[Copyrighted Material Omitted]
Andrew Josephson, Law Offices of G.R. Eschbacher, Anchorage, for Appellant.
Phyllis A. Shepherd, Law Office of Dan Allan & Associates, Anchorage, for Appellee.
Before : FABE, Chief Justice, EASTAUGH, Carpeneti, WINFREE, and CHRISTEN, Justices.
This appeal concerns child custody, child support, and property disputes between two parents who lived together for several years but never married, then separated and agreed to share custody of their minor child. Three years later, after moving to Oregon, the mother filed suit seeking sole custody of their child and a share of proceeds from the sale of the family house. The superior court granted the father sole legal and primary physical custody, entered a child support award in the father's favor, and denied the mother's claim to a share of the house-sale proceeds. We affirm the custody ruling as within the superior court's discretion, affirm the denial of a child support arrearage award because the claim was not raised at trial, but vacate the property ruling and remand for further proceedings to establish necessary factual findings.
II. FACTS AND PROCEEDINGS
Sarah Jaymot and Elijah Skillings-Donat met in California in 1999. They moved to Alaska together in August 1999 and settled in Anchorage, where they lived together until July 2002.
Sarah and Elijah's daughter was born in January 2002. That summer the family moved to Haines, and in the fall they moved into a house purchased for $80,000. Sarah testified that she contributed her Permanent Fund Dividend to the down-payment on the house and that the proceeds from the sale of a jointly-owned travel trailer were also spent on the house. Sarah's name was not placed on the title, nor was she an obligor on the house loan. She testified that she asked Elijah several times during their relationship to place her name on the title, but he did not. Elijah testified that he was " always extremely clear about not putting [Sarah's] name on the title of anything, and never did so." Substantial improvements were made to the house while the couple lived there together, but the parties dispute whether Sarah contributed to those improvements.
While living together, Sarah paid the couple's bills. But the parties dispute Sarah's actual financial contribution. Sarah testified:
I paid all the monthly bills. I, at least, took care of it. Received them; sent them out in the mail. Sometimes they'd all be written out of his bank account, and he would sign the checks, and sometimes they would get written out of my bank account, and we put money in. Sometimes they just got paid out of my bank account.
Elijah testified that he made out checks on his personal account to Sarah for the purpose of paying bills:
[S]he offered to pay the bills. So she always usually would pay the bills. But I didn't want to spend the time to do the math, and write all the checks, and everything, so she would do that, and I would write her a check for the amount of the bills that she was going to be writing. I did that on-I did it just for efficiency, and, then, also, when I was out of town, or wouldn't be there, I would sign blank checks. And then you will notice that much of the writing on these checks is her writing. I believe there is only one or two that were written by me, but they're all signed by me.
At trial Sarah produced checks showing mortgage and truck payments made from her account, and Elijah produced checks made out to Sarah from his account.
In June 2005 Elijah and Sarah ended their relationship and Sarah moved out of the house. They entered into an informal agreement for equal shared custody of their daughter. They both continued to reside in Haines.
In August 2007 Sarah informed Elijah that she would be moving to Portland, Oregon. On August 22, 2007, Elijah's girlfriend had an altercation with Sarah and her mother, who was visiting in Haines. Sarah's mother testified that Elijah's girlfriend arrived at Sarah's workplace and began to argue with Sarah, pushed Sarah's mother and told her to get out of the way, and then grabbed Sarah's daughter's arm and told her, " [y]our grandmother is trying to take you away from us, and we're not going to let that happen." Sarah petitioned for domestic violence protective orders against Elijah and his girlfriend, even though Elijah was not present when the altercation occurred. Sarah was granted an ex parte protective order against Elijah's girlfriend, but she was denied a protective order against Elijah. On August 30 Sarah filed a request to dissolve the protective order, explaining her reason as " consent to mediation for child custody if order is dropped."
In early September 2007 Sarah and Elijah signed an agreement to share legal and physical custody of their daughter, who was to rotate between Haines and Portland every six months. Their daughter remained in Haines with Elijah during the fall of 2007 while Sarah moved to Portland. In January 2008 their daughter moved to Portland to begin her six months with Sarah.
On January 11, 2008, Elijah sent Sarah an e-mail stating that he would take their daughter for a vacation during her spring break. Elijah and Sarah argued via e-mail over whether Elijah would be allowed to see their daughter then and, if so, for how long. In response to Elijah's January 25 e-mail stating that he would arrive in Portland the following Thursday to take their daughter for the weekend, Sarah directed all future communications to her attorney. She filed this action shortly thereafter.
In March 2007 Sarah filed a petition with the Alaska Department of Revenue, Child Support Services Division (CSSD) for child support from Elijah. In August 2007 CSSD served Elijah with a child support order requiring him to pay $524 per month, as well as $3,144 in arrears from March 1, 2007.
In January 2008 Sarah filed suit seeking sole legal custody, primary physical custody, increased child support, and a share of property acquired during the course of the couple's relationship. Elijah moved for interim relief in the form of a temporary grant of primary physical custody requiring the daughter to return to Alaska. Sarah opposed the motion for interim relief and moved for the appointment of a custody investigator. The superior court denied Elijah's motion but modified the parties' existing custody agreement, ordering Sarah to return the daughter to Alaska on June 14,
2008. The court also denied Sarah's motion for a custody investigator.
A bench trial was held in late June 2008. On July 1, 2008, the court awarded Elijah sole legal and primary physical custody. The court found both parents were capable of providing for their daughter's needs, but also found they had difficulty communicating and compromising with one another. The court stated that " [t]o the extent the emotional capacity of the parents to properly parent is an issue, it appears from the testimony of them on the stand, that the father is more composed and capable of extracting himself from the anger of the moment" and concluded this factor " tipped slightly in [Elijah's] favor."
The court found that: (1) regarding each parent's ability to foster a relationship between the daughter and the other parent, " the evidence tends to show that [Sarah] is less capable of doing so, in part it seems due to her anger about [Elijah's] unwillingness to marry her and her belief that she should get the benefits of his property" ; (2) Sarah " refuses to speak with [Elijah] and fails to promote communication ... refused reasonable requests to visit and only grudgingly allows contacts with the father" ; (3) " as to [Sarah's] ability to meet the emotional and social needs of the child (which requires close connection with the father) and willingness to facilitate and encourage close contact with the other parent, [Sarah] provides a less satisfactory environment for the child" ; (4) Elijah and Sarah's daughter was too young to express a preference for either parent and appeared to love both; and (4) there was " no history of domestic violence or drug abuse by either parent."
The court concluded that it was in the daughter's best interests to be primarily in Elijah's custody. The court ordered that: (1) the daughter reside with Elijah during the school year; (2) Sarah have visitation from the first Sunday after the end of school until two weeks Before the start of the next school year; (3) the parents alternate winter and spring holidays with the daughter; and (4) Elijah continue to have custody of the daughter for the remaining summer months of 2008, with Sarah to have visitation during the first week of August.
As to property acquired during the relationship, the court found that Sarah and Elijah " did not have an intent to engage in a domestic partnership and that their property and debt remains separate property."
Sarah moved for reconsideration of the trial court's custody order, arguing that the court: (1) " failed to account for the fact that [she] very well could move back to ... Haines, Alaska" and " failed to rule in the alternative that should [she] return to Haines, Alaska, [fifty-fifty] custody should be ordered" ; (2) should have ordered that transportation costs be split fifty-fifty; (3) should have ordered that the daughter spend the remaining weeks of summer 2008 with Sarah; (4) " failed to consider the possibility that Sarah may be able to exercise more visitation should she come to Alaska during the school [year]" ; (5) should have granted Sarah spring break and Christmas visitation every year; (6) failed to consider Thanksgiving vacation; and (7) erred by not granting shared legal custody because " there is no indication that this animosity will continue." The court denied the motion for reconsideration without comment.
The court entered a final custody order mirroring its earlier findings of fact and conclusions of law. On September 8, 2008, the court entered a final child support order ...