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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Errol P. Downs v Deborah Downs (5/3/2019) sp-7360

Errol P. Downs v Deborah Downs (5/3/2019) sp-7360

           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                                       

ERROL  P.  DOWNS,                                                     )  

                                                                      )     Supreme  Court  No.  S-16532  

                                 Appellant,                           )  


                                                                      )     Superior Court No.  1PE-13-00059 CI  

           v.                                                         )  


                                                                      )     O P I N I O N  


DEBORAH DOWNS,                                                        )  


                                                                      )     No.7360 - May 3, 2019  

                                 Appellee.                            )  




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


                      Judicial District, Petersburg, William B. Carey, Judge.  


                      Appearances:  Walter R. Arden, Anchorage, for Appellant.  


                      RhondaF.Butterfield,Wyatt&Butterfield, LLC,Anchorage,  


                      for Appellee.  


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


                      and Carney, Justices.  


                      CARNEY, Justice.  



                      A husband appeals the superior court's unequal property division in a  


divorce proceeding that gave the wife the majority of the marital estate.  He argues that  


the superior court abused its discretion when dividing the property and that the property  


division was therefore inequitable.  Because the property division was neither clearly  


unjust nor based on clearly erroneous factual findings, we affirm the superior court's  


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

II.                                 FACTS AND PROCEEDINGS                                                         

                                                                       Errol Downs and Deborah Downs were married in 1985.                                                                                                                                                                                                                                                            Errol suffered a                                                                 

heart attack in approximately 1988, had heart surgery in 1989, and did not return to                                                                                                                                                                                                                                                                                                                                                                             

work.   Errol began collecting Social Security Disability Insurance in 1994.                                                                                                                                                                                                                                                                                                                                      That same   

year, the parties moved to Alaska following Deborah's retirement from her job with the                                                                                                                                                                                                                                                                                                                                                                       

 State of Oregon, eventually buying a house in Petersburg.                                                                                                                                                                                                                                                           She then took a job with the                                                                                                            

 State of Alaska.                                                                      Deborah worked for the State until her retirement in 2009.                                                                                                                                                                                                                                                                     

                                                                        The parties separated after Deborah sought a domestic violence protective                                                                                                                                                                                                                                                                       

 order against Errol in January 2013.                                                                                                                                                                     Deborah alleged that she feared for her safety                                                                                                                                                                                    

because Errol was behaving strangely and threatening to hurt her. Around the same time                                                                                                                                                                                                                                                                                                                                                                

that Deborah filed the domestic violence protective order, Errol moved out of the marital                                                                                                                                                                                                                                                                                                                                               

home and into a motel room.                                                                                                                                He lived at the motel until August when he was moved to                                                                                                                                                                                                                                                

the   Petersburg   Medical   Center.     Doctors   diagnosed   him with                                                                                                                                                                                                                                                                                dementia,  as  well   as  

depression, malnutrition, alcoholism, and other conditions.                                                                                                                                                                                                                                                                  

                                                                       Errol filed for divorce in October 2013.                                                                                                                                                                               Approximately six months later                                                                                                                         

Errol's attorney petitioned the probate court to appoint a guardian for Errol. The petition                                                                                                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                                                         1   The following April Errol's leg was  

was granted, and a public guardian was appointed.                                                                                                                                                                                                                                                                                                                                                                                                        

                                    1                                  Alaska   Statutes   13.26.700-.750   authorize   the   appointment   of   a   public  

guardian who "has the same powers and duties with respect to the public guardian's                                                                                                                                                                                                                                                                                                                                 

wards and protected persons as a private guardian or conservator." AS 13.26.720(a);                                                                                                                                                                                                                                                                                                                                                                         see  

AS 13.26.316 (general powers and duties of guardian).                                                                                                                                                                                                                                                              Before appointing a public                                                                                             

guardian, the court must determine that "the person is unable to manage [his or her own]                                                                                                                                                                                                                                                                                                                                                          

property and affairs effectively for reasons such as mental illness, mental deficiency, [or]                                                                                                                                                                                                                                                                                                                                                              

physical illness or disability" and that "the person has property that will be wasted or                                                                                                                                                                                                                                                                                                                                                                        

dissipated unless                                                                             proper   management is provided,                                                                                                                                                         or   that funds are needed                                                                                                                    for   the  

 support, care, and welfare of the person."                                                                                                                                                                                  AS 13.26.401(2)(A)-(B).                                                                                                                     A public guardian                                    

is    appointed    when    no    suitable    private    guardian    or    conservator    is    available.   

AS 13.26.710(b).   

                                                                                                                                                                                                                                -2-                                                                                                                                                                                                                 7360

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amputated above the knee, leaving him unable to walk.                                                                                                              As a result of his significant                        

healthcare needs, he moved to an assisted living facility in Anchorage.                                                                                                                                     

                                      In February 2016 Deborah filed a motion to dismiss the divorce complaint                                                                                                              

on the basis that Errol was not competent to get a divorce.                                                                                                                 At trial the superior court                                  

determined that Errol was competent, denied Deborah's motion to dismiss, and then                                                                                                                                                          

proceeded to divide the marital estate.                                                                        

                                      Errol requested approximately 50% of the marital assets.                                                                                                                    His guardian   

testified regarding his financial needs and the impact that the property division could                                                                                                                                                

                                                                                                                                                              2     The guardian testified that he  

have on his eligibility for services, including Medicaid.                                                                                                                                                                                        

had an irrevocable trust that ensured his continuing eligibility for Medicaid,3  a separate  


burial account,4 a Permanent Fund Dividend account, and a checking account that had  


                                                                                                                                                                                                                   5   At the time  

a balance of less than $2,000 (as required to maintain Medicaid eligibility).                                                                                                                                                              


of trial Errol resided in a long-term healthcare facility.   The cost of the facility was  


covered  in  large  part  by  long-term  care  insurance  he  received  as  a  beneficiary  of  


                   2                  Medicaidis ahealth                                       insuranceprogramfor low-income,disabled,andother                                                                                           

eligible individuals.                                     See  AS 47.07.010; AS 47.07.020; 7 Alaska Administrative Code                                                                                                                 

(AAC) 100.002(b) (2018).                                                      Medicaid eligibility is, in part, based on income and assets.                                                                                                                

See  7 AAC 100.002(b); 7 AAC 40.270; 7 AAC 40.310.                                                                                        

                   3                  This is a "pooled trust" authorized by 7 AAC 100.614. With the trust Errol  


can retain assets, and though he cannot access the trust himself, any amount can be spent  


on his behalf without disqualifying him from Medicaid.  See 7 AAC 100.606.  There is  


no cap on the amount in the irrevocable trust account.  


                   4                  Certain exempt resources are not counted when determining Medicaid  


eligibility.   7 AAC 40.280.   Money designated for funeral costs is exempt.   7 AAC  



                   5                  See 7 AAC 40.270(a)(1).  


                                                                                                                        -3-                                                                                                               7360

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


Deborah's   insurance   plan.     The   remainder   of   the   monthly   cost   was   covered   by  


                                  Errol's guardian testified that if Errol received his proposed portion of the                                                                                                     

marital assets, they could be placed in his trust and then used to buy a home for him. She                                                                                                                        

highlighted the importance of maintaining Errol's Medicaid eligibility but did not claim                                                                                                                      

that he could not receive the benefit of his proposed share of the marital assets.                                                                                                                        

                                  Deborah argued that all of the marital assets except 95% of her monthly                                                                                             

Oregon state retirement benefit should be awarded to her.                                                                                           She argued that her Oregon                          


state retirement benefit could pay                                                         for   Errol's monthly                                 health insurance premiums.                                                   

Deborah contended that this was equitable because all of Errol's needs were met by  


Medicaid and his long-term health insurance and because Errol had not identified any  


additional needs.  Further, Deborah noted that at Errol's death assets in his trust would  


revert to the State of Alaska.8  


                                  The superior court granted the divorce. In its division of the marital assets,  


Errol received $31,680, which was 40% of the proceeds from the sale of the parties' boat  


and hand-troll fishing permit. He was also awarded 95% of Deborah's monthly Oregon  


                 6                Deborah's insurance paid approximately $8,000 per month toward the cost                                                                                                         

of Errol's care at the facility.                                           

                 7                Deborah's retirement benefit from Oregon would cover the monthly cost  


for Errol to purchase general health insurance under Deborah's plan for the immediate  




                 8                The balance of Errol's irrevocable asset trust will revert to the State of  


Alaska upon his death to reimburse the State for any Medicaid payments it made on  


Errol's  behalf:                             "A  recognized  Medicaid  trust  document  must  provide  that  upon  


termination of the trust by death of the recipient, any money remaining in the trust must  


be paid to the state, up to the amount the state paid in Medicaid benefits for the recipient  


while the trust existed."  7 AAC 100.608(b).  


                                                                                                          -4-                                                                                                  7360

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state retirement benefit, as well as some household items.                                                                                                                  The court awarded Deborah                                  

the rest of the marital estate, including a car, the marital home (which was free of any                                                                                                                                                              

mortgage and valued at $245,000), and her other retirement accounts.                                                                                                                                              

                                        To justify                   its division the court discussed the relevant statutory factors from                                                                                                          

                                                             9     It found that Deborah was retired, 67 years old, and needed the  

AS 25.24.160(a)(4).                                                                                                                                                                                                                                    

marital assets to live comfortably for the rest of her life. It also found that, because Errol  


needed to maintain Medicaid eligibility, his assets were in an irrevocable trust and that  


any assets in that trust would revert to the State of Alaska upon his death.  It specifically  


found that Errol was unlikely to ever live independently, that all of his needs were met  


by Medicaid and long-term health insurance, and that he had been unrealistic about his  


potential future living situation.  


                                        Errol now appeals the superior court's unequal property division.  


III.                STANDARD OF REVIEW  


                                        Whendividingmaritalpropertyin adivorceproceeding, thetrial court must  


complete  three  steps:                                                "(1)  determin[e]  what  property  is  available  for  distribution,  


(2) find[] the value of the property, and (3) divid[e] the property equitably."10  


                    9                   These factors include: (1) "the length of the marriage"; (2) the parties' ages                                                                                                                              

and   health;   (3)   the   parties'   earning   capacities;   (4)   the   parties'   financial   condition,  

including cost and access to health insurance; (5) the parties' conduct and "whether there                                                                                                                                                        

has been unreasonable depletion of marital assets"; (6) "the desirability of awarding the                                                                                                                                                               

family home . . . to the party who has primary physical custody of children"; (7) "the                                                                                                                                                              

circumstances and necessities of each party"; (8) the time and manner in which the                                                                                                                                                                     

parties acquired the property; and (9) the value and income-producing capacity of the                                                                                                                                                                  


                    10                 Dunmore  v.  Dunmore,  420  P.3d  1187,  1190  (Alaska  2018)  (quoting  


 Wagner v. Wagner, 386 P.3d 1249, 1251 (Alaska 2017)); see also  Jones v. Jones, 942  


P.2d 1133, 1136 (Alaska 1997).  


                                                                                                                            -5-                                                                                                                   7360

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                       Errol only appeals the third step: the superior court's division of property,                                    

which we review for abuse of discretion                               11                                                                   

                                                                          and will reverse only if it is "clearly unjust"  

                                                                                                                   12  We review factual  



or "based on a clearly erroneous factual finding or mistake of law." 

findings for clear error, reversing "if, upon review of the entire record, we are left with  


a firm and definite conviction that a mistake has been made."13  


                       "Anequal division ofpropertyispresumptivelyequitable, but thetrial court  


has broad discretion in this area."14  "Sometimes . . . an unequal division may be required  


to achieve equity."15  


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


is assessed under an objective standard."16  


IV.         DISCUSSION  

                       "In dividing property, either equally or unequally, trial courts should be  


guided  by  the  [AS  25.24.160(a)(4)]  factors."17  


                                                                                           These  statutory  factors  are  "not  


exhaustive, and the trial court need not make findings pertaining to each factor, but its  

            11         Dunmore, 420 P.3d at 1190 (quoting                                 Wagner, 386 P.3d at 1251).          

            12         Fletcher  v.  Fletcher,  433  P.3d  1148,  1152  (Alaska  2018)  (quoting  


Dunmore, 420 P.3d at 1190).  


            13         Dunmore, 420 P.3d at 1190 (quoting Fortson v. Fortson, 131 P.3d 451, 456  


(Alaska 2006)).  


            14         Brennan v. Brennan, 425 P.3d 99, 106 (Alaska 2018) (footnote omitted).  


            15         Jones, 942 P.2d at 1137.  


            16         Mengisteab  v. Oates, 425 P.3d 80,85 (Alaska 2018) (quoting  Wells v.  


Barile, 358 P.3d 583, 588 (Alaska 2015)).  


            17         Jones, 942 P.2d at 1137.  


                                                                         -6-                                                                  7360

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


findings must be sufficient to indicate the factual basis for the conclusion reached."                                                                              


"Where the trial court makes these threshold findings, we generally will not reevaluate  

                                                                  19  "The trial court's factual findings enjoy particular  



the merits of the property division." 

deference when they are based 'primarily on oral testimony, because the trial court, not  


this court, judges the credibility of witnesses and weighs conflicting evidence.' "20  


                         On appeal, Errol argues that the superior court abused its discretion for  


three primary reasons:  (1) the court improperly considered Deborah's and her parents'  


contributions to the marriage; (2) the court improperly based its division of property  


upon the fact that Errol would never live independently; and (3) the court was biased  


against Errol.  


            A.	          TheSuperiorCourt Properly ConsideredDeborah's AndHerParents'  


                         Contributions To The Marital Estate.  


                         Errol  claims  that  the  superior  court  erred  by  improperly  considering  


Deborah's  and  her  parents'  contributions  to  the  marital  estate  when  dividing  the  


property.  He argues that these contributions were marital property and therefore the  


superior court should have divided them equally.  However, Errol mischaracterizes the  


superior court's decision.  The superior court did not distinguish these contributions as  


separate property that should be returned to Deborah after the divorce;21  


                                                                                                                                    rather, it merely  

             18	         Nicholson v. Wolfe                 , 974 P.2d 417, 422 (Alaska 1999) (footnote omitted).                                

             19          Cartee v. Cartee               , 239 P.3d 707, 713 (Alaska 2010);                                  see also Jerry B. v.               

Sally   B.,   377   P.3d   916,   938   (Alaska   2016)   ("[T]he   superior   court   has   significant  

discretion 'to ascribe different weights to [the AS 25.24.160(a)(4)] factors upon hearing  


the evidence at trial.' " (quoting                         Cartee, 239 P.3d at 715) (second alteration in original)).                          

            20           Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (quoting Sheffield v.  


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


            21           See Lewis v. Lewis, 785 P.2d 550, 558 (Alaska 1990) ("[A]ll property  



                                                                              -7-	                                                                      7360

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

considered the fact that Deborah and her parents made these contributions to the marital                                                       

estate as a relevant factor when dividing the property.  We have previously held that a     

superior   court   may   consider   such   contributions   as   relevant   when   dividing   marital  

                22  and the superior court was within its discretion to consider them here.  


            B.	         The Superior Court Did Not Clearly Err In Finding That Errol Could  


                        Not Live Independently Or Abuse Its Discretion In Considering That  


                        Finding When Dividing The Marital Estate.  


                        Errol contends that the superior court wrongly relied on its finding that he  


could not live independently when it divided the marital estate.   The court based its  


property division primarily on the fact that Deborah's needs far outweighed Errol's  


because she was living independently and he would need to remain in assisted living for  


the rest of his life. It further found that Errol lived comfortably and all of his needs were  


being met in assisted living.  The superior court concluded that in order to maintain his  


comfortable living situation and continue to have his needs met, Errol needed to remain  


eligible for Medicaid.  Errol's Medicaid eligibility, in turn, required him to maintain his  


current economic condition.  


                        Errol argues that the superior court abused its discretion in dividing the  


marital estate because he "is now in the process of leaving protective custody and will  


live independently."  His argument presents two issues:  first, that the superior court  


            21          (...continued)  


acquired  during  the  marriage  is  available  for  distribution,  excepting  only  inherited  


property  and  property  acquired  with  separate  property[,]  which  is  kept  as  separate  


            22          See Fortson v. Fortson, 131 P.3d 451, 459 (Alaska 2006) ("We have held  


that contributions of separate property may be relevant to equitable division."); Green  


v.  Green,  29  P.3d  854,  860  (Alaska  2001)  ("We  have  recognized  that  premarital  


contributions to the marital estate may be relevant to the equitable division, even though  


this is not a factor specifically listed in AS 25.24.160(a)(4)." (footnote omitted)).  


                                                                           -8-	                                                                   7360

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

clearly erred in finding that he would never live independently; and second, that the                                                                                                                                                        

 superior court's property division was an abuse of discretion because it relied on this                                                                                                                                                   

erroneous fact.                              

                                      Errol contends that the superior court "did not pay enough attention" to                                                                                                                                  

evidence suggesting that Errol could eventually live independently.                                                                                                                              But this argument         

ignores the contrary evidence before the superior court: testimony                                                                                                                       fromErrol's                        guardian  

and Deborah, as well as neuropsychological reports and doctor recommendations, all of                                                                                                                                                           

which the superior court found to be more credible than Errol's testimony.                                                                                                                                            

                                      We review factual findings for clear error, reversing only if "we are left                                                                                                                            

                                                                                                                                                                                               23      Because it is the  

with a firm and definite conviction that a mistake has been made."                                                                                                                                                                           

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


                                                                                                                                                                                                           24   The superior  

evidence, "[t]he trial court's factual findings enjoy particular deference."                                                                                                                                                   


court's factual finding that Errol was unable to live independently was supported by the  


evidence, so "we are [therefore not] left with a firmand definite conviction that a mistake  


has been made."25  


                                      Errol  next  seems  to  argue  that  because  the  superior  court  erred  by  


concluding that he could not live independently, it also erred by relying on that finding  


when dividing the marital estate.  He argues that because the superior court incorrectly  


found that he could not live independently, it also incorrectly found that Deborah's needs  


were greater.  He then argues that because these findings were clearly erroneous, the  


 superior  court  abused  its  discretion  by  relying  upon  them  to  divide  the  property  


                   23                 Dunmore   v.   Dunmore,   420   P.3d   1187,   1190  (Alaska   2018)   (quoting  

Fortson, 131 P.3d at 456).                                   

                   24                 Limeres, 320 P.3d at 296 (quoting Sheffield, 265 P.3d at 335).  


                   25                 Dunmore, 420 P.3d at 1190.  


                                                                                                                       -9-                                                                                                              7360

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

unequally. But, as we have discussed, the superior court did not err in finding that Errol                                                                                                                                                                                                                                                                                                                                                                                                     

 could not live independently.                                                                                                                                               The superior court therefore did not err by relying on that                                                                                                                                                                                                                                                               

 finding when it found that Deborah's needs were necessarily greater.                                                                                                                                                                                                                                                                                                                                                      

                                                                               Further, AS25.24.160(a)(4)(G) specificallyinstructstrialcourtstoconsider                                                                                                                                                                                                                                                                                                                      

 "the circumstances and necessities of each party" when dividing a marital estate.                                                                                                                                                                                                                                                                                                                                                                                                        Here,  

the superior court considered both Errol's and Deborah's needs. It concluded that Errol                                                                                                                                                                                                                                                                                                                                                                                                        

 could not live independently and that his needs were being met in assisted living, that he                                                                                                                                                                                                                                                                                                                                                                                                                     

needed to maintain a certain economic condition to remain eligible for Medicaid and                                                                                                                                                                                                                                                                                                                                                                                                                    

therefore    remain    in    assisted    living,    and    that   Deborah    would    continue    to    live  

independently and therefore have greater needs.                                                                                                                                                                                                                                             Based on a consideration of its factual                                                                                                                                                   

 findings regarding the parties' individual needs, the court awarded Deborah a greater                                                                                                                                                                                                                                                                                                                                                                                             

portion of the marital estate.                                                                                                                                              Because AS 25.24.160(a)(4)(G) specifically directs the                                                                                                                                                                                                                                                                        

 superior court to consider these findings and these findings were not clearly erroneous,                                                                                                                                                                                                                                                                                                                                                                      

the superior court did not abuse its discretion.                                                                                                                                                               

                                        C.                                     There Was No Bias Against Errol.                                                                                                                                                

                                                                               Errol argues that the court's division of assets demonstrates that the judge                                                                                                                                                                                                                                                                                                                                  

was biased against him and in favor of Deborah.                                                                                                                                                                                                                                               He argues that:                                                                                (1) the judge unfairly                                                            

believed Errol could have returned to work if he drank less; (2) the judge inappropriately                                                                                                                                                                                                                                                                                                                                          

 considered the domestic violence protective order Deborah obtained against Errol; (3)   

the judge inappropriately called Errol "delusional"; and (4) the judge inappropriately                                                                                                                                                                                                                                                                                                                                            

 considered "how wonderful Deborah ha[d] been in the marriage."                                                                                                                                                                                                                                                                                                                                                      Errol makes this                                                                  


 argument for the first time in his brief; he did not raise the issue of bias at trial.                                                                                                                                                                                                                                                                                                                                                                                                      

                                        26                                     SeeGreenwayv.Heathcott                                                                                                                                       , 294 P.3d 1056, 1063 (Alaska 2013) (assuming    

without deciding that bias raised for the first time on appeal was properly before the                                                                                                                                                                                                                                                                                                                                                                                                                    


                                                                                                                                                                                                                                                    -10-                                                                                                                                                                                                                                          7360

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

                           We have repeatedly                          held   that a party must demonstrate that the court                                           


 formed an unfavorable opinion of the                                      party fromextrajudicial information                                                          

                                                                                                                                                      and that bias  

                                                                                                        28    But judicial bias may also arise  



 cannot "be inferred merely from adverse rulings." 

 during the course of judicial proceedings if "a judicial officer hears, learns, or does  


 something intrajudicially so prejudicial that further participation would be unfair."29  


 Errol does not argue that the judge considered any extrajudicial information, nor does  


he offer  evidence of anything  that occurred during  the proceedings aside from the  


judge's adverse rulings.  The comments and findings that Errol argues show bias were  


 "the result of opinions and attitudes formed in court by the evidence that the judge  


heard."30            We therefore find that the superior court judge was not biased against Errol.  


V.            CONCLUSION  

                           We AFFIRM the superior court's property division.  


              27           See Berry v. Berry                   , 277 P.3d 771, 774 (Alaska 2012) (" 'In order to prove                                             

 a claim of judicial bias,' a party must show that the judge 'formed an opinion of him                                                                                  

 fromextrajudicial sources.' " (quoting                                      Peterson v. Ek               , 93 P.3d 458, 467 (Alaska 2004))).                   

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


Khalsa v. Chose, 261 P.3d 367, 376 (Alaska 2011)).  


              29           Brown  v.  State,  414  P.3d  660,  661  n.3  (Alaska  2018)  (Winfree,  J.,  


 concurring in part and dissenting in part) (citing Jerry B. v. Sally B., 377 P.3d 916, 925  


 (Alaska 2016); Grace L. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 329 P.3d 980, 988-89 (Alaska 2014); R.J.M. v. State, Dep't of Health & Soc.  


Servs., 946 P.2d 855, 869-70 (Alaska 1997) superseded by statute on other grounds, ch.  


 99    1,  18,  SLA  1998);  see  also  Greenway,  294  P.3d  at  1064  (suggesting  that  


 something "in the court's 'demeanor, tone, or words' " could "indicate[] actual bias or  


 give[] an appearance of bias").  


              30           Hanson v. Hanson, 36 P.3d 1181, 1186 (Alaska 2001).  


                                                                                    -11-                                                                             7360

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