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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Limeres v. Limeres (3/14/2014) sp-6875

Limeres v. Limeres (3/14/2014) sp-6875

         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  

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



RENE E. LIMERES,                                     )  

                                                     )        Supreme Court No. S-14970  

                           Appellant,                )  

                                                     )        Superior Court No. 3AN-11-09292 CI  

                  v.                                 )  

                                                     )        O P I N I O N  

AMY W. LIMERES,                                      )  

                                                     )        No. 6875 - March 14, 2014  

                           Appellee.                 )  

                                                     )  



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

                                                                 

                  Judicial District, Anchorage, Andrew Guidi, Judge.  



                  Appearances:  Rene  E.  Limeres,  pro  se,  Healy,  Appellant.  

                                      

                  David   W.   Baranow,   Law   Offices   of   David   Baranow,  

                  Anchorage, for Appellee.  



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

                                              

                  Bolger, Justices.   



                  MAASSEN, Justice.  



I.       INTRODUCTION  



                  The  parents  of  three  minor  children  divorced.    The  father  appeals  the  



court's determination of his child support obligations, its factual findings regarding child  

                                                                            



custody  and  visitation,  its  valuation  and  division  of  the  marital  estate,  its  denial  of  

                                                         



attorney's fees, and its denial of a continuance.  We affirm on all issues.  


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

II.       FACTS AND PROCEEDINGS  



                    Amy  and  Rene  Limeres  were  married  in  1997  and  had  three  children  



together.  Amy is an attorney; Rene has made money from a variety of self-employment  

                                                              



activities, including guiding, writing articles about the outdoors, and selling books.  The  

                 



couple separated in July 2011, and Amy filed for divorce.  



                     On August 2, 2011, Amy petitioned for ex parte and long-term protective  

                                       



orders.  The court denied the ex parte petition, and the parties later cancelled the hearing  

                                                                       



on  the  long-term  protective  order,  having  both  retained  counsel  and  embarked  on  

                                                                                                                



settlement negotiations.  In the meantime, on August 22, 2011, the court entered a mutual  

                                                                                                             



civil no-contact order on the parties' request.  



                    Amy and Rene failed to reach a settlement, and in October 2011 the court  

                                                                                        



held a hearing on Amy's request for a long-term protective order.  Amy testified that  

         



Rene had threatened to shoot her and that he repeatedly violated the no-contact order  

                                                            



with emails, letters, and voice mail messages. Rene admitted to violating the no-contact  

                                                                        



order, though he denied any bad intent.  



                     The court granted the long-term protective order, finding that Rene had  

                                                                                                                       



"threatened . . . to blow petitioner's head off with a shotgun if she touched their alleged  

                                                                     



marijuana plants in his greenhouse" and that this threat constituted fourth degree assault.  

                                                              



The court withheld judgment as to whether there was "possible telephone harassment,"  

                                                                                                  



finding that this depended "on the content of multiple voice mail messages" that had not  

                                                                                            



yet been produced in discovery.  The court also ordered that Amy retain possession of  

                                                                                               



the marital home, that Rene complete an anger management or batterers' intervention  

                                                                                                   



program, and that all visitation between Rene and the children be supervised.  



                     The court held an interim custody hearing in November 2011.  It heard  

                                                                                             



testimony from Amy about additional violations of the no-contact order and violations  

                                                                                      



                                                               - 2 -                                                         6875
  


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

                                              

of the subsequent long-term domestic violence protective order, including Rene's arrest  



                                                                                                             

for following Amy in his vehicle.  The court issued an interim order reiterating its prior  



                                                                                                                         

orders on possession of the marital home and supervised visitation; it also declined to  



            

award  spousal  support  to  Rene  but  awarded  him  $4,000  in  interim  attorney's  fees.  



Finally, the court found that Rene had committed multiple violations of the no-contact  



order, but it deferred a ruling on sanctions until his criminal prosecution was resolved.1  

                                                                             



                                                                           

                     The court held a two-day divorce and custody trial in July 2012.  Following  



                                                                                                

trial it granted the requested divorce and awarded sole legal and physical custody of the  



                                                                                                                       

three children to Amy.  The court found that Rene's net annual income was $40,000 and  



                                                                        

that he was obligated to pay child support of  $1,514 per month retroactive to August 1,  



                                                                                                        

2011.  The court also divided the marital property, awarding the marital home to Amy.  



                     Rene filed a motion for reconsideration, which the court denied.  Rene  



appeals.  



III.       STANDARDS OF REVIEW  



                                                                                                                     2  

                                                                                  

                     We review an award of child support for abuse of discretion.   We review  



                                                                                                                      

the  superior  court's  factual  findings  regarding  a  party's  income  for  purposes  of  



calculating child support for clear error.3  Whether the superior court applied the correct  



           1         The criminal charges were dismissed by the prosecution in February 2012.   



           2  

                                   

                     Swaney v. Granger, 297 P.3d 132, 136 (Alaska 2013) (citing Faulkner v.  

Goldfuss, 46 P.3d 993, 996 (Alaska 2002)).  



           3  

                                 

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

19 P.3d 593, 595) (Alaska 2001)).  



                                                                  - 3 -                                                           6875
  


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

                                                                            

legal standard to its child support determination is a question of law that we review de  



         4 

novo. 



                                                                                        

                    The  superior  court  has  broad  discretion  in  its  determinations  of  child  



             5  

custody.   We will not set aside the superior court's child custody determination unless  



                                                                                                 6  

                                                                                                        

its factual findings are clearly erroneous or it abused its discretion.   A finding is clearly  



                          

erroneous when our "review of the entire record leaves us 'with a definite and firm  



conviction that a mistake has been made.' "7  

                                                                     "The trial court's factual findings enjoy  



                                                     

particular deference when they are based 'primarily on oral testimony, because the trial  



court,  not  this  court,  judges  the  credibility  of  witnesses  and  weighs  conflicting  



                  8  

evidence.' "               

                      In a child custody case, there is an abuse of discretion if the trial court  



                                                                                   

considered  improper  factors  or  improperly  weighed  certain  factors  in  making  its  



determination.9  



                    The   equitable   division   of   marital   assets   involves   three   steps:   (1)  



determining  what  property  is  available  for  distribution,  (2)  finding  the  value  of  the  



          4         Id. (citing Beaudoin v. Beaudoin , 24 P.3d 523, 526 (Alaska 2001)).  



          5         Cusack v. Cusack          , 202 P.3d 1156, 1158 (Alaska 2009) (citing Blanton v.  



Yourkowski, 180 P.3d 948, 951 (Alaska 2008)).  



          6         Id. (citing Millette v. Millette , 177 P.3d 258, 261 (Alaska 2008)).  



          7         Millette , 177 P.3d at 261 (quoting Dingeman v. Dingeman , 865 P.2d 94, 96  



(Alaska 1993)).  



          8  

                                                                         

                    Sheffield v. Sheffield, 265 P.3d 332, 335 (Alaska 2011) (quoting Josephine  

                                                              

B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 174 P.3d 217, 222  

(Alaska 2007)).  



          9         Cusack, 202 P.3d at 1158 (citing Millette , 177 P.3d at 261).  



                                                             - 4 -                                                       6875
  


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

                                                                           10  

property, and (3) dividing the property equitably.                             Under the first step, we review the  



"[u]nderlying factual findings as to the parties' intent, actions, and contributions to the               



                                            11  

marital estate" for clear error.                                      

                                                Whether "the trial court applied the correct legal rule in  



                                            

exercising  its  discretion  is  a  question  of  law  that  we  review  de  novo  using  our  



independent  judgment."12  

                                            The  second  step,  the  valuation  of  property,  is  a  factual  



                                                                  13  

determination that we review for clear error.                                                 

                                                                      We review the trial court's third step, the  



                                                                                   14 

                                                                 

equitable allocation of property, for abuse of discretion.                              An equal division of property  



is presumptively valid.15  



                    The superior court has broad discretion in awarding attorney's fees in a  



divorce  action,  and  we  review  any  award  for  abuse  of  discretion.16  

                                                                                                               An  award  of  



attorney's fees "will not be disturbed on appeal unless it is 'arbitrary, capricious, or  



manifestly unreasonable.' "17  



          10        Beals v. Beals , 303 P.3d 453, 458 (Alaska 2013).
  



          11        Id. at 459.
  



          12        Id. (quoting Hanson v. Hanson , 125 P.3d 299, 304 (Alaska 2005)).
  



          13        Id.
  



          14        Id.
  



          15
       McLaren v. McLaren , 268 P.3d 323, 332 (Alaska 2012) (citing Elliott v.  



James , 977 P.2d 727, 730 (Alaska 1999)).  



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



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



 171 P.3d at 129).  



                                                               - 5 -                                                       6875
  


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

                    We  review  the  trial  court's  refusal  to  grant  a  continuance  for  abuse  of  



                18  

                                                                                   

discretion.           "An  abuse  of  discretion  exists  when  a  party  has  been  deprived  of  a  

substantial right or seriously prejudiced by the lower court's ruling."19  



IV.	      DISCUSSION  



          A.        The Superior Court Did Not Err In Its Child Support Order.  



                    1.	       The  superior  court's  finding  regarding  Rene's  income  is  not  

                              clearly erroneous.  



                    Based on Rene's testimony, the superior court found that he earned "at least  

                                                              



$40,000 annually" for purposes of calculating child support.  Rene appeals this finding,  

                                                                                                    



arguing that his earnings were in fact substantially less.  But Rene's own testimony was  

                                                                                          



in conflict.  At the time of the interim custody hearing, in November 2011, he testified  



                                                                                               

that his income for that year would be approximately $40,000.  At the same hearing, he  



testified that $40,000 was actually a "generous extrapolation" and that his income would  



               

be closer to $38,000.  As the superior court noted, however, Rene testified at trial about  



                                                                                  

his "generation of substantial funds, in the hundreds of thousands of dollars, in terms of  



                  

book sales, inventory on hand, royalties and guiding fees, and claim[ed] to have provided  



at least $23,000.00, prior to the parties' separation, for the direct needs of the children  



                                           20  

                                               Rene was unwilling or unable to provide specifics as to  

over the course of one year." 



the amount of money he had made in recent years from guiding.  He did, however,  



describe several books he had authored, one of which he said had generated between  



                                                        

$273,000 and $364,000 of "revenue that has basically been incorporated in our family  



          18        Azimi v. Johns , 254 P.3d 1054, 1059 (Alaska 2011) (quoting House v.  



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



          19	       Id.  



          20        Rene actually testified that he had given Amy $23,000 "over the space of                         



two months."  



                                                             - 6 -	                                                      6875
  


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

                                                                                      

coffers," though he clarified that these figures represented gross revenues before the cost  



                                                                                     

of printing.  He testified that the hardcover edition of the same book generated revenue  



of $22,000 to $29,000, and he identified two other books he said had generated as much  



                                         

as $42,000 and $17,000 in revenues respectively.  Three months after trial, in response  



to Amy's proposed findings of fact and conclusions of law, Rene submitted his 2011 tax  



                                                                                         

returns and a Child Support Affidavit that showed income of $8,426.82.  However, given  



                       

Rene's earlier testimony, we cannot say that the court clearly erred when it found his  



                                                                                                            

yearly income to be approximately $40,000 despite what he reported on his income tax  



          21  

return. 



                        

                    2.	       The superior court did not abuse its discretion by not using an  

                              income-averaging method.  



                    Rene argues that the superior court should have averaged his income over  



several years in order to determine his child support obligation.  Comment III(E) to  



Alaska Civil Rule 90.3 allows the court "to average the obligor's  past income over  



                                                                                                              22  

several years" when the obligor "has had very erratic income in the past."                                        Here, the  



                                                                                            

superior court repeatedly asked Rene to estimate his average income over the past five  



                                                                                               

years, but Rene's answers were evasive.  The court cannot have abused its discretion by  



                                                                       

failing to use an averaging method when Rene did not provide the evidentiary basis on  



which to do so.  



          21        In his reply brief, Rene argues that the superior court erred by failing to  



deduct his federal income tax obligation from his estimated income.  However, "issues  

                                                                                                      

not argued in opening appellate briefs are waived.  This issue applies equally to pro se  

                                                                             

litigants."  Hymes v. DeRamus , 222 P.3d 874, 887 (Alaska 2010).  



          22        Whether to average a parent's income in this context is left to the trial  



                                                                                                           

court's discretion.  See, e.g., Keturi v. Keturi , 84 P.3d 408, 413 (Alaska 2004) (holding  

                                                     

there was no abuse of discretion in income averaging where the father admitted that his  

income fluctuated).  



                                                             - 7 -	                                                      6875
  


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

          B.	       The Superior Court Did Not Err In Its Order For Custody And  

                    Visitation.  



                                                                                      

                    The superior court is required to determine custody in accordance with the  



                                                                                                                      23  

best  interests  of  the  child,  with  reference  to  the  relevant  statutory  factors.                                   Rene  



                                                                      

concedes that the superior court, in awarding legal and physical custody of the children  



to Amy, considered the relevant factors in its findings, but he argues that the findings are  



"simply not supported by the evidence."  



                                                                                                              

                    1.	       The  superior  court  did  not  clearly  err  in  its  best  interest  

                              findings.  



                                                                                             

                    Rene  disputes  the  trial  court's  determination,  in  reference  to  the  first,  



                                                                               24  

                                                                                   that  Amy  "appears  .  .  .  to  be  

second,  and  fourth  statutory  best  interest  factors, 



                                                                                    

significantly more in tune with the children's physical, educational, social and religious  



needs," contending that the court gave too little weight to "the unique and enriching  



                                                                

opportunities  his  presence  has  brought  to  [the  children's]  lives"  through  outdoor  



                                        

adventure and recreation.  But the court carefully considered Rene's testimony, noting  



                                                                                                                           

that he "prides himself on his knowledge of nature and the outdoors, resulting in his  



consequent exposure of the children to the beauty of nature and outdoor activities," but  



                                                                                                            

that Amy "has provided significantly greater exposure to a rich variety of experiences."  



         

This  finding was not clearly erroneous.  Rene's argument that the court improperly  



preferred Amy's mainstream religious beliefs over his own "organic belief system" is  



also  without  merit.    The  court  addressed  religion  in  its  discussion  of  the  variety  of  



          23	       AS 25.24.150(c).  



          24        AS 25.24.150(c)(1) ("the physical, emotional, mental, religious, and social       



needs of the child"); (2) ("the capability and desire of each parent to meet these needs");   

and (4) ("the love and affection existing between the child and each parent").  



                                                              - 8 -	                                                           6875  


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

experiences and activities that Amy provided the children; it did not purport to decide  



that her religious beliefs were superior to Rene's.  



                       Rene also challenges the superior court's conclusion that Amy was more  



                                                                               

likely "to facilitate and encourage a close and continuing relationship between the other  



                                                25  

parent  and  the  [children],"     contending  that  he  had  demonstrated  at  trial  Amy's  



"systematic  efforts  to  exclude  [Rene]  from  the  children's  lives."    But  the  evidence  



                                                                 

supports the court's finding that Rene "significantly and intentionally disparaged [Amy]  



                                                                                                                          26 

                                                                                                                             as well as the  

. . . in the presence of and directly to the children on multiple occasions" 



                                              

court's reciprocal finding that there was no evidence of "any inclination of the mother  



to  respond  or  reciprocate  in  kind  with  inappropriate  slurs  or  commentary  about  the  



                                                                                                

father."  Rene argues, in essence, that the superior court should have disbelieved Amy's  



testimony on this subject and credited his testimony instead, along with his proposed  



                                                    

inferences from the evidence.  However, we "grant especially great deference when the  



                                                             

trial court's factual findings require weighing the credibility of witnesses and conflicting  



                            27 

                                                                                            

oral testimony,"               and under that standard we see no clear error in the court's findings  



                      28  

on this issue.                



            25         AS 25.24.150(c)(6).  



           26          Rene admits in his brief that he "made no attempt to hide his opinion of the         



mental state of his ex-wife . . . in his writings" but that these opinions were not "meant             

for" or "ever shared with" the children.  



            27  

                                                              

                       Stanhope v. Stanhope, 306 P.3d 1282, 1287 (Alaska 2013) (quoting Bigley  

v. Alaska Psychiatric Inst., 208 P.3d 168, 178 (Alaska 2009)).  



            28  

                                                                                                        

                       Rene contends that Amy's behavior is like that of the mother in Pinneo v.  

                       

Pinneo ,  835  P.2d  1233,  1238  (Alaska  1992),  who  was  found  to  have  attempted  to  

                                                                                                 

"erode[] the bonds of love and affection" by limiting the father's access to the children.  

But  there  were  no  allegations  of  domestic  violence  in  Pinneo ,  and  the  father  had  

                                                                                                                             (continued...)  



                                                                      - 9 -                                                                6875
  


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

                    Rene next contends that the superior court made unsupported findings in  



                                                                   29  

connection with the children's preferences.                            The court found that the two youngest  



                                  

children were "not as yet capable of expressing a particularly mature preference for their  



                                                                                                        

long-term custodial placement and immediate visitation purposes" but that the oldest  



daughter,  as  described  in  Amy's  testimony,  was  "particularly  sensitive  to  the  strife  



                    

engendered by the father."  The court concluded that although "the children love each  



parent and are loved by each parent in return," they felt safe and comfortable with Amy  



                                             

and were resistant to contact with Rene "at this time."   Rene challenges Amy's version  



of some of the events on which the children's discomfort with him were allegedly based,  



                             

but again we defer to the superior court's first-hand determination that Amy's testimony  



                                  30  

was the more credible.                        



                                                             

                    Rene  also  challenges  the  court's  finding  that  the  parties  have  a  "quite  



pronounced inability . . . to effectively communicate and cooperate in the decision- 



                                                                                      31  

                                                                                                                     

making process," making joint legal custody impractical.                                  Rene argues that the parties  



          28(...continued)  



"reasonable  visitation  rights."    Id.  at  1234.                     Here,  a  court  order  required  that  any  

                                                                                                        

visitation between Rene and the children be supervised; the primary limits on Rene's  

access to the children were not imposed by Amy but by the court.  



          29        See AS 25.24.150(c)(3).  



          30        See Stanhope, 306 P.3d at 1287. It is largely because of the superior court's  

                                                                         

closer perspective on witness credibility that we also reject Rene's argument that Amy's  

                                                                    

perceptions "and thus her whole credibility as a witness" were affected by anxiety, stress,  

or other mental problems.  Moreover, the court allowed Rene to cross-examine Amy  

                                                                                        

extensively about her health history, but he adduced no evidence that her perception of  

                                                                                                                

events was affected by a medical condition.  



          31  

                                                                  

                    "[J]oint legal custody is only appropriate when the parents can cooperate  

        

and communicate in the child's best interest."  Ronny M. v. Nanette H., 303 P.3d 392,  

                                                                                                               (continued...)  



                                                              -  10 -                                                      6875
  


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

communicated well throughout their marriage and that "[i]ntractable conflict arose only   



on separation," and that this was attributable to actions by Amy.  But this case involved     



both a stipulated mutual no-contact order and a long-term protective order, and there was   



a considerable amount of other evidence of the parties' difficulties in sharing information           



and making decisions together. Again we see no clear error in the court's finding of fact,               



particularly given Rene's own recognition that, whatever the cause, his relationship with                                     



Amy is currently marked by a serious lack of cooperation.  



                                                                                                                      

                            We conclude that the superior court did not clearly err in its findings of fact  



when considering these statutory best interest factors.  



                                                                                                                           

                            2.	           The  superior  court  did  not  abuse  its  discretion  in ordering  

                                          supervised visitation.  



                                                                                                                                                           

                            The court also considered evidence of domestic violence, as it was required  



                                           

to do.  Evidence of domestic violence is important to child custody in two statutory  



                      

contexts.  First, the court must consider "any evidence of domestic violence . . . in the  

                                                                                                                                       32    Second, if the court  

                                                                                                                                                               

proposed custodial household" in its best interests determination.  



finds  that  a  parent  has  a  history  of  perpetrating  domestic  violence,  a  rebuttable  

                                                           

presumption  arises against granting that parent custody or unsupervised visitation.33  

                            



Here, the superior court considered the evidence of domestic violence in its analysis of  

                                                                                                                                 



the best interests of the children and found "a substantial and pronounced history of  

                                                                                                                                                                 



domestic  violence  on  the  part  of  the  father,"  referencing  specifically  the  long-term  

                                                                                                                             



restraining order entered against Rene in October 2011.  



              31(...continued)  



405 (Alaska 2013) (quoting Farrell v. Farrell , 819 P.2d 896, 899 (Alaska 1991)).  



              32            AS 25.24.150(c)(7).  



              33            AS 25.24.150(g)-(j).  



                                                                                     -  11 -	                                                                              6875
  


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

                                                                                                        

                     Rene argues that this finding was erroneous because it referenced only one  



              34  

                                          

incident.         In addition to Amy's testimony that Rene had threatened to kill her with a  



                                        

shotgun (the sole factual basis for the October 2011 long-term protective order on which  



                                                                                                                         

the court relied), the court had heard testimony at the interim custody hearing and at trial  



                                                                    

that Rene had violated the protective order by following her in his car, prompting a call  



to the police and Rene's arrest.  While that may have constituted a crime of domestic  



              35 

                                                                                                         

violence,         the court made no findings about it, particularly about whether the act was  



                                                                                                                           

knowingly committed "with reckless disregard that the act violates or would violate a  



                                                                 

provision  of  the  protective  order,"  as  required  for  it  to  constitute  a  crime  under  



                                                                  

AS 11.56.740(a)(1).  The court had also, in earlier orders, found repeated violations of  



                                         

the civil no-contact order based on Amy's testimony about repeated emails, letters, and  



                                      36  

                                                                                             

voice mails from Rene.                    But the statutory definition of domestic violence does not  



                                                                    37 

                                                                                             

include violations of civil no-contact orders,                         and the court made no other findings about  



           34        Under AS 25.24.150(h), a history of perpetrating domestic violence means  



either that "during one incident of domestic violence, the parent caused serious physical  

                              

injury  or  the  court  finds  that  the  parent  has  engaged  in  more  than  one  incident  of  

                                                                          

domestic violence."  Since it was not alleged  that Rene had caused serious physical  

                                                                           

injury, the finding of a history of domestic violence required a finding that there was  

                                                                                     

more than one incident.  



           35        See  AS  18.66.990(3)(G)  ("Domestic  violence"  includes  the  crime  of  



"violating a protective order").  



           36  

                                                                                             

                     Indeed, Rene concedes in his brief that "[t]he testimony and documents of  

                                                                                              

the mother, particularly after she enlisted the aid of counsel . . . , are rife with references  

to abuse, domestic violence, threats, fear and even terror."  



           37  

                                                                                                                      

                     As noted above, "domestic violence" includes the crime of "violating a  

                                                      

protective           order       under         AS       11.56.740(a)(1),"                AS       18.66.990(3)(G),                 but  

                                                                                                                       

AS  11.56.740(a)(1)  applies  only  to  orders  "issued  or  filed  under  AS  18.66  and  

containing a provision listed in AS 18.66.100(c)(1)-(7)"; the civil no-contact order at  

                                                                                                                   (continued...)  



                                                                -  12 -                                                         6875
  


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

                                                  

harassment, stalking, or assault that could amount to a crime of domestic violence.  We  



                                                                                   

thus conclude that there were insufficient findings to demonstrate a history of domestic  



violence for purposes of AS 25.24.150(j).  



                                                           

                     If this were the basis for the court's restricted visitation order, we would be  



                                                                                  38  

                                                                                      But notwithstanding the court's  

compelled to reverse and remand for further findings. 



                                                          

finding  that  there  was  a  history  of  domestic  violence,  it  appears  that  its  order  for  



supervised  visitation  was  based  instead  on  Rene's  failure  to  complete  the  batterers'  



classes that had been imposed in October 2011 by the long-term  domestic violence  



restraining order.  At the close of trial, the court summarized its preliminary view of  



custody:  



                                      

                               My  hands  are  really  tied  on  the  custody  issue,  Mr.  

                                                                     

                     Limeres, just so you're clear.  The current custody situation  

                     is   not   going   to   change   until   at   the   minimum   you've  

                     completed the DVI/batterers' intervention program, we made  

                                                                  

                     that clear in April . . .  [T]he immediate future is not going to  

                     change.  



(Emphasis added.)   



                     Rene  protested  that  "[t]here's  no  history  of  domestic  violence,  [just]  a  



                                                                                                  

single incident," to which the court responded, "I want you to complete [the batterers'  



                

program] in good faith and show you've completed it successfully.  And when you have  



done that, that will constitute a change of circumstances."  The superior court's reference  



          37(...continued)  



issue here does not meet that definition.     



          38         Cf. Puddicombe v. Dreka, 167 P.3d 73, 77 (Alaska 2007) (when the court       



finds that domestic violence has occurred, it is plain error for it not to make findings as              

to whether the domestic violence amounts to a history for purposes of AS 25.24.150(g)-                  

(I)).    This case presents a similar issue but in a different posture:  the court found a  

history of domestic violence without making all the findings in support of that history.       



                                                               -  13 -                                                        6875
  


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

                                                                                       

to an earlier order "in April" helps clarify its thinking for purposes of our review.  In  



                                                              

April 2012, in denying Rene's motion for reconsideration of an order regarding interim  



custody, the court held:  



                                           

                             In  order  to  move  beyond  supervised  visitation,  Mr.  

                   Limeres must complete a 36-week batterers[']  intervention  

                                                                                          

                   program.  He testified that he has completed 12 weeks of an  

                                                                                              

                   anger      management            component          thus     far   and      did    not  

                   understand that he needed to complete the entire 36-week  

                   program.    The  requirement  was  explained  to  him  at  the  

                   hearing and he was made aware that he needs to recommence  

                   the program by May 14, 2012 in order to receive credit for  

                                            

                   the 12 weeks already taken[.]  



By the time of trial in July, Rene had still not completed the batterers' intervention  



classes.  In its post-trial findings, the superior court apparently intended to continue,  



rather than terminate, the relevant provisions of the October 2011 restraining order:  the  

                                                                                        



findings refer to "the extant restraining order" and provide that "[t]he father shall remain  

                                                         



restricted and subject to professionally supervised visitation only."  (Emphasis added.)  

                                                                                                   



The superior court's order for supervised visitation appears to have been based not on  



a history of domestic violence but on Rene's continuing failure to comply with the terms  

                                                                                            

of the preexisting order that placed conditions on his visitation.39  

                                                                                                  



                   An order requiring supervised visitation "must be supported by findings  

that specify how unsupervised visitation will adversely affect" the child's best interests.40  



          39       The requirement for supervised visitation entered as part of the long-term  



domestic violence protective order was made pursuant to AS 25.20.061.  Subsection  (2)  

of that statute states:  "If visitation is awarded to a parent who has committed a crime  

                                                                                                                    

involving domestic violence, . . . the court may set conditions for the visitation, including  

                                                                                             

. . . [that] visitation shall be supervised by another person or agency and under specified  

conditions as ordered by the court."   



          40       J.F.E. v. J.A.S., 930 P.2d 409, 413-14 (Alaska 1996).  



                                                           -  14 -                                                     6875
  


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

Because the court's post-trial order continued the restrictions from preexisting orders,  



                                                  

we look to the preexisting orders to determine whether the restrictions were adequately  



supported.  In its interim order dated November 21, 2011, the court concluded that  



professionally supervised visitation was required because of "defendant's mental and  



emotional state" and referred to the rationale it had placed orally on the record.  At the  



hearing the court held that Rene's visitation must be supervised by a person who was  



                                                                                                         

"detached"  and   had   an   "authoritative  demeanor,  and   sometimes  a   very   strong  



personality."  The court observed that supervision would likely be too daunting a task  



                                                           

for "an ordinary lay person" because of Rene's "potent combination" of "a great deal of  



                            

stress, . . . a great deal of emotional anguish, . . . visible pain and a great deal of anger,  



                                                            

at times brimming with resentment over the fact of the divorce and the issues in the case,  



all mixed with hostility and frankly a high sense of entitlement," and the court stated that  



                             

it did not "want to expose an ordinary lay person [to that] or put them in a situation . . .  



where they were exposed to those types of emotions and possible risks."  The court  



                                                                                            

expressly concluded that professionally supervised visitation was necessary to "ensure  



                                       41  

the safety of the children."                 



                                                                                               

                    We conclude that the court's order for supervised visitation has adequate  



support in the record.  And because the order did not hinge on the court's finding of a  



history of domestic violence, the lack of specific findings sufficient to support such a  



history is harmless error.  



          41  

                                                                                                           

                    The court had heard testimony from Amy about voice mail messages from  

                                                                                                         

the children expressing fear that Rene would take them from school, as well as evidence  

                                                                            

that Rene had involved the children in a number of his violations of the civil no-contact  

order.  



                                                            -  15 -                                                         6875  


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

                                                                                                                               

          C.	       The Superior Court Did Not Err In Its Valuation And Division Of The  

                    Marital Estate.  



                    Equitable  division  of  marital  assets  involves  a  three-step  process:  (1)  



determining what property is available for distribution, (2) valuing the property, and (3)  

equitably allocating the property.42  Rene challenges the court's findings under steps (2)  



and (3).  



                    Rene  first  disputes  the  values  the  court  placed  on  the  parties'  two  real  



properties:  the marital home and the "relatively undeveloped rural land parcel" identified  



as the "Birch Creek property."  At trial, Amy presented a professional appraisal of the  



                                          

marital home that valued it at $240,000.  Rene presented his own opinion of the house's  



                             43 

                                                                                                               

value - $275,000.                Though the court stated orally, following trial, that it was "leaning  



             

toward  the  $250[,000]-$260[,000]  range  based  on  the  valuation  testimony  of  Mr.  



                                                                                             

Limeres," it expressly "reserv[ed] the issue of valuation" for its written findings of fact,  



           

which ultimately adopted the appraisal as the best evidence of value.  It was not clear  

error for the court to accept the professional appraisal over Rene's lay opinion.44  



                                                                                                     

                    As for the Birch Creek property, the court awarded it to Rene using Amy's  



                                                                  

suggested value of $6,600.  Rene contends that this was an overvaluation, relying on his  



                                                                           

own testimony that he had purchased the parcel for $4,000 and that there was an issue  



          42	       Beals v. Beals , 303 P.3d 453, 458 (Alaska 2001).  



          43        Rene also tried to introduce evidence of the 2012 municipal tax assessment     



of the home and several real estate listings in the neighborhood, but the court did not   

admit this evidence.  



          44  

                                                                           

                    See Cartee v. Cartee, 239 P.3d 707, 719 (Alaska 2010) ("[T]he evidentiary  

                                                                                                       

weight to be given to an owner's opinion testimony as to the value of his property falls  

squarely within the trial court's discretion.").  



                                                              -  16 -	                                                      6875
  


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

with access. But given that the court had only the parties' competing opinions on which      



to decide the property's value, we cannot see that it clearly erred by accepting Amy's.  



                                                                                            

                     Rene also alleges that the court overvalued several vehicles, pieces of art,  



miscellaneous  gear,  and  unsold  books,  and  that  it  erroneously  excluded  certain  



appliances from the value of the home.  But again we give particular deference to the  



superior  court's  findings  when  they  require  weighing  conflicts  in  oral  testimony,  



                                                                     45  

including conflicting lay opinions of value.    The court found Amy's asset spreadsheet  



                                  

to contain the  most  credible evidence of value, and this finding was well within its  

discretion.46  



                                                                                                                                    

                     We also conclude that the superior court did not abuse its discretion in its  



equal division of the marital estate.  "Alaska courts favor an equal, 50/50 division of  



                                                                                                    47  

marital property, and such a division is presumptively valid."      Rene argues that the  



                                                                       

superior court failed to consider the factors listed in AS 25.24.160(a)(4) in dividing the  



                                                                                                                                  48 

                                                                                                                                       He  

estate, such that the result failed to "fairly allocate the economic effect of divorce." 



                                                                                    

argues specifically that the court failed to consider "[t]he gross disparity in economic  



                                                                                                        

status between the parties and the mother's considerably greater earning power"; "[t]he  



                                                                                                           

difference in the parties' ages (the father is 60, the mother is 48), station in life[,] and  



circumstances"; "[t]he greater hardship faced by the father in rebuilding his life 'from  



scratch' "; and Rene's need to pay for his own health insurance, formerly provided  



                                             

through Amy's employer.  But the court did state that it had "carefully considered the  



           45        Stanhope v. Stanhope, 306 P.3d 1282, 1287 (Alaska 2013).  



           46        See  id.  at  1291  (The  wife's  "property  list,  admitted  as  an  exhibit,  was  



evidence of value that the superior court was allowed to consider.").  



           47        McLaren v. McLaren , 268 P.3d 323, 341 (Alaska 2012).  



           48        AS 25.24.160(a)(4).  



                                                                 -  17 -                                                           6875
  


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

ages, earning capacities, [and the] current and . . . future allocated assets and debts of the  

                                                                          



parties," and it made specific findings as to Rene's earning capacity.  The court was not  

required to "make findings pertaining to each factor."49  Besides, despite Rene's position  



                 

on appeal, he argued in pretrial motions and at trial for an equal allocation of the marital  



assets  and  debt.            The  superior  court  did  not  abuse  its  discretion  in  making  a  



presumptively reasonable 50/50 allocation of the marital property.  



                

          D.	       The Superior Court Did Not Improperly Delegate Its Fact-Finding.  



                                                                                      

                    Rene argues that the superior court erred by adopting uncritically the draft  



                                                                                         

findings of fact proposed by Amy's attorney.  A trial court "abuses its discretion when  



it adopts, without explanation or change, proposed findings of fact and conclusions of  

law that substantially deviate from the court's earlier oral decision."50  



                    But the court here stated at the close of trial that its oral remarks were not  

                                                                   



intended to be conclusive, and it is not cause for objection that its immediate view of the  



                                                                                             

evidence was modified in some particulars by time and by the post-trial submissions of  



the parties.  We conclude that the court did not abuse its discretion when it entered the  



findings of fact and conclusions of law that Amy drafted.  



                                                                                                               

          E.	       The Superior Court Did Not Abuse Its Discretion When It Declined To  

                    Award Additional Attorney's Fees To Rene.  



                    Alaska Statute 25.24.140(a)(1) allows the superior court to award attorney's  



                                                                             

fees and costs to a spouse during the pendency of a divorce action.  The purpose of this  



                                                                               

statute is to "assure that both spouses have the proper means to litigate the divorce action  



          49	       Nicholson v. Wolfe , 974 P.2d 417, 422 (Alaska 1999).  



          50        Ogden v. Ogden, 39 P.3d 513, 518 (Alaska 2001) (citing                                 McDougall v.  



Lumpkin , 11 P.3d 990, 998 (Alaska 2001)).  



                                                            -  18 -	                                                        6875  


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

on a fairly equal plane."51  Rene argues that the trial court should have awarded him more     



attorney's fees given the parties' income disparity.  



                    The trial court did consider the parties' relative economic situations when  



it awarded Rene interim attorney's fees of $4,000.  In its order denying an award of  



                                                                                        

additional fees later in the case, the court reasoned that (1) it had already made one award  



of  interim  fees,  (2)  Rene  was  no  longer  represented  by  counsel,  and  (3)  Amy  had  



incurred  substantial  attorney's  fees  herself  as  a  result  of  the  domestic  violence  that  



                

prompted  the  October  2011  restraining  order,  "fees  for  which  she  has  not  been  



                         

                                                                      

compensated."  These rationales are sufficient to support the court's denial of additional  



fees to Rene, and we conclude that there was no abuse of discretion.  



                                                                                

          F.	       The Superior Court  Did  Not  Abuse  Its  Discretion When It Denied  

                    Rene's Motion For A Continuance.  



                                                                 

                    At a trial-setting conference in April 2012, the parties were offered possible  



trial dates in July and October 2012.  Rene agreed to the earlier date.  A month later,  



                                       

however, he moved for a continuance, arguing that the coming summer months were his  



                                                                                                             

best time for making money, and that given time and sufficient income he might be able  



                                                                       

to hire new counsel and better prepare his case.  In his reply he added that a continuance  



would allow him to complete the required batterers' program before the court decided  



                                                                                               

issues of custody and possession of the marital home.  The court denied the continuance.  



                                                                                                                     

                    A trial court abuses its discretion in denying a continuance where "a party  



                                                                                                                   52  

                                                                                                                       In this  

has been deprived of a substantial right or seriously prejudiced by" the ruling. 



          51        Heustess v. Kelley-Heustess , 259 P.3d 462, 479 (Alaska 2011) (quoting  



Sanders  v.  Sanders,  902  P.2d  310,  319  (Alaska  1995))  (internal  quotation  marks  

omitted).  



          52        Wagner v. Wagner, 299 P.3d 170, 173 (Alaska 2013) (quoting Azimi v.  



Johns , 254 P.3d 1054, 1059 (Alaska 2011)) (internal quotation marks omitted).  



                                                            -  19 -	                                                     6875
  


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

case, Rene was able to prepare his case, presenting three witnesses, two hours of his own         



testimony, and 18 exhibits.                         As for the batterers' program, it is possible that Rene would  



have completed it had trial been postponed, and, as a result, he might not have been  



                                                                                                                                                    

subject to the custody and visitation restrictions the superior court imposed.   But the  



court explained on the record that Rene could move for a modification once he had  



completed the classes, reiterating this in its written findings.  We conclude that Rene was  



                                                                                                                                     

not seriously prejudiced by the superior court's denial of a continuance, and we therefore  



find that the ruling was not an abuse of discretion.     



V.           CONCLUSION  



                         The judgment of the superior court is AFFIRMED.  



                                                                            - 20 -                                                                       6875
  

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