DOMESTIC RELATIONS UPDATE
March 2000 -- March 2001
Alaska Bar Association
Family Law Section
TABLE OF CONTENTS
Custody and Visitation ........................................................................................1
Child Support ....................................................................................................15
Spousal Support ................................................................................................26
Child in Need of Aid Proceedings ....................................................................47
Indian Child Welfare Act ..................................................................................58
Attorneys Fees ...................................................................................................63
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LIST OF SUMMARIZED CASES
UNITED STATES SUPREME COURT DECISIONS
Troxel v. Granville, 530 U.S. 57 (2000) .............................................................1
ALASKA SUPREME COURT DECISIONS
A.B. v. State, Dep’t of Health & Social Services, 1 P.3d 677(Alaska 2000) ...47
(Child in Need of Aid)
In re Adoption of A.F.M., 15 P.3d 258 (Alaska 2001) ......................................56
A.H. v. P.B., 2 P.3d 627 (Alaska 2000) ...............................................................3
Allen v. State, CSED, 15 P.3d 743 (Alaska 2000) ............................................19
Atcherian v. State, CSED, 14 P.3d 970 (Alaska 2000) .....................................42
B.B. v. D.D., 18 P.3d 1210 (Alaska 2001) .......................................................46
Bennett v. Bennett, 6 P.3d 724 (Alaska 2000)...................................................15
Child Support Recovery Services v. Inn at the Waterfront,
7 P.2d 63 (Alaska 2000) ............................................................................21
C.J. v. State, DHSS, 18 P.3d 1214 (Alaska 2001) ............................................50
(Child in Need of Aid)
C.L. v. P.C.S., 17 P.3d 769 (Alaska 2001) .......................................................61
(Indian Child Welfare Act)
Coffland v. Coffland, 4 P.3d 317 (Alaska 2000) ..............................................28
Edelman v. Edelman, 3 P.3d 348 (Alaska 2000).........................................26, 32
(Spousal Support, Property)
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Glasen v. Glasen, 13 P.3d 719 (Alaska 2000) ..................................................37
ALASKA SUPREME COURT DECISIONS (cont’d)
Jenkins v. Handel, 10 P.3d 586 (Alaska 2000) ..................................................8
J.M.R. v. S.T.R., 15 P.3d 253 (Alaska 2001) ......................................................4
L.G. v. State, DFYS, 14 P.3d 946 (Alaska 2000) ..............................................58
(Indian Child Welfare Act)
McDougall v. Lumpkin, 11 P.3d 990 (Alaska 2000) ..................................27, 65
N.A. v. State, DFYS, 19 P.3d 597 (Alaska 2001) .............................................54
(Child in Need of Aid)
Office of Public Advocacy v. Superior Court, Second District,
3 P.3d 932 (Alaska 2000) ..........................................................................47
(Child in Need of Aid)
Pearson v. Pearson, 5 P.3d 239 (Alaska 2000) ...............................................12
P.G. v. State, Division of Family and Youth Services,
4 P.3d 326 (Alaska 2000) ..........................................................................52
(Child in Need of Aid)
Platz v. Aramburo, 17 P.3d 65 (Alaska 2001) ...........................................11, 45
R.I. v. C.C., 9 P.3d 274 (Alaska 2000) ........................................................14, 39
R.M. v. S.G., 13 P.2d 747 (Alaska 2000) ...........................................................5
Routh v. Andreassen, 19 P.3d 593 (Alaska 2001) ............................................22
Sampson v. Sampson, 14 P.3d 272 (Alaska 2000) ...........................................29
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Sanders v. Barth, 12 P.3d 766 (Alaska 2000) ..................................................63
Schuyler v. Briner, 13 P.3d 738 (Alaska 2000) ..........................................10, 17
(Custody, Child Support)
ALASKA SUPREME COURT DECISIONS (cont’d)
Sloane v. Sloane, 18 P.3d 60 (Alaska 2001) .........................................35, 63, 65
(Property, Attorney’s Fees, Miscellaneous)
Spott v. Spott, 17 P.3d 52 (Alaska 2001) ..........................................................23
S.S.M. v. State, DFYS, 3 P.3d 342 (Alaska 2000) .............................................49
(Child in Need of Aid)
State, CSED v. Button, 7 P.3d 74 (Alaska 2000) .............................................39
State, CSED v. Leitch, 999 P.2d 782 (Alaska 2000) ........................................24
State, CSED v. Maxwell, 6 P.3d 733 (Alaska 2000) .........................................40
State, CSED v. McCormick, 3 P.3d 930 (Alaska 2000) ...................................19
VALENTINO V. COTE, 3 P.3D 337 (ALASKA 2000) 7, 16
(CUSTODY, CHILD SUPPORT)CUSTODY AND VISITATION
Troxel v. Granville, 530 U.S. 57 (2000)
Washington law allows ―any person‖ to petition for visitation rights ―any time,‖ and
directs the courts to grant the requested visitation whenever it is in the child’s best interests. In
this case, the children resided with Mother in Washington, and Father was deceased. Paternal
Grandparents filed for visitation, and the trial court granted them more visitation than Mother
was willingly to agree to. The intermediate appellate court reversed, and the Washington
Supreme Court affirmed. Applying federal law, the Washington Supreme Court concluded that
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the statute was a facially unconstitutional infringement on the right of parents to rear their
children because (i) its authorization of any person to bring a petition at any time under the
―best interests‖ standard was overly broad, and (ii) the statute failed to require ―harm to the
child‖ as a threshold standard for awarding visitation to a non-parent over a parent’s objection.
The Supreme Court affirmed, in a fractured 6-3 decision that contained six opinions.
The Court HELD that:
a) The Fourteenth Amendment Due Process Clause provides parents with a
fundamental right to make decisions concerning the care, custody and
control of their children.
b) A statute that broadly allows any person to seek visitation with a child at
any time, with no deference to the parent’s decision that the visitation
would not be in the child’s best interest, unconstitutionally violates the
fundamental rights of parents.
c) A statute that infringes on a fit parent’s authority regarding the child’s best
interest must accord ―at least some special weight to the parent’s own
The four-Justice plurality declined to consider the question of whether the Due
Process Clause requires a showing of potential or actual harm to the child, as a condition
precedent to awarding visitation to a nonparent over the parent’s objection.
1. The holdings above are drawn from the plurality opinion, to the extent that they
clearly received the support of at least one other Justice.
2. Justice Souter concurred in the judgment, agreeing with the first rationale put
forth by the Washington court. Like the plurality, he declined to address the issue of
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whether a showing of harm should be required before second-guessing a parent’s
Justice Thomas concurred in the judgment, arguing that strict scrutiny should be
applied to the infringement of fundamental rights, and the State of Washington
failed to put forth a legitimate governmental interest—much less a compelling one --
for second-guessing a fit parent’s decision regarding visitation.
Justice Stevens dissented, disagreeing with both aspects of the Washington Supreme
Court’s ruling. He disagreed that a showing of harm is always required for a judge
to overrule a parent’s decision. He argued that the broad sweep of the visitation
statute is not facially invalid because it might extend to visitation requests by
biological parents (his opinion suggests he was unaware that custodial rights of
parents are treated separately from those of nonparents in the family codes of
Washington and other states).
Justice Kennedy dissented and would have reversed the Washington Supreme
Court’s ―requirement of harm‖ holding. He argued that the Constitution does not
bar the application of the ―best interests of the child‖ standard in all parent v.
nonparent contexts, and that this standard might be appropriate where the nonparent
has already established a substantial relationship with the child.
Justice Scalia dissented on the ground that it was not within the province of judges
to strike down laws based on rights not specifically mentioned in the Constitution.
3. This leads to the question of whether Troxel invalidates Alaska’s own laws
permitting nonparent visitation. Alaska’s statutory provisions for nonparent
visitation are highly suspect. AS 25.24.150(a) permits ―a grandparent or other
person‖ to seek visitation rights. The person can make the request at any time
during the child’s minority after one of the parents has commenced an action for
divorce, or after one of the parents has died. Visitation will be granted under this
statute ―if that is in the best interests of the child.‖ Apart from the limitation on
when the action may be brought, this statute is as broad as the one struck down in
Troxel. It is almost certainly unconstitutional.
AS 25.20.065 is narrower, in that it authorizes a visitation request only by a
―grandparent.‖ Unlike its counterpart in Chapter 25.24, this statute allows the
grandparent to freely seek visitation any time before a divorce or custody proceeding
has been commenced, and puts limited restrictions on the right to seek visitation
after a final custody order has been issued. Like the general visitation statute – and
the statute in Troxel – it applies a ―best interest‖ standard to the visitation request.
Thus, although it is restricted to grandparents, it allows a visitation claim at almost
any time and provides no deference to the parent’s determination. This statute, too,
is almost certainly unconstitutional.
The decisional law of Turner v. Pannick and progeny allows a nonparent to obtain
custody or visitation only if the parent is unfit, has abandoned the child, or the
welfare of the child requires that a non-parent receive custody, Buness v. Gillen, 781
P.2d 985 (Alaska 1989); Turner v. Pannick, 540 P.2d 1051 (Alaska 1975). This
heightened standard, which also contains a standing requirement that the petitioner
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have a "significant connection" with the child, Buness, 781 P.2d 985, almost
certainly passes constitutional muster.
A.H. v. P.B., 2 P.3d 627 (Alaska 2000)
Incarcerated Father filed a motion to enforce his right to two phone calls per month
with child. Pro se Mother responded with a letter to the judge asking to reduce phone calls to
once per month based on father’s failure to exercise his rights of contact, and father filed a
response claiming logistical problems. The trial court issued an order without any findings,
granting Mother’s request to reduce phone contact.
The Supreme Court reversed in a 4-1 decision, HOLDING that:
a) An order modifying visitation rights must be supported by findings
showing that the modification was in the best interest of the child.
b) A trial court should not make a ―material and substantial change‖ to
visitation rights without permitting all parties to be heard, at least
COMMENT: The Court noted that the right to a hearing did not apply to every
visitation dispute, such as those dealing with the ―minutiae of a detailed visitation
arrangement;‖ rather, the right was limited to those motions dealing with material
and substantial changes to the visitation schedule. Nevertheless, the Court found in
this case that a hearing was required on the issue of a single phone call each month –
about as trivial a change as can be imagined. The Court reasoned that elimination of
the phone call amounted to cutting father’s visitation in half.
c) Ex parte communications should not be accepted for filing unless service
has been made by the party or by the court itself.
1. The trial court rejected father’s claim that the court’s act of forwarding Mother’s
communications on to father amounted to acting as Mother’s secretary, thereby
suggesting partiality by the Court.
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2. The Court also addressed the ―ambiguity of informal requests for relief,‖ such as
Mother’s letter to the Judge. The Court stated that the best practice is for the trial
court to inform the other party whether the court intends to treat such an informal
communication as a request for relief, rather than simply a document submitted for
3. Justice Carpeneti dissented. He felt it was inappropriate to enunciate any rules
of law in this case because it was moot (father was scheduled for release two months
prior to the issuance of this decision) and because the briefing was inadequate
(father submitted a pro se brief and Mother did not even appear).
J.M.R. v. S.T.R., 15 P.3d 253 (Alaska 2001)
Maternal Grandmother was very involved in caring for Mother and Father’s children.
Following an altercation, Grandmother filed for a domestic violence restraining order against
Mother and Father. The court found domestic violence and issued the restraining order, but
denied Grandmother’s request for custody or visitation rights to the minor children.
The Supreme Court affirmed, HOLDING that:
a) Domestic violence proceedings are an inappropriate forum for a non-
parent to litigate custody and visitation of children who are currently in
their parents’ custody.
b) Trial courts have discretion to decline to permit litigation of custody
claims asserted by non-parents or legal guardians in domestic violence
1. The Court left open the question of whether the trial court has discretion to not
address non-parent custody claims in a DV proceeding, where the child is in the
physical care of the non-parent.
2. The Court quoted at length from the lower court opinion, which suggested
factors to be considered in deciding whether the domestic violence court should
entertain non-parent custody claims. That opinion suggests that a non-parent’s
claim is more likely to be heard if the child is residing with the non-parent claimant,
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or if there is evidence that the children themselves were victims of domestic
R.M. v. S.G., 13 P.2d 747 (Alaska 2000)
Mother had primary custody of the children under the parties’ 1997 dissolution. In
1998, following allegations of physical abuse by Mother’s new husband, Father obtained
temporary custody. The court appointed a psychologist as custody investigator, and the
investigator wrote a 62-page report recommending custody to Father. Mother requested the
raw data of Father’s psychological tests, but the custody investigator would not release the data
without Father’s consent (which Father granted but then revoked). Mother did not seek to
compel release of the data, but instead moved to quash the custody investigator’s entire report.
The trial court denied the motion, and after a trial awarded custody to Father with only
supervised visitation for Mother.
The Supreme Court affirmed, HOLDING:
a) Rule 37 governs sanctions for discovery violations, including a party’s
oral commitment to provide evidence.
b) Rule 37 sanctions should be narrowly tailored to the alleged discovery
violation, and the Rule does not permit extreme sanctions for relatively
COMMENTS: Mother would have been entitled to an order compelling release of
the psychological data, and a continuance of the trial to obtain an independent
evaluation of the data, if only she had asked for it. However, she instead asked for
the more extreme sanction of evidence preclusion. Mother was obviously displeased
by the custody investigator’s recommendation, and saw the discovery issue as a tool
for barring the custody investigator’s report and testimony.
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c) A party who complains of discovery violations must take reasonable steps
to remedy the violations, i.e. to compel disclosure of the allegedly
d) A custody investigator is an ―expert‖ within the meaning of Rule 26. See
ALASKA R. CIV. P. 90.6.
e) A party seeking to ban hearsay statements contained within an expert’s
report must make a timely hearsay objection to the admission of those
statements at the time that the report is proffered and admitted.
f) While unrestricted visitation is the norm, supervised visitation can be
required when unrestricted visitation ―is contrary to the best interest of the
child.‖ Monette v. Hoff, 958 P.2d 434 (Alaska 1998).
g) A denial of unrestricted visitation must be supported by findings setting
forth why unrestricted visitation is contrary to the child’s best interests.
h) Inappropriately harsh physical discipline of child in the parent’s home,
which is condoned by the parent and results in emotional damage to the
child, is a sufficient basis for requiring that future visits with that parent be
Valentino v. Cote, 3 P.3d 337 (Alaska 2000)
Mother was awarded custody of the two children in 1988. In 1997, Father moved to
modify custody but the court denied the motion due to the absence of changed circumstances.
In 1998, the fourteen-year old elder child ran away to Father’s house, claiming Mother’s
boyfriend tried to choke him, and obtained a restraining order against Mother and her
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boyfriend. Father then moved again to modify custody. The court specifically found that
Mother had not physically abused the child, but granted Father’s motion based on the child’s
preference and the court’s finding that the child was ―mature and of sufficient capacity to make
a reasoned decision.‖
The Supreme Court affirmed, HOLDING that:
a) A custody modification is only warranted when there has been a
―significant‖ change of circumstances. The change must be to the facts
and circumstances that existed at the time of entry of the order that the
moving party seeks to modify.
COMMENTS: Where a custody order is entered at time X, and a motion to modify
custody is denied at time Y, a subsequent motion to modify must show that
circumstances have changed since time X, not time Y.
b) A child’s refusal to live with the custodial parent can constitute a
substantial change of circumstances.
c) A relatively mature teenager’s reasoned preference should ordinarily not
be ―lightly . . . disregarded.‖ Veazey v. Veazey, 560 P.2d 382 (Alaska
1. Alaska’s custody statute, unlike that of other states, does not identify any age
range at which a child’s preference should be accorded weight. Instead, it provides
that ―the child's preference if the child is of sufficient age and capacity to form a
preference.‖ AS 25.24.150(c)(3). A fourteen-year old is typically well within the
age range warranting consideration of his preferences.
2. The focus is not merely on the child’s age, but on her maturity and on the
reasons for her preferences. The Court’s opinion noted that the child expressed
―convincing, logical reasons‖ for wanting to live with his father. The Court also
noted that the child expressed love for his Mother and the younger sibling that
remained in his mother’s care, thereby indicating that he was not acting out of anger,
instead choosing to live with his father despite the love that he had for those in the
household he was leaving behind.
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3. The trial judge also noted that the child was able to ―behave more maturely than
his parents.‖ Perhaps he should have been awarded custody of himself.
Jenkins v. Handel, 10 P.3d 586 (Alaska 2000)
Father in Washington was awarded custody of the children in 1988. In 1997, Mother
in Alaska filed a motion for change of custody and supported it with affidavits from the
children (ages 11 and 13) stating that they wanted to live with Mother. After an investigation,
the court denied the motion. In 1998, Mother again moved to modify custody, based on the
children’s preferences and Mother’s claims that she had fixed the problems in her home
identified during the previous investigation. The court appointed a guardian ad litem who
acknowledged the preferences of children (now 15 and 13) for Mother, but recommended
against modification. The Court denied the motion.
The Supreme Court affirmed, HOLDING that:
a) A motion to modify custody will be granted only if there has been a
significant or substantial change of circumstances.
b) The change must be substantial relative to the facts and circumstances that
existed at the time of entry of the prior order that the movant seeks to
c) The placement preferences of teenagers are not controlling, and may be
outweighed by other factors.
d) A child’s placement preferences may be discounted where the child’s
basis for those preferences are not well-reasoned.
COMMENT: This opinion comes on the heels of Valentino v. Cote, 3 P.3d 337
(Alaska 2000), and the two decisions provide contrasting considerations of child
preferences. In Valentino, a 16-year old’s preference was given great weight
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because his preference was based on the treatment that he received in his parents’
households, and evidenced a reasoned consideration of his placement alternatives.
By contrast, in Jenkins, the trial court gave little weight to the preferences of a 15-
year old, who wanted to live with Mother so that she could be near her 20-year old
boyfriend with whom she was having a sexual relationship that Mother did not
discourage. The court also gave little weight to the preference of a 13-year old, who
was greatly influenced by his older sibling.
e) It is not an abuse of discretion for the court to fail to mention a guardian
ad litem’s recommendations in its order.
f) The guardian ad litem has a duty to represent the child’s best interests, not
the child’s preferences. See ALASKA R. CIV. P. 90.7(e) Commentary.
g) A guardian ad litem’s duty does not extend to other parties in the
litigation, i.e., the guardian ad litem does not have a duty to the parents.
COMMENT: The Court rejected Mother’s due process challenge based on the
GAL’s failure to provide her with a copy of a letter written by the older child, until
the day before the hearing. The letter had not been the subject of any discovery
request by Mother.
Schuyler v. Briner, 13 P.3d 738 (Alaska 2000)
In 1997, Mother was awarded sole legal and physical custody of the children. In
1999, Mother agreed that sixteen-year old child could reside with her adult brother, where
Mother has continued to check in on her. Father was in accord with this placement decision.
After CSED filed to increase Father’s child support obligation, Father filed a motion to modify
legal custody. The court denied his motion without a hearing.
The Supreme Court affirmed. Concluding that Father had shown changed
circumstances but no prima facie evidence that modification was in the child’s best interest, the
Court HELD that:
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a) A custody modification request can be denied without a hearing if (i) the
facts alleged, even if proved, would not warrant a modification, or (ii) the
allegations are so general and conclusory, and so convincingly refuted by
competent evidence, as to create no genuine issue of fact requiring a
b) In the interest of stability for the children involved, trial courts should not
encourage unnecessary hearings in custody cases.
c) A child’s long-term move to the residence of a third party constitutes a
substantial change of circumstances.
d) A party seeking to modify legal custody must make a prima facie showing
that the custodial parent is making unwise decisions regarding the care of
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1. ―Denial of hearing‖ decisions usually turn on whether there has been a prima
facie showing of changed circumstances. Schuyler shows that you also have to
sufficiently plead the merits of your claim.
2. This is the first reported family law decision in Alaska that involves a husband
who adopted his wife’s surname upon marriage.
Platz v. Aramburo, 17 P.3d 65 (Alaska 2001)
The child was born in 1992 and lived solely with Mother since then. In 1998, Father
filed for custody and mother asked for additional time to answer but never did so. Father
moved for interim visitation and when Mother did not respond the court granted the motion.
Father then obtained a default, but Mother appeared at the default hearing. Father testified that
Mother was denying him interim visitation, and Mother would not promise that she would
comply with the visitation order. When Mother continued to not comply with the order, the
court awarded custody to Father.
The Supreme Court reversed, HOLDING that:
a) An inquiry into the best interests of the child is an essential element of any
b) The court’s obligation to engage in a ―best interests‖ inquiry is not
obviated by one party’s willful failure to file a responsive pleading.
c) A court cannot change custody of a child solely because the custodial
parent has not complied with orders of the court, without making a ―best
interests‖ determination based on the statutory factors set forth in AS
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1. The defect here was the trial’s courts failure to engage in any ―best interests‖
inquiry at the evidentiary hearing on Father’s default. Rather, the court focused
primarily on Mother’s unwillingness to comply with the temporary visitation order
that the court had previously issued. In effect, the court addressed one of the best
interests factors to the exclusion of all others.
2. The Supreme Court’s ruling does not bar default judgments in custody
proceedings. It merely requires a best interest inquiry prior to entry of the judgment.
The moving party obviously has a leg up, since he or she is the only party presenting
evidence at a default hearing. Still, the trial judge has a duty to make a best interests
determination, and may conclude that the moving party has failed to make a prima
facie case warranting an award of custody.
Pearson v. Pearson, 5 P.3d 239 (Alaska 2000)
Both parties lived in Alaska, and the parties agreed to Mother having custody of the
children. Nine months later, Mother moved with the children to Pennsylvania to be with
Mother’s fiancée. Father filed a motion to modify custody based on the children’s move out of
State, claiming Mother was moving to thwart Father’s relationship with the children. Father
then moved to Pennsylvania to be closer to the children, but the parties’ relationship became
increasingly conflictual due to Father’s actions, and Father moved back to Alaska and pursued
his motion. The trial court rejected Father’s request for the appointment of a custody
investigator, on the ground that there were no allegations of parental unfitness. Following an
evidentiary hearing that included the testimony of both parties’ psychology experts, the court
denied father’s motion to modify, finding that the father was the parent less likely to facilitate
the children’s relationship with the other parent, and that keeping the children with mother in
Pennsylvania promoted the stability of their care.
The Supreme Court affirmed, HOLDING that:
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a) The trial judge has discretion whether or not to appoint a custody
b) The trial court has the discretion to accept the testimony of one expert
over the testimony of another.
1. The trial court favored the testimony of Mother’s expert. Father’s expert may
have undercut his own credibility when he concluded that Mother was trying to
alienate the children from their father – even though he had only observed Mother
interacting with the children on a single brief occasion.
2. Father had alleged that the children suffered from ―parental alienation
syndrome.‖ Although both parties’ experts testified that parental alienation could
occur, the trial court accepted the view of mother’s expert that it was not present in
this case. The Supreme Court correctly noted that ―parental alienation syndrome‖ is
not universally accepted.
c) The question of whether there was a legitimate reason for a parent’s move
out of state is simply one factor in the ―best interest‖ analysis.
1. Some states regard the existence of a legitimate reason for the move as a
threshold requirement, so that a child cannot be removed from the state in the
absence of a legitimate reason for doing so. Under Alaska’s analysis, by contrast,
the Court may deny a request for modification of custody following removal of the
child from the state, even if the court finds that the move was for some illegitimate
reason (e.g. a desire to interfere with the other parent’s relationship with the child),
provided that, overall, it is in the best interest of the minor child to remain with the
parent who moved.
2. This is a breakthrough decision in Counsel Table Law. The trial court allowed
mother’s fiancé to sit with her at counsel table during the trial. Father appealed the
trial court’s decision, but the Supreme Court held the trial court acted within its
discretion. The trial court set forth no standard for who may be permitted to sit with
a party at counsel table, so this is still a fertile area for litigation.
3. In an embarrassingly weak field, the father in Pearson wins the 2000-2001
Gabaig Award for most outrageous conduct by a party in a reported family decision.
The DFYS social worker in P.G. v. State was the sentimental favorite, but our
esteemed panel declared State employees off limits. Public sector incompetence
driven by burdensome caseloads is no substitute for private sector sleaze motivated
by old-fashioned maliciousness.
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R.I. v. C.C., 9 P.3d 274 (Alaska 2000)
The court awarded custody to Mother. Father appealed. Father lost. The Court did
not enunciate any significant rule of law. Father also appealed the trial court’s interim order
directing the Department of Revenue to hold the child’s permanent fund dividend (rather than
giving it to Father).
The Supreme Court affirmed, HOLDING that a trial court has discretion to order the
State to hold a child’s permanent fund dividend, until custody issues pertaining to the child are
COMMENT: The Court rejected Father’s appeal of the trial court’s interim custody
order, noting that once the trial court issues a final custody order, all issues
pertaining to interim custody are moot.
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Bennett v. Bennett, 6 P.3d 724 (Alaska 2000)
The Court here makes new law in a fact situation that frequently arises, so pay
attention. Mother had custody. The parties agreed that the child could go live with Father, so
in September 1996 the Court granted father’s motion to modify custody and ordered Mother to
pay child support, but didn’t set an amount. Junior decided he liked Father even less than he
liked Mother, so he permanently moved back to Mother’s home in July 1997. Meanwhile,
Father had requested help from CSED, and the Division came a-knocking on Mother’s door. In
July 1998, Mother moved for modification of custody, and requested child support. The trial
court changed custody back to Mother and awarded her support from the date she filed her
motion. However, it denied her request for support during the period from July 1997 to July
1998 when she had de facto custody, and instead awarded child support to Father for the period
from 1996 through July 1998.
The Supreme Court affirmed the denial of Mother’s request for child support, but
reversed the order requiring her to pay child support during the period that the child was
actually living with her. Bottom line: when one parent has de jure custody and the other
parent de facto custody, neither parent is entitled to child support from the other. The Supreme
Court HELD that:
a) The issue of whether the trial court used the correct method to calculate
child support is a question of law, subject to independent appellate review.
b) Child support determinations should be based on the court-ordered
custody or visitation arrangement, not the schedule actually followed by
the parties. Turinsky v. Long, 910 P.2d 590 (Alaska 1996).
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c) A child-support obligor is not entitled to child support during any period
of time that she exercises de facto custody of the child.
d) Child support awards are intended to benefit the child, not provide a
windfall to a parent.
e) A parent with de jure custody is not entitled to child support when he has
relinquished de facto custody.
1. The Court did not expressly address the question of whether the de jure
custodian’s loss of a right to support occurs only where he has surrendered de facto
custody for an extended period of time. The Court did not limit its holding in this
regard, suggesting that even a brief informal change of custody (e.g. one or two
months) might release the support obligor from her support obligation for that period
of time. In a footnote, however, the Court relied on Turinsky v. Long, 910 P.2d 590
(Alaska 1996), and noted that Turinsky involved a custody change for nine months.
2. Although mother had been under an obligation to pay support for the year she
had de facto custody, there was no order that she pay a specific amount. The
Supreme Court noted that even if there had been a specific support obligation, the
outcome would have been the same. Pursuant to a recent revision of Rule 90.3, a
support obligee can be ―precluded from collecting arrearages for support of children
that accumulated during a time period exceeding nine months for which the parent
agreed or acquiesced to the obligor exercising primary custody of the children.‖
ALASKA R. CIV. P. 90.3(h)(3).
Valentino v. Cote, 3 P.3d 337 (Alaska 2000)
The Court modified child support. Mother filed a motion for reconsideration, but the
day after serving the motion she filed an appeal, thereby divesting the trial court of jurisdiction.
The Supreme Court dismissed the appeal, HOLDING that an issue is not ripe for appeal when
it is the subject of a motion for reconsideration that has not yet been ruled upon.
COMMENTS: When the Court issued its child support decision, the matter was ripe
for appeal. Mother’s act of requesting reconsideration made it unripe.
-- 20 --
Schuyler v. Lemon, 13 P.3d 738 (Alaska 2000)
The parties’ 1997 divorce awarded custody of the child to Mother and required Father
to pay $753 per month in support. Father remarried and helped support his two stepchildren.
In 1999, CSED filed to increase Father’s child support based on his higher income. Father
opposed CSED’s motion, asserting that his higher income consisted of additional overtime that
he took on specifically to provide for his stepchildren’s special needs. Father also cross-moved
for a child support reduction based on his stepchildren’s special needs. The trial judge granted
CSED motion and denied Father’s cross-motion, without a hearing.
The Supreme Court unanimously reversed the granting of CSED’s motion without a
hearing but, by a 3-2 vote, affirmed the denial of Husband’s motion. The Court HELD that:
a) On a motion to increase child support based on the obligor’s increased
income, it is a defense to the motion that the obligor has increased his
income ―specifically to better provide for a subsequent family.‖ ALASKA
R. CIV. P. 90.3 Commentary VI(B)(2).
1. The Court rejected CSED’s argument that this defense to a support is only
available when the ―subsequent family‖ consists of biological or adopted children.
Although the court did not address it, this defense may also be available when the
additional income is for the purpose of assisting subsequent family members who
are not minors, such as the new spouse or the spouse’s parents.
2. This defense is only available to shield income earned through efforts in excess
of the standard 40-hour work week. One could not raise it as a defense if the
increase in income resulted from going to a part-time job to a full-time job. It also
would not be available if the obligor simply moved to a better paying job.
b) A trial court may deny a motion to modify child support without an
evidentiary hearing if the moving party does not allege facts that would
establish a prima facie case for modification.
-- 21 --
c) In order to vary from the Rule 90.3 support guidelines, one has to show
that the court’s failure to vary from the guidelines would result in
―substantial hardship‖ or ―manifest injustice.”
d) A subsequent family will generally not constitute good cause to vary from
the Rule 90.3 support guidelines.
e) The mere assertion that a reduction in the support obligation will make it
easier to support subsequent children does not constitute good cause to
vary from the support guidelines.
1. The Court expressly left open the question of whether the needs of a stepchild –
or anyone whom the obligor has no legal obligation to support – can ever constitute
a sufficient basis for a downward child support variance.
2. Justice Matthews, joined by Justice Carpeneti, dissented on the denial without a
hearing of Father’s motion to reduce his obligation. Based on his review of the trial
court pleadings, Justice Matthews felt that Husband had made out a prima facie case
for a downward variance. The dissent’s opinion necessarily accepts the view that
the needs of a stepchild can be the basis for a downward variance.
Justice Matthews characterized the majority as allowing the support of stepchildren
as a defense to an upward support variance, but not as grounds for a downward
variance. However, there is no inconsistency here. Father’s argument for the
downward variance turns on whether one can consider the needs of subsequent
children. By contrast, Father’s defense to the upward adjustment turns on the
treatment of his income in excess of full-time work.
3. Query whether the Justices would find it permissible to vary support upward
based on the obligee’s need to meet the special needs of her subsequent children or
4. Child support impacts a child’s best interests, over and above the effect of
support payments on the child’s standard of living. Where the parents have
divergent standards of living, traveling between households will place a certain
stress on the child, and support transfers may affect the relative affluence of the two
households. This impact can be particularly complex when the children are not
traveling together: stepsiblings, half-siblings, and siblings in divided custody
arrangements. In these circumstances, there are varying standards of living among
the children themselves. This is fertile soil for sibling jealousies and resultant stress
on the family system. Child support may alleviate or exacerbate this stress,
-- 22 --
depending on the direction that the support is flowing. It is an open question
whether the harm of sharply divergent standards of living between households, and
between household members, can ever qualify as a ―manifest injustice‖ that would
warrant an upward or downward variance from Civil Rule 90.3.
State, CSED v. McCormick, 3 P.3d 930 (Alaska 2000)
In 1992, following the amendment of AS 25.24.170 to authorize post-majority support
up to age 19, the trial court issued a final divorce decree requiring Husband to pay child support
until the children’s eighteenth birthdays. In 1999, CSED moved to extend Husband’s
obligation until each child completed high school or reached age 19. The trial court denied the
request, finding no change of circumstances.
The Supreme Court reversed, HOLDING that no showing of changed circumstances is
necessary to extend a support obligation to provide post-majority support.
COMMENT: In dictum, the Court stated that a showing of changed circumstances
would be required if the initial order affirmatively addressed and rejected post-
majority support. As the facts in this case make clear, the mere fact that the initial
order terminates support at age 18 would not meet this standard.
Allen v. State, CSED, 15 P.3d 743 (Alaska 2000)
Father was a child support obligor. In February 1998, Father submitted a petition to
CSED seeking a reduction of his support obligation. CSED informed both parents that it had
received the petition and would process it in one month, but, well, things came up, like the in-
laws came to visit and they ran out of paper clips and they had to change the kitty litter, so,
like, they didn’t get to it as fast as they had planned. Finally, in November 1998, CSED sent
Father a letter denying his request but inviting him to provide more information to CSED if he
disagreed with the decision. Father sent more information two days later but CSED never
-- 23 --
responded. In April 1999 father appealed, but the Superior Court denied the appeal on the
ground that it was untimely.
The Supreme Court reversed and reinstated the appeal, HOLDING that:
a) Appeals from administrative agency decisions must be filed within thirty
b) The thirty-day deadline for filing administrative appeals begins to run
when the agency issues a final decision and provides clear notice that (i)
its decision is final and that (ii) the claimant must appeal within the thirty-
c) An agency decision denying agency services is appealable, even though
the claimant could assert the same substantive claim in an independent
d) A person’s ability to obtain substantive relief through the judicial process
does not diminish the person’s right to a fair application of regulations that
would entitle them to the same relief through an administrative process.
COMMENT: CSED had argued that its denial of Father’s request to process his
support reduction claim should not be subject to appeal, because Father could file a
motion to modify support directly with the Court. The Supreme Court rejected this
argument, drawing a clear distinction between one’s right to bring a legal claim and
one’s right to obtain agency assistance in pursuing a legal claim. The Court noted
that CSED’s denial of assistance prevented Father from obtaining certain benefits
not available directly from the Court: legal representation and a support award
retroactive to CSED’s notice to the obligee.
e) A superior court judge hearing an administrative appeal based on a denial
of services has the discretion to treat the appeal as a direct action for relief,
and address the appellant’s underlying claim.
-- 24 --
1. Translation: If a party appeals CSED’s denial of services on a request to modify
support, the court can treat the appeal as a motion to modify child support.
2. The court recommended that any appeal from a CSED denial of services should
be assigned to the judge assigned to the underlying domestic relations matter.
Child Support Recovery Services v. Inn at the Waterfront, 7 P.2d 63 (Alaska 2000)
CSED assigned to private collection agency CSRS the right to collect support
arrearages on behalf of Mother. CSRS served an income withholding order (WID), as provided
by AS 25.27.250, on father’s Employer, but Employer ignored the WID. After Father
eventually paid over $73,000 to satisfy his arrears, CSRS sued Employer for the money it
should have paid in compliance with the WID. The trial court granted summary judgment for
The Supreme Court affirmed. In a brief opinion that incorporated by reference the
trial court’s lengthy analysis, the Court HELD that an employer’s failure to comply with a
child support withholding order makes the employer and employee jointly and severally liable
for the amount that should have been paid in compliance with the withholding order. As such,
an obligor’s payment of the child support arrears frees an employer from any liability for
failure to comply with the withholding order.
1. Since the issue was not fully raised, the Court did not address the issue of
whether the State may assign its enforcement rights to a private collection agency.
2. Justice Bryner, joined by Justice Eastaugh, concurred in the affirmance but not
in the holding. They would have affirmed on the narrow ground that CSED had
assigned to CSRS only the right to collect Mother’s ―child support arrearages.‖
Thus, CSRS’s attempt to collect any additional amount after Father had paid his
arrears was beyond the scope of the assignment.
-- 25 --
Routh v. Andreassen, 19 P.3d 593 (Alaska 2001)
In response to Mother’s request to modify child support, Father provided financial
information that suggested his annual income from his family was $33,600. In response to a
court’s request for additional information, Father provided documentation that his income was
only $6,100. Without holding a hearing, the court reviewed Father’s financial data, disallowed
some deductions and imputed to Father an adjusted annual income of $53,300.
The Supreme Court reversed, HOLDING that:
a) The party seeking to modify child support has the burden of proving by a
preponderance of the evidence that there has been a material and
substantial change of circumstances.
b) When calculating income for child support purposes, the court should
arrive at an income figure that reflects economic reality.
c) A trial court ―must take all evidence necessary to accurately reflect the
parties’ economic reality.‖
d) A trial court should not impute income to a party without first holding an
1. The Supreme Court has previously required that the trial court hold an
evidentiary child support hearing whenever the parties’ competing filings create an
issue of material fact. Adrian v. Adrian, 838 P.2d 808 (Alaska 1992). Here, the
ambiguity was created by two conflicting filings by the same party.
2. This case involved two competing issues, which itself creates some ambiguity
regarding the scope of the Court’s holding. First, Father submitted information that
supported findings that his income was either $33,600 or $6,100. Second, the trial
court chose to impute to Father the higher income of $53,300. While the court
couched its hearing requirement in terms of when the court is ―imput[ing]‖ income,
its reasoning strongly suggested that a hearing is required even when the court is not
imputing income, but only choosing one of two possible income figures offered by
the same party.
-- 26 --
e) The trial court may resolve an ambiguity caused by insufficient evidence
against one of the parties, without a hearing, only when that party’s
vexatious, contemptuous or obstructive behavior caused the court to have
Spott v. Spott, 17 P.3d 52 (Alaska 2001)
The parties had two minor children. Following a 1996 interim hearing, the court
calculated Husband’s support based on his anticipated future income, but incorrectly set
support for only one child. At trial in 1997, Wife asked for both prospective support, and
retrospective support for the second child. Husband submitted financial information covering
the period of back support, but the court based its support order for the second child on the
higher figure determined at the 1996 hearing.
The Supreme Court affirmed entry of the retrospective order for the second child, but
remanded for recalculation of the amount, HOLDING that:
a) The prohibition against retroactive modification of support does not bar
entry of a retrospective order for a child for whom no prior order has been
b) A support obligation is specific to the child, and it is no bar to a
retrospective order that an order has already been entered against the same
obligor for the child’s sibling.
c) There is no prohibition on the issuance of separate support orders for
children in the same family.
-- 27 --
d) When making a retrospective support order, the court should base its
calculation on actual income figures for the period of retrospective
support, rather than earlier predictions of income for this period.
State, CSED v. Leitch, 999 P.2d 782 (Alaska 2000)
Mother had custody of the parties’ child, and Father was under an order to pay child
support. However, Father periodically had custody of the child and received public assistance
for the child during these times. CSED is entitled to obtain reimbursement for public benefits
from the other parent, but under Hendren v. State, CSED, 957 P.2d 1350 (Alaska 1998), it
cannot obtain reimbursement from the ―obligee‖ under the existing support order. CSED
therefore moved to modify the child support order so that it could collect reimbursement from
Mother. The trial court denied the motion.
The Supreme Court reversed in a 4-1 decision, HOLDING that CSED has authority to
seek modification of support orders in cases involving de facto custodial changes.
1. The Court correctly noted that in the absence of authority to modify the support
order, CSED would be powerless to obtain reimbursement for public benefits paid to
a person who is the obligor under the existing support order, i.e. in those situations
where the parents have altered custody without modifying the controlling custody
and support order.
2. Justice Eastaugh dissented. Based on a differing (and more forthright)
interpretation of the applicable statutory language, he concluded that CSED had no
legal authority to modify a support order to obtain reimbursement. He
acknowledged the strong policy reasons in support of the majority’s decision, but
opined that it was a matter for the legislature to fix.
3. CSED’s power to modify support orders allows it to prospectively recover
reimbursement for benefits. It cannot retroactively obtain reimbursement for the
period prior to modification of the order. Hendren v. State, CSED, 957 P.2d 1350
-- 28 --
4. Child support calculations are based on the formal custody schedule, not the
schedule actually followed by the parties. Turinsky v. Long, 910 P.2d 590 (Alaska
1996). However, by permitting CSED to reconfigure the child support order without
modifying the underlying custody order, the Court is inviting situations where the de
jure custodian is also the support obligor.
-- 29 --
Edelman v. Edelman, 3 P.3d 348 (Alaska 2000)
In October 1993, the court awarded Wife $2,000 per month in interim alimony. The
court issued a bifurcated divorce in 1994 but did not make a final property and alimony
determination until 1998. During the interim period, Husband filed bankruptcy and also fell
$30,000 behind on his alimony obligation, while Wife remarried and had two children. When
the court finally completed the case in 1998, it denied Wife future reorientation alimony and
also vacated Husband’s alimony arrearages.
The Supreme Court affirmed, HOLDING that:
a) The trial court has wide discretion in making alimony determinations.
b) Reorientation alimony is transitional in nature and should be awarded only
for relatively short periods of time.
c) The trial court has discretion to retroactively modify interim spousal
COMMENT: The Supreme Court noted that Wife’s remarriage itself ―normally
suffices to cut off any alimony obligation on the part of the former spouse.‖
-- 30 --
McDougall v. Lumpkin, 11 P.3d 990 (Alaska 2000)
Husband was a career military officer, while Wife stayed home with the children and
worked outside the home only part-time during the marriage. Following trial, the trial court
equally divided Husband’s retirement. Husband’s attorney indicated that he would prepare the
QDRO, but he did not do so and no QDRO was ever issued. The court divided the rest of the
$26,000 marital estate by awarding $36,000 to Husband and -$14,000 to pro se Wife. The trial
court awarded Wife $500 per month in alimony, to offset the award of most of the marital
estate to Husband. Wife had returned to school during the six years prior to the final
separation, and the court classified Wife’s student loans as her separate obligation.
The Supreme Court reversed everything there was to reverse, HOLDING that:
a) The marital estate should be divided without regard to any alimony award.
b) Payments that do not divide property cannot be considered part of the
COMMENT: The thrust of these two holdings is that property and spousal support
are analytically distinct issues. The Court should divide the marital estate without
regard to – and presumably prior to – any consideration of alimony. An alimony
award cannot justify a skewed property division, and vice versa. However, the
segregation between these issues is not absolute. There is a legal preference for
meeting a spouse’s financial needs through a property division rather than through
reorientation alimony. Davila v. Davila(II), 908 P.2d 1025 (Alaska 1995). Thus,
when one spouse has requested reorientation alimony and the circumstances would
otherwise justify such an award, the Court should first determine if the spouse’s
needs can be met by dividing the property in a way that helps the needy spouse to
become financially independent.
QDROs do not, technically, apply to military retirement benefits. ―QDRO‖ is used in this
summary to refer to any QDRO-type order that directs the payment of retirement benefit to the
-- 31 --
c) An equitable division is presumptively a 50-50 division, absent any
statutory or equitable factors justifying a different division.
d) An unequal division is subject to reversal, in the absence of findings and
evidence that support the unequal division.
e) There is no requirement that the student spouse be ordered to pay student
loan debts incurred during the marriage.
f) Student loans incurred by one spouse during the marriage are marital
debts, absent evidence that the student spouse incurred the debts as part of
an agreement to pursue her education at her own expense in anticipation of
g) Where a court divides retirement benefits, it must issue orders sufficient to
effectuate that division.
h) A division of retirement benefits presumptively encompasses an award of
survivor’s benefits to the non-employee spouse.
COMMENT: The Court opined that in lieu of a QDRO treating the non-employee
spouse as the surviving spouse, the non-employee spouse can be designated as a life
insurance beneficiary in an amount that will protect her right to future income. The
problem with this alternative – as numerous decisions from other jurisdictions can
attest – is that it is subject to the employee spouse’s willingness to comply with the
obligation to maintain the non-employee spouse as the insurance beneficiary.
Coffland v. Coffland, 4 P.3d 317 (Alaska 2000)
Pro se Husband repeatedly failed to respond to discovery requests regarding property
and debts, including the debts of a family business. After Husband continued to not respond
despite orders compelling discovery, the trial court precluded Husband from proffering any
evidence at trial that he failed to provide in discovery. At trial, he tried to testify that the
-- 32 --
business was encumbered by five promissory notes, but the court barred him from doing so
because he failed to produce any documentary evidence of the debts. The court valued the
business (awarded to Husband) without reducing the value by the debts claimed by Husband,
and based on Wife’s testimony ruled that the debts were Husband’s separate obligations. The
ruling extended to two promissory notes that had been signed by Wife during the marriage.
The trial court affirmed the discovery sanction and most of the property
classifications, but ruled that the two notes signed by Wife should have been classified as
marital obligations. The Court HELD that:
a) An evidence preclusion order is an appropriate sanction when a party has
willfully failed to comply with discovery requests.
b) A litigant is not excused from complying with discovery simply because
the requesting party might be able to obtain the same information by other
c) A pro se litigant must make some attempt to comply with the court’s
procedures before he can receive the court’s leniency.
d) Obligations incurred during the marriage are presumed to be marital.
e) Absent any showing that the parties intended for a debt incurred during the
marriage to be the separate obligation of one spouse, the court must
classify the obligation as marital.
Sampson v. Sampson, 14 P.3d 272 (Alaska 2000)
During the marriage, Husband received a substantial inheritance. He kept the
inheritance funds in his own name, though Wife may have helped make one decision regarding
-- 33 --
their investment. During the marriage, the parties made several major decisions based on the
existence of the inheritance funds: they declined to move to a community where Wife could
obtain more lucrative employment, and Wife cashed out and spent her retirement as well as a
smaller inheritance that she had received during the marriage. Both parties had worked during
the marriage, but at the time of divorce, both parties had health problems that impaired their
ability to work. At the divorce trial, the trial court treated Husband’s inheritance as a marital
asset and divided it as part of the marital estate.
The Supreme Court reversed. In a highly instructive opinion, the Court neatly
contrasted the analysis for transmutation of a non-marital asset with the analysis for invasion of
a non-marital asset. The Court HELD that:
a) It is error to begin a property division with the presumption that an equal
division of marital property and separate property is the most equitable
b) There is a strong presumption that inherited property is a separate asset not
to be included in the disposition of property during a divorce.
c) Inherited property may be conveyed to the marital estate when that is the
intent of the owner spouse, as demonstrated by the owner’s conduct.
d) Circumstances which can lead to a transmutation of separate property into
marital property include (i) (in the case of a residence) the use of the
property as the parties’ personal residence, (ii) the ongoing maintenance
and management of the property by both parties, (iii) placing the title of
the property in joint ownership, and (iv) using the credit of the non-titled
spouse to improve the property.
-- 34 --
e) The owner spouse’s belief that his separate asset is available to the parties
during the marriage is not sufficient to support a finding that he intended
the asset to be marital property.
COMMENT: The Court implicitly drew a subtle but sometimes dispositive
distinction between an owner’s intent that the parties jointly own the asset, and the
owner’s intent that the parties jointly enjoy the benefit of the asset during the
marriage. The one is sufficient to establish a claim of transmutation, but the other is
f) The non-owner spouses' reliance during the marriage on the other spouse’s
separate property does not transmute that separate property into a marital
g) Transmutation of separate property is based on the intent of the owner
spouse. By contrast, the invasion of separate assets considers whether
―the balancing of the equities between the parties requires‖ invasion. AS
COMMENT: The trial court had based it treatment of the inheritance as a marital
asset on its conclusion that a balancing of the equities required its inclusion in the
estate. The Supreme Court noted, however, that this improperly ran together the two
lines of analysis.
h) The trial court should not assume that the invasion of separate property is
justified merely because the spouse who does not own the separate
property has worked and thus contributed to the marital estate.
i) Appropriate considerations for the invasion of separate property include
the non-owner’s poor health, inability to work full time, and the lack of
substantial marital property or separate property of her own. It is also
appropriate to consider the degree to which the existence of the separate
-- 35 --
property altered the parties’ decisions involving their marital assets and
their financial future.
Edelman v. Edelman, 3 P.3d 348 (Alaska 2000)
Husband had purchased a limited entry fishing permit (authorizing Husband to
participate in certain fisheries) prior to the marriage. During the marriage, Husband took care
of all the permitting and paperwork requirements related to the permit. The trial court
classified the permit as Husband’s separate property. The Supreme Court affirmed, HOLDING
a) Invasion of one spouse’s property acquired before marriage is required as
a matter of law where the parties demonstrate their intention to treat
specific items of property as joint holdings. Wanberg v. Wanberg, 664
P.2d 568, 571 (Alaska 1983).
COMMENT: In Sampson v. Sampson, 14 P.3d 272 (Alaska 2000), the Court
explained the analytical difference between the identification of marital property
subject to equitable division, and the invasion of non-marital assets. The Sampson
analysis cleanly identifies only two types of property – marital and non-marital –
and clarifies that different rules apply to their apportionment in a divorce. As we
know from numerous previous decisions, a non-marital property can become marital
if the parties’ actions evidence an intent to treat it as part of the marital estate. See,
e.g., Matson v. Lewis, 755 P.2d 1126, 1127 n.2 (Alaska 1988).
The Edelman discussion (which consists of an extended quote from Wanberg)
complicates this analysis. Edelman/Wanberg adds to the lexicon of "marital" and
"non-marital" property by creating a third species of property: non-marital property
subject to treatment as marital property as a matter of law.
The Sampson/Matson analysis is superior. It provides a more parsimonious analysis
that avoids the creation of a third class of property. Instead, it more directly inquires
as to whether the pre-marital property has been transmuted into a marital asset. In
this regard, it is also more consistent with the approach in other jurisdictions.
-- 36 --
b) A premarital asset retains its nonmarital character where the record
contains no evidence that the non-owner spouse took any action to
maintain, manage or control the asset.
There’s more. The parties owned a marital home on a nine-acre lot. At trial, Wife
suggested it was worth $165,000. However, the trial court valued it at $202,500 based on the
testimony of an appraiser who assumed the land had been subdivided into five lots and
provided with roads (which had never occurred). On appeal, Wife argued for a value below
$165,000. She also argued for credit for the post-separation payments she made on the parcel.
The Supreme Court reversed the trial court’s property valuation and remanded for
consideration of Wife’s post-separation payments, HOLDING that:
c) A real property valuation should be based on the actual condition and
configuration of the property.
d) A party who agrees to a property valuation at trial cannot challenge that
valuation on appeal.
COMMENT: Wife’s argument for a lower valuation was apparently based on a
hand-scrawled piece of paper stating that there was a lien on the property. The
Court gave no credence to the document because there was nothing in the record to
identify who wrote the scrawl.
e) When fashioning a property division, the trial court should consider a
party’s payments from post-separation funds to maintain marital property.
f) A party who makes post-separation payments on marital obligations is not
entitled as a matter of law to a credit for those payments.
COMMENTS: This survives as one of the less utile rules in marital property law.
Both parties benefit when one party takes steps to preserve the marital estate during
the pendency of a divorce. However, by failing to assure the parties of a monetary
credit for their post-separation payments on marital assets, the Court makes it
-- 37 --
contrary to an individual’s self-interest to make such payments. Think of it as ―the
tragedy of the Commons‖ on a really small scale.
The better approach would be to provide the parties with a dollar-for-dollar credit
for any payments they make with non-marital funds for the benefit of marital assets,
at least in those circumstances where the party is not enjoying the benefit of use of
the assets during the post-separation period. In any case where the credit would lead
to inequitable results, the trial court has the liberal authority to generate an equitable
outcome by an uneven division of the marital estate.
Whoa! Where ya going? Sit down and read on: Husband, like most real Alaskans,
has a pending Exxon Valdez claim. His claim was for lost fishing wages during the marriage,
loss of value to his pre-marital fishing permit, and punitive damages. The trial court awarded
the entire claim to Husband.
The Supreme Court reversed, concluding that the lost fishing wages and a proportional
share of the punitive damages constituted marital property. The Court HELD that:
g) A tort recovery is marital property to the extent it compensates for losses
to the marital estate, and separate property to the extent it compensates for
losses to a spouse’s separate property.
h) An award of punitive damages should be apportioned in the same manner
as the underlying compensatory damages award.
Okay, home stretch. The court valued Husband’s pension fund at $31,000, the amount
that Husband contributed to the fund, and awarded the entire pension to Husband without any
offsetting award to Wife. The Supreme Court Justices collectively punched the ―reverse‖
button, HOLDING that:
i) Retirement benefits are martial assets, to the extent that they are earned
during the marriage.
-- 38 --
j) Trial courts can distribute retirement benefits either through a qualified
domestic relations order or through an offsetting award of other assets
equal to the present value of the retirement benefits.
k) Unless retirement benefits are being divided through a qualified domestic
relations order, they should generally be awarded to the employee spouse
if there is sufficient marital property that can be awarded to the non-
COMMENT: The Court did not have to specifically address the trial judge’s
valuation of the pension. However, it noted that the judge undervalued the pension
by failing to capture either the employer’s contribution to the pension fund or
interest and investment returns that have been generated by the fund.
Sloane v. Sloane, 18 P.3d 60 (Alaska 2001)
The parties were married 38 years prior to separation, and were both 60 years old and
nearing retirement. Both parties worked during the marriage. Wife testified to developing
health problems, though her medical records did not fully support her claims. The court
granted wife $3,000 per month in interim alimony, and after trial ordered Husband to pay Wife
the $23,000 in alimony arrearages. The Court also awarded Wife 57% of the $720,000 estate.
The property awarded to Husband included a note nominally worth $25,000, arising
from the sale of a family business to the parties’ adult son. The note’s value was arbitrarily set
in a contract drafted by Wife’s attorney while the divorce was pending and Husband didn’t
anticipate receiving any of the money. The court valued the note at $10. Wife appealed this,
The Supreme Court affirmed, HOLDING that:
-- 39 --
a) The trial court has broad discretion to divide property unequally if it finds
such a division is just.
b) A court may divide the marital estate unequally to account for the parties’
disparate earning capacities.
COMMENT: This holding is the flip side of the Court-made rule that whenever
possible, the parties’ needs should be met through an unequal property division
rather than through spousal support.
c) In making a property division, the court does not have to give any weight
to a party’s advanced age if the other party is the same age.
COMMENT: Something we can all agree upon?
d) A party’s health is relevant to a property division in two ways: it’s impact
on the spouse’s ability to earn a living, and future health-related costs
(medical services, medical insurance premiums).
e) The trial court need not accept claims of future medical expenses, where
those claims are not supported by medical documentation.
f) A court may value an account receivable at less than its face value, based
on the likelihood that the money will not ever be received.
1. Mother was appealing what was already a favorable ruling. She received over
$100,000 more of the marital estate than did Husband, plus substantial interim
alimony. Appeals by the ―winning‖ party appear to have a low rate of success.
2. Mother’s appeal is instructive. From the appellate opinion, it appears that
Mother made some creative, thoughtful claims, but she lost because she didn’t
establish facts at trial that were sufficient to support the claims. Clever
argumentation is no substitute for a thorough evidentiary record.
-- 40 --
Glasen v. Glasen, 13 P.3d 719 (Alaska 2000)
The parties had an tumultuous relationship that started in 1984. They married in 1987,
but often lived in different states, from which they would visit each other. In 1991, Husband
filed a complaint for legal separation. Acting without her own legal counsel, Wife signed a
separation agreement drafted by Husband’s attorney that characterized most of the assets as
Husband’s separate property, and did not provide values for any of the marital or separate
property. The trial court entered a decree of legal separation. The parties remained married
and reconciled six months later. The continued to commingle their finances, resumed sexual
relations, and varied between living together and having a ―commuting‖ relationship. Husband
filed for divorce in 1997, and sought to enforce the 1991 separation agreement. The trial court
rejected Husband’s request on the ground that the separation decree was intended to be
interlocutory rather than final, and issued a Rule 54(b) final order, to allow Husband to
immediately appeal this decision.
The Supreme Court affirmed, HOLDING that;
a) A decree of legal separation is an interim order, not a final order.
COMMENT: The Court explicitly sidestepped the question of whether Alaska trial
courts have authority to enter decrees of legal separation, since Husband lost even if
the trial court did have authority to enter the decree.
b) A decree of legal separation is terminated by the parties’ subsequent
reconciliation. Thus a separation decree settles property and support
issues between the parties only during the period they remain separated.
c) A contract that purports to embody a final property distribution is invalid
if it does not list or describe all of the spouses’ assets.
COMMENT: Even if the parties’ 1991 separation agreement fully described the
parties’ marital and separate property, it could not have constituted a final property
-- 41 --
division because it would not have reflected the property that the parties acquired
between 1991 and 1997.
d) A ―reconciliation‖ occurs when the parties voluntary resume their marital
relationship, including the resumption of sexual relationships and the
resumption of a joint domicile as frequently as their circumstances permit.
1. In this case, the Court found that the parties’ reconciliation was evidenced by
their resumption of sexual relations, their cohabitation, the maintenance of joint
accounts and credit cards, the filing of joint tax returns, and Husband’s failure to pay
child support as contemplated under the separation agreement.
2. Husband also appealed the trial court’s award of interim alimony and attorney’s
fees. However, the Court ruled that these matters were not ripe for appeal. The
Rule 54(b) partial judgment addressed only the decision to set aside the separation
decree and did not extend to Husband’s other claims, so those other claims could not
-- 42 --
R.I. v. C.C., 9 P.3d 274 (Alaska 2000)
Mother filed for custody and Father counterclaimed for custody and disestablishment
of paternity. However, neither party claimed that Father was not the child’s father. The court
denied Father’s request for paternity testing.
The Supreme Court affirmed, HOLDING that:
a) A party is only entitled to paternity testing when ―paternity is contested.‖
b) A party’s request for paternity testing does not by itself establish that
paternity is contested.
COMMENT: The Court rules explicitly permit pleading in the alternative. ALASKA
R. CIV. P. 8(a). Still, it can be strategically careless to couple a nonpaternity claim
with a custody claim. Either you are the better parental figure for the child or you
aren’t, and an up-front expression of a desire to escape legal responsibility for the
child’s welfare undercuts the claim that you are.
State, CSED v. Button, 7 P.3d 74 (Alaska 2000)
Man signed an acknowledgement of paternity when the child was born in 1986, but
later learned he was not the biological father. When CSED issued a Notice and Finding of
Financial Responsibility (NFFR) for ongoing support and $41,000 in arrears and affirmed its
decision in an informal conference, Man filed an administrative appeal, and then filed a court
action to disestablish paternity. The trial court disestablished paternity and held that CSED was
not entitled to support arrears because CSED had never issued a final support order.
-- 43 --
CSED appealed erasure of the arrearages but the Supreme Court affirmed, concluding
that Man was not bound by either a support order or an independent duty of support. The Court
a) Neither a NFFR nor an informal conference decision by CSED constitutes
a final support order. A NFFR or informal conference decision becomes a
final support order only if there is no request for a formal hearing during
the ensuing thirty-day period. AS 25.27.170(b).
b) An acknowledgement of paternity presumptively establishes a legal
c) An acknowledgment of paternity does not establish a duty of support.
d) A duty of support is conclusively created by either a paternity judgment or
the issuance of a support order.
COMMENTS: Man’s attorney did everything right. Counsel administratively
challenged CSED’s support determination. Prior to completion of the administrative
process, counsel filed a disestablishment action in the superior court, and then got
the trial judge to issue an order staying the enforcement of the support order.
Counsel thus prevented CSED from ever being able to enforce its support order, and
obtained a nonpaternity judgment that which had an effective date (the date of filing
the paternity action) that predated CSED’s support order.
State, CSED v. Maxwell, 6 P.3d 733 (Alaska 2000).
Following the parties’ separation but prior to their divorce, Wife became pregnant as a
result of a relationship with Father; Husband was listed on the birth certificate by operation of
law. The parties’ later dissolution did not mention the resulting child as a child of the marriage.
Though CSED knew the child’s real paternity, it filed an administrative support action against
Husband in 1995. Husband telephoned CSED to explain the situation, but CSED told him that
-- 44 --
his only recourse was to bring a judicial disestablishment action. Husband didn’t formally
contest CSED’s actions and CSED entered a support order. Father filed a paternity action in
February 1997 and the Court determined his paternity later that year. Husband filed a
disestablishment action in 1998 and was successful. The trial court vacated the support order
against Husband effective on Father’s filing date, erased Husband’s arrears accrued after that
date, and ordered CSED to repay Husband for funds withheld after that date.
The Supreme Court affirmed the retroactive voiding of the support order, and
remanded for a recalculation of CSED’s repayment. The Court concluded that Husband was
entitled to relief from judgment under Civil Rule 60(b)(4)(―the judgment is void‖), because he
was not provided with an opportunity to be heard. The Court HELD that:
a) Each support order is a judgment that becomes vested when each payment
becomes due and unpaid. AS 25.27.225.
b) While Rule 60(b) technically applies only to Court proceedings, it serves
by analogy to identify the circumstances under which a court may grant
relief from administrative child support orders.
c) A legal presumption of paternity is not equivalent to legal paternity.
COMMENT: The Court explained that a legal presumption is a ―pre-investigatory
allocation of evidentiary burdens‖ while a finding of fact is a ―post-investigatory
conclusion based on the evidence presented.‖
d) A party to a CSED administrative proceeding is entitled to a formal
opportunity to rebut the presumption of paternity before CSED’s order
-- 45 --
1. Husband did not formally challenge CSED’s action. However, his inaction was
justified by CSED’s assertion that he could not raise the issue of paternity in the
2. Alaska Statute 25.27.166, which authorizes CSED to disestablish paternity, was
not in effect at the time of CSED’s administrative action. CSED argued that it did
not have to hear Husband’s claims of nonpaternity since it had no authority to
disestablish. However, the Court held that this limit on CSED’s authority did not
justify it making the legal leap from presumption to fact, without giving Husband an
opportunity to rebut the presumption.
e) It is proper for the trial court to make a disestablishment order retroactive
to the date that the child’s biological father commenced a successful
COMMENT: In prior decisions, a disestablishment judgment has been effective on
the date that the man commenced the disestablishment proceeding. See T.P.D. v.
A.C.D., 981 P.2d 116 (Alaska 1999).
f) When CSED improperly collects child support monies, the trial court can
require CSED to disgorge funds retained by the State, but not to repay
funds that were obtained for and paid over to the obligee parent. Child
Support Enforcement Division v. Mitchell, 930 P.2d 1284 (Alaska 1997).
Atcherian v. State, CSED, 14 P.3d 970 (Alaska 2000)
Based on Mother’s allegations, CSED sued Man for paternity and support. Man
defaulted and CSED obtained a default paternity judgment in 1991, and soon thereafter it
administratively set Man’s support obligation. Man soon became suspicious that he was not
the child’s father, and within a year of the judgment he contacted CSED to disestablish
paternity, but CSED told him he would have to obtain paternity testing at his own expense.
Man finally did so, and after tests established he was not the child’s father, he brought a motion
-- 46 --
to set aside the original judgment under Civil Rule 60(b)(6). The trial court set aside the
judgment and released Man from liability for both accrued arrearages and prospective support,
but declined to order CSED to reimburse Man for support it previously collected. Man
The Supreme Court affirmed, HOLDING that:
a) Relief from child support obligations administratively set by CSED is
available under the circumstances set forth in Civil Rule 60(b).
COMMENT: The Court reasoned that since administrative support orders are like
judgments for certain purposes, Civil Rule 60(b) should apply by analogy to provide
the bases for relief from those orders.
b) Rule 60(b)(6) should be liberally construed to enable courts to vacate
judgments whenever such action ―is necessary to accomplish justice.‖
c) A mother’s knowing misrepresentation regarding a child’s paternity, the
putative father’s reasonable reliance on those representations, and
―CSED’s subsequent refusals to assist him‖ despite his requests for
assistance, constitute sufficient grounds for setting aside a paternity
judgment under Civil Rule 60(b)(6).
1. The Court’s reliance on CSED’s post-judgment refusals to assist Man, as a basis
for setting aside the judgment, is curious. Generally, relief from judgment based on
the misrepresentations of an opposing party is based on Rule 60(b)(3) (providing for
relief from judgment based on ―fraud . . ., misrepresentation, or other misconduct of
an adverse party‖). However, a party must request relief under this subsection
within one year of the judgment – something Man clearly failed to do in this case.
Relief is not available under Rule 60(b)(6) if the matter falls under any other
subsection of Rule 60(b). O'Link v. O'Link, 632 P.2d 225, 229 (Alaska 1981). This
therefore raises the question of whether the alleged misrepresentation in this case is
by a ―party.‖ Man argued that the misrepresenter, Mother, who was not joined as a
party in the motion to set aside, was not the real party in interest, and the
misrepresentations were therefore caused by a witness rather than a party – leaving
the door open for relief under subsection (6). The Court declined to reach the issue.
-- 47 --
Apparently (though it is unclear), the Court was of the view that since Man made
timely efforts because he approached CSED about disestablishment within one year
following the judgment, and CSED should have assisted him at that time but failed
to do so, CSED’s inaction made Man’s motion timely even if the one-year limitation
2. One can surmise from the court’s analysis (and the tortured interpretation set
forth in the prior comment) that relief from a default paternity judgment is always
available under Rule 60(b) within one year of the judgment, where the judgment
resulted from reliance on false accusations of paternity by the child’s mother.
Because of this opinion’s particular reliance on CSED’s post-judgment behavior,
however, Atcherian does not tell us whether such relief is available as a matter of
course when the request for relief is made more than one year after the judgment.
d) When paternity is disestablished and a support obligation is vacated under
Rule 60(b), CSED will ordinarily be required to reimburse to the putative
father all funds that it is holding when the paternity action was filed, as
well as any additional funds it collects thereafter.
COMMENT: This rule allows a party to recover all funds held by CSED on or after
the date of filing the motion to set aside, whether those funds are for child support
that accrued before or after the date of filing the 60(b) motion. It also means that all
arrearages that existed on the date of filing are erased.
This results in disparate treatment between those non-fathers who have paid their
support in a timely fashion, and those who have not. It is one situation where it pays
to be a deadbeat obligor.
e) CSED can only be required to reimburse support received as a result of an
order that is subsequently set aside if the Division itself has engaged in
misconduct in establishing or collect the support obligation.
COMMENT: A party who successfully sets aside a child support obligation is
entitled to reimbursement of any monies collected after the date of filing of the
motion to set aside.
-- 48 --
Platz v. Aramburo, 17 P.3d 65 (Alaska 2001)
The child was born in Washington in 1992, and lived with Mother in Alaska from
February 1994 to April 1998, while Father lived at all times in Washington. Mother and child
moved to Arizona in April 1998. In July 1998, Father filed for custody in Alaska. The trial
court concluded that it had jurisdiction.
The Supreme Court affirmed. Relying on the now-repealed Uniform Child Custody
Jurisdiction Act (UCCJA), the Court HELD that:
a) Alaska can exercise custody jurisdiction over a child, under the ―default‖
jurisdiction of the UCCJA, where information concerning the child can be
found in Alaska and the child had no ―home state‖ at the time the custody
COMMENT: The Court’s decision rested on AS 25.30.020(a)(3), which has since
been repealed. However, the Court would have undoubtedly applied the same
analysis and reached the same conclusion under the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA). See AS 25.30.300(a)(5).
b) The fact that another state could have asserted jurisdiction over the child
under the ―default jurisdiction‖ provision of the UCCJA does not deprive
Alaska of jurisdiction.
COMMENT: The Supreme Court issued its ruling within a few days of hearing oral
argument. It issued its written opinion several months later.
-- 49 --
B.B. v. D.D., 18 P.3d 1210 (Alaska 2001)
After separation, Father lived in Alaska and Mother and the child moved to Oregon.
In 1990, an Oregon court awarded child custody to Mother, and in 1991, Mother and the child
moved back to Alaska. Father moved to modify custody in 1996, and the court granted the
The Supreme Court affirmed, concluding that the trial court had jurisdiction. Gosh,
wouldn’t you? The Court HELD that Alaska courts have jurisdiction to modify another state’s
custody award where neither the child nor the parent’s continue to reside in the decree state,
and the child has been in Alaska for five years prior to filing.
1. The case was decided under the UCCJA. The newer UCCJEA would yield the
2. Does the Court publish these no-brainer decisions just to make more work for
your favorite case summarizer?
-- 50 --
CHILD IN NEED OF AID PROCEEDINGS
Office of Public Advocacy v. Superior Court, Second District, 3 P.3d 932 (Alaska 2000)
In a CINA proceeding, the court appointed the Office of Public Advocacy (OPA) to
represent Father. When OPA decided that Father was not financially eligible for its services, it
moved to withdraw. The trial judge denied the request, and instead ordered that Father pay
OPA for its services at the rate of $100 per hour. OPA appealed.
The Supreme Court affirmed, HOLDING that when a parent in a CINA proceeding is
no longer entitled to court-appointed counsel, the court may terminate the appointment or
continue it and order reimbursement.
A.B. v. State, Dep’t of Health & Social Services, 1 P.3d 677(Alaska 2000)
From the time of child’s premature birth, Mother was a multiple drug abuser with
mental health problems who engaged in behavior that placed the child at risk of harm. DFYS
took custody of the child upon her release from the hospital. DFYS set up a treatment plan for
mother, but she failed to comply: she visited with the child only sporadically, stopped
attending counseling, abused drugs and alcohol, would not fill out applications for housing
assistance, and finally stopped visiting the child altogether and suggested the child be put up for
adoption. Meanwhile, father was absent at the time of the child’s birth, having apparently left
town with the aim of having mother fail as a parent so that he could step in and seek custody.
-- 51 --
DFYS petitioned to terminate mother’s rights, at the same time working on father-
child unification with an eye to terminating father’s rights if the unification did not work out.
After a two-day trial, the Court terminated mother’s rights.
The Supreme Court remanded. While finding that child was a CINA baby and that the
state had made adequate efforts, it concluded that the State could not terminate one parent’s
rights while working to place the child with the other parent. The Court HELD that:
a) In order to terminate a parent’s rights, the State must generally show by
clear and convincing evidence that (1) the child is a child in need of aid,
and (2) the parent has not remedied the conduct or conditions that place
the child at risk. The State must also show by a preponderance of the
evidence that (3) DFYS has made reasonable efforts to support the family
and foster the safe return of the child to the family home. AS
b) A child is a child in need of aid where one parent has abandoned the child
and the other parent ―is absent or has committed conduct that created
conditions that cause the child to be a child in need of aid.‖ AS
COMMENT: Here, mother had ―abandoned‖ the child based on the rules of law set
forth below, while father’s own behaviors constituted contributing conduct.
c) ―Abandonment‖ of a child can be established by showing that the parent
―failed to participate‖ in a suitable plan to reunite the parent and child,
without just cause. AS 47.10.013(a)(4).
d) In order to avoid abandonment due to ―failure to participate,‖ the parent
must exhibit more than ―minimal participation‖ in reunification plans.
-- 52 --
e) Homelessness and poverty are not just cause for failure to participate in a
reunification plan, where the parent has failed to cooperate with DFYS
efforts to secure housing and other necessities.
f) A parent’s rights may only be terminated ―for purposes of freeing a child
for adoption or other permanent placement.‖ AS 47.10.088(a). A parent’s
rights may not be terminated when the State is placing the child with the
COMMENT: The upshot of this is that one parent’s conduct, no matter how
heinous, is not a basis for termination of rights if the other parent is providing
satisfactory care for the child (which would include protecting the child from the
dangerous parent). In this situation, the proper avenue is restricting the dangerous
parent’s access to the child through a custody proceeding. See Nelson v. Jones, 781
P.2d 964 (Alaska 1989) (upholding termination of all visitation rights). Whereas a
CINA proceeding can terminate all of a parent’s legal rights and responsibilities, a
custody proceeding can terminate only a parent’s rights.
g) In a termination proceeding, the best interests of the child are paramount.
Thus, parental rights should not be terminated even when all the statutory
requirements are otherwise met, if the termination is not in the best
interests of the child.
COMMENTS: The Court doubted that it would be in the child’s interests to
terminate mother’s rights, if the child were placed with father. Termination would
strip the child of the rights of support and inheritance through her mother.
S.S.M. v. State, DFYS, 3 P.3d 342 (Alaska 2000)
AS 47.14.100(e) mandates a ―relative preference‖ for placement of children in State
custody, but AS 47.14.100(f) provides that this preference does not apply ―to child placement
for adoptive purposes.‖ In 1996, the Court terminated the parents’ rights and committed the
child to State custody for ―adoptive purposes.‖ However, as of 1999 the fourteen-year old
-- 53 --
child had not been adopted. The child’s nineteen year-old sister filed a motion to have the child
placed with her under the relative preference of .100(e), but DFYS opposed it and the court
denied her request on the ground that the child was in an adoptive placement.
The Supreme Court reversed and remanded, HOLDING that:
a) Denial of a relative’s request for placement of a child is a final decision
regarding that relative’s claims, and is therefore an appealable decision.
b) A minor child’s adult sibling has standing to assert ―relative preference‖
rights under AS 47.14.100(e).
c) A placement is for ―adoptive purposes‖ under AS 47.14.100(f) if there is a
nexus between the child’s current placement and the ultimate end of
adoption. There must be some reasonable likelihood of an adoption in the
near future. A placement is not for ―adoptive purposes‖ merely because
that was the trial court’s original stated purpose for the placement, or
because DFYS hopes to eventually find adoptive parents for the child.
C.J. v. State, DHSS, 18 P.3d 1214 (Alaska 2001)
The two children at issue lived with Native Mother in Alaska, while their sibling lived
with non-Native father in Florida. The State took custody of the children from Mother in
February 1998. DFYS requested that Florida authorities assess Father as a placement, but did
no direct investigation of its own. Father initially told authorities he could not take the
children, but later changed jobs to be able to care for them. Florida officials reported that
Father’s home was satisfactory, but for unknown reasons denied placement of the children with
him. Father started phone contact with the children but then stopped calling and had had no
-- 54 --
phone contact with the for the ten months prior to the termination trial in November 1999, and
had not participated in several interim hearings. Father had been taking good care of the
children’s sibling. The trial court terminated father’s rights, finding (i) evidence beyond a
reasonable doubt, supported by expert testimony, that placement of the children with Father
was likely to result in serious emotional or physical damage; (ii) the state had made active
efforts to reunify Father with the children.
The Supreme Court reversed, concluding that neither finding was sufficiently
supported by the evidence. The Court HELD that:
a) The Indian Child Welfare Act protects the rights of an Indian child’s non-
b) While the ICWA expert is not required to meet with the parents or
children prior to testimony, the expert testimony must be based on the
particular facts and issues in the case.
COMMENT: The State satisfied the requirement of presenting expert testimony in
support of its position that reunification would likely cause serious harm. However,
the State’s expert had never spoken with either Father or the children. The expert’s
sole source of information was a review of the DFYS social worker’s file. The
expert’s testimony primarily addressed the general harm that can occur from a
c) The burden is on the State to establish beyond a reasonable doubt that
failure to terminate a parent’s rights is likely to result in serious harm.
COMMENTS: The Court acknowledged that Father had shown little interest in the
children, and made no effort to show his fitness as a parent. However, a parent has
no burden of production.
d) A finding of likely harm to the children must be supported by competent
-- 55 --
1. The State’s case rested primarily on the DFYS worker’s summary of conclusory
statements by Florida officials, which itself consisted primarily of Father’s initial
statement to them that he was not in a position to care for the children at that time.
The State presented no testimony or documents from Florida.
2. The Court’s decision was predicated largely on the paucity of evidence
regarding Father’s ability to care for the children, relative to the evidence in support
of Father’s position. By contrast, Father had a good home for the children, was
successfully parenting the children’s sibling, and had taken steps to make it possible
to care for the children. Given the modest evidence in support of placement with
Father, the State’s case was simply too flimsy.
e) The State cannot establishment ―active efforts‖ at reunification solely by
reliance on a third party that may not have understood the ―active efforts‖
requirement imposed by the ICWA.
COMMENTS: The State sought to meet the ―active efforts‖ requirement solely by
reliance on the limited steps taken by the State of Florida. These efforts apparently
consisted solely of an initial meeting with Father and a home visit.
P.G. v. State, Division of Family and Youth Services, 4 P.3d 326 (Alaska 2000)
The thirteen-year old child at issue was emotionally disturbed and streetwise. He had
assaulted other children at school, resulting in suspensions. DFYS took custody of the child as
a result of physical abuse by his father. When DFYS sought to place the child with first-time
Foster Parents, they did not disclose the child’s past and provided Foster Parents with no
instructions on foster parenting. Instead, they told Foster Parents that the child was a good kid
who had no problems, had never been in trouble, and just needed a place to stay. Three months
later, after Foster Parents relinquished custody of the child because they could not control him,
they learned that the child had physically and sexually abused Foster Parents’ younger children.
Foster Parents sued the State for negligence, asserting that DFYS breached its duty to Foster
Parents and that DFYS’s misleading statements constituted a negligent failure to disclose
accurate information. The trial court dismissed the ―failure to disclose‖ claim on the basis that
-- 56 --
9.05.250(3) immunizes the State from claims of misrepresentation, and granted summary
judgment on the other negligence claims due to the absence of evidence that the child’s actions
The Supreme Court reversed and reinstated the claims. In an opinion that focused
primarily on the details of negligence law, the Court HELD that:
a) The State owes a duty of reasonable care to protect prospective foster
b) In satisfaction of its duty of reasonable care, DFYS must make reasonable
efforts to gather and disclose facts necessary to give foster parents an
informed basis for deciding whether to accept a particular child and what
supervision the child may need. The reasonableness of those efforts
should be judged under the totality of the circumstances of the particular
COMMENT: While the reasonable of DFYS’s disclosure must be judged by the
facts of the specific case, the Court noted that DFYS’s own procedures manual
mandated the disclosure of substantial information to foster parents. The Court
suggested that in the context of this case, the child’s school performance and
disciplinary records, information from the child’s recent psychological evaluations,
and the child’s family and placement history ―falls squarely within the range‖ of
information that should have been disclosed to Foster Parents.
c) Foreseeability does not require an ability to predict the precise actions and
exact injuries. What needs to be foreseeable is the general character or
type of the harm.
d) An injury is foreseeable unless, in looking back from the harm to the
actor’s negligent conduct, it appears to the court ―highly extraordinary‖
that conduct should have brought about the harm.
-- 57 --
COMMENT: This is the Restatement standard. The foreseeability train has left the
station and Ms. Palsgraf is still standing on the platform.
e) The State’s immunity for acts of ―misrepresentation‖ only extends to
misrepresentations regarding financial or commercial interests. It does not
extend to other tort claims where a misrepresentation is part of the
negligent or intentional act.
COMMENTS: Before you get too worked up about how ugly the facts were, bear in
mind that this case arose in the context of a summary judgment motion, so the Court
had to consider the evidence in the light most favorable to Foster Parents.
N.A. v. State, DFYS, 19 P.3d 597 (Alaska 2001)
Mother abused alcohol, lived with a convicted child sex offender, and spent time in
jail for a stabbing. In short, she had what it took to make her way into this case summary. The
State took custody of Mother’s children and connected her with umpteen alcohol treatment and
social services programs, none of which materially altered the trajectory of Mother’s life.
Alaska Statute 47.10.080(l) requires the State to hold annual review hearings. The State held a
hearing in October 1998. The termination trial was set for September 1999, before the deadline
for the next review, but was delayed at the request of Mother’s counsel. The trial took place in
November 1999, and the Court terminated Mother’s rights. On appeal, Mother argued – you
guessed it – that the state failed to make active efforts to prevent the breakup of the family and
that the state failed to timely hold an annual review.
The Supreme Court affirmed, HOLDING that the State’s duty to hold an annual
review is waived where the parent’s own delay of the trial creates the need for the review.
-- 58 --
1. The Court also affirmed satisfaction of the ICWA ―active efforts‖ requirement,
reciting the laundry list of efforts undertaken by the State.
2. We previously met this family in In re S.A., 912 P.2d 1235 (Alaska 1996).
There, the State unsuccessfully attempted to terminate Mother’s rights to her two
developmentally delayed children, based on DFYS’s view that Mother was not
capable of caring for the children and that they would not "meet their potential."
This time around, DFYS presented much more compelling grounds for termination
and also showed that they had gone the extra mile in trying to prevent the breakup of
-- 59 --
In re Adoption of A.F.M., 15 P.3d 258 (Alaska 2001)
Mother and Father had a child in Washington in 1992. A 1993 Washington order
granted Father visitation rights. In 1994, Mother reunited with and married her former
husband, Petitioner. In 1996, Petitioner filed for adoption of the child, claiming Father’s
consent was not necessary because (i) Father had failed to pay support for the child for over a
year, and (ii) the child had been born as a result of a sexual assault by Father and termination of
Father’s rights was in the child’s best interest. AS 25.23.180(c)(3). The court waived Father’s
consent on the first ground, but the Supreme Court reversed. In re Adoption of A.F.M., 960
P.2d 602 (Alaska 1998). On remand, the trial court granted the adoption on the second ground.
The court accepted Mother’s preserved testimony over that of Father, and concluded that the
child was conceived by an act of rape as defined under Washington law.
The Supreme Court affirmed, HOLDING that:
a) An adoption court finding that a child was conceived as a result of a
sexual assault or sexual abused of a minor, AS 25.23.180(c)(3), must be
made by clear and convincing evidence.
b) The determination of whether sexual assault or sexual abuse of a minor
occurred must be made in accordance with the law of the state where the
child was conceived.
c) Termination of a parent’s rights under AS 25.23.180(c)(3) does not require
a prior conviction for sexual assault or sexual abuse of a minor.
-- 60 --
d) AS 25.23.180(c)(3) is constitutional, and does not constitute a quasi-
criminal proceeding that unconstitutionally deprives the parent of the
rights accorded a criminal defendant.
1. The outcome of this stepparent adoption had a heightened impact on the child,
because Mother died in 1996, the year Petitioner filed the adoption petition. A
different outcome would have affected not merely the child’s legal status, but the
child’s physical placement as well.
2. The Court also affirmed the trial judge’s rejection of Father’s collateral estoppel
claim. In the course of the earlier Washington visitation proceeding, Mother
testified that Father had sometimes forced sex on her, without specifically accusing
him of conceiving the child by rape, but the judge stated that there was no rape
involved in the child’s conception. Father claimed that this finding barred Mother
from raising the rape claim in the Alaska adoption proceeding, but the Supreme
Court reasoned that the issue was not ―actually litigated‖ in Washington.
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INDIAN CHILD WELFARE ACT
L.G. v. State, DFYS, 14 P.3d 946 (Alaska 2000)
As a result of Yupik mother’s chronic substance abuse problem, she repeatedly
neglected the child. DFYS took custody in 1994 and during the next three years moved the
child eleven times. This included three separate placements with Mother, each of which ended
with Mother’s relapse. DFYS placed the child with a non-Native foster parent, who continued
to maintain contact with the child after the child was returned to Mother and then placed with
another foster family. In 1997, DFYS re-placed the child with the non-Native foster parent and
petitioned to terminate Mother’s rights. The court terminated Mother’s rights and kept the
child with foster parent over the placement claim of the child’s grandmother.
The Supreme Court affirmed, HOLDING that:
a) Termination of parental rights to a Native child requires a showing,
supported by qualified expert witnesses, that the continued custody of the
child by the parent ―is likely to result in serious emotional or physical
damage to the child.‖ 28 U.S.C. §1912(f).
b) The likelihood of serious harm looks to likely future harm, and the Indian
Child Welfare Act does not require proof that the child has suffered
serious harm in the past.
c) Proof that the parent’s continued custody is likely to cause serious harm
requires both (i) proof that the parent’s conduct is likely to harm the child,
and (ii) proof that it is unlikely the parent will change her conduct.
-- 62 --
d) Proof of likely serious harm can be proved by aggregating the testimony
of expert and lay witnesses.
e) A witness may qualify as an ―expert‖ under ICWA based on her
familiarity with Native culture obtained through personal contact or work
COMMENT: The State’s expert witness in this case was raised in a Yupik village
and was familiar with the child rearing practices of Mother’s village. She had
worked for Native social programs, and during her nine years as a DFYS social
worker 90% of the families she worked with were Alaska Native.
f) ICWA’s required showing of likely serious harm can be satisfied by an
expert witness who lacks familiarity with Native cultural standards, where
the proceeding ―does not implicate cultural bias.‖
1. In addition to challenging the expert witness’s knowledge of Yu'pik culture,
mother also argued that her rights could not be terminated without the testimony of
an expert familiar with Native cultural practices. In response, the Court noted that
one can qualify as an expert based on either professional training or familiarity with
Native culture. ICWA thus permits reliance on the testimony of an expert who does
not have specific cultural knowledge. The Court held that the testimony of an expert
with special knowledge of Native cultural standards would only be required when
the termination proceeding implicates cultural bias.
While the Court’s holding is consistent with ICWA (which contains no requirement
that every expert witness have knowledge of the standards and practices of the
child’s Native community), it’s reasoning is not. The underlying rationale of ICWA
is that all foster care and termination proceedings involving Native children
implicate cultural bias. ICWA sought to neutralize the effect of this bias by
imposing higher procedural and evidentiary standards, including the requirement of
2. The risk of cultural bias – and consequently the value of testimony from
witnesses familiar with prevailing cultural standards – is greater in neglect cases
than in abuse cases. Multiple cigarette burns on a child’s arm are prima facie
evidence of abuse anywhere in the U.S., but standards of parental oversight are
particularly susceptible of cultural variation. One is reminded of the Danish couple
that had their child taken away by New York City authorities after they left their
child in the stroller outside the restaurant where they were dining, over their
protestations that this was an accepted practice in Denmark.
-- 63 --
g) In determining whether to stray from the ICWA placement preferences of
25 U.S.C. §1915, the best interests of the child are the paramount concern.
h) The determination of whether good cause exists to deviate from ICWA’s
placement preferences depends on many factors, including but not limited
to the best interests of the child, the wishes of the biological parents, the
suitability of persons proffered for placement, the child’s ties to the tribe,
and the certainty of emotional or psychological damage to the child if
removed from the outside-of-preference caregiver.
i) In determining whether to stray from the ICWA placement preferences,
the court may consider the outside-of-preference caregiver’s willingness to
nurture the child’s connection with her Native culture.
j) In considering the appropriateness of a placement within the ICWA
placement preferences, the court may consider any prior failure of that
1. Mother argued the child should be placed with the maternal grandmother.
However, when the child was placed with grandmother in 1994, grandmother
dropped the child off at the DFYS office without any prior warning. Over the next
five years, grandmother did not offer herself as a placement, and regarded phone
calls about the child as harassment.
2. In upholding this placement outside the ICWA preferences, the Court noted the
child’s enhanced need for stability of placement. A psychologist testified that after
having been through eleven placement changes, the child was ―at the end of her
capacity to withstand the stress of another placement.‖
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C.L. v. P.C.S., 17 P.3d 769 (Alaska 2001)
Two Yupik children were removed from their home due to chronic parental neglect.
The children were separated at an early age and placed in separate homes. The DFYS placed
Child-1 with non-Native Petitioner-1 for a year, then ping-ponged Child-1 to her Native
Grandparents and various foster homes over several years before returning her to Petitioner-1.
Meanwhile, Child-2 was placed with her Native second cousin, Petitioner-2. Petitioner-1 and
Petitioner-2 petitioned to adopt their respective charges. Grandparents intervened, seeking
custody of both children based on their preferences as an ―extended family‖ placement. 25
U.S.C. §1915(a). Grandparents argued there was no ―good cause‖ to vary the placement under
the criteria set forth by Bureau of Indian Affairs ―Guidelines,‖ 44 Fed. Reg. 67584 – 67595
(1979), which allow a variance from the ICWA placement preferences only if (i) the child or
child’s parents request it, (ii) the child has extraordinary physical or emotional needs, or (iii) no
families within the placement preferences can be located. The court granted the Petitioner-1’s
adoption petition, relying on various factors to find good cause to place Child-1 with a non-
Native family. The court also granted Petitioner-2’s petition, finding that Petitioner-2 (a
second cousin) and Grandparents stood on an equal footing as ―extended family members‖
under the ICWA placement preferences. The court denied Grandparent’s request for visitation
rights with the children.
The Supreme Court affirmed all around, HOLDING that:
a) In making a ―good cause‖ determination under 25 U.S.C. §1915(a), the
trial court may consider any relevant factors in addition to those listed in
the 1979 BIA Guidelines.
-- 65 --
b) In making a ―good cause‖ determination under 25 U.S.C. §1915(a), the
paramount consideration is the best interest of the child.
COMMENT: Of course, a ―best interest‖ standard is at odds with a ―good cause‖
standard. The former allows the selection as between two equally good (or bad)
placements to be tipped by an incremental morsel of evidence in favor one of the
parties. Good cause creates a bias, if not a presumption, for making a placement
decision in accordance with the preferences.
c) ICWA’s ―extended family‖ placement preference extends to all members
of the child’s extended family.
COMMENT: The opinion suggests that the child’s tribe can define the types of
relationships that constitute an extended family member.
d) As between two extended family members, the ICWA gives no preference
based on either member’s biological closeness to the child.
e) Even when the trial court finds that it would be in the child’s best interest
to have visitation with a non-parent, the court may decline to award
visitation rights if it believes that the child’s guardian will voluntarily
maintain the child’s contacts with the nonparent.
-- 66 --
Sloane v. Sloane, 18 P.3d 60 (Alaska 2001)
Husband’s union legal plan provided him with a $6,400 reimbursement of his legal
fees. At trial, the court awarded Wife 57% of the marital estate and $3,200 in legal fees.
Mother appealed, arguing that the court’s decision actually denied her fees request while
dividing a marital asset, that she had over $40,000 in legal fees, and that she was entitled to a
The Supreme Court affirmed, HOLDING that:
a) If parties are in comparable economic circumstances, they should each
bear their own costs. This rule applies where the trial court’s property
division has placed the parties in comparable economic circumstances.
b) A party to a divorce is not liable for the litigation choices and expenses of
COMMENTS: The Court did not comment on Wife’s characterization of the payout
by Husband’s legal plan as a marital asset.
Sanders v. Barth, 12 P.3d 766 (Alaska 2000)
Ten years after the birth of her child, Mother brought a paternity and support action
against Father. Prior to trial, the parties entered into a settlement requiring Husband to pay
$100,000 in back support. Three weeks after entry of judgment, Mother moved for Rule 82
attorney’s fees. The trial court denied the request on the ground that Rule 82 did not apply.
The Supreme Court ruled that Rule 82 did apply to the parties’ dispute, but
nonetheless affirmed the trial court’s denial of fees. The Court HELD that:
-- 67 --
a) The ―divorce exception‖ (AS 25.24.150) to Rule 82 applies only where
the case closely resembles a divorce action and involves the kinds of
issues that generally arise in the immediate aftermath of a long-term
COMMENTS: Sanders does not set forth a bright line. However, along with earlier
cases such as Rubright v. Arnold, 973 P.2d 580 (Alaska 1999); B.J. v. J.D., 950 P.2d
113 (Alaska 1997) and Bergstrom v. Lindback, 779 P.2d 1235 (Alaska 1989), it
provides guidelines. Essentially, AS 25.24.140 applies to cases that look and feel
like divorce proceedings. Factors to consider include the duration of the parties’
relationship, the closeness in time between the parties’ separation and the litigation,
and the issues involved. Cases involving initial child custody, prospective child
support and the adjudication of property interests are more similar to a divorce than
are custody modifications, child support arrears and paternity. The facts in Sanders
(paternity, support arrears, action filed 10 years after separation) bore little
resemblance to a divorce.
b) Rule 82 fees may not be awarded following a consent judgment unless the
parties agree that they can be awarded.
-- 68 --
McDougall v. Lumpkin, 11 P.3d 990 (Alaska 2000)
Wife returned to school prior to separation and requested six years of rehabilitative
alimony to obtain an MBA. The trial court awarded her $500 per month in alimony. The
court’s oral ruling awarded Wife four years of support, but the decree drafted by Husband’s
attorney did not specify any duration. When Wife objected to the proposed decree, the Court
issued a supplemental order providing for only two years of alimony, with no explanation for
the discrepancy with the judge’s oral findings.
The Supreme Court reversed the trial court’s ruling and remanded for redetermination
of the proper alimony award. The Court HELD that:
a) An attorney who has been directed to prepare written findings is obligated
to prepare written findings and conclusions that are consistent with the
court’s oral findings and conclusions.
b) An attorney’s failure to submit written findings that conform to the court’s
findings does not relieve the trial court of the responsibility to confirm that
the court’s written findings reflect the court’s thinking.
Sloane v. Sloane, 18 P.3d 60 (Alaska 2001)
Wife requested that the court bifurcate the proceeding, to divide the property
immediately but delay the entry of the divorce for three years to allow Wife to remain on
Husband’s health insurance. The trial court denied her request.
-- 69 --
The Supreme Court affirmed, HOLDING that while the trial court may reserve
custody or property issues for later consideration, AS 25.24.155(a)(2), no statute permits the
court to reserve the issue of termination of the marriage.
COMMENTS: The Court’s rationale for its decision is unsatisfactory. The
bifurcation statute, AS 25.24.155, was enacted in 1991. 1991 ALASKA SESS. LAW
Ch. 76, §2. It did not presume to authorize the bifurcation of proceedings, a
procedural act that had been occurring before the statute’s enactment. E.g. Bell v.
Bell, 794 P.2d 97, 98 (Alaska 1990). The language of AS 25.24.155 makes it clear
that the statute was intended to limit the circumstances in which the trial court could
hasten the parties’ divorce while reserving other issues. There is no basis for
concluding that the statute’s silence regarding reservation of the divorce issue was
intended to forbid its occurrence.
-- 70 --