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 ...