Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sherrill v. Sherrill (5/13/2016) sp-7102

Sherrill v. Sherrill (5/13/2016) sp-7102

           Notice:   This opinion is subject to correction before publication in the P                       ACIFIC  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                                          



DANNY  SHERRILL,                                                       )  

                                                                       )      Supreme  Court  No.  S-15844  

                                 Appellant,                            )  

                                                                                                                                          

                                                                       )      Superior Court No. 4FA-14-02550 CI  

           v.                                                          )  

                                                                                                   

                                                                       )      O P I N I O N  

                    

PAULITA SHERRILL,                                                      )  

                                                                                                                 

                                                                        )     No. 7102 - May 13, 2016  

                                 Appellee.                             )  

                                                                       )  



                      A                                                                                      

                         ppeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                                    

                      Fourth  Judicial  District,  Fairbanks,  Douglas  Blankenship,  

                      Judge.  



                                                                                                            

                      Appearances:                 Danny   Sherrill,   pro   se,   Army   Pacific,  

                                                                                                           

                      Appellant.  Paulita M. Hallen, pro se, North Pole, Appellee.  



                                                                                                                     

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

                                     

                      Bolger, Justices.  



                                          

                      BOLGER, Justice.  



I.         INTRODUCTION  



                                                                                                                                 

                      This  appeal  arises  from  superior court orders  dividing  marital property,  



                                                                                                                             

granting child custody, and determining child support.  The noncustodial, nonresident  



                                                                                                                                  

parent claims the superior court lacked jurisdiction, the orders are substantively incorrect,  



                                                                                                                                   

and the court appeared to be biased against him.  We conclude that the record contains  



                                                                                                                                         

no evidence of bias and that the court did not err in entering the marital property and child  


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

custody orders.   The superior court properly exercised jurisdiction and entered orders  

                                                                                                                                 



settling marital property and granting custody that reflected the parties' agreements.  But  

                                                                                                                                      



in calculating the father's child support obligation, the court assumed that Alaska Civil  

                                                                                                                                   



Rule 90.3 imposes an income ceiling of $110,000 - $10,000 below the statutory level.  

                                                                                                                                            



Because the father's income appears to exceed $120,000, this assumption likely rendered  

                                                                                                                             



the support order too low.  Accordingly we remand the support order for reconsideration.  

                                                                                                                  



II.        FACTS AND PROCEEDINGS  

                                   



                     Danny  Sherrill and Paulita Hallen (formerly Paulita Sherrill) married in  

                                                                                                                                       



2000 in Seoul, South Korea, and have one daughter. Before separating in 2011 they lived  

                                                                                                                                   



outside the United States. By June 2012 Paulita had moved to Alaska with their daughter,  

                                                                                                                            



and  in  September  2014  Paulita  filed  for  divorce.                             At  the  time  Danny  was  living  in  

                                                                                                                                       



Okinawa, Japan, where he was working as a temporary contractor at a U.S. military base;  

                                                                                                                                   



Danny participated in the proceedings by telephone.  Both Danny and Paulita appeared  

                                                                                                          



pro se.  

             



                     Two hearings were held that December.  During those proceedings and in  

                                                                                                    



their briefing, Danny and Paulita agreed on most substantive matters.  They agreed to  

                                                                                                                                        



settle the marital property division with a one-time payment of $35,000 from Danny to  

                                                                                                                                        



Paulita, which Danny agreed to pay by the end of the next month.  They also agreed to  

                                                                                                                                        



share legal custody of their daughter and to give Paulita primary physical custody with  

                                                                                                                                    



liberal visitation for Danny. Each also noted that Danny had been providing about $1,600  

                                                                                                                                



per month in child support.  

                                             



                     Danny, however, declined to fully document his income, claiming that the  

                                                                                                                                      



information  was  classified.                   To  determine  child  support,  which  under  Alaska  Civil  

                                                                                                                                  



Rule 90.3 is based on the obligor's annual income, the superior court worked with the  

                                                                                                                                      



information it had and estimated Danny's annual income as $110,000.  This figure, the  

                                                                                                                                      



court explained, reflected Rule 90.3's income ceiling; any income exceeding that amount  

                                                                                                                               



                                                                   -2-                                                            7102
  


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

would not affect the calculation.                       Danny agreed that the $110,000 estimate was fair.                                    But  



                                                     1  

Paulita, through her interpreter,                                                                                                             

                                                       questioned the court's determination, asserting that the  



                                                                                                                                     

court  had  not  accounted  for  Danny's  retirement  income  and  that,  if  it  had,  Danny's  



                                                                                                                                              

income would exceed "[$]120,000, which is [the limit under] 90.3."  The court did not  



                                              

address Paulita's concern.  



                                                                                                                                          

                       Danny also expressed some concerns.  He claimed that Paulita had taken  



                                                                                                                                    

their daughter to Alaska illegally and was making visitation difficult.  And he requested  



                                                                                                                                           

permission "to submit documents . . . concerning [Paulita's] illegal departure . . . from  



                                                                                                                                                

[their] home in Guam and going to Alaska."   The court stated that Danny was free to  



                                                                                                                                 

submit evidence, but it encouraged him to be thoughtful and to only submit documents  



                                                                                                                               

if relevant  to  disputed issues.   Danny  acknowledged agreement with the information  



                                           

already before the court.  



                                                                                                                                          

                       In January 2015 the court entered the final divorce decree, custody order,  



                                                                                                                                              

support  order,  and  findings  of  fact  and  conclusions  of  law,  which  memorialized  the  



                                                                                                                                           

$35,000 marital property settlement.  As decided at the hearing, the court based the child  



                                                                                                                                                     

support order on an annual income of $110,000 for a monthly obligation of $1,833.33.  



                                                                                                                                       

                       After the December hearings Danny informed Paulita that he had already  



                                                                                                                                          

satisfied the $35,000 settlement and accordingly did not owe her any more money. When  



                                                                                                                                              

the  January  payment  deadline  passed  without  payment  Paulita  moved  to  enforce  the  



                                                                                                                                      

order.   Danny opposed her motion, claiming that he had already paid Paulita $48,650  



                                                                                                                                     

"over a period of three years."   He also filed a notice of appeal challenging Paulita's  



                                                                                                                                             

status  to  file  a  complaint  and  asserting  that  the  court  was  biased  against  him.                                                The  



                                                                                                                                       

superior court granted Paulita's motion and ordered Danny to pay the $35,000.  



                                                                                                                                                 

                       On appeal Danny asks us to vacate all orders except the divorce decree.  



           1           During the second hearing, a court-provided interpreter assisted Paulita.  

                                                                                                                                                  



                                                                       -3-                                                                     7102  


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

III.           STANDARDS OF REVIEW                        



                                                                                                               2  

                             We review jurisdiction issues de novo.                                                



                                                                                                                                                                                   

                             A superior court's equitable division of marital property is reviewed for  



                                           3  

                                                                                                                                                                           

abuse  of  discretion.                           "[W]e  will  not  disturb  [a  division]  unless  the  result  is  clearly  



                 4  

unjust."   



                                                                                                                                                                                 

                             In determining custody, a superior court enjoys "broad discretion . . . so long  



                                                                                                                 5  

                                                                                                                                                                         

as the determination is in the child's best interests."                                                               "We will not reverse a custody  



                                                                                                                                                                                   

order unless the superior court abused its discretion or its controlling factual findings are  



                                         6  

                                                                                                                                                                      

clearly erroneous."                          "The superior court abuses its discretion if it 'considers improper  



                                                                                                                                                                           

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



                                                                                                                                                                          7  

                                                                                                                                                                               

or assigns disproportionate weight to particular factors while ignoring others.' "                                                                                             "The  



                                                                                                                                                                        

clearly erroneous standard, as we apply it, means something more than merely showing  



                                                                                                                                                                                      

it is more probable than not that the trial judge was mistaken.  We must be convinced, in  



                                                                                                                                  8  

                                                                                                        

a definite and firm way, that a mistake has been committed." 



              2              Vanvelzor v. Vanvelzor                            , 219 P.3d 184, 187 (Alaska 2009) (citing                                                   S.B. v.   



State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs.                                                                                     , 61 P.3d 6, 10     

(Alaska 2002)).   



              3              Sandberg v. Sandberg                          , 322 P.3d 879, 886 (Alaska 2014) (quoting                                                 Williams  



v.   Williams, 252 P.3d 998, 1004 (Alaska 2011)).                                       



              4             Id . (quoting               Williams, 252 P.3d at 1004).                  



              5  

                                                                                                                                                                       

                            Nancy  M.  v.  John  M. ,  308  P.3d  1130,  1133  (Alaska  2013)  (quoting  

                                                                                                                     

Stephanie F. v. George C., 270 P.3d 737, 745 (Alaska 2012)).  



              6             Id.  (citing  Stephanie  F. ,  270  P.3d  at  745).  



              7             Id.  (quoting  Stephanie  F. ,  270  P.3d  at  745).  



              8              Sandberg,  322  P.3d  at  886  (quoting  Alaska  Foods,  Inc.  v.  Am.  Mfrs.  Mut.  



                                                                                                                                                             (continued...)  



                                                                                          -4-                                                                                  7102
  


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

                          We review de novo child support issues that involve "a question of law such                                                            



as interpreting a civil rule . . . and determining the correct method for calculating child                                                                    



                  9  

support."                                                                                                                                                   

                     Where a question of law is not involved, however, a superior court has "broad  



                                                                                                                                                              

discretion in making child support determinations"; we review those decisions for abuse  



                          10  

      

of discretion. 



                                                                                                                                                                     

                          Finally  the  question  whether  a  court's  conduct  raises  an  appearance  of  



                                                                                                     11  

                                                                                           

impropriety is a question of law we review de novo. 



IV.          DISCUSSION  



                                                                                                              

             A.           The Superior Court Properly Exercised Jurisdiction.  



                                                                                                                                                                   

                          Danny  contends  that  the  superior  court  lacked  jurisdiction  to  enter  the  



                                                                                                                                                                

marital property, custody, and child support orders.  He claims that Paulita did not have  



                                                                                                                                                                     

the status necessary to initiate a complaint because she entered Alaska illegally, and he  



                                                                                                                                                                

asserts that it is inappropriate for Alaska to compel him to act because he has never lived  



                                                                                                     

in the state and lacks connections to any U.S. state.  



                                                                                                                                                                    

                          Jurisdiction in divorce proceedings depends on the nature of the claim.  To  



                                                                                                                                                   

divide marital property of a nonresident, the trial court must have personal jurisdiction  



             8            (...continued)  



Ins. Co. , 482 P.2d 842, 848 (Alaska 1971)).  

                                                                       



             9  

                                                                                                                                                                      

                           Wells v. Barile, 358 P.3d 583, 587-88 (Alaska 2015) (quoting Millette v.  

                                                                            

Millette , 240 P.3d 1217, 1219 (Alaska 2010)).  



             10           Id.  at 588 (quoting Millette , 240 P.3d at 1219).  

                                                                                                        



             11           Heber v. Heber , 330 P.3d 926, 934 (Alaska 2014) (citing Griswold v. Homer  

                                                                                                                                                            

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

                                                                                 



                                                                                  -5-                                                                          7102
  


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

over the nonresident under Alaska's long-arm statute, AS 09.05.015, unless the defense                                                              



                   12  

is waived.                                                                                                                     

                        Under AS 09.05.015(a)(12), such claims may be heard when:  



                                                                                                                                    

                         (A) the parties resided in this state in a marital relationship for  

                                                                                                                               

                         not  less  than  six  consecutive  months  within  the  six  years  

                                                                                              

                         preceding the commencement of the action;  



                                                                                                                                      

                         (B) the party asserting the personal claim has continued to  

                                                             

                         reside in this state; and  



                                                                                                      

                         (C) the nonresident party receives notice as required by law.  



                                                                                                                                                 

These grounds are exclusive; they are not "in addition to any other grounds" including  



                                         13  

                                                                                                                                                        

those at common law.                           Thus when nothing in the record suggests that a couple "ever  



                                                                                                                                             

resided together in a marital relationship in Alaska," the court does not have jurisdiction  



                                                                                                                                         14  

                                                                                                                           

to divide marital property unless the responding party waives the defense. 



                                                                                                                                                              

            Nothing in the record suggests that Danny and Paulita ever resided in Alaska as  



                                                                                                                                                     

a  married  couple.                   We  nonetheless  conclude  that  jurisdiction  exists  because  Danny  



                                    15  

                                                                                                                                                     

waived the defense.                      Though Danny expressed concern about Paulita's move to Alaska,  



                                                                                                                                                            

he did not tie this concern to  the  court's  authority  to hear the action.   Rather, as the  



                                                                                                                                                             

superior court noted, it appeared the concern related to custody; his answer stated, for  



                                                                                                                                                             

example:  "[Paulita] took my daughter, illegally . . . .  As a result, it has been hard for me  



                                                                                                                                                        

to see my daughter due to the long distance between Okinawa and Alaska."  Danny never  



                                                                                                                                                             

argued that the superior court lacked jurisdiction and never mentioned concerns about his  



             12          Vanvelzor v. Vanvelzor                     , 219 P.3d 184, 188-89 (Alaska 2009).                                    



             13  

                                                                                                                                                              

                         Id.  at  188  ("The  only  grounds  for  jurisdiction  over  personal  claims  in  

                                                                                         

divorce and annulment actions are statutory.").  



             14  

                                            

                         See id. at 188-89.  



             15  

                                                                                                                                                          

                         Though  Paulita  does  not  argue  that  Danny  waived  the  defense,  "we  

                                                                                                                                                            

generally frame similar questions in terms of waiver"; we may address such issues sua  

                                   

sponte.  See id. at 189.  



                                                                              -6-                                                                        7102
  


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

lack of contacts with the state.                            Therefore, with respect to the property division, we find                   



the defense waived.                     



                          The    superior    court    also    properly    exercised    its    jurisdiction    when    it  



 determined   child   custody.     Subject   matter   jurisdiction   in   child   custody   matters   is  

governed by the federal Parental Kidnapping Prevention Act                                                            16  

                                                                                                                                                                    

                                                                                                                          and Alaska's version of  



                                                                                                                        17  

                                                                                                                                                               

the Uniform Child Custody Jurisdiction and Enforcement Act;                                                                 these acts closely track  



                                                                                                                                                       

 one another.  Both assign children "home state[s]" to determine which state has principal  



                        18  

jurisdiction.                                                                                                                                                   

                             A child's "home state" is defined as "the state in which a child lived with  



                                                                                                                                                                 

 a  parent  .  .  .  for  at  least  six  consecutive  months  .  .  .  immediately  before  the  



                                                                                          19  

                                                                                                                                                                

 commencement of a child custody proceeding."                                                  The courts of a child's home state have  



                                                                                               20  

                                                                                                                                                       

 subject matter jurisdiction  over  that proceeding.                                                 "Physical presence  of or personal  



                                                                                                                                                         

jurisdiction over a party or a child is not necessary or sufficient to make a child custody  

 determination."21  



                                                                                                                                                               

                          Thus whether the superior court had jurisdiction to determine custody turns  



                                                                                                                                                

 on  where  the  parties' daughter resided  during  the  six  months before  the  proceedings  



                                                                                                                                                                   

began.  The record establishes that Paulita had moved to Alaska with their daughter by  



                                                                                                                                                                          

June  2012,  more  than  six  months  before  the  proceedings  began  in  September  2014.  



             16           28 U.S.C.  1738A (2014).              



             17  

                                                                                                                                                          

                          AS 25.30.300-.910; see Ronny M. v. Nanette H., 303 P.3d 392, 400 (Alaska  

                                                             

2013) (describing the statutory framework).  



             18           28  U.S.C.    1738A(c);  AS  25.30.300(a).                                            The  federal  law  authorizes  

                                                                                                                                                    

jurisdiction only if state law allows it.  28 U.S.C.  1738A(c)(1).  

                                                                                                    



             19           AS  25.30.909(7).  



             20           28  U.S.C.      1738A(c);  AS  25.30.300(a).   



             21           AS  25.30.300(c).  



                                                                                 -7-                                                                          7102
  


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

Therefore Alaska is the home state, and jurisdiction was proper with respect to child                                                          



custody.  



                       The superior court also had personal jurisdiction to enter the child support  

                                                                                                                                            

order against Danny.  The federal Full Faith and Credit for Child Support Orders Act22  

                                                                                                                                                



                                                                                             23  

                                                                                        

and Alaska's Uniform Interstate Family Support Act                                                govern personal jurisdiction in  

                                                                                                                                                     

child support matters.24                   A court may exercise jurisdiction over a nonresident parent if,  

                                                                                                                                                     



among other grounds, the parent "submits to the jurisdiction of this state by consent in a  

                                                                                                                                                       



record, by entering a general appearance, or by filing a responsive document having the  

                                                                                                                                                   

effect of waiving any contest to personal jurisdiction."25  

                                                                                                                                           

                                                                                                      Here Danny made a general  



                                                                                                                                                          

appearance  and  filed  responsive  pleadings  without  challenging  the  court's  authority.  



                                                                                                                     

Jurisdiction was therefore proper with respect to the child support order.  



                                                                                                                                               

            B.	        The Superior Court Did Not Err In Dividing The Marital Estate Or In  

                                                                                                                                                   

                        Granting Child Custody, But It Was Error To Base Child Support On  

                                                    

                       An Income Of $110,000.  



                                                                                                                                     

                        1.	        The order dividing the marital estate is not "clearly unjust."  



                                                                                                                                                  

                       Danny challenges the order dividing marital property, which required him  



                                                                                                                                                

to pay Paulita $35,000 by January 31, 2015.  He claims that he already paid Paulita more  



                                                                                                                                                  

than that amount after they separated in 2011 and that he donated several items to her,  



                                                                                                                                                          

including a house in the Philippines, a car, and various furniture items and appliances.  



                                                                                                                                          

Danny further asserts that Paulita was awarded $3,500 at the second hearing, not $35,000.  



            22         28 U.S.C.  1738B.       



            23  

                               

                       AS 25.25.101-.903.  



            24  

                                                                                                                   

                       Ronny M. v. Nanette H. , 303 P.3d 392, 401 (Alaska 2013).  



            25         AS 25.25.201(a)(2).  

                               



                                                                          -8-	                                                                 7102
  


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

                     In   equitably   dividing   marital   property,   a   superior   court   exercises   broad  



                 26                                                                                                                    27  

discretion.                                                                                                                                

                      "[W]e will not disturb [a division] unless the result is clearly  unjust." 



                                                                                                                         

When a couple agrees to the division of property, "[the] agreement should be controlling  



                                                                                                                                     

in the absence of fraud, duress, concealment of assets or other facts showing that the  



                                                                                                        28  

                                                                                

agreement was not made voluntarily and with full understanding."                                              



                                                                                                                              

                     The  record  supports  the  property  order.                         Danny  agreed  to  pay  Paulita  



                                                                                                                                    

$35,000 both verbally and in writing, affirmed at least three times that the amount was  



                                                                                                                                    

"fair  and  equitable,"  and  volunteered  a   payment  deadline.                                        Further,  during  the  



                                                                                                                               

proceedings, Danny never mentioned making any payments to Paulita other than $1,600  



                                                                                                                                    

in monthly child support.  Receipts in the record total about $24,000 and indicate that  



                                                                                                                                     

Danny generally paid Paulita either $1,500 or $1,600 each month.   And although the  



                                                                                                                                

superior  court  did  initially  say  "$3,500,"  he  immediately  acknowledged  his  error,  



                                                                                                                                     

corrected himself, and repeated the $35,000 amount twice.  Such circumstances do not  



                                                                                                                                     

justify  disturbing  the  property  order  because  the  record  does  not  support finding  the  



                                        29  

                            

division "clearly unjust." 



                                                                                                                                    

                     2.	        The superior court did not abuse its discretion in entering the  

                                                        

                                child custody order.  



                                                                                                                                    

                     Danny appears to challenge the custody order based on his allegation that  



                                                                                                  

Paulita kidnapped their daughter and concealed her location.  



           26        Sandberg  v.  Sandberg,  322  P.3d  879,  886  (Alaska  2014).  



           27        Id.  (quoting   Williams  v.   Williams,  252  P.3d  998,   1004  (Alaska  2011)).  



           28        Jordan  v.  Jordan ,  983  P.2d   1258,   1264  (Alaska   1999)  (quoting  Notkin  v.  



Notkin ,  921  P.2d   1109,   1111  (Alaska   1996)).  



           29        See  Sandberg,  322  P.3d  at  886  (quoting   Williams,  252  P.3d  at   1004).   



                                                                   -9-	                                                          7102
  


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

                         "The superior court has broad discretion in determining custody awards so                                                             



                                                                                                          30  

long as the determination is in the child's best interests."                                                                                                  

                                                                                                               In determining custody, the  



                                                                                                                                                              

superior court "may consider only those facts that directly affect the well-being of the  

child";31  

                                                                                                                                           

                  a  child's  best  interests  must  be  evaluated  in  light  of  the  AS  25.24.150(c)  

factors.32  

                                                                                                                                                           

                  However, when the parents have agreed on a custody arrangement, a court may  



                                                                  33  

                                                                                                                                                 

engage in a "less searching" inquiry.                                  Unless the child's best interests justify a deviation,  



                                                                                                      34  

                                                                                                                                                               

a court generally should adopt the parents' agreement.                                                      "[A] parent's mere change of  



                                                                       35  

                                                     

mind" does not justify such deviation. 



                                                                                                                                                        

                         As Danny attested, Danny and Paulita "did not have a disagreement [about  



                                                                                                                                                    

custody]."   Throughout the proceedings, they agreed that Paulita would have primary  



                                                                                                                                                      

physical  custody,  they  would  share  legal  custody,  and  Danny  would  have  liberal  



             30          Nancy   M.   v.   John   M. ,   308   P.3d   1130,   1133   (Alaska   2013)   (quoting  



Stephanie F. v. George C.                        , 270 P.3d 737, 745 (Alaska 2012)).                   



             31  

                                 

                         AS 25.24.150(d).  



             32          AS 25.24.150(c) ("In determining the best interests of the child the court  

                                                                                                                                                          

shall consider . . . ."); see Crane v. Crane, 986 P.2d 881, 887-88 (Alaska 1999) ("In  

                                                                                                                                                           

making any custody determination - whether following a contested trial or upon the  

                                                                                                                                                             

parties' agreement - the superior court must base its decision on the best interests of the  

                                                                                                                                                              

child.").  



             33  

                                                                                                                                                     

                         Crane, 986 P.2d at 888; see also Nelson v. Nelson, 263 P.3d 49, 53 (Alaska  

                                                                                                                                                              

2011) ("In determining what custody arrangement is in the children's best interests, the  

                                                                                                                                                             

superior court may properly take account of a custody agreement entered into by the  

                                                                                                                             

parents.") (citing McClain v. McClain , 716 P.2d 381, 385 (Alaska 1986)).  



             34  

                                                                                                                                                    

                         Faulkner v. Goldfuss , 46 P.3d 993, 999 (Alaska 2002) ("Although a custody  

                                                                                                                                                                 

agreement does not bind the superior court, the court should deviate from the terms of a  

                                                                                                                                       

custody agreement only upon finding on the record that the child's best interests justify  

                                                                                             

a deviation.") (citing McClain , 716 P.2d at 385).  



             35  

                                                              

                         Crane, 986 P.2d at 889.  



                                                                              -10-                                                                       7102
  


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

visitation.   Danny and Paulita confirmed that this arrangement served their daughter's                                                                                                                                                                                             



best interests; Danny volunteered that Paulita was adequately caring for their daughter;                                                                                                                                                                                                



 and   nothing   in   the   record   suggests   that   these   sentiments   were   incorrect.     The   court  



 adopted Danny and Paulita's agreement, and there are no red flags that might justify a                                                                                                                                                                                                                               



 deviation.   Therefore we conclude that the superior court did not abuse its discretion in                                                                                                                                                                                                                        



 entering the child custody order.                                                                                     



                                                 3.                      The record does not support the child support order.                                                                                                                               



                                                 Danny   contends   that   the   child   support   order   is   "much   higher   than   fair"  



because the court did not acknowledge his small retired military pay or the temporary                                                                                                                                                                                               



nature of his contract work.                                                                          He asserts he should pay only $503.37 per month.                                                                                                                                         Paulita  



 argues that the order is "more than fair" because it gives Danny a $10,000 break relative                                                                                                                                                                                                     



to the $120,000 income ceiling of Rule 90.3.                                                                                                                      Danny's income, she estimates, exceeded                                                                               



 $135,000 in 2013; yet the order is based on an income of $110,000.                                                                                                                                                                                   



                                                 We review de novo child support issues that involve "a question of law such                                                                                                                                                                              



 as interpreting a civil rule . . . and determining the correct method for calculating child                                                                                                                                                                                                            



                                  36  

 support."                                                                                                                                                                                                                                                                                          

                                              Where  "no  question  of  law  is  involved,  [a]  superior  court[]  ha[s]  broad  



                                                                                                                                                                                                                                                                                                      

 discretion in making child support determinations"; we review those decisions for abuse  



                                                37  

          

 of discretion. 



                                                                                            

                                                 Under Rule 90.3(a), which applies to primary physical custody situations,  



                                                                                                                                                                                                                                                                                                

the  amount  of  child  support  is  based  on  the  noncustodial  parent's  adjusted  annual  



                             38  

 income.                                                                                                                                                                                                                                                                                           

                                         Adjusted  annual  income  is  the  parent's  income  from  "all  sources"  minus  



                         36                       Wells v. Barile                                      , 358 P.3d 583, 587-88 (Alaska 2015) (quoting                                                                                                                                Millette v.   



Millette , 240 P.3d 1217, 1219 (Alaska 2010)).                                                                                              



                         37  

                                                                                                                                                                                                 

                                                Id.  at 588 (quoting Millette , 240 P.3d at 1219).  



                         38                      Alaska R. Civ. P. 90.3(a).  

                                                                                                                 



                                                                                                                                                      -11-                                                                                                                                               7102
  


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

mandatory deductions, certain voluntary contributions to retirement and pension plans,                                                                        



                                                                                                                                                          39  

and child and spousal support payments arising from other prior relationships.                                                                                 Rule  



                                                                                                                                                         

90.3 defines income broadly; income includes "benefits which would have been available  



                                                                                                 40                                                                   41  

                                                                                   

for  support  if  the  family  had  remained  intact,"                                                                                                  

                                                                                                       such  as  income  earned  abroad, 



                                                              42  

                                               

pensions, and veterans' benefits.                                  This rule, however, caps the amount of income subject  

                                                                                                                                                             



to the determination:  Adjusted annual income exceeding $120,000 generally does not  

                                                                                                                                                                    

result in additional support.43  

                                       



                                                                                                                                                        

                          It appears that the superior court used an incorrect income cap of $110,000  



                                                                                                                                                                    

to estimate Danny's income.   Because Danny stated he could not fully document his  



                                                                                                                                                                   

income, the court determined (and Danny agreed) that $110,000 was a fair estimate.  The  



                                                                                                                                                            

court apparently based this estimate on Danny's 2013 tax return, showing a total income  



                                                                                                                                                                    

of approximately $135,000, and its assumption that income above $110,000 would not  



                                                                                                                                                         

impact  the  child  support  determination.                                        But  as  Paulita  observed,  Danny's  reported  



                                                                                                                                                           

income  exceeds  $120,000,  the  income  ceiling  that  generally  applies  to  child  support  



                              44  

determinations.                    



             39           Alaska R. Civ. P. 90.3(a)(1).                            Mandatory deductions include income taxes,                                  



social security tax, Medicare tax, and mandatory contributions to retirement or pension                                                               

plans.   Id.  (a)(1)(A).  



             40  

                                                                                             

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



             41  

                                                                                                                                                    

                          See Hixson v. Sarkesian, 123 P.3d 1072, 1075 (Alaska 2005) (explaining  

                                                                                                                                     

exchange rates may affect amount of child support paid under Rule 90.3).  



             42  

                                                                                                                                                        

                          Alaska  R.  Civ.  P.  90.3  cmt.  III.A.                                  Income  does  not  include  veterans'  

                                                             

benefits that are means based.  Id.  



             43  

                                                                      

                          See Alaska R. Civ. P. 90.3(c)(2).  



             44           Id.  



                                                                                 -12-                                                                           7102
  


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

                         Further, contrary to Danny's assertions, the superior court was not required                                             



 to consider the temporary nature of his contract work.                                            Though a court must engage in "                            a  



                                                                                                                           45  

                                                                                                                                      

probing review               of [the noncustodial parent's] . . . financial affairs,"                                         the "determination  



                                                                                                                                                    

 [of child support] will necessarily be somewhat speculative because the relevant income  



                                                               46  

                                                                                                                                                              

 figure is expected future income."                                  "[A] court must examine all available evidence to  



                                                                   47  

                                                                                                                                                    

 make the best possible calculation."                                   When an obligor has had a "very erratic income  



                                                                                                                                                    

 in the past[,] . . . the court may choose to average the obligor's past income over several  



              48  

 years."                                                                                                                                          

                     A  court  "will  not  relieve  a  noncustodial  parent  from  his  child  support  



                                                                                                                                                        

 obligations  absent  an  affirmative  showing  that  the  obligor  parent  cannot  meet  [his]  



                      49  

 obligation."               



                                                                                                                                                             

                         Though Danny may hold contract jobs only periodically, like the one he  



                                                                                                                                                        

 held  during  the  proceedings,  he  did  not  provide  an  income  history  that  would  have  



                                                                                                                                                 

 allowed the superior court to average his income over several years.  Danny provided  



                                                                                                                                                                   

 only his 2013 federal tax forms, his retiree account statement, and a few bank statements.  



                                                                                                                                                            

 The court relied on this information when it determined child support; Rule 90.3 does not  



               

 require more.  



             45          Mallory D. v. Malcolm D. , 309  P.3d  845,  848  (Alaska  2013)  (emphasis  in  



 original)  (quoting  Swaney  v.  Granger,  297  P.3d   132,   138  (Alaska  2013)).  



             46          Alaska  R.  Civ.  P.  90.3  cmt.  III.E.  



             47          Id.  



             48  

                                                                                                                                                          

                         Id. ; see  also McDonald  v.  Trihub,  173 P.3d 416, 427  (Alaska 2007)  ("In  

                                                                                                                                                           

 determining  a party's  earning  capacity  for purposes  of the  rule,  the  trial  court has  the  

                                                                                                                                                 

 discretion to choose the best indicator of future earning capacity based on the evidence  

              

before it.").  



             49  

                                                                                                                                                       

                         McDonald , 173 P.3d at 427 (quoting Kowalski v. Kowalski , 806 P.2d 1368,  

                           

 1371 (Alaska  1991)).  



                                                                             -13-                                                                       7102
  


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

                                     Because the record indicates that the court misinterpreted the income ceiling                                                                                                            



 in Rule 90.3 and omitted some of Danny's reported income from its income estimate, we                                                                                                                                                  



 remand the child support order for reconsideration.                                             



                   C.                 The Proceedings Did Not Evidence Bias Or An Appearance Of Bias.                                                                                                                          



                                     Danny   claims the proceedings evidenced bias because the court did not                                                                                                                          



 express interest in his claims.                                                      This lack of interest, he asserts, led him to not submit                                                                              



 evidence   about   Paulita   and   her   allegedly   illegal   actions   because   he   wanted   to   avoid  



 irritating the court. He further claims that the court wrongly credited Paulita's statements                                                                                                                      



 and challenges the manner in which the proceedings were conducted.                                                                                                                              

                                     Judges should seek to "preserv[e] the appearance of impartiality."50  They  



                                                                                                                                                                                                                                           51  

                                                                                                                                                                                                                                                  

 also have a duty not to disqualify themselves "when there is no occasion to do so." 



                                                                                                                                                                                                                                    

 Critical,  disapproving,  or  even  hostile  remarks  do  not,  by  themselves,  evidence  bias  



                                                                                                                                                                                                                                      

 unless the remarks "reveal such a high degree of favoritism or antagonism as to make fair  



                                                                52  

                                                                                                                                                                                                      

judgment impossible."                                                    Similarly, mere "expressions  of  impatience, dissatisfaction,  



                                                                                                                                                                                                                                    

 annoyance  and  even  anger,  that  are  within  the  bounds  of  what  imperfect  men  and  



                                                                                                                                                  53  

                                                                                                                                                        

 women . . . sometimes display" do not establish bias. 



                   50                Kinnan   v.   Sitka   Counseling ,   349   P.3d   153,   160   (Alaska   2015)   (quoting  



 Greenway v. Heathcott                                          , 294 P.3d 1056, 1063 (Alaska 2013)).                                                 



                   51  

                                                                                                                                                                                                                         

                                      Griswold v. Homer City Council, 310 P.3d 938, 943 (Alaska 2013) (quoting  

                                                                                                                          

Amidon v. State , 604 P.2d 575, 577 (Alaska 1979)).  



                   52  

                                                                                                                                                                                                                                           

                                     Hanson v. Hanson , 36 P.3d 1181, 1184 (Alaska 2001) (quoting Liteky v.  

                                                                                                                                                                                                                                      

 United States, 510 U.S. 540, 555 (1994)); see also Kingery v. Barrett, 249 P.3d 275, 286  

                                                                                                                                      

 n.43 (Alaska 2011) (quoting Hanson , 36 P.3d at 1184).  



                   53  

                                                                                                                                                                                                                                           

                                     Hanson , 36 P.3d at 1184 (omission in original) (quoting Liteky , 510 U.S. at  

                           

 555-56).  



                                                                                                                   -14-                                                                                                           7102
  


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

                     Nothing in the record suggests the court was biased.   Danny and Paulita  

                                                                                                                                



appeared willing to settle, and they acknowledged their difficulties with communicating  

                                                                                                                  



constructively.  The court periodically invited Danny to air his concerns, and Danny did  

                                                                                                                                      



so:  Danny stated that Paulita had made visitation difficult, expressed his desire to have  

                                                                                               



meaningful visitation, and noted that Paulita held her own financial accounts during their  

                                                                                                                                    



marriage.  The court acknowledged these concerns, invited Danny to submit evidence,  

                                                                                                                            



and advised Paulita that her initial proposed custody arrangement would not be fair to  

                                                                                                                                        



Danny. Though the court may have expressed doubt regarding some of Danny's concerns  

                                                                                                                             



- asking, for example, that Danny only introduce evidence if relevant - any such doubt  

                                                                                                                                  



was unremarkable.  

                                



                     The  record  also  does  not support Danny's claim  that the  court wrongly  

                                                                                                                             



credited Paulita's statements.  The final orders adopt the parties' agreements regarding  

                                                                                                                            



custody and marital property, and the child support order reflects an annual income that  

                                                                                                                                     



Danny affirmed was reasonable. Danny and Paulita also each confirmed that the custody  

                                                                                                                               



and  property  agreements  were  fair  and  that  they  would  be  able  to  communicate  

                                                                                                                     



effectively; the court accepted their verbal confirmations.  Therefore it is not clear how  

                                                                                                                     



the court wrongly credited Paulita's statements and, even assuming it did, how such an  

                                                                                                                                       



error would have prejudiced Danny.  

                                               



                     Finally,  the  manner  in  which  the  proceedings  were  conducted  does  not  

                                                                                                                                     



suggest bias.   Throughout the proceedings Danny  appeared to be fully  engaged.   He  

                                                                                                                                      



voiced concerns as issues arose, and he asked to submit evidence, which the court invited  

                                                                                                                                



him  to  do.   Before  each hearing, he  confirmed  he  could  hear the  court "well."   And  

                                                                                                                                   



though he may have been distracted because, as he claims, he was working during the  

                                                                                                                                      



proceedings, nothing in the record suggests the court played a role in that circumstance.  

                                                                                                                                            



The court notified Danny about the preliminary hearing more than one month in advance,  

                                                                                                                                            



                                                                  -15-                                                            7102
  


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

and it gave him two weeks to prepare for the second hearing. Danny never expressed any  

                                                                                                                                



concerns with the scheduling.  

                                               



                    On this record, we find no appearance of bias.  

                                                                                    



V.        CONCLUSION  



                    We  AFFIRM  the  superior  court's  marital  property  division  and  child  

                                                                                                                             



custody orders. We REMAND the child support order for reconsideration consistent with  

                                                                                                                               



this opinion.  

       



                                                               -16-                                                          7102
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC