The Superior Court Exhibited No Bias Against Ronny. 

                Ronny alleges that the superior court displayed "a pervasive pattern of 

prejudice" against him.  Ronny points to the allocation of visitation expenses, the award 

of   child   support,   the  superior    court's   failure  to  sanction    Nanette    for  missing    the 

evidentiary   hearing,   and   the   superior   court's   denial   of   Ronny's   motion   to   compel 

visitation   as   "prime   examples   of   how   Judge   Aarseth   sided   with   Nanette   .   .   .   in   a 

compassionate manner but much to the detriment of Ronny . . . ."  Ronny also takes issue 

with some of the language used by the superior court.               Specifically, Ronny argues that 

the superior court should not have praised Nanette for going "above and beyond" in 

allowing Ronny telephonic visitation while simultaneously telling Ronny "he better start 

showing some appreciation for what [Nanette] is doing."                 Ronny argues:  "Apparently, 

the Trial Court has one standard for [Nanette] and another standard for Ronny . . . .  This 

is called impropriety . . . .     Judge Aarseth has repeatedly shown favoritism to [Nanette] 

while treating Ronny . . . as an outcast[]." 

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

formed an opinion of [him] from extrajudicial sources, resulting in an opinion other than 

        53      Estate of Arrowwood v. State , 894 P.2d 642, 648 (Alaska 1995). 

                                                  -31-                                                6783 

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

on the merits."54   No bias is shown if a judge derives an opinion based on the record, and 

the   opinion   is   supported   by   the   record.55 We   have   also   held   that   a   court's   ruling 

adversely against a party does not establish evidence of bias.56 

                Ronny has not made a showing of judicial bias. As discussed above, the 

superior court's findings and rulings are supported by the record.57 


                For the foregoing reasons, we AFFIRM the superior court's child custody 

order. We REVERSE and REMAND the court's visitation expense order, but AFFIRM 

the superior court's child support order in all other respects. We AFFIRM the remainder 

of the superior court's rulings. 

        54      Williams v. Williams, 252 P.3d 998, 1010 (Alaska 2011).

        55      Id. ; Peterson v. Ek , 93 P.3d 458, 467 (Alaska 2004).

        56      Labrenz v. Burnett , 218 P.3d 993, 1002 (Alaska 2009) (citing Tillmon v.

Tillmon, 189 P.3d 1022, 1027 n.13 (Alaska 2008)). 

        57      Ronny alleges that Nanette is currently in violation of the final custody 

order.  If Ronny believes Nanette has interfered with his telephonic visitation rights, he 

may file a motion to enforce the final custody order with the superior court. 

                                                 -32-                                             6783 

Case Law
Statutes, Regs & Rules

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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights