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Sherrill v. Sherrill

Supreme Court of Alaska

May 13, 2016

DANNY SHERRILL, Appellant,
v.
PAULITA SHERRILL, Appellee

          Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Douglas Blankenship, Judge. Superior Court No. 4FA-14-02550 CI.

         Danny Sherrill, Pro se, Army Pacific, Appellant.

         Paulita M. Hallen, Pro se, North Pole, Appellee.

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

          OPINION

         BOLGER, Justice.

         I. INTRODUCTION

         This appeal arises from superior court orders dividing marital property, granting child custody, and determining child support. The noncustodial, nonresident parent claims the superior court lacked jurisdiction, the orders are substantively incorrect, and the court appeared to be biased against him. We conclude that the record contains no evidence of bias and that the court did not err in entering the marital property and child custody orders. The superior court properly exercised jurisdiction and entered orders settling marital property and granting custody that reflected the parties' agreements. But in calculating the father's child support obligation, the court assumed that Alaska Civil Rule 90.3 imposes an income ceiling of $110,000 -- $10,000 below the statutory level. Because the father's income appears to exceed $120,000, this assumption likely rendered the support order too low. Accordingly we remand the support order for reconsideration.

         II. FACTS AND PROCEEDINGS

         Danny Sherrill and Paulita Hallen (formerly Paulita Sherrill) married in 2000 in Seoul, South Korea, and have one daughter. Before separating in 2011 they lived outside the United States. By June 2012 Paulita had moved to Alaska with their daughter, and in September 2014 Paulita filed for divorce. At the time Danny was living in Okinawa, Japan, where he was working as a temporary contractor at a U.S. military base; Danny participated in the proceedings by telephone. Both Danny and Paulita appeared pro se.

         Two hearings were held that December. During those proceedings and in their briefing, Danny and Paulita agreed on most substantive matters. They agreed to settle the marital property division with a one-time payment of $35,000 from Danny to Paulita, which Danny agreed to pay by the end of the next month. They also agreed to share legal custody of their daughter and to give Paulita primary physical custody with liberal visitation for Danny. Each also noted that Danny had been providing about $1,600 per month in child support.

         Danny, however, declined to fully document his income, claiming that the information was classified. To determine child support, which under Alaska Civil Rule 90.3 is based on the obligor's annual income, the superior court worked with the information it had and estimated Danny's annual income as $110,000. This figure, the court explained, reflected Rule 90.3's income ceiling; any income exceeding that amount would not affect the calculation. Danny agreed that the $110,000 estimate was fair. But Paulita, through her interpreter,[1] questioned the court's determination, asserting that the court had not accounted for Danny's retirement income and that, if it had, Danny's income would exceed " [$]120,000, which is [the limit under] 90.3." The court did not address Paulita's concern.

         Danny also expressed some concerns. He claimed that Paulita had taken their daughter to Alaska illegally and was making visitation difficult. And he requested permission " to submit documents . . . concerning [Paulita's] illegal departure . . . from [their] home in Guam and going to Alaska." The court stated that Danny was free to submit evidence, but it encouraged him to be thoughtful and to only submit documents if relevant to disputed issues. Danny acknowledged agreement with the information already before the court.

         In January 2015 the court entered the final divorce decree, custody order, support order, and findings of fact and conclusions of law, which memorialized the $35,000 marital property settlement. As decided at the hearing, the court based the child support order on an annual income of $110,000 for a monthly obligation of $1,833.33.

         After the December hearings Danny informed Paulita that he had already satisfied the $35,000 settlement and accordingly did not owe her any more money. When the January payment deadline passed without payment Paulita moved to enforce the order. Danny opposed her motion, claiming that he had already paid Paulita $48,650 " over a period of three years." He also filed a notice of appeal challenging Paulita's status to file a complaint and asserting that the court was biased against him. The superior court granted Paulita's motion and ordered Danny to pay the $35,000.

         On appeal Danny asks us to vacate all orders except the divorce decree.

         III. STANDARDS OF REVIEW

          We review jurisdiction issues de novo.[2]

          A superior court's equitable division of marital property is reviewed for abuse of discretion.[3] " [W]e will not disturb [a division] unless the result is clearly unjust." [4]

          In determining custody, a superior court enjoys " broad discretion . . . so long as the determination is in the child's best interests." [5] " We will not reverse a custody order unless the superior court abused its discretion or its controlling factual findings are clearly erroneous." [6] " The superior court abuses its discretion if it 'considers improper factors in making its custody determination, fails to consider statutorily mandated factors, or assigns disproportionate weight to particular factors while ignoring others.'" [7] " The clearly erroneous standard, as we apply it, means something more than merely showing it is more probable than not that the trial judge was mistaken. We must be convinced, in a definite and firm way, that a mistake has been committed." [8]

          We review de novo child support issues that involve " a question of law such as interpreting a civil rule . . . and determining the correct method for calculating child support." [9] Where a question of law is not involved, however, a superior court has " broad discretion in making child support determinations" ; we review those decisions for abuse of discretion.[10]

         Finally the question whether a court's conduct raises an appearance of impropriety is a question of law we review de novo.[11]

         IV. DISCUSSION

         A. The Superior Court Properly Exercised Jurisdiction.

         Danny contends that the superior court lacked jurisdiction to enter the marital property, custody, and child support orders. He claims that Paulita did not have the status necessary to initiate a complaint because she entered Alaska illegally, and he asserts that it is inappropriate for Alaska to compel him to act because he has never lived in the state and lacks connections to any U.S. state.

          Jurisdiction in divorce proceedings depends on the nature of the claim. To divide marital property of a nonresident, the trial court must have personal jurisdiction over the nonresident under Alaska's long-arm statute, AS 09.05.015, unless the defense is waived.[12] Under AS 09.05.015(a)(12), such claims may be heard when:

(A) the parties resided in this state in a marital relationship for not less than six consecutive months within the six years preceding the commencement of the action;
(B) the party asserting the personal claim has continued to reside in this state; and
(C) the nonresident party receives notice as required by law.

         These grounds are exclusive; they are not " in addition to any other grounds" including those at common law.[13] Thus when nothing in the record suggests that a couple " ever resided together in a marital relationship in Alaska," the court does not have jurisdiction to divide marital property unless the responding party waives the defense.[14]

         Nothing in the record suggests that Danny and Paulita ever resided in Alaska as a married couple. We nonetheless conclude that jurisdiction exists because Danny waived the defense.[15] Though Danny expressed concern about Paulita's move to Alaska, he did not tie this concern to the court's authority to hear the action. Rather, as the superior court noted, it appeared the concern related to custody; his answer stated, for example: " [Paulita] took my daughter, illegally . . . . As a result, it has been hard for me to see my daughter due to the long distance between Okinawa and Alaska." Danny never argued that the superior court lacked jurisdiction and never mentioned concerns about his lack of contacts with the state. Therefore, with respect to the property division, we find the defense waived.

         The superior court also properly exercised its jurisdiction when it determined child custody. Subject matter jurisdiction in child custody matters is governed by the federal Parental Kidnapping Prevention Act[16] and Alaska's version of the Uniform Child Custody Jurisdiction and Enforcement Act; [17] these acts closely track one another. Both assign children " home state[s]" to determine which state has principal jurisdiction.[18] A child's " home state" is defined as " the state in which a child lived with a parent . . . for at least six consecutive months . . . immediately before the commencement of a child custody proceeding." [19] The courts of a child's home state have subject matter jurisdiction over that proceeding.[20] " Physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination." [21]

         Thus whether the superior court had jurisdiction to determine custody turns on where the parties' daughter resided during the six months before the proceedings began. The record establishes that Paulita had moved to Alaska with their daughter by June 2012, more than six months before the proceedings began in September 2014. Therefore Alaska is the home state, and jurisdiction was proper with respect to child custody.

         The superior court also had personal jurisdiction to enter the child support order against Danny. The federal Full Faith and Credit for Child Support Orders Act[22] and Alaska's Uniform Interstate Family Support Act[23] govern personal jurisdiction in child support matters.[24] A court may exercise jurisdiction over a nonresident parent if, among other grounds, the parent " submits to the jurisdiction of this state by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction." [25] Here Danny made a general appearance and filed responsive pleadings without challenging the court's authority. Jurisdiction was therefore proper with respect to the child support order.

         B. The Superior Court Did Not Err In Dividing The Marital Estate Or. In Granting Child Custody, But It Was Error To Base ...


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