Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Paul E. Olson, Judge. Superior Court No. 3AN-13-07848 CI.
Terry C. Aglietti, Aglietti, Offret & Woofter, Anchorage, for Appellant.
Ian Wheeles, Law Office of Ian Wheeles, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
A father filed for divorce and sought sole physical custody of the couple's only child. Shortly before trial the father moved for a continuance. The court vacated the first scheduled trial day, used the second to take testimony from out-of-state witnesses, then continued taking evidence a few days later. Partway through that day's proceedings the court informed the parties it was their last opportunity to present evidence. The father objected, and in post-trial pleadings he presented the affidavit testimony of two other witnesses he had intended to call. The superior court denied his requests to present additional evidence.
Because the lack of clarity in the proceedings led the father to reasonably believe he would have another opportunity to call witnesses, we hold that the superior court abused its discretion when it failed to give him that opportunity. We remand the case to the superior court for a limited presentation of additional testimony. We reject the father's arguments that the superior court erred by denying a motion for recusal and in its weighing of the best interest factors relevant to the award of physical custody. Finally, we outline the legal principles relevant to the treatment of one property issue on remand.
II. FACTS AND PROCEEDINGS
Thad and Michele Snider were married in 2008 and had a son in 2009. In 2013 Michele took the child with her to visit her family in Washington. Deciding she did not want to return to Alaska or her marriage, she informed Thad by telephone that she wanted a divorce. Nonetheless, she invited Thad to their son's upcoming birthday party in Washington and bought him a round-trip plane ticket for the occasion.
By agreement, Thad had a few days alone with their son after he arrived in Washington.
But before the birthday party he took the child back to Alaska without Michele's knowledge or consent. He filed for divorce the next day. His attorney later contacted Michele, who at the time was unrepresented, and the couple signed an interim agreement that granted primary physical custody to Thad and gave Michele limited visitation.
The court held a pretrial conference in October 2013, and, although Thad's counsel mentioned a few scheduling and health-related issues, the court set a two-day divorce and custody trial for December 18 and 19 without objection.
In mid-December, however, Thad moved for a continuance. His counsel claimed to be " absolutely underprepared" for trial because he had only recently received Michele's discovery; he was still affected by an injury to his leg; he had just finished a criminal trial; and -- based in part on his interactions with Michele's counsel -- he thought " it was kind of presumed that we were going to [be] continuing this matter." He had not yet written a trial brief or filed a witness list.
Michele's counsel agreed that the two lawyers had discussed a continuance. He explained, however, that before he could consult with Michele about it she had purchased airline tickets for herself and her mother to attend the December trial. He suggested that they use part of the two days set aside for trial to " at least tak[e] their testimony while they're in town." The court agreed: it vacated the first day of trial and set aside two hours on the second day, December 19, to hear the testimony of Michele " and grandma, if she's a witness . .., and preserve the testimony." The court noted, " They're up here. That's the only way I'll be able to judge their credibility." The court also stated, twice, that the parties would " hold off on the property division" if that was " a real issue."
The proceedings on December 19 accordingly consisted of the testimony of Michele and her mother and focused largely on custody. Although Michele's testimony addressed a few property issues, the court reminded the parties that their time was limited and they could deal with property " at a different time," with the witnesses on the phone if necessary. But at the end of the day the court informed the parties there was time available on December 24 if they wanted to continue putting on evidence while the out-of-state witnesses were present. Although Thad's counsel had planned to close his office on Christmas Eve and spend the holiday at a lodge in the Bush, the parties agreed to continue with the testimony on the 24th.
On December 24 Michele testified primarily about the couple's property. She identified as marital property a cabin that had been deeded to her and Thad by his father Robert. During cross-examination, the court asked Thad's counsel whether he was going to call Robert as a witness; Thad's counsel replied, " Not today. We will. I suspect we're not getting it finished today." The court then stated, " I plan on finishing today." A few minutes later the court reiterated that they were in their last day of trial: " We're going to finish today. This is the only other trial day you have. . . . And this is not going to turn into a three-day trial." The court explained that the parties had originally been offered two afternoons to try the case, that it had afforded them that much time, and that it had no more trial days available until June. Thad's lawyer objected that " that's going to be unfair to Mr. Snider," but the parties nonetheless continued with their presentation of evidence (including, in addition to the testimony of Michele, testimony from Thad and from Michele's sister) and closing arguments.
Just before the court recessed, Thad's counsel asked that the judge recuse himself. The attorney offered nothing but his opinion as a basis for the motion, stating that " I do not believe you can be unbiased or objective." The court denied the motion, and Thad's counsel responded, " Okay. I'll put that motion in writing." Thad did not follow up with any written recusal motion.
In January 2014 Thad filed an affidavit from his father Robert, attesting that the deed to the cabin discussed at trial was actually a security agreement and that Robert ...