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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wells v. Barile (10/16/2015) sp-7060

Wells v. Barile (10/16/2015) sp-7060

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                        

         corrections@akcourts.us.  



                    THE SUPREME COURT OF THE STATE OF ALASKA  



TAMMY S. WELLS,                                         )  

                                                        )        Supreme Court No. S-15590  

                            Appellant,                  )  

                                                        )        Superior Court No. 3PA-03-00176 CI  

                   v.                                   )  

                                                        )        O P I N I O N  

PRIMO J. BARILE,                                        )  

                                                        )        No. 7060 - October 16, 2015  

                            Appellee.                   )  

                                                        )  



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

                                                                    

                   Judicial District, Palmer, Vanessa White, Judge.  



                   Appearances:    Tammy  Wells,  pro  se,  Palmer,  Appellant.  

                   Primo Barile, pro se, Palmer, Appellee.  



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

                                                                                     

                   Bolger, Justices.   



                   MAASSEN, Justice.  



I.       INTRODUCTION  



                   Tammy Wells appeals the superior court's grant of a motion to modify child  



custody filed by her former husband Primo Barile.  Tammy also challenges the court's  

                                                                         



child support order, its order that she reimburse Primo for half their child's Permanent  

                                                      



Fund Dividends (PFDs), and a writ of assistance the court issued for the custody order's  

                                                                                  



enforcement.  She also alleges that several of the superior court's rulings show judicial  

                                                                 



bias and a failure to give her the leniency appropriate to her status as a pro se litigant.  

                                                                                


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

                   We conclude that the superior court abused its discretion when it ordered  

                                                                        



Tammy to reimburse Primo for the PFDs without taking into account, as an offset, the  

                                                             



amounts that Primo may have owed Tammy for medical care.  We reverse the judgment  

                                                                                         



on this issue and remand for further proceedings.  On all other issues we find no error  

                                                                                                          



and affirm.  



II.       FACTS AND PROCEEDINGS  



                   Tammy Wells and Primo Barile married in 1995 and divorced in 2004.  



They have a son, born in 1997.  Tammy married Lance Wells after her divorce from  



Primo and has two children with Lance.  



                   Tammy and Primo shared physical custody of their son on a "50/50 basis"  

                                                                1   Neither parent was required to pay child  

                                                                                                               

pursuant to an order entered in January 2009.  



support to the other.  The 2009 order required Tammy to apply for their son's PFDs but  



divide them equally with Primo.  The order also required the parents to keep their son  



on their health insurance as long  as it was available at reasonable cost through their  

                                                  



employers, and to share the cost of any reasonable health care expenses not covered by  

                                                                         



insurance, up to a maximum of $5,000 annually.  



         A.        Lance's Motion To Modify Custody  



                   Tammy and Lance divorced in 2013. The permanent custody order entered  

                                                                         



in their divorce provided for joint legal and shared physical custody of their two children.  

                                                        



Lance moved to modify custody in early 2014, seeking primary physical and sole legal  

                                                                                



custody.    After  holding  an  interim  hearing  in  February,  Superior  Court  Judge  Kari  



                            

Kristiansen found a substantial change in circumstances and granted Lance's motion.  



As relevant here, Judge Kristiansen found "more than ample evidence" that Tammy  



          1        The 2009 custody order followed this court's remand for an evidentiary  



hearing on Tammy's motion to modify custody.  See Barile v. Barile, 179 P.3d 944, 947  

                                                                                                   

(Alaska 2008).  



                                                            -2-                                                     7060
 


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

"present[ed] a danger to the minor children based on threats of self-harm and substance  



                                                   

abuse,  and  leaving  the  children  unattended."    She  ordered  that  Tammy  undergo  a  



                                                                  

complete psychological evaluation and have only supervised visitation with the children.  



          B.        Primo's Motion To Modify Custody  



                    In November 2013 Primo had moved to modify the 2009 custody order  



from his and Tammy's divorce, arguing that Tammy's recent divorce from Lance, her  



                                                                                         

abandonment of their son while she traveled to Costa Rica on a humanitarian mission,  



and  their  son's  worsening  grades  at  school  constituted  a  substantial  change  in  



                                                                    

circumstances.  Primo sought sole legal and primary physical custody, with Tammy's  



                                                                                  

visitation limited to "[e]very other weekend until [she] has a stable emotional, financial  



                                                                                                 

and  home  life."          Primo  did  not  ask  for  child  support,  but  he  did  ask  that  Tammy  



reimburse him for half of their son's yearly PFDs as required by the 2009 order.   



                    Tammy opposed Primo's motion.  She contended that his allegations of a  



                                                                               

substantial change in circumstances relied largely on inadmissible hearsay.  She denied  



                                                                                             

abandoning their son for her trip to Costa Rica, asserting that she left him temporarily  



                                                                                                     

in Lance's care, with Primo's knowledge, so that he could continue attending the same  



                                                                                

high school as his half-brother.  She also asserted that their son's difficulties with school  



                                 

were unrelated to the custody situation.  She contended that Primo had agreed to pay for  



                                                                                   

their son's braces, and she denied owing Primo his share of the child's PFDs because she  



                                                                                                                

had used it to pay for the braces - an expense the parties were required to split evenly  



under the terms of the 2009 order.  



                    In his reply Primo asked the superior court to consider the findings made  



on Tammy's emotional health in the proceedings involving her divorce from Lance.   



                    In March 2014 Superior Court Judge Vanessa White held an evidentiary  



                               

hearing on Primo's motion to modify custody.  Both Primo and Tammy represented  



                                                                             

themselves, and they both presented witnesses.  Of relevance here, Primo called Lance,  



                                                              -3-                                                        7060
 


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

who testified about Judge Kristiansen's findings on his motion to modify custody in the  



separate divorce proceeding.                  Judge White questioned Primo and Tammy's son on the   



                                                                                                   

record but outside the presence of his parents, where he testified that he would prefer to  



live with his mother.   



                                                                                                                    

                    Following the hearing, the superior court made extensive  oral findings.  It  



granted Primo's motion to modify custody, awarding him sole legal and primary physical  



                                                                                                          

custody of the parties' son, with Tammy having visitation every other weekend.  It found  



a substantial change in circumstances based on the child's poor academic performance  



while in Tammy's care, Tammy's decision to leave for Costa Rica at a time when her son  



was on academic probation, and Tammy's emotionalism and threats of self-harm.  



                                      

                    In making its findings on Tammy's emotional state, the superior court cited  



Judge Kristiansen's interim order in Tammy and Lance's divorce, stating that because  



                                                                              

it was "fairly contemporaneous in time" she was "very confident in finding . . . that  



Lance Wells [had] testified consistently in both proceedings," and she found Lance's  



                                                                                        

testimony to be "extremely credible."  The superior court also found Primo's testimony  



                                                                                                            

credible, but it did not credit Tammy's testimony because she was "all about denial and  



                                                                                              

not about accepting any responsibility."  The court found the child's testimony credible  



                 

but found that he was "in a slightly parentified relationship with his mom," and also that  



his  preference  for  his  mother  was  motivated  partly  by  the  difference  in  discipline  



between the two households.  The superior court declined to give collateral estoppel  



                                                               

effect to Judge Kristiansen's findings on Tammy's emotional state, but it concluded, as  



Judge Kristiansen had, that Tammy "presents a risk of emotional harm to the children  



and demonstrates a significant degree of instability."   



                    The superior court also issued a tentative child support order pending an  



                                                                                     

opportunity for the parties to weigh in on whether the court should impute income to  



                                                                                                                

Tammy.  As for Tammy's use of the PFDs, the superior court ordered her to submit  



                                                                -4-                                                         7060
 


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

                                                                          

documentation to support her claim that she had used Primo's half of the funds to help  



pay for her son's braces.  



                                                           

                    Tammy filed a "notice of compliance" along with documents showing her  



                                                                                                

payment of the orthodontic bills.  She noted that the braces cost $5,600 and that half of  



                                                                                          

their son's PFDs for the years 2010 to 2013 was $2,116.50, leaving $683.50 that Primo  



                                                                      

still owed for his half of the braces' cost.   In response Primo argued that orthodontic  



                                                             

work was not medically necessary, that he had never agreed to help pay for it, and that  



the 2009 order gave Tammy no discretion as to whether she should turn over half the  



PFDs to him.  



                                                                                        

          C.	 	     The Superior Court's Writ Of Assistance And Tammy's Motion For  

                    Reconsideration  



                                                     

                    In April 2014 Primo moved that Tammy's visitation be supervised and  



                                                                                                                

asked for a writ of assistance to enforce the custody order.  He alleged that Tammy was  



                                                                            

encouraging their son to run away during Primo's custody time and was supporting his  



delinquency from school.  The superior court issued the requested writ, which provided  



                                                                                                                     

that "[a]ny peace officer to whom this Writ is delivered is authorized to assist" Primo in  



                                                                                              

enforcing the custody order.  The writ stated that Tammy had "refused and/or failed to  



                                                                                                              

obey  [the  custody  order]  and  is  harboring  and  supporting  a  child  that  is  listed  and  



regarded as a 'runaway' in the eyes of the law."  



                    Tammy moved for reconsideration of the superior court's custody order and  



challenged the writ of assistance based on false premises.  The court denied the motion  



                                                                  

for reconsideration but reserved for hearing Tammy's challenge to the writ.  It scheduled  



                                                                                     

a show-cause hearing on several issues: Tammy's failure to submit the necessary income  



                         

information for the calculation of her child support obligation, her failure to pay half of  



the PFDs to Primo, and her challenge to the writ of assistance.  



                                                              -5-	                                                        7060
 


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

          D.        The Show-Cause Hearing  



                                                                                   

                    The show-cause hearing was held in June 2014.  After hearing from both  



                                                                    

parties, the court ordered that Tammy submit her 2013 tax return by the end of the week  



                                                                                                          

or be found in contempt; that Tammy reimburse Primo for half of their son's PFDs for  



the years 2010 through 2013; and that the writ of assistance required no modification or  



                                                          

clarification.  In July the superior court signed a judgment against Tammy in the amount  



of $2,407.44, reflecting half of the PFDs for four years plus prejudgment interest on that  



amount.  



                                                                                           

                    Tammy raises 16 issues on appeal, but we group her arguments as follows:  



                                                                                       

that the superior court (1) erred by granting Primo's motion to modify custody; (2)  erred  



                                                                                                                    

by ordering Tammy to pay child support when Primo had not requested it; (3) erred by  



                                                                                                   

ordering Tammy to reimburse Primo for half of their son's PFDs; (4) erred by issuing  



                                                                        

the writ of assistance; (5) displayed judicial bias; and (6) failed to apply the less stringent  



procedural standards to which pro se litigants are entitled.  Primo's single-page brief  



                                                                                                        

argues simply that this custody case is now moot because the parties' son turned 18 in  



March 2015, while the appeal was in the briefing stage.  



III.      STANDARD OF REVIEW  



                    We  review  the  superior  court's  custody  determination  for  abuse  of  



                2  

discretion.   "An abuse of discretion occurs when the superior court considers improper  



factors  in  making  its  custody  determination,  fails  to  consider  statutorily  mandated  

factors, or assigns disproportionate weight to particular factors while ignoring others."3  

                                                     



"We apply de novo review to child support issues involving a question of law such as  

                                                      



          2         Graham R. v. Jane S., 334 P.3d 688, 692 (Alaska 2014). 
 



          3        Martin v. Martin , 303 P.3d 421, 424 (Alaska 2013) (quoting Heather W. 
 



v. Rudy R., 274 P.3d 478, 481 (Alaska 2012)) (internal quotation marks omitted).  

     



                                                              -6-                                                       7060
 


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

                                                          

interpreting a civil rule, interpreting the terms of a child support order, and determining  



                                                                       4  

                                                                          But "[w]here no question of law is  

the correct method for calculating child support." 



                                                      

involved, superior courts have broad discretion in making child support determinations,  

and we review the superior court's decision for an abuse of discretion."5  



                   "We review de novo the question of whether a judge appears biased, which  



                                                            6  

                                                               We review other procedural decisions for  

is assessed under an objective standard." 

abuse of discretion.7  



IV.	 	    DISCUSSION  



          A.	  	   The  Superior  Court  Did  Not  Err  In  Granting  Primo's  Motion  To  

                   Modify Custody.  



                   Tammy contends that the superior court erred when it granted Primo's  



                                                                              

motion to modify custody and awarded him sole legal and primary physical custody of  



                                                                                           

their son.  The boy reached the age of majority while this appeal was pending.  Tammy's  



                                                                               8 

challenge to the custody order would therefore be moot  if it were not for its relevance  

                                             



          4        Millette v. Millette , 240 P.3d 1217, 1219 (Alaska 2010) (footnotes omitted).  



          5        Id.  



          6        Sagers v. Sackinger, 318 P.3d 860, 863 (Alaska 2014) (citing Griswold v.  



Homer City Council , 310 P.3d 938, 941 n.6 (Alaska 2013)).  



          7		      Norris v. Norris , 345 P.3d 924, 928 (Alaska 2015).  



          8        See  Hermosillo  v.  Hermosillo,  962  P.2d  891,  892  n.1  (Alaska  1998)  



(declining to address father's custody or visitation arguments "because they became  

moot when [the child] turned 18 years of age").  Tammy filed her appeal in July 2014,  

                                  

and her son turned 18 in March of this year.  See AS 25.20.010 ("A person is considered  

                                              

to have arrived at majority at the age of 18, and thereafter has control of the person's  

                                                                       

own actions and business . . . except as otherwise provided by statute.").   



                                                            -7-	                                                    7060
 


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

                                                                                                                             9  

to the amount of past child support, which is also challenged on appeal.   We therefore  



review the custody order and conclude that it should be affirmed.  



                                                                                                                                    

                       A court "may modify a custody award if it determines that (1) a change in  



                                                                                                            

circumstances requires the modification of the award and (2) the modification is in the  



                                                10  

best interests of the child."                       Tammy disputes that either requirement was met.  She  



argues  first  that  the  superior  court  clearly  erred  in  finding  a  substantial  change  in  



                                                                                                          

circumstances based on her emotional instability, presenting a risk of emotional harm to  



                                                                                 

her son.   She contends that the superior court, in making this finding, improperly relied  



                                                                                                              

on Judge Kristiansen's findings in the interim custody hearing involving Tammy's two  



children with Lance.   



                       Judge White noted Judge Kristiansen's findings in her oral decision, but she  

expressly declined to give them any collateral estoppel effect11 on grounds that they were  



                                                                            

from an interim hearing - and thus "no[t] based on complete information" - and that  



only Lance had been represented by counsel, meaning that "there was no [parity] in  



terms of the parties['] ability to present evidence."  Judge White's thorough review of  



the  evidence  in  her  oral  decision  makes  it  clear  that  she  did  not  rely  on  Judge  



                                                                             

Kristiansen's findings as a substitute for her own, as Tammy implies:  Judge White made  



            9          See   Turinsky v. Long, 910 P.2d 590, 594 n.9 (Alaska 1996) (addressing   



visitation order because of its potential effect on child support, but finding visitation   

issues otherwise moot because child had reached age of majority).  



            10  

                                                                                                  

                       Graham  R.  v.  Jane  S.,  334  P.3d  688,  694  (Alaska  2014)  (quoting  

AS 25.20.110(a)) (internal quotation marks omitted).  



            11  

                                                                               

                       See Morris v. Horn, 219 P.3d  198, 208 (Alaska 2009) (explaining that  

                                                                                   

"[t]he doctrine of issue preclusion, or collateral estoppel," permits that " 'an issue of fact  

                                 

which  is  actually  litigated  in  a  former  action  may,  under  certain  circumstances,  be  

                                                 

regarded as conclusive in a subsequent case' " (quoting F.T. v. State , 862 P.2d 857, 864  

          

n.13 (Alaska 1993))).  



                                                                         -8-                                                                  7060
 


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

                                                                                                   

her own findings from the record before her while noting that Judge Kristiansen had  



some of the same concerns.  We see no error.  



                                                                     

                     Tammy next contends that the superior court erred in its determination of  



                                                     

her son's best interests because it failed to give sufficient weight to his preference that  



                                                  12  

                                                        But  a  court  does  not  abuse  its  discretion  simply  

Tammy  have  physical  custody. 



because it orders a custody arrangement that differs from a child's stated preference.  



"The superior court has discretion to determine whether a child is capable of forming a  



                                      13 

                                                                                                             

trustworthy preference,"                 and it is within its discretion to conclude that the child's stated  



                                                                                                                              14  

preference is unreliable because it is based on a reluctance to hurt either parent                                                or  



                                                                                              15  

because it is otherwise "immature or improperly motivated."                                        



                     Here,  the  superior  court  stated  that  it  was  "factoring  in  [the  child's]  



preference"  but  was  unwilling  to  "give  it  a  lot  of  weight."    It  found  that  the  boy's  



                                                                                                             

preference for his mother was influenced by his belief that separation would be harder  



                                                                                               

on her than on his father and also that he would have more freedom with his mother  



because Primo imposed more discipline, both academically and socially.  The record  



                                                                                                              

supports these findings.  The court did not clearly err in making them, nor did it abuse  



          12        See AS 25.24.150(c) (providing that in determining the best interests of the   



child  for  custody  purposes,  a  court  is  to  consider  "[a]  child's  preference  [regarding  

custody] if the child is of sufficient age and capacity to form a preference").  



          13          Thomas v. Thomas, 171 P.3d 98, 103 (Alaska 2007).  

                                                                                                         



          14        See Rooney v. Rooney, 914 P.2d 212, 218 (Alaska 1996) ("[W]here a stated  



preference [of a child] results entirely from the child's desire to satisfy his parent's  

wishes - or because he does not wish to offend either of them - such a preference does  

                                                    

not fall within the statutory ambit.").  



          15         Thomas, 171 P.3d at 103.  



                                                                -9-                                                          7060
 


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

its  discretion  when,  after  weighing  all  the  relevant  factors,  it  ordered  a  custody  



arrangement that was contrary to the child's stated preference.  



          B.	 	    The Superior Court Did Not Abuse Its Discretion In Ordering Tammy  

                   To Pay Child Support.  



                   Tammy  contends  that  the  superior  court  abused  its  discretion  when  it  



             

ordered her to pay child support even though Primo did not request it in his motion to  



                                                        

modify custody.  When the superior court granted Primo's motion, the arrangement  



                                                                                                  

changed from shared physical custody on a "50/50 basis" - an  arrangement under  



which neither parent paid child support to the other - to one parent having primary  



physical custody.  The superior court entered a tentative child support order reflecting  



                                                                

this change and ordered Tammy to submit her Child Support Guidelines affidavit and  



                                                                                                

2013 income tax return so the court could calculate child support.  This was plainly the  



proper course; a significant modification of the physical custody schedule is likely to  



                                                                                                                           16  

                              

require a new child support determination, regardless of whether a parent requests it. 



                                                  

Alaska Civil Rule 90.3(a) sets out the framework for determining a child support award  



when "one parent is awarded primary physical custody," as happened here when the  



court granted Primo's motion.  



          16       See  Swaney  v.  Granger,  297  P.3d  132,  137  n.15  (Alaska  2013)  (even  



though  mother's  "request  to  modify  custody  was  silent  as  to  child  support,"  court  

                                            

observed "that under Rule 90.3(a) the change of a child's primary physical custodian  

from one parent to the other ordinarily will require modification of an existing support  

                                                                                                   

order").   



                                                            -10-	                                                     7060
 


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

                                                                                                            

                          Tammy raises a number of constitutional challenges to the Child Support  



                                                                                                                                                      17 

                                                                                                                                                           Finding  

Guidelines.  They were not timely raised below, and we consider them waived. 



no error, we affirm the superior court's child support order.  



             C.	 	        It Was An Abuse Of Discretion To Find The Orthodontics Expenses  

                          Ineligible  For  Reimbursement  Based  On  Factors  Other  Than  The  

                          Terms Of The 2009 Custody Order.  



                                                                                                     

                          Tammy argues that the superior court abused its discretion in ordering her  



                                               

to reimburse Primo for half the PFDs she received on their son's behalf between 2010  



                                                                                                                                       

and 2013.  She contends that she had a right to use Primo's share of the PFDs because  



Primo failed to pay half of their son's uninsured orthodontic expenses pursuant to the  



                                                                                                                         

2009 child support order, and she simply offset Primo's half of the PFDs against what  



he owed her.  We agree that this issue requires further consideration on remand.  



                                                                                                              

                          The superior court heard from both parties on this subject at the June 2014  



                                                                                                       

show-cause hearing.  Primo did not dispute that the child's braces cost $5,600, though  



                                                      

he claimed he did not know whether they served a legitimate medical purpose.  The court  



             17           Because Tammy raises them for the first time on appeal, she has waived her   



arguments that the Child Support Guidelines violate due process                                                              and the right to privacy  

and constitute an unconstitutional taking.                                         See Beach v. Handforth-Kome, 314 P.3d 53,  

57 n.10 (Alaska 2013) ("By raising this argument for the first time on appeal, Beach has   

waived it.").   Tammy did raise other legal challenges to the child support award in the                                                          

superior court in a motion for reconsideration:  that the Guidelines fail to comply with   

federal regulations, violate the Supremacy Clause of the U.S. Constitution, violate equal   

protection, and usurp powers delegated to the federal government.  The superior court  

denied reconsideration without specifically addressing these arguments, but it was not  

                                                                                                                                                       

required to address them, as arguments raised for the first time on reconsideration are  

                                                                                                                    

waived.  McCarter v. McCarter , 303 P.3d 509, 513 (Alaska 2013).  We also note that we  

                                                                                                    

have rejected similar constitutional challenges to Civil Rule 90.3 in the past.  See, e.g.,  

                                                                                                                                                                  

Lawson v. Lawson , 108 P.3d 883, 886 (Alaska 2005) (holding that Rule 90.3 does not  

                                        

violate the Fourth Amendment, the Fifth Amendment, or the right to privacy); Coghill  

                                                                

v. Coghill, 836 P.2d 921, 928-30 (Alaska 1992) (holding that Rule 90.3 does not violate  

                                                                                                                                            

equal protection and due process).  



                                                                                 -11-	                                                                          7060
 


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

                                                                                                     

found  that  the  parties  had  discussed  their  son's  need  for  braces  but  that  Primo  was  



                                                          

disinclined  to  pay  for  them  because  of  his  own  financial  circumstances.    The  court  



                                                                                            

faulted both parents for the ensuing impasse:  Primo because he failed to follow up with  



                                                

the orthodontist to see whether braces were a necessary expense that he was obliged to  



share, and Tammy because when Primo refused to share the cost she took "unilateral  



action"  by  keeping  Primo's  half  of  the  PFDs  and  putting  it  toward  the  orthodontic  



                                                                                                                     

expenses.  The superior court ruled that Tammy should have continued to pay Primo his  



                                                                                                                 

half of the PFDs pursuant to the 2009 order regardless of what she thought he owed her  



and should have sought assistance from the court if she wanted him to share in the  



orthodontic expenses.  The court also determined that, by getting the braces without  



                                                                                                                   

Primo's  consent,  Tammy  had  acted  "at  [her]  own  expense"  and  was  not  entitled  to  



reimbursement.  It entered judgment in favor of Primo in the amount of $2,407.44 for the  



unpaid PFDs and prejudgment interest.  



                                                                                                

                    We conclude that this was an abuse of discretion.  The 2009 custody order  



               

required the parties to share equally in their son's PFDs, but it also required that they  



                                                                                                                  

share equally in "[t]he cost of the child[]'s reasonable health care expenses not covered  



by insurance" up to $5,000 in a calendar year.  The custody order further specified that  



"[a] party shall reimburse the other party . . . within 30 days after receiving the health  



care bill."  The custody order imposed no other conditions on reimbursement.  There was  



                                                                                                       

no requirement that a parent consent to medical care before having to share in its cost,  



                                                                                      

and no indication that a parent could forfeit the right to reimbursement by proceeding  



                                                                            

unilaterally to incur an otherwise valid health care expense.  The superior court correctly  



                                                                                                        

observed  that  both  parties  shared  fault  for  the  impasse  over  their  son's  orthodontic  



                  

expenses.   But its decision that Tammy should not be reimbursed for the cost of the  



                                                              -12-                                                         7060

 


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

braces was based on factors other than those imposed by the 2009 order that governed  



the parties' rights and responsibilities under the circumstances.  



                                                                       

                    The  superior  court  was  correct  to  observe  that  parties  are  expected  to  



                                      

comply with the court's orders with regard to custody and the sharing of expenses, and  



                                     

we sympathize with the court's apparent frustration with the litigants' inability to resolve  



                  

this matter themselves.  But entering a money judgment in favor of one parent against  



the other in order to resolve a relatively minor dispute over children's shared expenses  



                                                                                                              

should be a last resort, especially in cases like this one where each parent alleges that the  



other owes money.  



                                             

                    We reverse the July 2014 judgment and remand this issue to the superior  



court so that it can reconsider whether Tammy is entitled to reimbursement under the  



terms of the 2009 child custody order.  The court should make findings with regard to  



                                                                                                                  

the amount of the reasonably necessary orthodontic expenses and whether that amount  



                                                                                                   

is partially or wholly offset by what Tammy owes Primo for his half of the PFDs.  We  



                                              

leave it to the superior court's discretion to determine whether the existing factual record  



                                               

is sufficient for these purposes or whether it needs to invite further submissions from the  



parties before deciding the issue.  



          D.        Tammy's Challenge To The Writ Of Assistance Is Moot.  



                                                                

                    Tammy challenges the writ of assistance the superior court issued for the  



                                            

enforcement  of  its  custody  order,  contending  that  it  falsely  identified  their  son  as  a  



                                                                                                            

"runaway" and falsely accused Tammy of encouraging him to leave Primo's lawful  



                                                                   

custody.  But because their son has reached the age of majority, any dispute over the use  



                                                                                  

of  the  writ  to  enforce  the  custody  order  "has  lost  its  character  as  a  present,  live  



                                                              -13-                                                         7060

 


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

                     18  

controversy."            Tammy would be entitled to no relief on this issue even if she were to               

prevail, and we therefore consider it moot.19  



          E.		       Tammy's Allegations Of Judicial Bias Are Without Merit, And The  

                     Superior  Court  Did  Not  Abuse  Its  Discretion  In  Its  Treatment  Of  

                     Tammy As A Pro Se Litigant.   



                     Tammy refers to several of the superior court's rulings as "tend[ing] to  

                                                 



prove prejudice and bias of the Court."  But these allegations of bias are merely "another  

                                                                             



iteration of [her] own discontent with the court's substantive rulings" and therefore fail  

                                                                                                            



                           20  

to  establish  bias.             We  also  reject  Tammy's  contention  that  several  of  the  superior  

                                                                         



court's rulings "tend[] to demonstrate" its failure to hold her to less stringent standards  

                                                                             

                                                                                          21  Tammy refers specifically  

than if she were a lawyer, as required under Breck v. Ulmer .  

                                                                                                            



to the superior court's denial of a motion that asked the court to explain why it rejected  

                                                  



Tammy's claims of bias in her motion for reconsideration of the custody order.  But the  

                                                                  



superior  court  based  its  rulings  on  the  lack  of  merit  in  Tammy's  positions,  not  on  

                                                                                                           



          18        Jacob v. State, Dep't of  Health &                   Soc.  Servs.,  Office of Children's Servs.,  



177 P.3d 1181, 1185 (Alaska 2008) (quoting Peter A. v. State, Dep't of Health & Soc.  

Servs., Office of Children's Servs., 146 P.3d 991, 994 (Alaska 2006)).  



          19         Peter A., 146 P.3d at 994 ("If the party bringing the action would not be  



entitled  to  any  relief  even  if  it  prevails,  there  is  no  'case  or  controversy'  for  us  to  

decide.").  



          20         Ward v. Urling, 167 P.3d 48, 58 (Alaska 2007).  



          21         745 P.2d 66, 75 (Alaska 1987), cert. denied, 485 U.S. 1023 (1988).  



                                                                -14-	                                                         7060
 


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

procedural defects in Tammy's pleadings that could have been corrected.22  The court did  



not violate the rule of Breck in making its substantive rulings.   



V.       CONCLUSION  



                                                        

                  We REVERSE the superior court's order and judgment requiring Tammy  



to reimburse Primo for their son's PFDs and REMAND for further findings on whether  



                                                                                

an offset for the orthodontic expenses is appropriate.  In all other respects we AFFIRM  



the judgment of the superior court.  



         22       Bauman v. State, Div. of Family & Youth Servs. , 768 P.2d 1097, 1099  



(Alaska 1989) (declining "to extend Breck to require judges to warn pro se litigants on  

aspects  of  procedure  when  the  pro  se  litigant  has  failed  to  at  least  file  a  defective  

                

pleading"); Breck , 745 P.2d at 75.  



                                                       -15-                                                 7060
 

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