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Sarah D. v. John D.

Supreme Court of Alaska

June 12, 2015

SARAH D., Appellant,
JOHN D., Appellee.

Appeal from the Superior Court No. 3AN-12-11124 CI of the State of Alaska, Third Judicial District, Anchorage, Patrick J. McKay, Judge.

Appearances: Phyllis A. Shepherd, Anchorage, for Appellant.

Notice of nonparticipation filed by Kenneth M. Wasche, Kenneth M. Wasche, P.C, Anchorage, for Appellee.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.


WINFREE, Justice.


Sarah D. and John D. separated shortly after their daughter turned three. Each claimed that the other was abusive and obtained a short-term domestic violence protective order after they separated; they later stipulated to a mutual no-contact order but violated it by continuing a sporadic romantic relationship. They sharply contested numerous domestic violence allegations and generally cast each other in a bad light throughout their divorce proceedings.

Sarah requested interim attorney's fees. After the superior court denied her request, Sarah consented to her lawyer's withdrawal. Sarah and John then agreed to a property settlement. Before litigating custody Sarah again requested interim attorney's fees and twice filed continuance motions requesting time to obtain counsel. Her motions were denied, and she appeared pro se throughout a four-day custody trial. John's parents helped pay for his lawyer, and he was represented at all times. Over Sarah's objections, John's father was allowed to intervene as a party for visitation purposes.

Finding John and Sarah's relationship dysfunctional, Sarah manipulative and guilty of one incident of domestic violence, and neither party credible, the court awarded shared physical and sole legal custody to John and gave John's father unspecified visitation during John's custodial time. Sarah appeals the court's denials of her requests for an interim fee award, trial continuances, and to compel a witness's attendance at trial. She also appeals the court's orders granting the grandfather intervention and visitation and the court's domestic violence finding and custody decision. We vacate the order granting the grandfather visitation and otherwise affirm all but the custody decision, remanding for more detailed findings and conclusions on domestic violence issues.


Sarah and John married in 2009 shortly after their daughter's birth. Their daughter was three years old when they separated in November 2012. At separation Sarah and John each obtained an ex parte short-term domestic violence order against the other, and Sarah filed for divorce. John was represented by counsel throughout the proceedings, and Sarah had counsel until she consented to his withdrawal in mid-March 2013.

In December 2012 Sarah and John each petitioned for a long-term domestic violence protective order against the other, but then voluntarily withdrew their petitions and stipulated to a mutual no-contact order permitting them to text or email each other only about their daughter. Neither John nor Sarah honored the no-contact order; indeed, until a month before the custody trial began in late May 2013 they routinely violated the order to have consensual sex.

At the end of interim hearings in mid-January 2013 the parties agreed to a shared physical custody schedule. The superior court ordered John to continue making mortgage payments on the marital home, where Sarah and the daughter remained, and John moved in with his parents. The parties entered into a property settlement agreement in late March, and the court confirmed it a month later. John was to keep the marital home, but Sarah was to live there until May 31. Therefore, for the bulk of the time between their November 2012 separation and the late-May 2013 trial, John lived with his parents and Sarah continued to live rent-free in the marital home.

In early April Sarah asked the superior court to postpone the May custody trial until September. Sarah anticipated a qualified domestic relations order (QDRO) for her share of John's retirement but believed it would take "two to three months" before she would "actually have access to [those] funds." She asked for the continuance so that she could obtain the funds, retain counsel, and allow her new counsel to prepare for trial.[1] John responded that Sarah had "consented to the withdrawal of her attorney in March 2013" and that "inexcusable delay in employing new counsel" was not "a ground for co ntinuan ce." John pointed out that during the February scheduling conference Sarah had anticipated a May custody trial. The court denied Sarah's motion for a continuance without comment.

In late April the superior court issued a divorce decree, noting that the parties had agreed to proceed to trial over custody. The court also issued Sarah a QDRO giving her a percentage of John's retirement benefit worth about $16, 000.

Also in late April John's stepfather, John L. D. (JL), sought grandparent visitation with John and Sarah's daughter. JL, who is retired, often watched John and Sarah's daughter when they were working. According to JL, "[h]e has cared for [his granddaughter] on a frequent basis since her birth [and since] the parties have separated, both parties have continued to use [JL] as [a] caregiver." JL argued that Sarah had tried to cut him out of the child's life, that he was a psychological parent to the child, and that it was "in the best interests of [his granddaughter] to enjoy the benefits of a close relationship with extended family members by having regular, predictable contact." The court allowed JL's participation for the limited issue of grandparent contact with the parties' daughter.[2] Sarah asked the superior court to reconsider JL's intervention, arguing that the order "unnecessarily infring[ed] on the inherent rights of a good parent" and that she had evidence that JL's "open hostility" toward her had a negative impact on her daughter. The superior court denied the reconsideration motion at the beginning of trial.

In early May Sarah asked the superior court for either $10, 000 in interim attorney's fees or a three-week continuance of the custody trial. She argued that she had no "funds to retain legal counsel" and that she was in the "final stages of retaining Pro Bono Legal Services" but could not do so without a continuance. Sarah argued that the continuance was necessary for her to "have a chance to fairly present her side [of the case] and have it heard." John responded that the parties' economic situations were comparable and that Sarah already had received the QDRO and could have assigned the proceeds to her former attorney in lieu of payment. John noted that the court had rejected Sarah's April continuance request and that she should not be able to avoid litigation by simply hiring or attempting to hire a new attorney and claiming the new attorney needed time to become familiar with her case. At a mid-May scheduling conference, the court indicated it likely would deny Sarah's motion. Twenty days after the custody trial ended the court formally denied Sarah's requests for a continuance and attorney's fees.

A week before trial Sarah sought to compel Sarah and John's marriage counselor to testify. She noted that the superior court already had indicated such an order would be proper - at a much earlier hearing Sarah's former attorney had mentioned that he planned to "seek a court order . . . to get [the marriage counselor's] testimony, " and the court had responded: "Right. You would probably get it." She argued that the counselor's testimony would show that: John possibly had neglected their child; during counseling John had said that his family would lie under oath for him; and Sarah had never been violent toward John. The court denied the motion the next day, stating that Sarah "may subpoena [the witness] and then move to enforce or compel."

Sarah and John litigated custody for four days in late May and early June 2013. After trial the superior court found that: Sarah and John did not comprehend the dysfunctional nature of their relationship which "interfered in their ability to co-parent"; their "chaotic relationship" had the "potential for emotional abuse of [their daughter]"; but John "is more likely to disengage and maker healthier decisions for [their daughter] with his family support system, " whereas Sarah "is manipulative and less capable of setting aside emotional factors when making decisions about [their daughter's] best interest." But the court also found both parents could meet their daughter's needs and "[b]oth parents are willing and able to foster a relationship between the other parent and [their daughter]."

With respect to the competing domestic violence allegations, the court determined only that Sarah had "committed one act of domestic violence" against John. After weighing the best interests of the child factors, the court awarded shared physical custody but granted John sole legal custody, provided he continue to consult with Sarah "on important decisions." The court also ordered "grandparent visitation [to] occur during the parental custodial time."

Sarah appeals; we group her numerous points on appeal as follows: (1) whether it was error to deny her interim attorney's fees; (2) whether it was error to deny her a custody trial continuance; (3) whether it was error not to compel the marriage counselor's trial testimony; (4) whether it was error to allow JL to participate in the trial and to award him "de facto" custody of their daughter during John's custodial time; and (5) whether the legal and physical custody rulings were erroneous because (a) the court clearly erred in finding John as willing to foster a relationship between Sarah and their daughter and (b) the court did not account for John's domestic violence. John has not participated in this appeal.


A. The Superior Court Did Not Abuse Its Discretion When It Declined To Award Sarah Interim Attorney's Fees.[3]

Under AS 25.24.140(a)(1) the superior courtmay award "attorney fees and costs that reasonably approximate the actual fees and costs required to prosecute or defend the [divorce] action" so long as such an award "does not contribute to an unnecessary escalation in the litigation." "The purpose of this statute is to 'assure that both spouses have the proper means to litigate the divorce action on a fairly equal plane.' "[4] Whether to award interim attorney's fees to a divorcing spouse "is committed to the sound discretion of the trial court"[5] and primarily takes into account "the relative economic situations and earning powers of the parties."[6] "A party's economic situation includes the divorce property division, and a party who receives a property settlement sufficient to cover incurred attorney's fees should expect to pay his or her own fees."[7] "When the parties' economic situations and earning capacities are comparable, each party should bear his or her own costs."[8]

During the December 2012 interim hearings the superior court recognized that there was not a "pot of money" from which to award interim fees. During the January 2013 interim hearings the court explained to Sarah's lawyer:

I can't order [John] to borrow money from his parents. I mean, I can't do that. . . . I'm not going to say, [John] you're going to pay $10, 000. That immediately puts [John] in the red. I mean, I have to look at what's available before I can start ...

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