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Burns-Marshall v. Krogman

Supreme Court of Alaska

November 9, 2018

SKYLAR J. BURNS-MARSHALL Appellant,
v.
VICTORIA A. KROGMAN, Appellee.

          Appeal from the Superior Court of the State of Alaska, No. 3 AN-16-10010 CI, Third Judicial District, Anchorage, Frank A. Pfiffner, Judge.

          Allison Mendel and John J. Sherman, Mendel Colbert & Associates, Inc., Anchorage, for Appellant.

          Douglas C. Perkins, Hartig Rhodes LLC, Anchorage, for Appellee.

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

          OPINION

          CARNEY, JUSTICE.

         I. INTRODUCTION

         A divorcing couple disputed custody of their child and division of their marital property. The wife alleged for the first time during trial that the husband had engaged in a pattern of domestic violence. The court found her testimony credible, applied the statutory domestic violence presumption, and awarded her primary physical and sole legal custody of the child. The husband filed a motion to reopen the evidence regarding domestic violence and substance abuse more than a month after the court's oral decision. The court denied his motion. The court divided the marital property 60/40 in favor of the wife, awarded all of the real property to the husband, and ordered him to make an equalization payment.

         The husband appeals the denial of his motion to reopen the evidence and the property division. Because the husband waived any argument that he should be allowed to present additional evidence and the court did not abuse its discretion in its property division, we affirm.

         II. FACTS AND PROCEEDINGS

         A. Facts

         Skylar Burns-Marshall and Victoria Krogman married in Anchorage in June 2007. Their only child was born in 2011. They owned a condominium in Anchorage and a vacant lot in Homer. They separated in October 2016 and shared custody of the child.

         Burns-Marshall worked seasonally as a pipe layer and found other temporary employment or collected unemployment compensation during the winter. Krogman worked at various jobs during the marriage. After her separation from Burns-Marshall, Krogman moved to Arizona. At the time of trial she was enrolled in a nursing program at an Arizona university.

         B. Proceedings

         1. Pre-trial

         Burns-Marshall filed for divorce in November 2016 and sought j oint legal and shared physical custody of their child. In her answer Krogman denied that Burns-Marshall was fit to have joint legal and shared physical custody and asked for sole custody, with reasonable visitation for Burns-Marshall.

         The parties filed a number of pretrial motions. In her pleadings and motions Krogman made seemingly inconsistent statements about the trial and her marriage with Burns-Marshall. In a November motion she referred to Burns-Marshall's "harsh and controlling behavior throughout the marriage," and alleged that Burns-Marshall had previously been convicted of minor consuming alcohol and that he "still drinks to excess." But in January 2017 Krogman opposed Burns-Marshall's motion for the appointment of a child custody investigator because their child was too young for an interview to be helpful and because there were no "bad facts" or anything "so unusual or troubling about this case" that would require a child custody investigation. In a February motion to set a trial date Krogman characterized the divorce as "a routine relocation custody case... and a simple property case"; she stated both issues would be "very straightforward and ... easy to prepare for and address at trial."

         The superior court scheduled a 3-day trial in April and ordered that discovery be completed 14 days before the start of the trial. Burns-Marshall conducted no discovery; he did not depose Krogman or send her interrogatories.

         Shortly before trial both parties filed trial briefs. Burns-Marshall requested primary physical custody and shared legal custody. Krogman argued that she should have sole legal and exclusive physical custody, and alleged that Burns-Marshall did not care for the child's basic needs.

         2. ...


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