Domestic relations update

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domestic relations update

March 2002 -- March 2003

Alaska Bar Association

Family Law Section

Anchorage, Alaska

table of contents

Custody and Visitation 1

Child Support 7

Spousal Support 17

Property 18

Jurisdiction 28

Child in Need of Aid Proceedings 32

Adoption 35

Indian Child Welfare Act 36

Attorneys Fees 41

Contempt and Criminal Proceedings 45

list of summarized cases

Alaska supreme court decisions

A.J. v. State, DHSS, 62 P.3d 609 (Alaska 2003) 32
(Child in Need of Aid)

Atkins v. Vigil, 59 P.3d 255 (Alaska 2002) 29

Bailey v. Bailey, 63 P.3d 259 (Alaska 2003) 8
(Child Support)

Bishop v. Clark, 54 P.3d 804 (Alaska 2002) 3, 7, 19, 42
(Custody, Child Support, Property, Attorney’s Fees)

E.A. v. State, DFYS, 46 P.3d 986 (Alaska 2002) 38
(Indian Child Welfare Act)

E.A. v. State, DHSS, 66 P.3d 1 (Alaska 2003) 32
(Child in Need of Aid)

Edelman v. Edelman, 61 P.3d 1 (Alaska 2002) 27, 41
(Property, Attorney’s Fees)

Evans v. Native Village of Selawik, 65 P.3d 58 (Alaska 2003) 31, 35
(Jurisdiction, Adoption)

Fardig v. Fardig, 56 P.3d 9 (Alaska 2002) 2

Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002) 5, 11, 18
(Custody, Child Support, Property)

Hixson v. Sarkesian, -- P.3d -- (Alaska March 28, 2003) 14, 17, 43
(Child Support, Spousal Support, Attorney’s Fees)

Hughes v. State, 56 P.23 1088 (Alaska App. 2002) 46

J.A. v. State, DFYS, 50 P.3d 295 (Alaska 2002) 36
(Indian Child Welfare Act)

J.S. v. State, 50 P.3d 388 (Alaska 2002) 39
(Indian Child Welfare Act)

Kelly v. Joseph, 46 P.3d 1014 (Alaska 2002) 6, 15
(Custody, Child Support)

Alaska supreme court decisions (cont’d)

Korn v. Korn, 46 P.3d 1021 (Alaska 2002) 26

Laybourn v. Powell, 55 P.3d 745 (Alaska 2002) 7, 41
(Child Support, Attorney’s Fees)

Manelick v. Manelick, 59 P.3d 259 (Alaska 2002) 22

Martin v. Martin, 52 P.3d 724 (Alaska 2002) 24

Moeller-Prokosch v. Prokosch(II), 53 P.3d 152 (Alaska 2002) 1

Nelson-Lizardi v. Lizardi, 49 P.3d 236 (Alaska 2002) 21

Osmar v. Mahan, 53 P.3d 149 (Alaska 2002) 12
(Child Support)

Potter v. Potter, 55 P.3d 726 (Alaska 2002) 4, 10
(Custody, Child Support)

S.B. v. State, Dep’t of Health & Social Services, 61 P.3d 6 (Alaska 2002) 28

State, DHSS v. M.L.L., 61 P.3d 438 (Alaska 2002) 37
(Indian Child Welfare Act)

State v. Strane, 61 P.3d 1284 (Alaska 2003) 45

Whah v. Whah, 53 P.3d 604 (Alaska 2002) 13
(Child Support)


Hughes v. State, 56 P.23 1088 (Alaska App. 2002)


Moeller-Prokosch v. Prokosch(II), 53 P.3d 152 (Alaska 2002)

Following separation, Father lived in Anchorage, and Mother lived in the Mat-Su Valley and wanted to relocate to Florida to be near family and better job opportunities. The court granted Mother custody of the child but forbade her from moving with the child more than 65 miles from Father’s residence, based on the conclusion that it would be contrary to the child’s best interest for her to move farther away. The Supreme Court reversed, concluding that the trial judge assessed whether the move was in the child’s best interests rather than assuming the move would take place and determining which placement would be better for the child. Moeller-Prokosch v. Prokosch, 27 P.3d 314 (Alaska 2001).

On remand, however, the trial court did not hold an evidentiary hearing. Instead, the court criticized Mother for caring so little about the child’s relationship with Father that she was willing to remove the child from the state. She gave Father sole authority to select the child’s school and ordered that physical custody would shift to Father if Mother moved more than a reasonable distance from the school selected by Father.

And wouldn’t you know it, the Supreme Court reversed and remanded again. The Court gently HELD that:

 If a parent is moving out of State for legitimate reasons, the move should not be held against the parent who proposes to move.

 In a case involving a parent who intends to move, the best interests determination should assume that the parent has already moved.

COMMENT: This will avoid the error – committed and then repeated in this case – of considering whether the move itself is in the best interests of the child.

 In a case involving a parent who intends to move out of Alaska, the court cannot consider the benefits of providing the child with frequent access to both parents, since such a goal is inconsistent with the assumption that the parents are already living in different states.

Fardig v. Fardig, 56 P.3d 9 (Alaska 2002)

The parties were divorced in 1995, and Mother was awarded custody of the children. Ten months later, Father filed a motion to modify custody based on allegations that substance abuse impaired Mother’s care of the children. The court granted Father interim custody, and while the proceeding was pending Mother traveled to California for an open-ended “visit.” Mother unsuccessfully argued that allegations of abuse were barred by res judicata because Father had made the same allegations during the initial divorce proceeding. Following an evidentiary hearing, the trial court concluded that Mother’s move was a “substantial change of circumstances,” awarded custody of the children to Father, and gave Mother only supervised visits until she underwent drug and alcohol assessment.

The Supreme Court affirmed the imposition of supervised visits by a 3-2 vote, and affirmed unanimously on all other issues. The Court HELD that:

 The moving parent carries the burden of showing the existence of a substantial change of circumstances.

 One parent’s potentially long term move to another state constitutes a substantial change of circumstances.

COMMENT: The Court has previously held that a custodial parent's decision to move from Alaska constitutes a per se "substantial change of circumstances" for a change of custody or visitation. Conversely, a short visit outside of Alaska is certainly not a change of circumstances. Fardig is the first to address the intermediate situation, where a custodial parent leaves with the intention of coming back.

 Res judicata does not apply to bar an issue from being considered in a custody modification after it has been considered in a prior custody proceeding.

COMMENT: Father’s modification motion was based on claims regarding Mother’s drug use after the first custody determination. However, collateral estoppel would have barred him from relitigating pre-determination factual assertions that were rejected by the trial court in the first proceeding.

 Although a trial court cannot condition custody on a parent’s ability to relocate, it can consider the impact of a potential move on the children’s best interests.

 The determination of whether a child is of sufficient age to state a meaningful placement preference is within the discretion of the trial court.

 Unsupervised visitation for the noncustodial parent is the norm.

 It is a preference, but not a requirement, that a court ordering supervised visitation specify a plan by which unsupervised visitation can be achieved. Monette v. Hoff, 958 P.2d 434 (Alaska 1998).

COMMENT: In a strongly worded dissent, Justice Bryner, joined by Justice Mathews, dissented from the imposition of supervised visitation. The dissent chastised the majority for ignoring the Court’s own precedent that required that any requirement of supervised visitation must be supported by findings showing how unsupervised visitation will adversely affect the minor child. See J.F.E. v. J.A.S., 930 P.2d 409 (Alaska 1996). The Court also criticized the trial court for restricting visits based on ambiguous hearsay evidence that Mother had a drug problem, and on placing the burden on Mother to provide evidence that she did not have a drug problem.

Bishop v. Clark, 54 P.3d 804 (Alaska 2002)

The Court awarded Mother primary interim custody and ordered Father to pay $1,362 per month in interim child support. On appeal, Father argued that the trial court erred in basing child support on a custody order entered without a hearing (even though Father had not requested a hearing). The Supreme Court affirmed the trial court, HOLDING that a party is not entitled to a hearing on interim custody where the party has not requested the hearing.

COMMENT: This holding was reached in a procedural posture that may diminish its precedential value. First, Father was not actually appealing the interim custody award, but was only challenging the interim support order that was based on the interim custody award. Thus, he was not alleging that the court violated his rights vis a vis his children, but only that he was paying too much. In addition, the Court noted that Father was not claiming any adverse effect from the lack of hearing, which sounds a lot like “harmless error.”

Potter v. Potter, 55 P.3d 726 (Alaska 2002)

The parties’ 1990 decree gave them shared custody of their child. In 1999, Mother filed to modify child support based on the fact that the child was living primarily with her. One week before the evidentiary hearing, Mother also filed a motion to modify custody. Mother made it clear that she wanted to avoid a custody dispute and that the custody motion should be considered only if the trial court determined that support must be based on the formal custody schedule. The trial court agreed that support could be changed without modifying custody, but after the evidentiary hearing the court modified both support and custody. Father appealed.

The Supreme Court reversed the custody modification, due to lack of sufficient notice. The Court HELD that:

 Due process requires that a party be notified of the subject of proceedings concerning them, so that they have a reasonable opportunity to be heard.

 A party has no meaningful notice that a matter is at issue where neither party reasonably expected that the issue would be addressed at the hearing.

Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002)

The parties had two children together, and Father also adopted one of Mother’s two older children. Following a custody investigation that was critical of Mother, the parties entered into a settlement agreement that gave them shared physical custody of their three children, with Father having the adopted child 50% of the time and his biological children 60% of the time. However, the trial judge refused to fully accept the settlement agreement, based on the need for the children to have one household to call home, the importance of keeping them together, and his concerns about Mother’s parenting ability. The trial court awarded Father sole legal custody of the children, and placed them all on a more similar schedule with more time in Father’s care. Mother appealed.

The Supreme Court affirmed, HOLDING that:

 The trial court’s obligation to base its custody determinations on the best interests of the child applies in both contested and uncontested proceedings.

 The trial court should deviate from the terms of a child custody agreement only upon a finding on the record that the child’s best interests justify a deviation.


  1. The Court implied that the bases for varying from a custody agreement should be case-specific, and not based on “abstract notions about good parenting or the needs of typical children.”

  2. Mother argued on appeal that the trial court erred by giving her custody of the children on weekends when she drills with the National Guard. Although the Court did not directly address this issue, it directed that on remand the trial court should arrange the custody schedule around the parents’ availability.

 An adoptive parent stands in the same position as a birth parent, and the fact of adoption does not disfavor the adoptive parent for purposes of determining legal custody of the adopted child.

 A trial judge who denies a motion for appointment of a guardian ad litem should make findings explaining its denial. Alaska R. Civ. P. 90.7(c).

Kelly v. Joseph, 46 P.3d 1014 (Alaska 2002)

The parties agreed that Father would have custody of the three children, with Mother to have reasonable visitation. However, after Father repeatedly frustrated Mother’s visitation efforts, the court granted her motion to modify custody.

The Supreme Court affirmed, HOLDING that:

 The custodial parent’s substantial interference with the other parent’s visitation rights constitutes a substantial change of circumstances. Hermosillo v. Hermosillo, 797 P.2d 1206, 1209 (Alaska 1990).

 A court may not base a custody determination solely on one parent’s interference with the custodial rights of the other, but may take that interference into account as part of a broader “best interests” determination.

 Trial courts should be hesitant to separate siblings, even where it mollifies tensions between a parent and child.


Bishop v. Clark, 54 P.3d 804 (Alaska 2002)

In May 1998, the Court awarded Mother primary interim custody and ordered Father to pay $1,362 per month in interim child support, with both orders retroactive to December 1997. On appeal, Father argued that retroactive support should have been based on the 57-43 custody arrangement that the parties had been following.

The Supreme Court affirmed the trial court regarding prospective support, but reversed on the five months of retroactive support, HOLDING that:

 Child support awards should be based on the court’s visitation order rather than on their actual custody arrangement.

 A child support order issued for a period when no custody order was in effect should be based on the parties’ actual custody arrangement during that period.

COMMENT: Although the Court made the custody order retroactive for the previous five months, it was inappropriate to base the support calculation on the terms of the order for those five months, because no order was in effect when that support obligation would have accrued.

Laybourn v. Powell, 55 P.3d 745 (Alaska 2002)

Mother moved to increase Father’s child support obligation, presenting evidence that he was hiding income and living a ten dollar lifestyle on a two dollar paycheck. Following a three-day hearing, the court concluded that Father was being untruthful about his income, and imputed income to him in the amount of $72,000 per year.

The Supreme Court affirmed. Rejecting Father’s argument that the court was required to provide a strict accounting for determining Father’s income, the Court HELD that:

 The court may impute potential income to a parent who is voluntarily unemployed or underemployed. Alaska R. Civ. P. 90.3(a)(4).

 A party who fails to provide the court with accurate information on which to base a child support calculation cannot be heard to complain that the court’s estimate of his earning capacity is insufficiently precise.

COMMENT: Competing against a week field, the Father in Laybourn wins the coveted 2002-03 Gabaig Award for most outrageous conduct by a party in a reported family decision.

Bailey v. Bailey, 63 P.3d 259 (Alaska 2003)

Father had custody of the parties’ two children. In September 1998, the court ordered Mother to pay $1,042 per month in child support “until the children have reached their 18th birthday,” and did not explain how it reached this figure. After the older child turned eighteen in October 1998, Mother made three support payments of $311 for the younger child. The younger child went to live with Mother in November 2000, and in March 2001 Mother moved to modify custody and support, and father cross-moved for calculation of Mother’s accrued arrears. The trial court accepted Father’s argument that Mother’s support obligation for the younger child was $740 per month as of November 1998, but cancelled all of Mother’s arrears because it concluded that it would be inequitable to impose them because the child had lived with Mother for four of the 28 months of the arrearage period. Yeah, I didn’t understand it either. Father appealed on the ground that the waiver of arrears constituted an unlawful retroactive modification of support.

The Supreme Court held there was no retroactive modification because no order remained in effect after the older child turned 18, but also set aside the waiver of arrears and remanded for a recalculation of Mother’s arrears during the 24 months that the child lived with Father. The Court HELD that:

 Child support arrears cannot be modified. Alaska R. Civ. P. 90.3(h)(2).

 The rule against retroactive modification only applies if there is a valid order already in effect.

 A support order regarding multiple children does not constitute a continuing order after the oldest child turns 18, unless it apparent from the order how much support is to be paid for the remaining children.

COMMENT: The current DR-300 (“Child Support Order”) form prompts the court to expressly state how much support will continue to be due as each child turns 18. However, earlier incarnations of that form did not, and child support orders frequently provided for “$X in support to be paid until all children reach 18.” This ambiguity lends itself to several interpretations. You could read it to provide that $X is to be paid until all of the children turn 18. You could also infer that support would automatically adjust according to the Rule 90.3 percentages. Father proffered that argument here, urging that if $1,042 per month was 27% of Mother’s income, then $740 represented 20% of her income. However, the Supreme Court rejected this position because the 1998 order provided no basis for its calculation, and there was some possibility that its $1,042 figure was based on a “sole custody” calculation for the older child and a “joint custody” calculation for the younger child.

The Court instead took a third position. It concluded that the 1998 order provided no guidance as to what support amount would apply when the older child turned 18, so the order ceased to be in effect at that point. Thus, the 1998 support order, which took two months for the parties to litigate, was in effect for only one month.

 When setting retrospective support, the parent with de jure custody is entitled to support for every month that the child is actually in his physical custody. Bennett v. Bennett, 6 P.3d 724 (Alaska 2000).


1. In this case, Father had de jure custody of the child at all times until Mother filed to modify custody in March 2001, but the child had gone to live with Mother in November 2000. Father was therefore entitled to retrospective support from November 1998 (after the child turned 18) to November 2000. Since Husband had de jure custody, Mother could not seek child support for the four-month period that the child was with her.

2. This case presented a situation that has never been addressed by the court: support for a child who is living independently of either parent. Shortly after Mother filed her March 2001 motion to modify custody, the child left Mother and moved in with family friends. The trial court proceeded to set Father’s support obligation as Mother requested, but directed that Father did not have to pay it to Mother, and that he should instead provide “reasonable assistance” to the child. This aspect of the trial court’s decision was not appealed.

The case of the independent minor can present special problems. Strict application of prior decisions would suggest that if the child is living independently, the support payment should be made to the child. After all, Rule 90.3 does not limit support payments to parents, and instead provides for payments to be made to third parties who are caring for the child. However, parent-teenager relations can be difficult enough without adding a financial dimension to it. Woe to any beleaguered parent whose child discovers that he or she can turn a nice profit by refusing to come home and instead demanding child support. Any rule of law addressing this situation should provide for the needs of the child without providing a financial incentive for children to leave their parents.

Potter v. Potter, 55 P.3d 726 (Alaska 2002)

The parties’ 1990 decree gave them shared custody of their child. Over time, the child spent less and less time with Father. In 1999, Mother filed to modify child support based on the fact that the child was living primarily with her, and also moved to modify custody. The trial court granted both requests.

The Supreme Court reversed the custody modification (see “Custody and Visitation” section above), but affirmed the increase in Father’s child support obligation. The Court HELD that:

 Prospective child support can be based on a de facto change in the custody or visitation schedule, rather than on the formal court order.


1. The Court has historically taken the position that child support must be based on the schedule set forth in the court order. See, e.g., Turinsky v. Long, 910 P.2d 590 (Alaska 1996). Now, by disconnecting the custody order from the support order, the court is introducing an element of uncertainty into the support calculation process. Parties can no longer stand on the custody order, in those circumstances where the parties have varied from the formal custody schedule.

2. The Court expressed concern that permitting child support to be based on the de facto visitation schedule might encourage parents to profit by interfering with the other parent’s custody rights. Because of this, the Court cautioned that child support should “only rarely” be set in an amount that reflects the de facto custody schedule rather than the terms of the custody order. The better practice is to modify the custody order to jibe with the schedule that the parties are actually following.

3. Still, the instant case illustrates circumstances when disconnecting the custody order from the support order may be justified. Mother wanted additional child support because she had the child in her care almost all of the time. However, she wanted to avoid dragging the teenage child into the litigation process. A custody modification would likely have required the child’s involvement in the proceeding, whereas a child support modification did not.

 Events that occur after the onset of litigation should be either discounted entirely or viewed with suspicion as evidence of the parties’ regular practices.

Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002)

The Court awarded the parties shared physical custody of the children, and ordered Mother to pay child support. In calculating child support, the trial court (i) denied Mother a deduction for net operating loss carryovers that she was entitled to deduct for federal tax purposes, (ii) denied Mother a deduction for several rental properties, (iii) included in Mother’s income child support she received for a prior child, and (iv) denied Mother any deduction for her own contributions toward the support of her older child. Mother appealed.

The trial court affirmed on the issue of the net operating losses, but reversed on the other issues, HOLDING that:

 A depreciation deduction cannot be claimed for child support purposes if it could not be claimed for tax purposes. However, not all deductions allowed by the tax code are automatically allowed for child support.

COMMENT: Deductibility for tax purposes is necessary but not sufficient for deductibility for child support purposes.

 Net operating losses carried over from prior years cannot be deducted for child support purposes, even though they can be deducted on federal income taxes.

COMMENT: The Court reasoned that previously incurred net operating losses do not accurately reflect a support obligor’s present ability to pay support.

 In calculating child support, the court should normally allow a deduction for straight line depreciation of business expenses.

COMMENT: Straight-line depreciation is determined by calculating the difference between the original cost of an asset and its eventual scrap value, divided by the estimated useful life of the asset.

 Child support for another child does not count as “income” under Rule 90.3.

 A support obligor is entitled to a deduction for the support of an older child in her care, even if she is also receiving child support payments for that child.

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