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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rosenblum v. Perales (7/5/2013) sp-6793

Rosenblum v. Perales (7/5/2013) sp-6793

        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, e-mail  


AARON S. ROSENBLUM,                                 ) 

                                                    )   Supreme Court No. S-14651 

                        Appellant,                  ) 

                                                    )   Superior Court No. 3AN-11-05890 CI 

        v.                                          ) 

                                                    )   O P I N I O N 

ANGELICA M. PERALES,                                ) 

                                                    )   No. 6793 - July 5, 2013 

                        Appellee.                   ) 


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

                Judicial District, Anchorage, Andrew Guidi, Judge. 

                Appearances:   Steven   J.   Priddle,   Law   Offices   of   Steven   J. 

                Priddle, Anchorage, for Appellant.   Angelica M. Perales, pro 

                se, Anchorage. 

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

                Bolger, Justices. 

                MAASSEN, Justice. 


                This   appeal   arises   from   a   custody   dispute   in   which   the   superior   court 

awarded   primary   physical   custody,   child   support,   and   interim   attorney's   fees   to   the 

mother.  The father claims that the custody decision failed to include adequate findings, 

gave disproportionate weight to a single factor, and was based on an improper factor. 

The father also argues that the superior court abused its discretion in issuing the child 

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

support order and in its award of interim attorney's fees.  We affirm the superior court's 

decisions on child custody and attorney's fees. We remand the issue of child support for 



        A.      Facts 

                John,1   born   in   March   2007,   is   the   son   of   Angelica   Perales   and   Aaron 

Rosenblum.  John was conceived when both parents were in the Army and stationed in 

Texas,   and   a   home   paternity   test   indicated   that   Aaron   was   the   father. Aaron   told 

Angelica that he was not ready to be a father but would try to spend as much time with 

John as possible; his hesitation stemmed in part from the fact that his work was soon 

going to require that he move to Virginia. 

                Aaron visited John and Angelica two or three times a week for the several 

months   before   he   moved   away.      While   living   in   Virginia   he   continued   to   maintain 

contact and to voluntarily pay child support.         Between May 2007 and December 2008, 

Aaron saw John about three times. 

                In August 2007 Angelica was honorably discharged from the Army.  She 

and John remained in Texas until December 2008, when they moved to Alaska.  In 

January   2011   Angelica   informed   Aaron   that   she   would   be   traveling   to   Texas   for   a 

funeral, and she offered to bring John to visit Aaron in Virginia.                Aaron, who in the 

meantime had married Shaun Rosenblum, accepted Angelica's offer.  John stayed with 

Aaron, Shaun, and their young son from mid-January to early March 2011.  During the 

visit Aaron and Shaun developed some concerns about John's well-being, and Aaron 

told Angelica that he wanted them to work out a written agreement on custody.  The 

        1       We use a pseudonym for the son to protect his privacy. 

                                                  -2-                                              6793 

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

exchange became acrimonious and, although the parents' accounts conflict, Angelica 

later   testified   that   Aaron  refused   to  return   John  to   her   until   they   had   reached   an 

agreement.     Angelica filed this custody action; the parents attempted to work out an 

agreement but were unsuccessful.          John returned to Alaska with Angelica. 

        B.      Proceedings 

                In her complaint, Angelica requested primary physical custody and shared 

legal custody.     Aaron accepted the court's jurisdiction and asked for the same relief: 

primary physical custody and shared legal custody.             An interim hearing took place in 

July 2011 before Superior Court Judge Andrew Guidi, during which Aaron and Angelica 

agreed to an interim visitation schedule.        They also informed the judge that despite the 

absence of an official child support order, Aaron had been making monthly payments to 

Angelica ranging from $300         to $900, and that past child support was not at issue. 

                In September 2011 Angelica moved for interim attorney's fees, citing the 

divorce exception to Civil Rule 82 and the economic disparity between her and Aaron. 

The   superior   court   granted   her   motion   and   denied   Aaron's   subsequent   motion   for 

reconsideration. A custody trial took place in January 2012. After the close of evidence, 

the superior court made extensive oral findings on the record and concluded that it was 

in John's best interests that primary physical custody be awarded to Angelica.  The 

subsequent written order outlined the custody award and incorporated by reference the 

court's oral findings.     An interim and permanent child support order followed in June 

2012, requiring Aaron to make monthly payments of $1,436.08. The order provides that 

either party may request the services of the Child Support Services Division ("CSSD") 

if issues about past child support arise. 

                Aaron appeals. 

                                                 -3-                                            6793

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                We will disturb the superior court's custody decision only if "controlling 

findings of fact are clearly erroneous or if the record shows that an abuse of discretion 

has occurred."2     "Findings of fact are clearly erroneous when we are left with a definite 

and firm conviction, viewing the record as a whole, that a mistake has been made."3  The 

superior     court  receives    "particular   deference"     for  findings   that  are   based   on  oral 

testimony: "the trial court, not this court, performs the function of judging the credibility 

of   witnesses    and   weighing     conflicting    evidence."4    The    superior    court   abuses   its 

discretion when it considers improper factors, fails to consider statutory factors, or gives 

disproportionate weight to certain factors while ignoring others.5 

                "We reverse child support awards only if the superior court abused its 

discretion or applied an incorrect legal standard."6         We review for clear error the superior 

court's findings on a parent's income.7   Whether the superior court applied the correct 

legal standard in calculating child support poses a question of law we review de novo.8 

        2       I.J.D. v. D.R.D. , 961 P.2d 425, 428 (Alaska 1998).

        3       Id.

        4       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)). 

        5       I.J.D. , 961 P.2d at 428. 

        6       Koller    v.  Reft ,  71  P.3d   800,   804   (Alaska    2003)    (citing  Beaudoin     v. 

Beaudoin , 24 P.3d 523, 526 (Alaska 2001)). 

        7       Id. (citing Routh v. Andreassen , 19 P.3d 593, 595 (Alaska 2001)). 

        8       Id. (citing Beaudoin , 24 P.3d at 526). 

                                                   -4-                                             6793

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

               We review attorney's fees awards for abuse of discretion.9           We determine 

de novo whether an award of attorney's fees is governed by a rule or an exception to a 



        A.	    The     Superior    Court    Did   Not   Abuse     Its  Discretion    In  Awarding 

               Physical Custody To Angelica. 

               Aaron claims that the superior court's custody decision was an abuse of 

discretion because it lacks adequate findings, gives disproportionate weight to a single 

factor,   and   violates  AS    25.20.095    by  taking   into  consideration    Aaron's    military 

deployments.     We affirm the custody decision. 

                1.	    The superior court's findings are sufficient. 

               Aaron argues that the superior court made inadequate findings because its 

written findings merely incorporate its earlier oral findings and thus fail to demonstrate 

"a thorough and appropriate reasoning process."            But the superior court's detailed oral 

findings are sufficient. 

               "Alaska Statute 25.24.150(c) requires the superior court to base its custody 

rulings on the child's best interests and lists nine potentially relevant factors that the 

court must consider . . . ."11   The superior court "need not refer to all of [the factors] in 

        9      Moody-Herrera v. State, Dep't of Natural Res. , 967 P.2d 79, 82 (Alaska 


        10     B.J. v. J.D., 950 P.2d 113, 118 (Alaska 1997). 

        11     Park v. Park , 986  P.2d 205, 206 (Alaska 1999).             The statutory factors 

include the needs of the child; each parent's ability and desire to meet those needs; the 

child's preference, if he or she is old enough to have one; the love and affection between 

the child and each parent; the stability and continuity of the child's environment; the 

willingness of each parent to facilitate the child's relationship with the other parent; any 


                                                -5-	                                          6793

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explaining its custody decision.          The court needs only to discuss those factors that it 

considers actually relevant in light of the evidence presented in the case before it; express 

mention of each factor is not required . . . ."12      The superior court's findings are sufficient 

if they provide "a clear indication of the factors [that the court] considered important in 

exercising its discretion or allow us to glean from the record what considerations were 

involved."13     That   "clear   indication"   can   come   from   both   written   and   oral   findings. 

When a party claimed in Duffus v. Duffus that the superior court's written findings were 

inadequate, we looked to the oral findings and held that they,"as effectuated by [the] 

written order, [were] adequate to address the statutory factor[s] and clarify the basis for 

the court's decision."14 

                Although   the   superior   court   made   no   written   findings   in   this   case,   it 

"incorporated . . . by reference" the comprehensive oral findings that it had made at trial. 

The court thoroughly discussed the trial evidence on the record in the context of each of 

the statutory factors:      the love between John and his parents; each parent's willingness 

to   facilitate   John's   relationship   with   the   other;   John's   physical,   emotional,   mental, 

medical, and social needs; the capability and desire of both parents to meet those needs; 

the absence of substance abuse and domestic violence; the need for stability in John's 

life; and other considerations such as the emotional tension and geographic distance 


domestic violence or child abuse; any substance abuse that directly affects the child; and 

other factors that the court deems pertinent. AS 25.24.150(c). 

        12      Park , 986 P.2d at 207 (footnote omitted). 

        13      Ebertz   v.   Ebertz ,   113   P.3d   643,   648   (Alaska   2005)   (quoting  Smith   v. 

Weekley, 73 P.3d 1219, 1225 (Alaska 2003)) (internal quotation marks omitted). 

        14       932 P.2d 777, 780 (Alaska 1997). 

                                                    -6-                                              6793

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between the parents.  The superior court's findings are sufficient for effective appellate 


               2.	    The superior court       did not give disproportionate weight to a 

                      single statutory factor. 

               Aaron argues that the superior court gave disproportionate weight to the 

stability factor, weighing it "to the virtual exclusion of all other[s]."  Findings that assess 

only one factor without disclosing "active consideration of any other statutory factor" 

may    well   be  considered   inadequate.15  But   the  oral   findings  here  show   thorough 

consideration of all statutory factors.    The court discussed its concerns about Aaron's 

frequent deployments, which would take him away from home for a third of each year. 

It credited Angelica for her unfailing commitment to her son, recalling testimony from 

both parties that Aaron was initially hesitant to be a father and that he was "a relative 

newcomer" to John's life.     The court further commended Angelica for her "exemplary 

job" in facilitating John's relationship with Aaron before the custody dispute developed. 

Although many factors favored both parents equally, the superior court found Angelica 

to be stronger in several of them.     Given the court's careful balancing of a number of 

different factors that it found relevant to John's best interests, we cannot say that the 

superior court gave undue weight to a single one. 

               3.	    The superior court did not abuse its discretion in considering 

                      Aaron's military deployments. 

               Aaron claims that AS 25.20.095 barred the superior court from considering 

his military deployments and that "[t]o the extent Aaron's deployment potential affected 

the trial court's decision, remand is necessary to purge   its impact."        At trial, Aaron 

himself testified at length about his deployments and submitted an exhibit that listed all 

        15     See Park, 986 P.2d at 207. 

                                               -7-	                                         6793 

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of his overseas rotations.16      His counsel contended in closing argument, however, that the 

deployments were "temporary" and "limited" and therefore could not be held against 

Aaron in the custody analysis. 

                 We   hold   that,   under   the   facts   of   this   case,   the   superior   court   was   not 

statutorily barred from considering Aaron's deployments in its assessment of the child's 

best interests.    Alaska Statute 25.20.095(a) provides: 

                 In   determining   the   availability   of   a   parent   for   custody   or 

                 visitation, if a parent is deployed or in a position where the 

                 parent may be deployed, the court shall take particular care 

                 to   ensure    that   the  child   has   the   maximum       opportunity, 

                 consistent with the best interests of the child, to have contact 

                 with the parent. Except as provided in this section, a parent's 

                 temporary   duty,       mobilization,     or  deployment       to  military 

                 service and the resultant temporary disruption to the child of 

                 the parent may not be a factor in a court's decision to grant or 

                 deny a petition for custody or visitation. 

(Emphasis   added).        The   section   explicitly   excludes   military   duty,   mobilization,   or 

deployment as a consideration only when it is "temporary" and when it causes only a 

"temporary disruption" to the child.17 

                 The legislative history of this provision shows that it was prompted by the 

"high   deployment   tempo"   of   the   "War   on   Terror,"   which   was   leading   to   "strained 

         16      The transcript references deployments over 40 times. 

         17      Aaron also argues that AS 25.24.150(l) provides that a parent's military 

service may not be considered in the best interests assessment.  But that section does not 

override     AS    25.20.095(a),      as  it  includes   the   phrase   "[e]xcept     as  provided     in  AS 

25.20.095."       AS    25.24.150(l).       See    also   AS    25.24.150(c)(9)       (providing      that  in 

determining   the   child's   best   interests   the   court   may   consider   "other   factors   that   [it] 

considers pertinent"). 

                                                     -8-                                                  6793 

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military families."18     The initial version of HB 334, which accompanied the sponsor 

statement, prohibited any consideration at all of "military duties . . . when determining 

child custody."19    But versions later introduced in the house in February and March 2010 

included the phrase "temporary duty, mobilization, or deployment to military service"20 

and added a provision affording maximum opportunity for contact between the child and 

the deployed parent, making it clear that deployments, and their duration, could be part 

of the custody analysis after all.21      A member of the house proposed that "temporary 

deployment" be statutorily defined as one that was "less than six months"22 but withdrew 

his proposal after the chair objected to "an amendment that draws a bracketed time frame 

around a deployment."23       The question of when a deployment is "temporary" remained 

open to interpretation. 

        18      H. Judiciary Comm., H.B. 334 Bill File, Sponsor Statement, 26th Leg., 2d 

Sess. at 2580 (Feb. 10, 2010); see also  Sen. Fin. Comm., SB 210 Bill File, Sponsor 

Statement, 26th Leg., 2d Sess. at 4756 (Jan. 19, 2010) (expressing similar concerns in 

support of failed companion bill). 

        19      H. Judiciary Comm., H.B. 334 Bill File, Sponsor Statement, 26th Leg., 2d 

Sess. at 2580-82 (Feb. 10, 2010). 

        20      H.B. 334A, 26th Leg., 2d Sess. (Feb. 10, 2010) (emphasis added). 

        21      See H.B. 334C, 26th Leg., 2d Sess. (Mar. 11, 2010); H.B. 334Z (enacted), 

26th Leg., 2d Sess. (Apr. 18, 2010); Sen. Fin. Comm., HB 334 Bill File, Explanation of 

Differences Between S.B. 210 (JUD) and H.B. 334 (RLS), 26th Leg., 2d Sess. at 3745 


        22      Comment of Representative Jay Ramras, Chair, at 3:01:30-3:01:45, Hearing 

on H.B. 334 Before the H. Judiciary Comm., 26th Leg., 2d Sess. (Mar. 8, 2010) (reading 

an amendment proposed by Representative Gruenberg). 

        23      Comment of Representative Jay Ramras, Chair, at 3:02:04-3:02:16, Hearing 

on   H.B.   334   Before   the   H.   Judiciary   Comm.,   26th   Leg.,   2d   Sess.   (Mar.   8,   2010); 

Comment of Representative Max Gruenberg, at 3:02:36-3:02:41, Hearing on H.B. 334 

Before the H. Judiciary Comm., 26th Leg., 2d Sess. (Mar. 8, 2010). 

                                                  -9-                                              6793 

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

                 In the absence of a legislative definition we give the term "temporary" "its 

ordinary meaning."24        Common definitions of "temporary" include "lasting for a time 

only:  existing or continuing for a limited time:   impermanent, transitory."25              In this case, 

both Shaun and the custody investigator testified that Aaron is away from home on 

periodic deployments that total a third of each year.  Aaron did not dispute these facts at 

trial,   nor   does   he   dispute   them   on   appeal. It   is   reasonable   to   conclude   that   regular 

deployments   of   up   to   four    months   of   every   year   for   the   indefinite   future   are   not 

"temporary" because they are not "continuing for a limited time";                   it is also reasonable 

to   conclude   that   the   disruption   this   schedule   would   cause   to   John   is   more   than   a 

"temporary disruption."        There is support in the legislative history for the view that the 

legislature sought to enhance the ability of the parties to return to a permanent and stable 

custody   arrangement   following   the   "temporary   disruption"   caused   by   a   "temporary 

deployment" - a goal inconsistent with an indefinite schedule of regular deployments.26 

        24       See  Fuhs   v.   Gilbertson ,   186   P.3d   551,   556   (Alaska   2008)   (citing   AS 


        25       WEBSTER 'S THIRD NEW INTERNATIONAL DICTIONARY 2353 (1968); see also 

BLACK 'S LAW  DICTIONARY 1602 (9th ed. 2009) ("Lasting for a time only; existing or 

continuing for a limited (usu. short) time; transitory."). 

        26       See H. Judiciary Comm., H.B. 334 Bill File, 26th Leg., 2d Sess. at 2592 

(2010) (containing letter from the Department of Defense that discusses "the difficulties 

facing parents who must temporarily give up custody of their children or who must forgo 

visitation when called to take up the burdens of the nation" and suggests that a "possible 

legislative   response   [might   be   establishing]   the   presumption   that   the   prior   custody 

agreement [will] be restored upon the military member's return from deployment"); 

Testimony of Kaci Schroeder Hotch, Staff, Representative Bill Thomas, Alaska State 

Legislature, at 4:12:43-4:12:53, Hearing on H.B. 334 Before the H. Rules Comm., 26th 

Leg., 2d Sess. (Mar. 22, 2010) (explaining that it "is a special circumstance, when a 

parent is deployed.   And this is a temporary circumstance.  The deployment is not going 

to be forever.    This is a temporary thing.").         A number of states provide for temporary 


                                                   -10-                                                 6793 

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

Under   the   facts   of   this   case,   we   find   no   abuse   of   discretion   in   the   superior   court's 

consideration of Aaron's deployments in its best interests analysis.27 

        B.	     The Superior Court's Failure To Clearly State The Basis For Its Child 

                Support Award Was An Abuse of Discretion. 

                Aaron claims that the child support order constitutes an abuse of discretion 

because it does not include adequate findings; it requires Aaron to pay interim child 

support; and it provides that the parties may seek the assistance of CSSD if issues of past 

child support arise.   We remand the issues of permanent and interim child support to the 

superior court for clarification because we cannot determine the factual basis for the 

award.    But we find no abuse of discretion in the court's treatment of past support. 

                1.	     The superior court's findings regarding the basis for the amount 

                        of child support were inadequate. 

                Aaron first argues that the superior court erred when it ordered him to pay 

a monthly child support amount of $1,436.08.   Alaska Civil Rule 90.3 requires that each 

parent   submit   a   statement   of   his   or   her   income   with   documentation.28   In   Aaron's 

affidavit he proposed a monthly amount of $1,103.13, though he concedes on appeal that 

the number he used for his gross income - the starting point of the calculation - was 



custody     orders   during    deployment,   after    which    custody    reverts   to  the  preexisting 

permanent schedule.       See Faucett v. Vasquez, 984 A.2d 460, 473-74 (N.J. Super. App. 

Div. 2009) (comparing statutory approaches in California, Florida, Michigan, Kentucky, 

Arkansas, Texas, Arizona, and Kansas). 

        27      The first sentence of AS 25.20.095(a) requires the superior court to make 

a custody award that maximizes John's contact with Aaron while protecting his best 

interests.    Aaron     does    not  claim   that   the  superior   court   failed   to  abide   by   this 

requirement, and the court's provisions for liberal visitation demonstrate an attempt to 

maximize Aaron's time with John. 

        28      Alaska R. Civ. P. 90.3(e)(1). 

                                                  -11-                                               6793 

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

                The     number    the   court   adopted    instead   was   apparently     proposed     by 

Angelica.     The record is not clear as to its source, nor does the transcript provide any 

insight.29  The number appears in an unsigned Rule 90.3 affidavit, allegedly submitted 

by Angelica, purporting to show Aaron's adjusted income. Although Aaron agrees with 

the affidavit's statement of his gross income, he disputes Angelica's calculation of the 

required deductions, and we agree that these contain clear error.30 

                It is well established that the superior court must make adequate findings 

stating   the   basis   for   a   decision   that   sets   the   amount   of   child   support.31 We   cannot 

determine on the record before us how the superior court reached the amount it ordered 

        29      The parents discussed permanent child support during the interim hearing, 

when they informed the court of their unofficial arrangement and the court responded 

that an order would be issued following trial.           There was no subsequent discussion of 

permanent support; the only substantive discussion at trial pertained to past and interim 

payments.   The custody trial focused almost exclusively on custody and visitation, with 

some discussion of the parents' employment. 

        30      Aaron's excerpt of record on appeal includes a Rule 90.3 child support 

affidavit and a spreadsheet of figures, both unsigned. Although the excerpt identifies the 

documents as "attachments" to the superior court's child support order,  the pages do not 

appear in the trial court record as transmitted to this court.  The affidavit does, however, 

include the number $1,436.08 as the monthly child support payment, and in the absence 

of any other source for the number we assume that the superior court relied on it.  But 

the   affidavit   contains   a   clear   error: it   identifies   Aaron's   gross   annual   income   as 

$89,680.70 but calculates his annual federal income tax as $198.00.  We note that this 

seems unlikely and results in a mistakenly small deduction for purposes of determining 

Aaron's net income. 

        31      See, e.g., O'Connell v. Christenson, 75 P.3d 1037, 1040 (Alaska 2003) ("A 

trial court has a duty to enter findings adequate for rational appellate review."); Wright 

v. Gregorio, 855 P.2d 772, 773 (Alaska 1993) (requiring adequate findings "so that a 

reviewing court may clearly understand the grounds on which the lower court reached 

its decision"). 

                                                  -12-                                               6793 

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

Aaron to pay.   We therefore remand the issue of child support to the superior court for 


               2.	    Subject to new findings on remand, Aaron may be required to 

                      pay interim child support. 

               As part of its decision on child support, the superior court ordered Aaron 

to pay child support for the interim period of March 2011 to January 2012, with extended 

visitation credit for October and November 2011.         Aaron argues that because he and 

Angelica had equal custody during this interim period, "imposition of any child support 

upon Aaron was clear error without some reasoned explanation."             But equal custody 

does not necessarily negate a child support obligation. 

               Under Alaska Civil Rule 90.3, child support is based on the parties' relative 

percentages of physical custody and their relative adjusted annual incomes.32      The record 

in this case shows both that Aaron had physical custody of John less than fifty percent 

of the time during the interim period33 and that there is a significant disparity between 

the parents' incomes.    It was not an abuse of discretion for the superior court to award 

child support to Angelica for this period.      However, when clarifying the findings on 

remand with regard to Aaron's adjusted income, the superior court should ensure that its 

order on interim support correctly accounts for Aaron's periods of physical custody. 

       32	     Alaska R. Civ. P. 90.3(a), (b)(1). 

       33      The order provides that Aaron "shall receive an extended visitation credit 

for the months of October and November 2011."           The record shows that John was in 

Angelica's custody from March 6, 2011 to July 29, 2011; August 1, 2011 to October 10, 

2011; and December 27, 2011 to January 18, 2012, when the custody trial began.  He 

was in Aaron's custody from July 29, 2011 to August 1, 2011 and from October 11, 

2011 to December 27, 2011.         On remand, the superior court may have to adjust the 

visitation credit to include the month of December. 

                                             -13-	                                         6793 

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

                 3.	      The superior court did not abuse its discretion by including a 

                         provision on past child support. 

                 The child support order provided that "[i]f there are child support issues 

that predate March 2011 either party may request the services of CSSD to resolve that 

issue."    Aaron argues  that  this  provision is improper in light of his agreement with 

Angelica   on   past   support   payments   and   that   it   "invites   (indeed,   encourages)   further 

litigation."  But we find no abuse of discretion; the superior court was merely clarifying 

the parties' legal rights with regard to past support.  It is well established that a parental 

agreement on child support remains invalid until a court has reviewed it for adequacy 

under Civil Rule 90.3.34        Angelica and Aaron agreed that their informal child support 

arrangement had never been judicially reviewed.  Their agreement thus does not waive 

any right to child support that a court in the future finds to be past due.  But since neither 

party voiced concern about past child support at trial, the superior court did not examine 

the   issue;   it   simply   advised   the   parents   of   their   rights,   and  the   advice   it   gave   was 



        C.        The    Superior     Court     Did   Not    Abuse    Its   Discretion     In   Awarding 

                 Angelica Interim Attorney's Fees. 

                 Aaron    contends      that  Civil   Rule    82,  with   its  authorization     of  partial 

attorney's fees to the prevailing party, governed this case, and that the superior court 

        34	      See, e.g., Nix v. Nix , 855 P.2d 1332, 1333-34 (Alaska 1993) (quoting Cox 

v. Cox, 776 P.2d 1045, 1048 n.6 (Alaska 1989)); Bergstrom v. Lindback , 779 P.2d 1235, 

1237-38 (Alaska 1989) (citing Cox, 776 P.2d at 1048); Cox, 776 P.2d at 1048; see also 

Alaska R. Civ. P. 90.3(a), (e) (outlining methods of calculating child support obligation). 

        35       Aaron claims that the judge "implicitly, if not expressly, concluded that 

Aaron's pre-litigation child support of [John] was adequate."  But this conclusion is not 

reflected in the record.        After clarifying that Angelica had no issues with past child 

support, the superior court did not discuss it again; the court simply explained that a child 

support order would be required to avoid "ambiguity" over "the proper amount" owed. 

                                                   -14-	                                                6793 

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

erred   in   awarding   Angelica   interim   attorney's   fees.    We   affirm   the   award   because 

Angelica's request fell within the divorce exception to the rule. 

                The divorce exception provides that attorney's fees should be awarded in 

divorce proceedings on the basis of the "relative economic situations and earning powers 

of the parties, rather than on the prevailing party standard of Civil Rule 82."36                   The 

exception stems from the fact that there is generally no prevailing party in a divorce,37 

and   it   is   meant   to   assure   that   both   spouses   have   the   means   to   litigate   on   an   equal 

footing.38   We have consistently applied this divorce exception to disputes "between 

unmarried   individuals   limited       to   the   issues   of   child  custody  and   support."39  The 

exception does not apply to all cases between unmarried couples:  "It should be reserved 

for cases that closely resemble divorce actions and for cases that involve disputes - 

such as disputes about custody or the initial division of property - for which it is of 

paramount importance that the parties be able to litigate on a 'fairly equal plane.' "40 

                This action involves an initial determination of child custody, and we have 

emphasized the "paramount importance" of allowing parents to litigate custody on an 

        36      Bergstrom , 779 P.2d at 1238 (citing L.L.M. v. P.M. , 754 P.2d 262, 263-64 

(Alaska 1988); Lone Wolf v. Lone Wolf , 741 P.2d 1187, 1192 (Alaska 1987); Cooke v. 

Cooke, 625 P.2d 291, 293 (Alaska 1981)). 

        37      L.L.M. , 754 P.2d at 264 (citing Cooper v. State, 638 P.2d 174, 180 (Alaska 


        38      Lone Wolf , 741 P.2d at 1192 (citing Olsztyn v. Olsztyn, 514 P.2d 498, 502 

(Ariz. App. 1973); In re Crabdree's Marriage , 523 P.2d 471, 472 (Colo. App. 1974)). 

        39      Bishop v. Clark , 54 P.3d 804, 814 (Alaska 2002); see also Bergstrom , 779 

P.2d at 1238 (extending the divorce exception to unmarried individuals). 

        40      Sanders v. Barth, 12 P.3d 766, 769 (Alaska 2000) (quoting Lone Wolf , 741 

P.2d at 1192). 

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equal plane.41    The fact that Aaron and Angelica's relationship was short does not lessen 

the importance of this goal.   Nor does the fact that this custody action was initiated four 

years after John's birth, as this was the first time the parties addressed his custody in 

court.42  The superior court found "[t]he disparity in the parties' financial circumstances 

justifies the interim fee award"; the record supports that finding; and Aaron does not 

argue on appeal that the disparity does not exist. We therefore affirm the superior court's 

award of interim attorney's fees. 


                We AFFIRM the superior court's judgment on child custody and attorney's 

fees.   On the issue of child support, we REMAND the case to the superior court for 

reconsideration and clarification of its findings. 

        41      Koller v. Reft , 71 P.3d 800, 809 (Alaska 2003)  (quoting Sanders, 12 P.3d 

at 769) (internal quotation marks omitted). 

        42      Aaron correctly notes that we have previously refused to extend the divorce 

exception to cases between unmarried parents when those actions were filed several 

years   after   the   children   were   born. But   those   cases   did   not   involve   custody.  See 

Sanders, 12 P.3d at 769         ("[T]his case is 'strictly about money'; it does not involve 

property division, custody or visitation issues."); Rubright v. Arnold, 973 P.2d 580, 581- 

82 (Alaska 1999) (stating that the case involves only questions of paternity and child 

support). Aaron also cites our refusal to extend the exception in B.J. v. J.D., but that case 

is markedly different: it involved the modification of a prior custody judgment and an 

award of custody to a non-biological parent.   950 P.2d 113, 118-19 (Alaska 1997).  This 

is the initial litigation over John's custody.        Were this an action seeking to modify an 

existing custody order, different standards would apply. See, e.g., id. at 119 (holding that 

when awarding attorney's fees in custody modification actions, the superior court must 

consider parents' relative economic positions and good faith). 

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