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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Schaeffer-Mathis v. Mathis (10/27/2017) sp-7211

Schaeffer-Mathis v. Mathis (10/27/2017) sp-7211

          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  



                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  


n/k/a  JACQUALINE  SCHAEFFER,                                )          Supreme  Court  No.  S-15936  



                     Appellant,                              )          Superior Court No. 3PA-11-02658 CI  

          v.                                                 )  


                                                             )          O P I N I O N  


LINUS MATHIS,                                                )  


                                                             )          No. 7211 - October 27, 2017  

                     Appellee.                               )  


_______________________________ )  


                     Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                     Third Judicial District, Palmer, Vanessa White, Judge.  


                    Appearances:  J.  Stefan  Otterson,  Otterson  Law  Office,  


                     Anchorage, for Appellant.  Darryl L. Jones, Law Office of  


                     Darryl L. Jones, Palmer, for Appellee.  


                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                     and Carney, Justices.  


                     STOWERS, Chief Justice.  



                    After nearly ten years of marriage and the birth of two children, a couple  


separated in 2012.  Three years of contentious litigation followed, during which time the  


father  had  interim  sole  legal  custody  of  the  children,  and  the  physical  custody  


arrangements were  modified  multiple  times.                            In  2015  the  superior  court  issued  the  


divorce decree and made findings regarding child custody and property distribution. The  


mother  appeals,  raising  eight  issues.                    We  reverse  and  remand  the  superior  court's  

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

decision regarding the mother's student loans and, if necessary, for a recalculation of the                                                             

equitable distribution of the marital estate. We affirm the superior court's decision in all                                                             

other respects.             

II.         FACTS & PROCEEDINGS     

            A.          Facts  

                        Jacqualine Schaeffer1 and Linus Mathis married in April 2002, separated  


in March 2012, and divorced in April 2015.  Two children were born of the marriage,  


one in September 2002 and the other in June 2004.  Schaeffer began working part-time  


toward the end of the marriage, after having been a stay-at-home mother, and she studied  


interior design online. She moved out of the marital home in October 2011 and filed for  


divorce the following month.  She then moved back into the marital home, and she and  


Mathis soughtmarriage counseling. They ultimately separatedon March 19, 2012, when  


Schaeffer allegedly hit Mathis in the head in front of their children, after which he called  


the police and she was arrested and charged with assault.  

            B.          Proceedings  


                        1.          Interim motions and proceedings  


                        In November 2011 Schaeffer filed for divorce and requested joint legal and  


shared physical custody of the children.  She used a form provided by the court system  


and did not check the form's box for indicating that she had safety concerns for herself  


or the children. In March 2012 Mathis filed a petition for a domestic violence protective  


order, and he filed a response to Schaeffer's complaint and asserted a counterclaim  


requesting sole legal and primary physical custody of the children because of "a history  


of domestic violence in this marriage with [Schaeffer] being the abuser." Schaeffer filed  



                        Schaeffer's last name during the marriage was Schaeffer-Mathis but has  


since been restored to Schaeffer.  

                                                                            -2-                                                                          7211  

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


a reply denying that she had committed domestic violence and alleging that Mathis was  


"the  primary   perpetrator   of   domestic   violence  in   the   marriage   and   parenting  


relationships." She requested sole legal and primary physical custody.  


                    In April 2012ahearing on the domestic violenceand interimcustody issues  


was held before Superior Court Judge Kari Kristiansen, who found that Mathis testified  


credibly and that he proved by a preponderance of the evidence that Schaeffer had  


committed multiple acts of domestic violence against him. The court issued a long-term  


protective order because the protective order in connection with Schaeffer's pending  


criminal assault case was not protecting Mathis from contact with Schaeffer.  The court  


ordered  Schaeffer  to  "enroll  in  a  program  for  the  rehabilitation  of  perpetrators  of  


domestic violence, and a substance abuse treatment program."   The  court awarded  


Mathis interim sole legal and primary physical custody and granted Schaeffer visitation.  


                    Schaeffer  moved  for  reconsideration,  which  was denied; she was also  


ordered  to  pay  child  support.                 In  July  2012  the  superior  court  ordered  a  custody  



                    In October Schaeffer filed a motion to modify interim custody based on  


three alleged substantial changes in circumstances.  She alleged that Mathis had been  


abusive toward her and the children and had regularly failed to meet the children's needs  


since  the  entry  of  the  interim  custody  order,  that  she  had  transitioned  to  full-time  


employment and her new schedule conflicted with the visitation arrangement, and that  


she had "complied with and completed her court-ordered anger management and alcohol  


counseling  program requirements."                        She requested  sole legal and  primary  physical  


custody  of  the  children  or,  in  the  alternative,  a  shared  week-on/week-off  custody  



                    The day after filing that motion, Schaeffer filed domestic violence petitions  


on behalf of the children.  She also appears to have filed a report with the Alaska State  

                                                               -3-                                                         7211

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


Troopers alleging Mathis caused injury to one of the children, and she filed a report with  


the Office of Children's Services (OCS). In an October 2012 affidavit Mathis described  


a State Trooper incident that is consistent with the superior court's later finding that  


Schaeffer encouraged one of the children "to make false allegations to law enforcement  


that his father grabbed him by the shoulder leaving a bruise." Regarding the OCS report,  


Mathis related in the affidavit that a caseworker was sent to the children's school and that  


the investigation was closed because the caseworker found nothing wrong with the  



                    MathisrespondedtoSchaeffer'smotion tomodify interimcustody,denying  


the  allegations  against  him  but  recognizing  that  Schaeffer  "should  have  expanded  


visitation to account for her job."  


                    The superior court issued an order modifying interim custody in December  


2012.   The court noted that both Schaeffer and Mathis had made serious allegations  


against each other without providing much evidence. The court indicated that Schaeffer  


had "made some progress toward meeting the assessment and treatment goals" but that  


she had not demonstrated that she had complied with the requirements.   The court  


granted Mathis continued interim sole legal custody of the children.   It set a week- 


on/week-off interim physical custody schedule to take effect upon Schaeffer providing  


her substance abuse assessment and two clean urinalysis test results.  


                    The custody investigation ordered in July and was completed in January  


2013. The court custody investigator expressed concern that the children may have been  


coached by Schaeffer because of statements they made to him as well as information  


from OCS that the older child had reported being coached. Based in part on the concerns  


about coaching, the custody investigator recommended that Mathis be given sole legal  


custody.  The custody investigator recommended a week-on/week-off physical custody  


                                                               -4-                                                        7211

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


                    In October Mathis moved to modify the interim custody order, which by  


then had changed to a week-on/week-off schedule; he also moved for a partial no-contact  


order.  The superior court granted the partial no-contact order and reduced Schaeffer's  


time with the children to three weekends each month.  


                    In  April  2014  Schaeffer  filed  a  motion  for  updates  to  the  custody  


investigation and modification of interim custody. In light of the children's experiences  


over the 19 months since the children were interviewed and their alleged increased  


maturity and ability to express themselves, she requested "a re-interview of the boys and  


the parents and anyone else that the investigator . . . believes is relevant to any new  


information the boys may provide."  Her attorney filed a supporting affidavit indicating  


that theattorney had contactedthecustody investigator; she reported that the investigator  


said that it was "not unreasonable to update their interviews" and that completing an  


update a couple of weeks before trial would be possible if a court order were issued as  


soon as possible.  According to Schaeffer's attorney the investigator "believe[d] that it  


would also be necessary to re-interview the parents and any others that may be relevant  


to  any  new  information  the  children  may  provide."                               Mathis  opposed  the  motion,  


expressing "concern[] about the ongoing attempts to manipulate the children and [the]  


fact that [Schaeffer's] proposal appears to be a full custody investigation."  


                    The superior court denied Schaeffer's motion to modify interim custody  


and to update the custody investigation, finding that Schaeffer had "not established a  


factual basis . . . for subjecting the boys to another [custody investigator] interview."  


                    2.         The divorce trial  


                    The divorce trial was held before Superior Court Judge Vanessa White in  


August and September 2014.   The superior court heard testimony from a number of  


witnesses, including Schaeffer, Mathis, and the custody investigator.  In April 2015 the  


court entered the decree of divorce and issued Findings of Fact and Conclusions of Law.  

                                                                -5-                                                         7211

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

                                                                                       The court distributed                                                                                                                        the marital estate, awarding                                                                                                                                                                  the marital home to                                                                                                     

  Mathis and dividing retirement assets and debts. The court cited testimony by Schaeffer                                                                                                                                                                                                                                                                                                                                                                                                                   

 regarding student loan debt she incurred during the marriage, but it declined to recognize                                                                                                                                                                                                                                                                                                                                                                                                                

 that debt as marital debt based on (1) lack of documentation, (2) its finding that Mathis                                                                                                                                                                                                                                                                                                                                                                                                                                  

  credibly testified that he had been told the loans were federally subsidized and did not                                                                                                                                                                                                                                                                                                                                                                                                                                 

 need to be repaid, and (3) Schaeffer's failure to show that she had completed the course                                                                                                                                                                                                                                                                                                                                                                                                                                     

  of study                                                the loans were taken out for.                                                                                                                                                                              The court found                                                                                                        that there was no                                                                                                         dispute  

 regarding   the   distribution   of   personal   property   and   that   Schaeffer   and   Mathis   had  

  accomplished that distribution themselves.                                                                                                                                                                                                                                       Because it found that Schaeffer and Mathis                                                                                                                                                                                               

 both   were in                                                                         good   health  and  had  roughly   equivalent earning                                                                                                                                                                                                                                                                                     capacities,   the court   

  distributed the marital estate equally and required Mathis to make a balancing payment                                                                                                                                                                                                                                                                                                                                                                                                                          

 to Schaeffer.                                                                      Mathis was permitted to deduct child support arrears Schaeffer owed him                                                                                                                                                                                                                                                                                                                                                                                     

  from that balancing payment.                                                                                                   

                                                                                       Regarding child custody, the court addressed Schaeffer's allegations that                                                                                                                                                                                                                          

  Mathis was physically and emotionally abusive to Schaeffer and the children and found                                                                                                                                                                                                                                                                                                                                                                                                                                            

 her allegations not credible.                                                                                                                                                      The court found "by a preponderance of the evidence that                                                                                                                                                                                                                                                                                                    

   [Mathis] was the victim of physical violence by [Schaeffer] on the date of the parties'                                                                                                                                                                                                                                                                                                                                                                                                                              

  separation." Because the court found that only one act of domestic violence was proved                                                                                                                                                                                                                                                                                                                                                                                                                                    

  and because that incident did not result in serious injury to Mathis, the court determined                                                                                                                                                                                                                                                                                                                                                                                                     


 that the domestic violence presumption in AS 25.24.150(g) did not apply.                                                                                                                                                                                                                                                                                                                                                                                                                        

                                            2                                          Under AS 25.24.150(g) "[t]here is a rebuttable presumption that a parent                                                                                                                                                                                                                                                                                                                                                         

 who has a history of perpetrating domestic violence against the other parent, a child, or                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

  a domestic living partner may not be awarded sole legal custody, sole physical custody,                                                                                                                                                                                                                                                                                                                                                                                                                          

joint legal custody, or joint physical custody of a child." A history of domestic violence                                                                                                                                                                                                                                                                                                                                                                                                                        

  is found where "during one incident of domestic violence, the parent caused serious                                                                                                                                                                                                                                                                                                                                                                                                                                    

 physical injury," or where "the court finds that the parent has engaged in more than one                                                                                                                                                                                                                                                                                                                                                                                                                                                        


                                                                                                                                                                                                                                                                             -6-                                                                                                                                                                                                                                                           7211

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

                                                       The court found that both parents were capable of meeting the children's                                                                                                                                                                                          

needs but that Mathis was more motivated to focus on the children's needs.  The main                                                                                                       

reason for this determination was the finding that Schaeffer "encouraged the children on                                                                                                                                                                                                                                                                

more than one occasion to lie to various authorities (law enforcement, counselors) about                                                                                                                                                                                                                                                    

 [their] father's conduct."                                                                                The court also expressed concern about Schaeffer having                                                                                                                                                                   

"coached the children in an effort to justify her alcohol consumption." And it noted that                                                                                                                                                                                                                                                          

 Schaeffer chose to take personal vacations instead of spending her custodial time with                                                                                                                                                                                                                                    

the   children   twice   during   the   separation   prior   to   trial   and   had  allowed   her   work  

commitments to sometimes interfere with her parenting responsibilities for several days.                                                                                                                                                                                                                                                                               

                                                       The court found that Mathis had indicated his willingness to maintain the                                                                                                                                                                                                                      

family home and therefore could provide the children with stability of place.                                                                                                                                                                                                                                            The court   

expressed some concern that Schaeffer "minimized the problems that alcohol ha[d]                                                                                                                                                                                                                                                           

caused in her relationships" and that she had consumed alcohol while parenting in the                                                                                                                                                                                                                                                                 

past but gave that factor little weight because of Schaeffer's testimony that she was no                                                                                                                                                                                                                                                                

longer using alcohol.                                                                      The court found that Schaeffer's false allegations of domestic                                                                                                                                                                   

violence   and  decision   to   involve   the   children   in   making   such   false   allegations  

"suggest[ed] that she [was] less willing than [Mathis] to foster an open, loving and                                                                                                                                                                                                                                                              

frequent relationship between the boys and their other parent." The court also found that                                                                                                                                                                                                                                                           

communication between Schaeffer and Mathis regarding the children was "poor to non-                                                                                                                                                                                                                                                             




incident of domestic violence."  AS 25.24.150(h).  


                                                       The court did not address the fact that Judge Kristiansen had earlier found  


that Schaeffer  had  committed  "multiple acts of domestic violence" against Mathis.  


Mathis does not cross-appeal this issue, so we express no opinion on Judge White's  


finding that there was only one act of domestic violence and that the presumption did not  


                                                                                                                                                                            -7-                                                                                                                                                                7211

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

                            Based on these findings, the court awarded Mathis sole legal and shared                                                                  

physical custody.                     Schaeffer appeals, raising eight issues relating to child custody, child                                                          

support, property distribution, and interim attorney's fees.                                                   

III.          STANDARD OF REVIEW                     

                            The superior court has broad discretion in child custody determinations,                                                                            3  



including decisions regarding custody investigations,  and its determinations will be set  


aside  only  if  "the  record  shows  that  [the]  controlling  findings  of  fact  are  clearly  



erroneous or the court abused its discretion."                                                   A factual finding is clearly erroneous if  


"a review of the record leaves the court with a definite and firm conviction that the  



superior court has made a mistake."                                            An abuse of discretion is found "if the superior  


                                                                                                                                                                       or "if  

court's decision is clearly unreasonable under the totality of the circumstances" 


the superior court considered improper factors in making its custody determination,  


failed to consider statutorily mandated factors, or assigned disproportionate weight to  

              3            Borchgrevink v. Borchgrevink                                    , 941 P.2d 132, 134 (Alaska 1997) (citing                                 

Evans v. Evans                  , 869 P.2d 478, 479 (Alaska 1994)).                        

              4            Meier v. Cloud, 34 P.3d 1274, 1277 (Alaska 2001) ("[T]he desirability of  


a [custody] report is an issue for the trial court to decide as a matter of discretion on a  


case-by-case basis."   (citing Pearson v. Pearson, 5 P.3d 239, 242 (Alaska 2000)));  


Pearson, 5 P.3d at 242 ("[T]he judge has discretion whether or not to appoint a custody  


investigator . . . ."  (citing Lacy v. Lacy, 553 P.2d 928, 930 (Alaska 1976))).  


              5            Borchgrevink, 941 P.2d at 134 (citing Evans, 869 P.2d at 479); see also  


Michele M. v. Richard R., 177 P.3d 830, 834 (Alaska 2008) (quoting Valentino v. Cote,  


3 P.3d 337, 339 (Alaska 2000)).  


              6            Borchgrevink, 941 P.2d at 134 (citing Money v. Money, 852 P.2d 1158,  


 1161 (Alaska 1993)); see also Simmonds v. Parks, 329 P.3d 995, 1007 (Alaska 2014)  


(quoting John v. Baker, 30 P.3d 68, 71 (Alaska 2001)).  


              7            Meier, 34 P.3d at 1277 (citing Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska  



                                                                                      -8-                                                                               7211

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


particular factors while ignoring others."                                        "[W]hether the court applied the correct                         


standard in a custody determination is a question of law we review de novo."                                                                                

                                                                                                                                              "[W]e do  


not 'readily second guess a trial court's custody determination' because it is 'the function  


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



evidence.' " 


                         Child support awards are reversed "only if the superior court abused its  



                                                                                               Whether the superior court applied  

discretion or applied an incorrect legal standard." 



the correct legal standard is a question of law, which we review de novo.                                                                  We review  


"factual findings regarding a party's income for purposes of calculating child support for  



clear error." 

            8            Borchgrevink, 941 P.2d at 134 (citing                                 McDanold v. McDanold                          , 718 P.2d     

467, 468 (Alaska 1986));                        see also Hamilton v. Hamilton                            , 42 P.3d 1107, 1111 (Alaska         

2002) (citing            Gratrix v. Gratrix                , 652 P.2d 76, 80 (Alaska 1982)).               

            9            Osterkamp v. Stiles, 235 P.3d 178, 184 (Alaska 2010) (quoting Elton H. v.  


Naomi R., 119 P.3d 969, 973 (Alaska 2005)).  


             10         Michele M., 177 P.3d at 834 (first quoting Dingeman v. Dingeman, 865  


P.2d 94, 96 (Alaska 1993); then quoting Knutson v. Knutson, 973 P.2d 596, 599-600  


(Alaska 1999)); see also Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) ("We give  


 'particular deference' to the trial court's factual findings when they are based primarily  


on oral testimony, because the trial court, not this court, performs the function of judging  


the credibility of witnesses and weighing conflicting evidence." (quoting In re Adoption  


of A.F.M., 15 P.3d 258, 262 (Alaska 2001))).  


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


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


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


             13         Limeres v. Limeres, 320 P.3d 291, 295 (Alaska 2014) (citing Koller, 71  


P.3d at 804).  


                                                                             -9-                                                                      7211

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

                      Both factual and legal               questionsmaybeinvolvedin characterizingproperty                          


as separate or marital for purposes of property distribution.                                                                        

                                                                                                      Factual questions include  


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

                                                                               15   Legal questions include "whether the  



marital estate," which we review for clear error. 

trial court applied the correct legal rule in exercising its discretion," and we review such  


questions "de novo using our independent judgment."16  


                      The superior court's decision about whether to award attorney's fees is  


reviewed for abuse of discretion.17                           The court's award of attorney's fees will not be  


reversed unless the decision is "arbitrary, capricious, or manifestly unreasonable."18  



           A.	         The Superior Court Did Not Abuse Its Discretion By Denying The  


                      Request For An Updated Custody Investigation.  


                      Under Alaska Civil Rule 90.6(a) "the court may appoint an expert . . . to  


investigate custody, access, and visitation issues and provide an independent opinion  


concerning the child's best interests."   The superior court has discretion in deciding  


whether to appoint a custody investigator19  and by extension has discretion in deciding  


           14         Beals  v.  Beals,  303  P.3d  453,  459  (Alaska  2013)  (quoting  Odom  v.  Odom,  

 141  P.3d  324,  330  (Alaska  2006)).  

           15         Id.  at  459  (citing  Odom,   141  P.3d  at  330).  

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

           17         Beal   v.   Beal,   88   P.3d   104,   111   (Alaska   2004)   (quoting   Edelman   v.  

Edelman,  61  P.3d   1,  4  (Alaska  2002)).  

           18         Ebertz  v. Ebertz,  113 P.3d  643,  646  (Alaska 2005)  (quoting Sloane  v.  


Sloane, 18 P.3d 60, 63-64 (Alaska 2001)).  


           19         See Pearson  v. Pearson, 5 P.3d 239, 242 (Alaska 2000) (citing Lacy  v.  



                                                                     -10-	                                                              7211

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

whether to order an update to an already-completed custody investigation.                                                                                                                                                                                                                                                         The court   

here denied Schaeffer's request for an update to the initial custody investigation based                                                                                                                                                                                                                                                               

 on Schaeffer's failure to "establish[] a factual basis . . . for subjecting the boys to another                                                                                                                                                                                                                                               

 [court investigator] interview," and Schaeffer fails to show that the denial was an abuse                                                                                                                                                                                                                                                             

 of the court's discretion.                                

                                                         The reasons Schaeffer provided when moving for the update were that a                                                                                                                                                                                                                                            

year   and   a   half   had   passed   since   the   children  were   interviewed   by   the   custody  

 investigator, that there would likely be new information because of intervening events,                                                                                                                                                                                                                                                         

 and that the children had grown and matured and could express themselves better than                                                                                                                                                                                                                                                                        

when their original interviews were conducted. Based on her attorney's affidavit, which                                                                                                                                                                                                                                                              

 accompanied her motion, she also claimed that the court custody investigator stated he                                                                                                                                                                                                                                                                              

 could "have the updated investigation completed approximately three weeks prior to                                                                                                                                                                                                                                                                                   

                         20   In her brief to this court she reiterates these points. Additionally, Schaeffer cites  


her own statement fromher motion requesting the update, where she wrote that "updated  


 interviews would be greatly meaningful and helpful to the court," but she misattributes  


that statement as coming from the court custody investigator at the divorce trial. And she  


 claims that the custody investigator testified at trial that it was not unreasonable to update  


the report, when in fact that statement was from a phone call referenced in the affidavit  


by Schaeffer's attorney.   She argues that under the totality of the circumstances the  




Lacy, 553 P.2d 928, 930 (Alaska 1976)).  

                             20                          The attorney's affidavit actually states that the attorney asked whether it                                                                                                                                                                                                                                     

would be "possible to complete this update a couple of weeks prior to trial" and that the                                                                                                                                                                                                                                                                         

 custody investigator responded that it was possible but that "he would need the court  


 order as soon as possible" in order to complete the update by then.                                                                                                                                                                                                  

                                                                                                                                                                                -11-                                                                                                                                                                       7211

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

superior "court could not properly address the children's best interests without the                                                                                                                   


                                Schaeffer fails to recognize that the court had the benefit not only of the                                                                                             

already-completed custody investigation but also of witnesses who could provide more                                                                                                               

recent information, namely, the witnesses who would testify at trial.                                                                                                        In addition to               

testimony by the custody investigator, the court heard testimony by Schaeffer, Mathis,                                                                                                                           

                          21   And while Schaeffer anticipated that an updated report could be available  

and others.                                                                                                                                                                              

shortly before the scheduled trial date, any delay in its preparation would likely have  


caused  the  trial  to  be  delayed.                                                The  case  had  already  involved  several  years  of  


contentious litigation,  and  further  delay  was  not likely  to  be in the children's best  


interests.   In light of the circumstances as a whole, the trial court did not abuse its  


discretion when it declined to order an updated report from the custody investigator.  


                B.	             The Superior Court Did Not Abuse Its Discretion By Not Explicitly  


                                Considering The Children's Custody Preference.  


                                When determining custody, the superior court is required to consider the  


nine factors under AS 25.24.150(c), but it "need not refer to all of [the factors] in  


explaining its custody decision" and may choose to discuss only those factors it finds  


relevant to the case.22  


                                                     One of the factors at issue in this appeal is "the child's preference  

                                                                                                                                                                23     A well-reasoned  


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

                21              See Ebertz                , 113 P.3d at 647.                               ("[W]e have previously recognized that                                                    

custody investigators are simplyexpert witnessesandthat                                                                                their recommendations                                  should  

be evaluated on a case-by-case basis, in the same manner as testimony presented by other                                                                                                           


                22              See Rosenblum v. Perales, 303 P.3d 500, 504 (Alaska 2013) (alteration in  


original) (quoting Park v. Park, 986 P.2d 205, 207 (Alaska 1999)).  


                23              AS 25.24.150(c)(3).  


                                                                                                   -12-	                                                                                           7211

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


preference by a mature teenager can, in some cases, be a deciding factor.                                                                          But "in cases     

where   a   child   does   not   show   maturity   or   there   is   evidence   that   the   choices   were  

motivated by bad reasons, the court may choose to disregard the child's preference, or                                                                                   

to give it little weight."                     25  

                           Schaeffer  argues  that  the  superior  court  erred  in  not  considering  the  


children's custody preference.  The January 2013 custody investigation report reported  


the children's custody preferences but indicated that "[t]he children [were] not quite at  


the age where their preferences should start to carry some weight" and that "some of the  


statements they made and the OCS report raise[d] serious questions about whether they  


[had] been coached and influenced which would make it impossible to try to understand  


what their true preferences [were]."  Schaeffer argues that the report's mention of the  


then 8- and 10-year-old children being too young for "their preferences . . . to carry some  


weight" suggests that the children "may have been able to express a preference by the  


                                                                                                                                           26     She does not,  

time of the trial," when they were 10 and 11 years old, respectively.                                                                                                 


however, address the concerns about the children potentially having been coached and  


influenced,  making  it  impossible  to  determine  their  true  preferences.                                                                        The  court's  


Findings of Fact and Conclusions of Law do not mention the children's preferences, but  


they repeatedly refer to Schaeffer's having encouraged the children to lie to various  


             24            See Michele M. v. Richard R.                            , 177 P.3d 830, 833, 838 (Alaska 2008) (citing                                

 Valentino v. Cote                 , 3 P.3d 337, 340-41 (Alaska 2000)).                        

             25            Id. ; seealso Jenkins v. Handel,10 P.3d 586, 590 (Alaska 2000) (concluding  


that the superior court did not give too little weight to the preference of a fifteen-year-old  


and a thirteen-year-old where the court found that "their preferences, and the reasoning  


behind them, evidenced a great need for parental supervision and were outweighed by  


their need for . . . 'substantial guidance' ").  


             26            The older child turned 12 before the final day of the trial.  


                                                                                   -13-                                                                            7211

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

authorities about their father's conduct, which suggests legitimate concern by the court  


about the mother's influence on the children.  Given these findings and the children's  


young ages, we hold that the court did not abuse its discretion by failing to explicitly  


discuss the children's preferences.  


           C.	       The Superior Court Did Not Clearly Err In Its Findings Regarding  


                     The Parents' Capability And Desire To Meet The Children's Needs  


                     And Of The Love And Affection Existing Between The Parents And  


                     The Children.  


                     Under AS 25.24.150(c)(2) and (4) the court must consider the parents'  


capability and desire to meet the children's needs and the love and affection between the  


parents and the children when determining custody.  The court found that both parents  


were capable of meeting the children's needs but that Mathis was more motivated than  


 Schaeffer to focus on the children's needs. According to the court, Schaeffer's decisions  


to involve the children in the divorce by encouraging them to lie on multiple occasions  


to various authorities about their father's conduct and by coaching them in an attempt to  


justify Schaeffer's alcohol consumption "suggest that she is more focused on her own  


needs than the children's."  Schaeffer argues that this information "was based only on  


fourth  hand  reports  from  other  agencies,  and  such  summaries  of  summaries  are  


notoriously liable to error in the retelling."  Contrary to this argument, the information  


about the children possibly having been coached is supported by trial testimony by the  


custody investigator based on his in-person interviews with the children, and the court  


did not clearly err in its findings about the children having been coached and encouraged  


to lie.  


                     The court also noted that Schaeffer twice chose to take personal vacations  


instead of spending her custodial time with the children and that her "work commitments  


sometimes  have  interfered  with  her  parenting  responsibilities  over  several  days."  


 Schaeffer claims that the finding about her vacations "is contradicted by facts in the  


                                                               -14-	                                                        7211

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

record demonstrating that Schaeffer's travel was planned before changes in the custody  


schedule."  The record shows she testified that she purchased tickets for her December  


2013 Hawaii vacation before changes in the custody schedule, but it also shows Mathis  


testified that Schaeffer "knew that she had  custody" during her April 2013 Hawaii  


vacation, and Schaeffer's testimony about her April vacation does not contradict that.  


She ultimately testified that her choice to forgo some of her custody time for her vacation  


did not mean that she loved the children less. In light of the record, it was not clear error  


for the superior court to find that Schaeffer "[t]wice . . . elected to take a personal  


vacation rather than spend her custodial time with the children."  The court also did not  


clearly err in relying on these findings when making the finding that Mathis was more  


able and motivated to meet the children's needs.  


                    As to the love and affection between the parents and the children, although  


the superior court decision did not separately analyze this custody factor, it is clear from  


the record that both parents agree that both of them love and are loved by the children.  


The court did not clearly err in not explicitly mentioning a factor that plainly favored  


neither parent, nor in taking its factual finding that Mathis was more motivated than  


Schaeffer to focus on the children's needs into account in its best interests determination.  


          D.	       The Superior Court Did Not Clearly Err In Discounting Schaeffer's  


                    Evidence Of Domestic Violence.  


                     Schaeffer  argues  that  the  superior  court  clearly  erred  by  discounting  


evidence of domestic violence that would trigger the presumption in AS 25.24.150(g).  


Contrary to Schaeffer'sclaimthat the "court did not make findings regarding Schaeffer's  


allegations and sworn testimony regarding Mathis'[s] history of domestic violence," the  


court specifically found that "all of [Schaeffer's]allegationsthat[Mathis] was physically  


or emotionally abusive [were] not credible."  The court also indicated that it shared the  


custody investigator's "serious concerns that [Schaeffer] had instructed [one of the  


                                                               -15-	                                                        7211

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

children] to lie about domestic violence in the home."                                                             Because the court's factual                

finding regarding the credibility of Schaeffer's allegations is "based primarily on oral                                                                            

                                                                                       27   And Schaeffer has pointed to nothing in  

testimony," it merits "particular deference."                                                                                                                           

the record that shows this finding to be clearly erroneous. Thus, the court did not clearly  


err in discounting Schaeffer's evidence of domestic violence.  


             E.	           The  Superior  Court  Did  Not  Plainly  Err  In  Determining  Child  


                           Support Without Certain Supporting Documentation.  


                           The superior court ordered Mathis to "provide to the court, in the form of  


a motion, his calculations for child support" and provided that "[Schaeffer] shall have  


the normal time allowed under [Alaska] Civil Rule 77 to object to [Mathis's] interim  


child  support  calculations."                              Mathis  filed  proposed  child  support  orders,  including  


supporting documentation and calculations, and Schaeffer did not filean opposition. The  


court issued its interim child support order on December 7, 2015.  


                           Schaeffer filed a motion for reconsideration, raising for the first time her  


argument  that  Mathis  did  not  follow  Civil  Rule  90.3(a)(1)(A)  and  (B)  because  he  


allegedly "deducted almost twice the amount allowed by the rule for his retirement  


contributions" and "provided no indication why his deductions would be mandatory  


beyond the 7.5% allowed under the Rule."28  


                                                                                        And not until her reply brief did Schaeffer  


argue that there was "no way to determine how much of [Mathis's] payroll deductions  


are for . . . optional plans" as opposed to mandatory pension deductions.  (Emphasis in  


original.)  She argued that "[i]t would be unusual for a pension to take 15% of gross  


pay,"  that  the  "pension  deducts  $1.50  for  every  hour  worked,"  and  that  Mathis's  


documentation did "not provide the information required by Civil Rule 90.3." The court  

             27           Ebertz v. Ebertz                , 113 P.3d 643, 646 (Alaska 2005) (quoting                                           In re Adoption     

of A.F.M.          , 15 P.3d 258, 262 (Alaska 2001)).                     

             28           See Alaska R. Civ. P. 90.3(a)(1)(B).  


                                                                                  -16-	                                                                          7211

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

deniedSchaeffer'smotionfor reconsideration, finding that                                                                  Mathis's "employer-withheld   

retirement contributions appear to be mandatory, not voluntary, so the 7.5% cap is                                                                                                  


                             Schaeffer argues that her challenge to the child support orders based on the                                                                         

classification of retirement contributions "is reviewable as legal error even though it was                                                                                     

first raised on reconsideration."                                   Because "[a]n issue raised for the first time in a motion                                            

                                                                                29     Schaeffer's  argument  about  the  retirement  

for    reconsideration    is    not    timely,"                                                                                                                  

contributions is subject to plain error review.30                                                        The superior court's finding that the  


contributions  were  mandatory  does  not  constitute  plain  error  because  it  had  an  


evidentiary basis, which included a letter from Mathis's employer stating that "[t]he  


employee contributions to the retirement plan are required by this collective bargaining  


agreement and are not optional."31  


              F.             The Student Loans Determination Was Clearly Erroneous.  


                            The superior court "decline[d] to recognize [Schaeffer's] student loans as  


marital debt," reasoning that  


                             (a) [Schaeffer] failed to present any documentation as to the  


                             debts at trial; (b) [Mathis] testified credibly that [Schaeffer]  


              29            Stadnicky v. Southpark Terrace Homeowner's Ass'n                                                                 , 939 P.2d 403, 405                

(Alaska 1997) (citing                          Miller v. Miller                 , 890 P.2d 574, 576 n.2 (Alaska 1995)).                              

              30            D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001) ("Plain error exists 'where an  


obvious  mistake  has  been  made  which  creates  a  high  likelihood  that  injustice  has  


resulted.' "  (quoting Sosa v. State, 4 P.3d 951, 953 (Alaska 2000))).  


              31             Schaeffer  seeks  to  raise  additional  issues  regarding  the  child  support  


calculations that she did not raise until her supplemental brief to this court.  We see no  


plain error in the superior court's failure to consider those issues, and we do not consider  


them here.  Rodvik v. Rodvik, 151 P.3d 338, 345 (Alaska 2006) ("[A]s a general rule, we  


will not consider arguments for the first time on appeal." (quoting Hoffman Constr. Co.  


of Alaska v. U.S. Fabrication & Erection, Inc., 32 P.3d 346, 355 (Alaska 2001))).  


                                                                                        -17-                                                                                 7211

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

                                           told him the debts were federally subsidized and would not                                                                                                                            

                                           have to be repaid; and (c) [Schaeffer] failed to demonstrate                                                                                             

                                           that she completed any course of study for which the loans                                                                                                                     

                                           were taken out and the marital community was not, therefore,                                                                                                      

                                           likely to benefit from the debts incurred.                                                           

 Schaeffer argues that "the student loans' existence and value were not disputed facts,"                                                                                                              

that the loans should have been equitably divided, and that whether she earned her                                                                                                                                                                                         

degree during the marriage was irrelevant.                                                              

                                           It was clear error for the court to find that Schaeffer's students loans were                                                                                                                                               

not   marital   debt.    It  is   undisputed   that   the   student   loans   were   incurred   during   the  

marriage.   Student loans, like other loans incurred during a marriage, are presumptively                                                                                                                                               

marital debt, and "the party claiming otherwise must show that the parties intended it to                                                                                                                                                                                    

be separate."                             32         Mathis has made no such showing, instead erroneously arguing that  


 Schaeffer had to prove that they intended the debt to be marital.  There appears to be no  


"evidence that [Schaeffer] incurred these debts as part of an agreement that she begin this  


education at her expense in anticipation of divorce," and therefore "the timing of the  


loans and the circumstances made these debts subject to an equitable division."33  


                                           The first reason the court identified for not recognizing the student loans  

as marital debt is the lack of documentation.  However, the record shows that Schaeffer  


may  have  submitted  documentation:                                                                                               a  November  2014  "updated  version  of  the  


Plaintiff's spreadsheet" says "copy of documentation of specific amount of outstanding  


 [student] loan attached," but the attachment is not in the record.  The loans were also  


listed on Schaeffer's financial declaration, and Schaeffer's proposed marital property  


division table included entries and amounts for "Federal Student Loans," "AK Student  


                      32                   Richter v. Richter                                        , 330 P.3d 934, 938 (Alaska 2014) (citing                                                                                                 Stanhope v.   

Stanhope, 306 P.3d 1282, 1290 (Alaska 2013)).                                                                                      

                      33                   McDougall v. Lumpkin, 11 P.3d 990, 994 (Alaska 2000).  


                                                                                                                                     -18-                                                                                                                             7211

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

Loans," and "Art Institute Loan."                                  In  Stanhope v. Stanhope                       , we held that "[t]he superior           

court's conclusion that there was insufficient evidence to prove a marital debt [was] not                                                                           

clearly erroneous" where "the only evidence of amounts was the numbers entered on . . .                                                                                  

                                                                                             34   That holding was also based on there  

asset sheets prepared by [one party's] attorney."                                                                                                                

being insufficient evidence to prove "the critical question of whether [the debt] had been  



'incurred during the marriage.' "                                   In this case, however, it is undisputed that the student  


loans were incurred during the marriage.  


                          The second reason the court identified for not recognizing the student loans  


as marital is that "[Mathis] testified credibly that [Schaeffer] told him the debts were  


federally subsidized and would not have to be repaid."  However, Mathis conceded that  


the student loans either were loans or, if they were grants, the terms "to get the grants  


forgiven" had not been complied with, and they needed to be repaid.  


                          The third reason the court identified for not recognizing the student loans  


as marital is that "[Schaeffer] failed to demonstrate that she completed any course of  


study for which the loans were taken out and the marital community was not, therefore,  


likely to benefit from the debts incurred."  Under different circumstances, this rationale  


might relate to the issue of the parties' intent about whether the debt should be marital  


or separate, since it touches on whether the marital community was likely to benefit from  


the student loans. However, as already indicated, the presumption that the student loans  


were marital has not been overcome by a showing of intent to the contrary. Thus, it was  


clear error for the court not to recognize the student loans as marital debt.  


             34           306  P.3d   1282,   1290  (Alaska  2013).  

             35           Id.  

                                                                                 -19-                                                                                 7211  

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

                                       G.	                                   The Superior Court Did Not Clearly Err In Determining There Was   

                                                                             No Dispute Regarding The Distribution Of Personal Property.                                                                                                                                                                                                                                                                         

                                                                              Schaeffer argues that the superior court clearly erred in determining that                                                                                                                                                                                                                                                                                                                                    

there was "no dispute as to distribution of personal property" and that "[t]he parties ha[d]                                                                                                                                                                                                                                                                                                                                                                                        

 accomplished this task on their own."  She claims that she left the marital home "with                                                                                                                                                                                                                                                                                                          

 only   an   overnight   bag,   and   has   not   been   able   to   recover  her  remaining   personal  

possessions."   In support of this assertion she cites only to a single page of the transcript                                                                                                                                                                                                                                                                                                                                                              

 of the April 9, 2012 proceeding, where she had testified that the only possession she had                                                                                                                                                                                                                                                                                                                                                                                                    

 "out of the house" was her overnight bag.                                                                                                                                                                                                           But later in that same proceeding the court                                                                                                                                                                                   

indicated that it would issue a limited writ of assistance for Schaeffer to retrieve her                                                                                                                                                                                                                                                                                                                                                                                                      

belongings, allowing her "a trip to the residence accompanied by law enforcement to                                                                                                                                                                                                                                                                                                                                      

recover undisputed personal items, clothing, or any other items."                                                                                                                                                                                                                                                                                                                        Schaeffer's attorney  

then requested Schaeffer's "clothes, personal belongings, books."                                                                                                                                                                                                                                                                                                                         And during the final                                                                         

hearing   in  September   2014,   Mathis   indicated   that   Schaeffer   could   have   whatever  

personal property she wanted out of the house "if she's reasonable."                                                                                                                                                                                                                                                                                                                                       So it appears that                                                               

 she    had    the    opportunity    to    retrieve    the    personal    possessions    that    she    wanted.   

Furthermore, she does not identify any property that Mathis has that she wants.                                                                                                                                                                                                                                                                                                                                                                                      In light   

 of this record the superior court's findings regarding the personal property distribution                                                                                                                                                                                                                                                                                                                                                     

 are not clearly erroneous.                                                          

                                       H.	                                   The Superior Court Did Not Abuse Its Discretion When Determining                                                                                                                                                                                                                                                                                       

                                                                             The Need For Interim Attorney's Fees.                                                                                                                                                                           

                                                                              Schaeffer argues that it was an abuse of discretion for the superior court not                                                                                                                                                                                                                                                                                                                                    

to evaluate the parties' relative economic situations when itdenied                                                                                                                                                                                                                                                                                                                   her motion for interim                                                             

 attorney's fees and that "[t]he superior court should have revived that motion sua sponte                                                                                                                                                                                                                                                                                                                                                                                  

upon   the   termination   of   Schaeffer's   pro  bono   legal   representation."     In   May   2012  

 Schaeffer, representing herself, moved for interim attorney's fees, but by the time a                                                                                                                                                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                              -20-	                                                                                                                                                                                                                                    7211

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

hearing was held addressing her motion she had obtained pro bono legal representation                                                                                                                                                                                                                                                      

through the Native Justice Center.                                                                                                                              Her attorney told the superior court that "after this                                                                                                                     

point the attorney's fees issue should not be an issue . . . unless there's a specific issue                                                                                                                                                                                                                                                                                         


or a motion."  Schaeffer never renewed her motion for attorney's fees even after later  

becoming unrepresented again.                                                                                                                        Thus, Schaeffer expressly abandoned her claim for                                                                                                                                                                                       

interim attorney's fees before the superior court, and the superior court did not abuse its                                                                                                                                                                                                                                                                                                       

discretion in denying her motion.                                                                                                                         Nor did the court abuse its discretion in failing to sua                                                                                                                                                                           


 sponte revive the motion after Schaeffer became unrepresented because she did not file  

a later motion despite her attorney having indicated that it would be an issue only if there                                                                                                                                                                                                                                                                                          


were a specific motion.  

V.                             CONCLUSION  

                                                             We REVERSEthe superior court's property decision regarding the student                                                                                                                                                                                                                                         

loan debt and                                                       REMAND for                                                              further   proceedings.     Depending   on its determination                                                                                                                                   

regarding the loan debt, the court may need to adjust its equitable distribution of marital                                                                                                                                                                                                                                                                                 

property and debt.                                                                    In all other respects we AFFIRM the superior court's decisions.                                                                                                                                                                                            

                                                                                                                                                                                              -21-                                                                                                                                                                                     7211

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