*1 hearing. post-trial the basis ings on court, unwilling to we are
Like the change hearing to our post-trial
rely on the justified at trial the evidence
conclusion that Joan- determination Michael to facilitate willing than
na is more parent. other contact with
Dante's CONCLUSION custody-modification or- AFFIRM applied
der because the assuming Michael's legal
correct standard place take Jersey would
move to New weighing
did not abuse its discretion factors.
best interest
CHRISTEN, Justice, participating. HEUSTESS, Appellant,
Allen W. KELLEY-HEUSTESS,
Bonnie J.
Appellee.
No. S-13375. Alaska.
Supreme Court of
Aug. *4 court's affirm almost all (1) exceptions: following
rulings, with
record does
Because the
in-
finding regarding Allen's
superior court's
for 1995 and because
come
liability
tax
deduct federal
income
did not
gross income
its child
from Allen's
1996, we
years 1991 to
calculations for the
calculation of the
reverse the court's
(2)
support arrearage;
because
Allen's vexatious
may have considered
it divided the marital
litigation conduct when
it when it en-
considered
estate and also
Allen,
against
we
the award of fees
hanced
property division
remand
vacate the
findings;
we
for additional
*5
general fee
that is based
portion of the
award
cireum-
parties'
relative economic
on
after the
so it can be reconsidered
stances
support ar-
Allen's child
court recalculates
property
rearage
reconsiders the overall
and
superior
division. But we affirm
in Bon-
enhancing the award of fees
order
favor,
remaining
rul-
and we affirm
nie's
respects.
superior court
in all
ings of the
AND PROCEEDINGS
II. FACTS
this case has come
This is the second time
in
facts were discussed
to our court. The
opinion
greater detail in our first
Heustess
(Heustess
I),1 and are
Kelley-Houstess
Briefly,
only summarized here.
therefore
in
parents
are the
of a son born
parties
Phyllis
Shepherd, Law Office of Dan
A.
purchased a home
December 1991. Bonnie
Associates, Anchorage,
Appel-
for
and
Allan
began
Chugiak in
and she and Allen
in
lant.
together
September
in
1997. Allen did
living
Dattan, Law Office of D. Scott
D. Scott
parties'
until
financially support the
child
Dattan, Anchorage,
Appellee.
living together. Bonnie
parties
started
in
1999. In October
and Allen married
June
Justice,
CARPENETI, Chief
Before:
purchased before
2002 the house Bonnie
WINFREE,
CHRISTEN,
FABE,
and
marrying
refinanced and Allen's
Allen was
Justices.
proceeds
The
name was added to the title.
mostly
pay
used to
from the refinance were
OPINION
debt,
pre-mari-
of Allen's
off marital
but one
CHRISTEN,
with the funds.
Justice.
tal debts was also satisfied
separated in late 2002 and Bonnie
couple
I.
INTRODUCTION
in
filed for divorcee October
points in this
Raising
separate
over 50
in
in the
court
challenges
The case was tried
appeal,
second
Allen Heustess
fact,
Findings of
conclusions of
support,
July 2005.
on child
superior court's
rulings
law,
in
of divorceewere entered
distribution,
attorney's
and a decree
fees.
property
1.
family home to Bonnie and land in Palmer to limitations barred this claim. The Allen. The court found that the home was court denied the motion to dismiss and held partially property transmuted marital into evidentiary an hearing on remaining is- separation. and valued it as of the date of January in sues In March 2008 the The marital estate was divided in Bon- 60/40 granted Bonnie's motion to pay nie's favor. The court ordered Allen to supplement the record with three exhibits granted legal sole in and October 2008 the court issued physical custody parties' of the son to Bon- findings its second set of of fact and conclu- $10,000 nie. Bonnie was also awarded sions of law. The court valued the marital attorney's fees. $178,127 estate at and awarded Bonnie 68% appeal, In the first we held that the award of it. Bonnie personal received period for the before the residence, property, the marital and the land right married violated Allen's to due in Palmer. The court awarded Allen the process request because Bonnie did not remainder of the marital estate. It also con- testimony.2 until her rebuttal We cluded that Allen owed sup- Bonnie a child also determined it only was error to find that $57,569.40. port arrearage totaling The val- one-third equity in the marital home property ue of the possession Bonnie's property was transmuted into marital and to exceeded her share of the marital estate value the house as of the date of the $12,646. Rather ordering than Bonnie to separation rather than as the date of trial. pay Allen, this amount vacated division and re reduced Allen's child support arrearage by manded the case to the court. Our *6 $12,646. acknowledged decision unequal that an divi might justified, sion of the marital estate be In April 2009 the court awarded but we instructed the court to con $31,807.50 in attorney's fees to Bonnie- sider rental income Bonnie received from a based on the relative eco- separate unit in the marital residence that $6,307.50 nomic cireumstances and based on she rented to third after the date of Allen's bad faith litiga- conduct and vexatious separation.3 We also cautioned that the su tion. perior "weight[ court should not the scale ] against though Allen" even he misled Bonnie Allen raises over 50 issues on appeal.5 refinancing shortly into the house before the parties' separated.4 Because we vacated the III STANDARDOF REVIEW division,
property
superi-
we also vacated the
attorney's
court's award of
fees. We in
Child support awards are reviewed
structed the court to follow the established
discretion;
for abuse of
we do not set aside
two-step process for awarding attorney's fees
these awards unless a review of the record as
on remand and
possibility
allowed for the
a whole leaves us with a definite and firm
might
that
increase its fee award
conviction that a mistake has been made.6
based on
litigation
Allen's vexatious
conduct.
equitable
We review the
proper
allocation of
remand,
ty
On
for
filed a motion to
abuse of
dismiss
discretion and will not reverse
clearly
Bonnie's claim for
peri-
for the
a
court's allocation unless it is
2.
Id. at 835.
catego-
5. Allen's issues on
fall into three
(1)
ries:
issues
I;
resolved in Heustess
definitively
(2)
briefed,
adequately
issues raised but not
3. This rental
income was not accounted for in
waived,
which are
see Petersen v. Mutual
Ins.
Life
findings.
court's 2005
Id. at 833.
Co.
York,
New
un of limitations." statutes sup division and child relevant judgment stand independent on an port based provides findings of fact for clear 09.10.100 Alaska Statute review
ard.8 We if "we not otherwise clearly erroneous for a cause finding is action "[aln error.9 A firm conviction may with a definite be commenced within provided are left a mistake." has made the trial court of action has acerued." years after cause applies to Bonnie's general provision This de novo a review this claim is because claim for deny motion to dismiss.11 a court's decision provid a cause not otherwise action for "[aln attorney's fees award of uphold an We will of limitations. specific statute ed for" will not discretion12 and abuse of absent But, begin suggests, Bonnie this is as "manifestly it is fee award unless reverse a end, the statute of limitations ning, not the of unreasonable."1 period may be analysis a limitations because The dis- various cireumstances. tolled under DISCUSSION IV. gen whether a positive here is consideration during a child's period limitation is tolled eral Support A. Child minority. it did not err when for child claim ruled that Bonnie's 09.10.140 addresses Alaska Statute the statute of is not barred claims tolling the statute of limitations for limitations. during the child's minori belonging to a child superior court argues that ty. part, the statute states In relevant Bon by denying motion to dismiss erred his majori age person [is] "if a ... under period support for the nie's claim for child [during person which the ty ... the time 10-year stat from 1991 to 1997 because majority] part not a age under the in AS 09.10.100 bars ute of limitations ac commencement of the time limit for the the statute Bonnie contends claim. Revenue, Department tion." In State AS bar the claim because limitations does not Division ex rel. Support Child Enforcement *7 limitations dur the statute of 09.10.140 tolls Valdez, right that "[the Valdez v. we stated minority. ing a child's 16 child." And support is that of the [child] Revenue, State, Department in v. Grober to file a Generally, the "failure of Division ex rel. Support Child is of limitations complaint within the statute Enforcement C.J.W., 12(b)(6) tolling provision in we held motion to grounds for a Civil Rule 14 can applies even when another independent AS 09.10.140 exercise our dismiss." "We 106, (Alaska Koss, Green, 854, (Alaska 2001). P.2d 15. Koss v. 981 857 7. Green v. 29 P.3d 965, State, 1999) (quoting v. 957 P.2d McDowell (Alaska 1998)). I, n. 4 968 at 831. 8. Heustess 158 P.3d 655, Inman, (Alaska 67 P.3d 658 9. Inman v. 1997). (Alaska n. 14 144, 16. P.2d 154 Many 941 2003). right held that other courts have also See, belongs e.g., support child. Miller v. to the Atkinson, 799, (Ala.Civ.App.2001); 10. Id. So.2d 800 810 637, 952, Fonken, Ark. 976 S.W.2d Fonken v. 334 1031, (Alaska Stansel, 278, Serio, (1998); 1033 11. Adkins v. 204 P.3d v. 830 So.2d 280 955 Serio Marriage 2009). (Fla.Dist.App.2002); Vander In re of 289, voort, 724, Kan.App.2d 185 P.3d 293 39 Carr, 450, P.3d 457 (2008); 12. Carr v. 152 Dredging Co., & Constr. Kibble v. Weeks (1999); 1142, Mar 178, 735 A.2d 1150 161 N.J. (Okla.Civ.App. Jennings, 1095, 1098 1039, Brock, 780 P.2d 1043 v. 55 P.3d Id.; 13. Welcome v. tin Lee, (Alaska 1989) (citing 2001); v. 553 Alaska Placer Co. 464, 176 P.3d 474 Anderson v. Thompson, (Utah Marriage Pippins, App.2008); 1976)). In re n. 6 54, 63 (1987); 805, 1005, 46 Wash.App. 310, Holland, Shepard 219 W.Va. rel. State ex 977, Executives, Inc., Hutton Realty curiam). 255, (per 633 S.E.2d bring the action on behalf a minor.17 We Allen maintains on that he is entitled recognized support guide to deduct have that the child gross from his income be lines Alaska Civil Rule 90.3 "reflect a calculating arrearage; fore Bonnie coun paternalistic support view toward child argument ters that unsupported Allen's is by agreements." light In of these consider legal authority,. reason or agree with ations, we hold that under AS 09.10.140 the Bonnie. support statute of limitations for child actions Wyoming In 1988 a court ordered Allen to during minority. is tolled the child's Other pay support child for daughter his beginning states have reached the same conclusion.19 1, January support Bonnie's claim for child The initial order is not was for barred limitations, by per the statute of month and it was not but it was $225 increased to $275 per 1, beginning month April error for the deny 1991. Allen's court to Allen's motion to dismiss.20 daughter adopted was person another on March 1992 and continuing Allen's finan
2. The calculation of Allen's child obligations cial extinguished to her were at support arrearage was Subsequently, that time. the State of Alaska erroneous, part. $8,912.44 collected from past Allen in due support and sent the funds to the a. Allen State of was not entitled to credit all, $9,626.92 support payments Montana. paid child Allen made on be toward previous supporting daughter half of a child a his parties' from rela after the son tionship were was born in December 1991.21 payments only But because the $825 parties' due before the son was born. of this total accrued after the son born; the rest was due paid to be before Between paid 1988 and December 1991. The court deduct $9,851.92 total of support for a ed gross from $825 incomein its child daughter prior from a relationship. Allen Allen's calculation; support per month for De argued $275 that all but one of these child January cember and February payments should gross be deducted from his argues calculating income before that the the amount of erred arrearage deducting he owes for all of the child sup port son. The only arrearage that accrued for the benefit of deducted gross $825 income. daughter prior his adoption, to her even (Alaska 1998); begin statute of limitations does not to run until see also disability removed."). minority Hanson v. Kake Tribal 1320, 1326 Corp., (Alaska 1997) ("[Alaska 09.10.140(a) ap Statute ] minors, plies guardians.... even those with It argues 20. Allen also that Bonnie's claim *8 regarded fundamentally can be as unfair to a by judicata barred res and that remand is neces- minor consequences to saddle the minor with the sary because the court did not articulate neglect."). of a custodian's denying its reasons for the motion to dismiss. premarital But Bonnie raised her claim for child 1002, Laughlin Laughlin, 18. v. support original 1004 belatedly- the trial-albeit (Alaska 2010) Cox, 1045, (citing Cox v. and on we remanded that issue. Heustess I, 827, (Alaska 1989)). 1048 835 Because this subsequent appeal claim involves a in the same case, expand suit and does not the issues in the Singh, Cal.App.3d 19. See v. 21 Perez 97 precluded. the claim is not Allen is correct that Cal.Rptr. (citing Fernandez Aburrea, court did not articulate its reasons (1919)) Cal.App. 183 P. dismiss, denying for ("[TJhe superi- his motion to but the child, obligation support of a father to his obligated or court was not to do so. We inde- legitimate illegitimate, whether continuing is a pendently review the denial of a motion to dis- duty against which the statute of limitations does miss de novo so the lack of a written decision during not run the time the child needs such from the court on this motion did Servs., not support."); Dep't Vice v. Human State of prejudice Allen. (Miss.1997) (citing Miss., 702 So.2d of (Miss. Wilson, Wilson v. 464 So.2d 1985)) ("[Where legal right, a minor holds the by In addition to the funds collected the State Alaska, support parent, such as to child from a payments of directly Allen made three to when it calcu liability gross income from his before the due that became payments those arrearage was born.22 parties' son support for his child lated years 1991 to 1996. calculating child of purposes For 90.3(a) a non-custodial allows Rule support, mandatory deductions One of the gross in his or her from to deduct parent is the non support child formula Rule 90.3's a child paid to support of amount come the ... income tax." "federal parent's custodial Neither Rule relationship.23 previous from a finding for 1997 charac superior court's express commentary the rule to nor the 90.3 "adjust earnings the amount actual as to Allen's ly limits this deduction terized during the time the paid ly according accrued to his 1997 income ... gross ed earlier-born obligation for an support return," it does not but federal income tax obligation for support overlaps with the deducted fed superior court appear that the application But this child. later-born gross Allen's liability tax eral income purpose: "to the rule's with rule is consistent any years before income for are ade support orders that child ensure Allen could not may have been because This children, subject meet the needs quate to actually paid taxes for those that he show agree pay." ability parents to to mandatory deductions set years, but give "[to [Allen] court that with 90.8(a)(1)(A) based on liabil in Rule are forth support collected for his for child a deduction actually paid.26 The ity, not the amount par [the owed before daughter ... that was must be mandatory in Rule 90.3 deductions born], collected until was but ties' son support is calculated. We made before child adoption, would daughter's} [Allen's after calculation of Allen's remand the therefore being penal parties' son] that [the mean with support arrearage in accordance essentially finance his fa by having to ized 90.3(a)(1)(A). Rule daughter's] payment [the for ther's belated conclude support." We deduction to correctly limited finding regarding Allen's 1995 c. The $825. supported income is not record. federal deduct It was error b. liability from Allen's
income tax argues gross income. $40,000 in 1995 finding that he earned agree that clearly erroneous. We superior court argues that the by the record. finding supported is not income tax by failing deduct federal erred Montana, argument pay- is clear when including $225 25. The flaw in Allen's one the State of logical parent receive a end. A could January taken to its ment in of 1988. money enough mandatory if was deduction 100% previous relation- paid a child from a be appeal, that his deduction 22. On Allen asked many years payments ship, accrued $8,912.44, even if the he also asked for a but increased parent fully able to $9,462.44. and even if the before undisputed It is total deduction of child. $9,851.92 a later-born daughter paid his that Allen Except pay- one between 1988 and 90.3(a)(1)(A)(i); Bergstrom $225 in 1988 before the ment of made R. Civ. P. 26. Alaska *9 born, credit 1989) Allen to seek (Alaska son was we understand Lindback, 1235, 1236 779 support payments ("[Actual existing made to his liability all of the he Internal for under tax $9,626.92. daughter, regulations proper or ... is the Service Revenue determining deducted the amount to be basis for Atkinson, income."); 90.3(a) that a non- Jeff Mov R. Civ. P. instructs his see also 23. Alaska from parent's adjusted (2d annual income is de- CHitp Cusropy Practice, § custodial ed. Ern gross subtracting imputed income to Allen by total income termined from To the extent deductions, 1996, including allowed man mandatory "child it should have from 1991 to several arising pri- Shep datory tax. support alimony payments from for federal income and deductions 643, Haralovich, (Alaska required by relationships other 170 P.3d 650 which are v. herd 2007) Rodvik, 338, actually (citing 151 P.3d 351 proceedings and v. or administrative Rodvik court 90.3(a)(1)(C). 2006)) (Alaska (ordering court to deduct federal paid." R. P. Alaska Civ. imputed when calculat from income income tax 90.3). adjusted Rule ing annual income under LB. 90.3., R. Civ. P. cmt. 24. Alaska
471 superior support. court found that Allen "testi child The Allen contends $40,000 1995," ruling fied he earned used this court's 2008 was the first time he had figure calculating as the basis for Allen's support obligation notice of his years for the 1991to 2002. support obligation. points child But as Allen appeal, testimony out on his trial court was argument contrary Allen's is to Alas approximately that he earned ka law. repeatedly We have stated that "the 1995, and he filed W-2 forms a Social duty parental support begins on the date Security corroborating statement this testi of [a] child's birth."28 have recog We also mony. Although point at one Allen testified "[rJegardless nized that of whether a [child] 1995, that he had "no clue" what he earned exists, support parent obligated order a neither Bonnie's on brief nor the su by both statute and at sup common law to perior findings identify place a in the children," port his or her par that "a supporting finding record that he earned duty support ent's commences at the date $40,000. Allen testified that he did not work of the birth of the child.30 To the extent time, jobs odd around that and Bonnie did Allen process argument makes a due based testify that she knowledge had firsthand notice, on lack of his claim fails because the of Allen's income in 1995. Allen lived out of duty birth, support commenees at and thus year. superior state that The court found knowledge father's actual of the birth of a (including testimony) "the evidence [Allen's] legal child for whom he responsibility bears shows he worked 'under likely the table' and adequate accruing notice of the support child income reportable earned that was not dispute t.31 Allen does not that he deb
many years." But from aside the court's knew of his son's birth. superior court general finding testimony that Allen's was by did not err starting Allen's child support credible, finding the source of the court's 1991, obligation in December when par that Allen earned income "under the table" is ties' child was born. unclear. We conclude that the determination of Allen's 1995 income must be reversed and superior e. The court did not err al- findings.27 remanded for additional lowing interest to accrue while Allen living together. and Bonnie were d. The court did not err when it support argues decided Allen that Allen's child obli- that the court awarding prejudgment erred interest on gation began parties' when the son support arrearage was his child period born. for the September 1997 until October argues Allen that the together when Allen and Bonnie lived and he erred when it decided that his child contributing was support. toward the child's obligation began the month the son born, argues December 1991. He provides Alaska Statute 25.27.225 obligation his begin February did not until payments pursuant due to a judg order are treated as when the court first ruled in ments; premarital Bonnie's favor on the issue of periodic payment as each becomes See, appeal, argued 27. On e.g., Hagberg, Skinner v. imputed many court es," income him "in 2008) instanc- (citing Rubright Arnold, including years (Alaska 1999)). 1991 and 1995. This is findings incorrect. The court made re- Benson, garding gross income for each of the 29. Benson v. 1999) years through correctly argues (citing Crayton Crayton, (Alaska 1997)) (internal quotation imputes pursuant that where a marks income omitted). . 90.3(a)(4), mandatory Rule deductions must be 90.3(a)(1). pursuant recognize made to Rule *10 800, (Alaska 2003) Reft, that the evidence made it difficult to 30. Koller v. 71 P.3d determine 806 remand, 586) (internal (citing Rubright, quota- Allen's actual income for 1995. On if 973 P.2d at omitted). imputes tion marks the court income to Allen for 1995, mandatory he shall be entitled to the de- 90.3(a)(1). ductions in Rule 31. Id. 472 agcerue parties lived to while the terest judgment. a it becomes unpaid, goes due for addi of the need But because payments gether. support due child past for Interest 1995 income findings regarding Allen's by AS controlled tional orders is arising court from mandatory deduc arrearage need to include support and the a But where
25.27.025. liability in the tax en federal income support order is tions for a child accrues before 1996, at we reverse tered, years is assessed 1991 to interest prejudgment by AS 09.80.070.32 support provided rate Allen's child of court's calculation proceedings con remand for arrearage and reason principled no Allen offers opinion.34 sistent with the child not be due on interest should prior to obligation that acerued Property Division B. unpaid period and went parties' cohabitation I, we reversed In Heustess together. parties lived years the during the property.35 of marital court's distribution pre awarding recognized purposes "The evidence on re considering additional After compensate the suc are to judgment interest mand, superior court awarded Bonnie money and to lost use of the party for cessful Allen claims the marital estate.36 68% of the unjust enrichment of the unsuceess prevent 33 by awarding larger erred superior court money." We had use of the party ful who Bonnie. He of the marital estate to share question is not whether that the conclude unequal property division contends the also together, whether living but parties were an abuse of discretion because was obligation had prior Allen's findings.37 accurate Merrill failed to make sup Allen failed to fulfilled. Because been challenges nearly all of the court's fac September parties' son from 1991 to port the prop findings relating to the division tual unpaid arrearage remained 1997 and this erty. married, reject we while the were its argument that the court abused superior court has broad dis interest by awarding prejudgment discretion property in divorce cases.38 to divide cretion September 1997to Octo period for property divi review ber 2002. of discretion standard under the abuse sion property division not overturn a in this case and will support calculation The child 9 "gnless unjust."3 Alaska Stat clearly it is cor complicated. The 25.24.160(a)(4) codifies several factors ute rectly that Allen was not entitled decided "fairly in order to allocate courts to consider payments made on behalf of anoth credit for statu effect of divorcee." These obligation be the economic accrued er child because supe and the tory factors are not exhaustive The court did son was born. fore Allen's child rior findings pertaining err when it decided when court need not make factor,40but it must make sufficient to each began, by allowing in support obligation estate, but Allen represents (Alaska of the marital 815, 75% Ogard Ogard, 817 808 P.2d 32. giving 1991). him a account for the court fails to against support arrear- his child credit 527, Morris, age. portion Allen's child (citing 724 P.2d Once this Morris v. Id. 1986)). (Alaska arrearage from the assets awarded to is deducted Bonnie, $121,126, or her award is 68% points he raised on 34. Allen has waived the other total value. marital estate's relating support payments be to child Katmailand, Inc. he failed to brief them. cause Merrill, 546, 4 P.2d n. Merrill v. 368 547 Borough, Peninsula v. Lake & 1962). (Alaska (Alaska 1995) (citing Adamson v. Univ. n. 7 1991)). Alaska, (Alaska 889 n. 3 Abood, (Alaska 38. Abood v. 2005). 35. 158 P.3d Green, Green v. incorrectly argues received that Bonnie 36. Allen 2001). estate in the 2008 of the marital 75% fact, decided the division. Wolfe, $178,127, 40. Nicholson v. had a value of total marital estate $133,772. totaling This awarded Bonnie assets *11 findings to "indicate the factual basis for the to her health." argues He also that the court by committed clear finding error superior conclusion reached." court's that Bon nie's "income was inju constrained her findings light are in factual viewed the most ries" because she employed was as a wait prevailing party favorable to the below.42 ress, clerk, sereener, airport and that it was superior will not reverse a court's We factual error for the court to find that Bonnie "has relating equitable determinations division long-term serious health issues that limit her property except upon finding of marital ability living," to make a and that it was clear clear error.43 error to find that as a waitress Bonnie "con determining appropriate property the sistently reported income from in tips excess division, the court considered the required gross 8% her Al sales." 25.24.160(a)(d) factors set forth in AS arguments len's precluded by are superi- the unequal concluded an division previous findings court's upheld which we was warranted. The court considered Bon- There, said, appeal.44 the first we "[the issues, long-term par- nie's serious health record shows that Allen is healthier and has respective ages, greater present ties' greater earning capacity than Bonnie" and injuries "Bonnie's probably will require more greater income and earning capacity, future greater care, child-rearing Bonnie's share of they medical limit her future em ployment options." It is duties, true that on re parties' respective contributions mand the court made specific more home, maintaining toward the marital Bon- findings regarding respective nie's during post-separa- rental income histories, earning but Allen point does not period, payments tion and Bonnie's for re- any error in the court's most findings recent pairs during post-separation she made findings undermine its earlier that Allen record, period. reviewing After we con- younger, is superior earning has capacity, clude that the court did not abuse its discre- health, higher better and a income than Bon by awarding tion larger Bonnie a share of findings nie. These supported are by the estate, the marital but we because cannot record, they are the salient factors for determine whether it double-counted Allen's purposes reviewing the court's overall divi conduct, litigation vexatious we remand for sion of the marital estate.46 findings. additional challenges Allen also court's finding pros- "[there not much 1. The court did not err in pect for [Bonnie] increase her income" as findings concerning its Bonnie's unsupported by the record. He notes that at income and health. TSA per Bonnie "earned hour and a $11 25% argues court com adjustment COLA salary.... to her She also mitted finding clear error Bonnie "worked said going get she was a 1% raise." We jobs two longer but can no disagree do so due with Allen that the finding court's nie's; 41. Id. once withheld taxes are subtracted the $20,598.76. agree total is that it is unclear (Alaska Devine, 42. Rausch 80 P.3d how the court concluded that Bonnie earned 2003). $7,000 "approximately from TSA" in 2006. The record does not contain tax forms for her work McCoy McCoy, testimony at began TSA and her was that she 1996) McDaniel, (citing McDaniel v. $23,000 working August there in at the rate of (Alaska 1992)). 303, 305 per year plus living adjustment cost of 24% I, Heustess (COLA). Assuming she worked a full 827, 833-34 month August-the exactly record does not indicate began-Bonnie when pro she would have earned Id. at 833. Still, plus rata any COLA for 2006. 24% harmless; error supports the record argues 46. Allen also that the court erred finding that Bonnie's 2006 income was on remand when it determined Bonnie's income argument less than Allen's. Allen's finding for 2005 and 2006. But the court's supported by court failed testimony 2005 is to consider PFD income Bonnie's is without and the merit; W-2 form expressly she introduced at trial. Bonnie's 2006 stated that it took PFD $24,715.51 W-2 form shows she earned at Gwen- income into account. *12 474 First, obligation been and that greater" than Bonnie's was no there "much
unsupported. 2008 in- relative earn Bonnie's their consider difference between the for the court tried in 2005 originally greater." probably This case "will be ings come. in the future - findings concerning Al- made the court and in 1995 rather if Allen earned Even that we earning capacity income and len's Allen's $40,000, undisputed that it than Second, incorrect- Allen appeal. on affirmed great significantly income has been reported testimony gave at Bonnie the ly summarizes narrowly focuses on Bonnie's. er than held on remand. evidentiary hearing the "[hle court's statement challenging the a 1% raise receive she would Bonnie stated as or three times consistently earned two has COLA, that her and her lose 2% of but Although estimated this much" as Bonnie. ability overtime. to work injuries limit her respective incomes parties' the comparison of it is context, indicates that finding the record, the supported in the only partially in- significantly will unlikely that Bonnie finding-that Allen has earned court's overall raise does possible 1% income. A crease her substantially more to earn and will continue finding about Bonnie's render the court's not Al clearly erroneous. not than Bonnie-is clearly errone- prospects employment future ongoing and medical benefits len's lack of ous. likely his obligations will strain abused its dis argues the court Allen also outlook, persuaded are but we financial in calculating 2007 Bonnie's cretion income, work-limiting inju lower Bonnie's fail to make a error to "[iJt is come because ries, conclusion age support the court's and current earn party's most finding as to one likely income will gap parties' in the that the available when it was especially ing capacity, court's 2008 future. grow wider the record." of Allen's a determination findings included income, court struck its but 2007 court's consideration 3. The with 2007 income
finding concerning Bonnie's an income was not Bonnie's rental why unclear this edit. It is a handwritten discretion. abuse of out, but we conclude finding was crossed we have significance. As is of little Bonnie parties separated, After the findings established explained, the 2005 home separate unit in the marital rented a earning potential are income and income from her received some rental need to There was no higher than Bonnie's. income was not accounted tenants. This regarding the findings new on remand make in our first findings, 2005 by the court's capaci earnings earning respective parties' we directed decision "sufficiently detailed court made ties.47 The superi- remand.49 In consider it on findings give explicit [this] 'to concerning rent findings or court made deci understanding [its] of the basis clear rental unit repair received and costs determine sion, [this court] and to enable Bonnie maintained "[slince and concluded trial court reached ground on which the " 48 through ... separation divorce asset from its decision. of the the rental value neither ... rents nor relating finding itself, by this although 2. The court's considered residence earning capac- parties' relative to the court, analysis measurably the court's affect clearly erroneous. ities was not marital of the appropriate distribution superior court argues that the estate." Allen challenges remand. He fulfill our directive on capacity did not earning has finding that his 2008 (9th Cir.1955)); McCoy, stated, McCoy v. appeals see also "[sJuccessive we have As 1996). (Alaska P.2d 463-64 case, in a narrow the issues expand should | Entry Fisheries Commercial them." State - Carlson, remand, Comm'n stated, should re- 49. We "On unequal what extent an whether and to consider made in should be assets division of available to Bon- rental income view of the Merrill, 48. Merrill I, States, 1962) P.3d at 833. nie...." Heustess 225 F.2d (quoting v. United Irish *13 challenges raises a number of to the er there has been depletion unreasonable consideration court's of Bonnie's rental in marital assets." A hallmark of unreasonable come; none of them is sufficient to conclude depletion is misconduct or "an intent to de that the court's treatment of the prive spouse the other of the other's share of purposes property rental income for distri Here, property." the marital the evidence bution was an abuse of discretion. that Bonnie rented the unit for all of disputes
Allen first the per 2005 at the rate of court's use month. The $650 "measurably" of the word finding its tenant continued on until October of "measurably the rents did not affect septic system when the flooded the unit and analysis appropriate of the distribu- that, forced the tenant to move out. After tion of the marital estate." He faults the Bonnie rented the unit daughter to her adult describing court for not its method of meas- for a short time at the rate of per $500 urement. But Allen misconstrues the court's month daughter because her had no other finding. The use of the "measurably" word place to live. Bonnie then moved into the calculation; require here does an actual unit with the problem because a only degree it describes a of influence on the with private "black mold" in the residence court's decision. impossible made it to living continue there. Next, Allen claims the court failed There is no evidence that Bonnie failed to to value the specifical rental income. More rent the unit at all or times at market value ly, though the court found that the unit rent with deprive the intent Allen of his share ed ques for most of the $650 months of the rents. tion, argues that the court should have decided whether the unit was rented at its argues the court abused its market suggested value. We have a court by failing discretion to consider that Bonnie's may price value rental units at the for which post-separation rental income was a marital they are rented.50 And there was no show prejudgment asset that earned interest. Re ing that Bonnie had an incentive to rent the lying on Morris v. Morris53 he claims the unit below the market rate. reject Al court should have credited him with per argument; len's express finding that the centage of the rental income prejudg unit per was rented for month $650 included ment interest. Allen is incorrect. A court implicit finding the unit was valued per at give month."51 has discretion to $650 party credit to the maintains an post-separation.54 asset Al argues Allen also though Bonnie did not share the rents with erred failing to find depleted that Bonnie Allen in post-separation period, she alone (1) the marital estate because Bonnie: did maintaining bore the cost of the unit. Allen not at all times rent the unit after the date of admitted in testimony his that he did not (2) separation; rented unit daugh to her help repair Bonnie the rental unit or make month; per ter for less than $650 mortgage payments post-separation. lived the unit for With period a certain of time. 25.24.160(a)(4)(E) respect interest, prejudgment Alaska permits Statute we have courts in division cases to held that trial consider courts have broad discretion in making parties, such awards.55 The case Allen cites "the conduct of the including wheth (Alaska 1986). 53. 724 P.2d 530 n. 11 Korn, 50. Korn v. 46 P.3d 2002) ("Because previously had never evidently rented out their residence and had no Berry Berry, it, plans clearly to rent the home had no estab- value."). lished rental 55. See Dixon v. Dixon, Indeed, (Alaska 1987) (holding that Allen seems to concede in his brief court need justify capable being that "the its rental unit was decision to award or rented withhold interest). per prejudgment $650 at month." Jones, 52. Jones v. Allen's, refinancing proceeds all of unas light In of Bonnie's as much.56 states purposes-mainly for marital were used unit the rental to maintain sisted efforts Blaz property." on marital pay debts abuse its did not
post-separation,
which
regardless of
property,
marital
er was
half the
awarding Allen
by not
discretion
light
typically used it.59
party
inter
prejudgment
rents
post-separation
Allen,
superior court's
benefit
rental income.
est on the
*14
greater benefit
Allen received a
finding that
over con
raises concerns
Allen also
Bonnie was
refinance than
from the
problem
mold
relating to the house's
fusion
clearly erroneous.
septic
The 2008
the
tank.
repairs to
in
problem
mold
reference to a
findings made
superior
court considered
If the
the
that
unit. Allen is correct
the rental
litigation
it
conduct when
vexatious
residence,
personal
in the
problem was
mold
and when it
the marital estate
divided
unit,
Bonnie and her
but since
the rental
award,
it erred.
the fee
enhanced
personal
resi
move from the
had to
superior
the
court
Allen contends
the
a result of
the rental unit as
dence to
litigation
considering his vexatious
in
erred
problem
mold
the effect of the
problem,
mold
larger
Bonnie a
when it awarded
conduct
prevented Bonnie from
it
was the same:
proper
in its 2008
the marital estate
share of
renting the rental unit.
superior
argues that
the
ty division. He
the court used
Finally,
argues that the court miscal
"to the extent that
Allen
court erred
justify
marriage
in
to
to
a dis
repair
relation
after the
culated the costs
conduct
spouse."
argu
proportionate
award to the other
persuaded
are not
rents. We
record convinces us
Our review of the
ment. -
fac-
superior
listed a number of
court
testimony supported the
that
it determined the
tors it considered when
repairs
did
finding that the cost of
property
under AS
of marital
division
during
rents received
2005-06.57
exceed the
25.24.160(a)(d).
factors, the
Among these
challenges to the
find no merit to Allen's
We
unreasonably
party has
court noted "neither
pertaining to
rental income.
findings
Bonnie's
in
But
the same
depleted marital assets."
itemized the
where the court
paragraph,
did not err
4. The
court
when it divided the
findings it did consider
in its consideration
estate,
findings state
conduct
"[Allen's]
refinancing.
home
during litigation
[Allen]
has been vexatious.
litigation
in
strate-
engaged
has
a number
challenges
superior court's
Allen
unnecessarily
attor-
have
increased
gies that
greater benefit
finding that he "received
fees,
to return the
ney's
such as his refusal
Bonnie did." In
from the refinance than
Matt
belonged
son]
to [Bonnie's
truck that
point,
argues
that
support of this
pretrial
provide basic
dis-
and his refusal to
recognize
part
that
superior court failed to
covery."
$20,412
refinancing
pay off
was used to
25.24.160(a)(4)(E)
Blazer. This
Bonnie owed on her Chevrolet
states
Alaska Statute
appeal.
dividing
property
the first
a
issue was resolved
marital
majori
par
I
the vast
of the
explained
may
in Heustess
consider "the conduct
ties,
been unrea
ty
refinancing proceeds
including
were used
whether there has
said,
depletion
"with the
of marital assets." We
pay off marital debts. We
sonable
$1,400
may take into ac
[superior] court
that "a court
exception of
have stated
subpart
economic misconduct under
pre-existing debt of
count
pay
went
a
found
Morris,
(emphasizing
problem. The total rent received in
mold
when the award under it determined oppor on remand: not have an party does that the dence parties' relative general rule based on serves as the evidence tunity to rebut cireumstances, and then considered economic decision.67 the ultimate the basis for be increased the award should whether argument that his reject Allen's But we The record shows Allen's misconduct.69 violated when the process due right charged for his attorney Bonnie's rec- supplement allowed Bonnie econom Citing parties' relative services. submitted The documents ord in this case. Allen's bad faith con cireumstances and ic theory or a new introduce by Bonnie did not litigation, vexatious duct and unable to re- Allen was to which argument $31,807.50 attorney's Bon fees to awarded testimony merely They corroborate spond. nie-$25,000 general rule and under the hearing. letter from The gave at the Bonnie $6,307.50 argues conduct. Allen for Allen's testimony that Bonnie's Eagley corroborates making erred in less at at TSA and primarily she works Rule 82 and it referred to award because Holtman corrob- letter from Gwennie's. erroneously assessed the because it chiro- that she sees a testimony orates her cireumstances. relative economic has injuries and that she for her practor *16 The at Gwennie's. not to work been advised attorney's Any awarding fees 1. error testimony that Bonnie's corroborate
invoices under Rule 82 was harmless. Civil worked on the Improvement Rick's Home the time she testified marital home at superior court has broad dis A repair. These documents was under house attorney's fees in divorce cretion to award basis of the court's serve as the did not reverse a trial court's cases.70 "We will not fact, it "did not court stated decision. attorney's unless it is 'arbi ruling on fees extent" on the exhib- rely any appreciable manifestly trary, capricious, or unreasonable.? rights were not vio- process its. Allen's due 71 of the ree- supplementation lated Bonnie's ord. awarded Bonnie attor The court to AS 25.24.140 and ney's "pursuant fees Attorney's
D. Fees argues the court erred Civil Rule 82." apply 82 does not superi- because "Civil Rule we vacated the In the initial correct cases." Allen is attorney's divorcee of fees because or court's award reach property division.68We generally party" rule of Rule 82 we vacated its "prevailing actions, except in apply does not to divorce to the trial court's the same result here as motions.72 post-judgment context of some fees, but in order general award of remand, the attor in this case awarded we But the court proceedings on streamline ney's AS 25.24.140 and Rule under both arguments raised fees reach those 82; to Rule 82 was juncture, its mistaken reference at and we able to resolve are justified award was under harmless if the fee superior court's award of en we affirm the AS 25.24.140.73 hanced fees. Schmitz, Revenue, State, (quoting v. 88 Dep't Support Id. at 457 Child Schmitz
67. Bostic v. 564, (Alaska Div., (Alaska 2004). P.2d 569-70 968 1116, 1122 P.3d Enforcement 1998). Siggelkow, 988 Siggelkow v. 643 P.2d McGee, I, 974 68. Heustess But see McGee (Alaska 1999) (quoting 2007). Lowe (Alaska 1991)) (" Lowe, [Thhe exception judgment to Rule 82 does not divorce Id. at 836. apply post-judgment and enforce- modification "). ment motions." (Alaska 2007) Carr, 70. Carr v. Sloane, (citing Sloane v. Siggelkow, 643P.2dat 988. 73. Cf. 2. The court's assessment noted that pay "Allen's failure to interim parties' relative economic cir child is relevant to Bonnie's econom ic purposes cirenmstances" for of assessing cumstances be must reconsidered on attorney's fees.79 remand, correctly but the court con greater
sidered Allen's
income
dispose
We can
argu-
Allen's first
two
income-earning
capacity.
ments because the superior
findings
regarding
parties'
Allen contends the court
relative income and
abused its discre-
earning capacity
supported by
are well
by basing
general
tion
its
fee award on the
record,
they
cireumstances,
are
consistent with an
relative economic
be-
(1)
award of fees in Bonnie's favor.
cause:
in 2007 the
earned similar
(2)
income;
increased,
Bonnie's income has
But we
remaining
cannot reach Allen's
two
fluctuates;
(8)
whereas Allen's
the court er-
arguments.
The
overall
division
roneously
pay
relied on Allen's failure to
must be reconsidered on remand to deter-
support;
erroneously
mine whether
litigation
Allen's vexatious
con-
neglected to consider that
it had awarded
double-counted,
duct was
and Allen's child
Bonnie most of the marital estate. Bonnie
arrearage
must be recalculated. We
counters that
the fee award was less than
do not
argument
decide Allen's
that the fee
half of her actual fees and that Allen's com-
award
"effectively
would make him
bankrupt
plaints over his current
financial situation
if
because
he
all
got
sells
of the assets he
center
"support
on
for a child he failed to
marriage,
he
signifi-
would still owe
support."
arrearages," but we ob-
cant
serve that
liability
absent his
for the child
purpose
of AS
25.24.140
support arrearage, Allen would have received
proceeding
divorce
is to "assure that both
(82%
estate,
of the marital
spouses
proper
litigate
have the
means to
$178,127) over
twice the amount of fees
fairly equal plane."
divorceeaction on a
*17
awarded to Bonnie under AS 25.24.140.
repeatedly
"We have
stated that cost and
premise
The
remaining
Allen's
two ar
attorney's fees awards in divorceecases are to
guments concerning
respective
the
primarily upon
be based
the relative econom
may
ic
financial
earning capacities
change
situations and
cirenmstances
after rem
of the
5
and.80
therefore
general
We
vacate the
fee
parties."7 Relative economic situations in
award and remand for reconsideration con
earning capacity
clude both
and income.76
opinion.
sistent with this
suggested
We have
that
the effects of a
property
expenditure
division as well as the
3. The
court did
err in
not
in-
of fees should be considered as relevant economic
creasing
attorney's
the
fee
award
Finally,
cire
nmstances.77
in Heustess
-
based on Allen's bad-faith
conduct
I we observed that Bonnie "bore most of the
litigation.
and vexatious
supporting
burden of
while
[the child]
[Allen]
pay
failed to
interim
contrary
child
court enhanced its fee award
order,"78
[superior]
$6,307.50
to the
by
court's
and we
based on Allen's bad-faith con-
property
possibly
expendi
the division of
and
the
Sanders,
Sanders v.
310,
902 P.2d
319
1995)
Kowalski,
(quoting Kowalski v.
bearing
ture of fees have
[on the] relative eco
(Alaska 1991)).
1368, 1372
standing
parties.").
nomic
Dodson,
902,
75. Dodson v.
827,
(Alaska 2007).
78. 158 P.3d
835 n. 26
Rowdon,
76. See Fernau v.
Id.
(Alaska 2002);
Doyle Doyle,
may may
adjust
80. The court
the overall
remand,
property division on
but Allen's child
Fernau,
(noting,
77. See
WINFREE, Justice, dissenting part. paid Kelley-Heustess when Ms. refinanced FABE, Justice, concurring part result, her home. As a pay- she has been dissenting part. most, all, ing if not of the marital debts retaining while the residence. agree opinion I with the court's in all (e) party Neither unreasonably has de- respects but one: I do see a need to pleted marital assets. Defendant's con- remand this case to the court for during litigation duct has been vexatious. findings clarify additional the basis or engaged Defendant has in a number of unequal extent of its distribution of the mari- litigation strategies that have unnecessari- tal estate. I would affirm both the trial ly fees, attorney's increased such as his greater court's decision to award the share of refusal to return the belonged truck that the marital assets to Bonnie and its decision to Matt and his provide refusal basic attorney's to enhance fees based on Allen's o pretrial discovery. during litigation. vexatious behavior (£) family home was awarded to Ms. correctly The court concludes that the trial Kelley-Heustess and should be awarded to court "did not abuse its discretion award her because she custody has sole of the ing larger Bonnie a share of the marital parties' minor child ...-and defendant estate." This supported conclusionis well paid has not for most of the by the trial court's careful consideration of child's life. such relevant factors as the relative (g) Kelley-Heustess' Ms. income is con- ages; long-term Bonnie's serious health is injuries. strained her sues, which limit She now works ability her to increase her for TSA. There is not prospect much for income; Allen's significantly greater earning her to increase her income. capacity; most, paying Bonnie's conduct in if (h) all, debts; Kelley-Heustess' of the marital Ms. Chug- and Bonnie's home in payments iak mortgage acquired by prior repairs and all her the mar- riage. separation. Indeed, payments the marital home She has made all after repairs the trial court since divorce in thoughtful made detailed findings factual amply support its deci (i) From Kelley-Heus- time to time Ms. sion to divide the marital estate in an un tess has received rental income. The equal manner: problem black-mold in the rental has or will cost as 17. In order much or more to to determine how remediate best to *19 allocate the than she has economic effects of received in divorce rents over the past parties years. between the two or three has consid- ered the specified factors in AS Taking these factors into consider- 25,24.160(a)(4) in the division of marital ation, it is the Court's intention to deviate property. equal from distribution of the marital es-
(a) During years the six marriage greater of tate and award a share to Ms. (and co-habitation) Kelley-Heustess. years two additional of acquired personal property, Yet, concluding after that the trial court did debts and land in Palmer. not abuse fashioning its discretion in an un (b) Kelley-Heustess Ms. years is five equal property, distribution of marital
older than the defendant and division, has serious court remands the requir long-term health ing issues that limit her abili- additional findings because it "cannot ty to make living. a determine whether [the trial court] double- Op. at473. ' attorney's fee enhanced ty division and litigation con-duet." vexatious Allen's
counted award, respectfully dissent I therefore 2 opinion. aspect of the court's from this single observation on a focuses The court subparagraph the same by the trial court-in party finding that "[nleither explicit as its Justice, WINFREE, dissenting part. in assets"- unreasonably depleted marital
has
rul
disagree with the court's
respectfully
I
"litigation strat-
vexatious
noting that Allen's
of the statute of
regarding application
ing
unnecessarily
at-
increased
... have
egies
claim
reimbursement
added.)
limitations to Bonnie's
But
(Emphasis
..."
tormey's fees.
incurred when
child-rearing expenditures
indicates
analysis
trial court's
nothing in the
place. As the
was in
any
in the trial
order
role
no
finding played
that this
09.10.100(a)
states,
ten-
trial court
sets out a
property: The
AS
of
court
court's division
finding related
In
the claim.1
expressly indicated
of limitations for
year statute
interpret
attorney's fees.
I
existing
to an increase
over-stretches
my view the court
sub-
finding within the
of this
placement
in our
inconsistencies
precedent and creates
party
determining that neither
paragraph
actually
the claim
by holding that
case law
assets as
unreasonably depleted marital
had
during the
and is tolled
belongs to the child
finding of
positive
designed
signal that
minority under AS 09.10.140.2
child's
as over-
not be taken
dissipation should
no
ten-year
and the
belongs to Bonnie
claim
in a dif-
problematic behavior
looking Allen's
apply.
of limitations should
statute
the trial
preview,
After this
ferent context.
Revenue,
State,
Child
Department
In
quite properly,
to take
proceeded,
court then
of
Inman
Division ex rel.
Support
into consideration
litigation conduct
Enforcement
arising
appeals
attorney's fees.
we consolidated two
award of
v. Deam
its
Divi
Support
the Child
Enforeement
sum,
"double-
evidence of the
In
I see no
(CSED)
judg
attempts
reduce to
sion's
litigation con-
Allen's vexatious
by noncustodial
support arrearages owed
ment child
The trial
the court.
duct" that
troubles
paren
case the
each
ts.3
thorough
clear. The
findings are
CSED could not recover
court ruled
correctly recognized that Allen's
trial court
years
more than ten
that were
installments
litigation strategies "ha[ld] unneces-
vexatious
09.10.040,
old,
the statute
reasoning that "AS
fees,"
attorney's
but there is
sarily increased
upon
'an action
applicable
limitations
took this
indication that
the trial
no
past-due
the collection
judgment,
bars
dividing the marital es-
fact into account
judicial enforcement
support when a
proper-
affirm the trial court's
tate.
I would
payments
sup-
that one or more
that states
Id.
days past
and that
port
more
due
are 30 or
past
and the dates
specifies the amounts
due
"(aln
09.10.100(a) provides
action for a
1. AS
due;
they
past
notice of the
became
may
provided for
be com-
cause not otherwise
right
respond.
obligor's
Service on the obli-
years
cause of
after the
[ten]
menced within
provided
gor
in AS
in the manner
must be
action has accrued."
custodian,
agen-
or the
The child's
25.27.265.
custodian,
cy
file with the
of the
shall
on behalf
part:
provides
"if a
in relevant
2. AS 09.10.140
affidavit,
petition,
proof
of service
bring
...
at the
person
an action
entitled to
obligor
respond
later
shall
no
and notice. The
... under the
the cause of action accrues
time
filing
days
an affidavit
after service
than
[during
age majority
which the
...
the time
*20
obligor's affidavit states
If the
with the court.
part
age majority]
a
person
is not
is under the
of
paid any
obligor
of the amounts
the
has
that
for the commencement
of the time limit
delinquent,
in detail
describes
claimed to be
action."
any
payment
offers
other
method of
the
obligor
petition,
the
is
the
then
defense to
1995).
CSED
3.
hearing,
any,
hearing.
if
After the
entitled to a
25.27.226,
provides:
which
relied on AS
judgment
the
shall enter a
due,
obligor
money
does
owed.
If the
payment
of a
amount of
the custodian
To collect the
section,
child,
under
agency
not file an affidavit
person,
of that
or the
on behalf
against
(1)
judgment
requesting
enter a default
court shall
with the court
a motion
shall file
obligor.
judgment;
an affidavit
of a
establishment
ongoing
support obligation.12
Alfonzo's
years
action
But
is
commenced within ten
of
payment."
the missed
that court also considered Alfonzo's motion to
clarify the
support arrearages,
amount of his
appeal
held
On
we
courts
entering an
stating
order
"may
CSED
misapplied
began by
AS 09.10.040.5We
not
attempt
arrearages
to collect
older than June
ing that
the cases involved enforcement of
1, 1984.1
existing
support
child
by
orders and that
unpaid support obligation
statute each
is con
On
we relied on Dean and held
judgment.6
sidered a
rejected
We then
that AS 09.10.040 did not bar CSED from
application
courts'
of AS 09.10.040
attempting
pre-June
to collect
1984 arrear-
because CSED "did not initiate a new 'action'
ages
existing
owed under the
support
to establish
parent's
the non-custodial
liabili
order, and
any
noted that
assessment of
Rather,
ty.
sought
valid,
CSED
to collect a
timeliness under
"premature."
AS 09.85.020 was
judgment...."
unsatisfied domestic
We ex
14
We then considered the doctrines
plained
judgment
that execution on a
is not a
laches,
of
estoppel, and
Although
waiver.15
entirely
commencement of an
new civil ac
we determined that
the doctrine of laches
tion, and
provides
that AS 09.35.020
the rele
was unavailable in the
sup
context of child
vant
time
judgment
limitations on
execut
port
actions,
collection
we acknowledged that
ions.8 Because CSED's efforts to collect the
arguments
Alfonzo's
concerning waiver and
support
owed
"in
were
aid of
of
enforcement
estoppel
support
had
in the record.16 But
judgment
already
a
which was
in existence"
we
in
stated
a footnote:
"executing
upon
judgment
does not
operate
entirely
to commence an
new civil
Where CSED acting
is
on behalf of the
action,"
we vacated the
courts' decis
parent
custodial
support
to collect child
ions.9
passed
which is then
through to
par
ent, CSED's conduct cannot amount
to
State, Department
Revenue,
Child
of
estoppel.
waiver or
right
support
to
Support
Division ex rel. Valdez
Enforcement
Valdez,
the child and thus
part
as
cannot be
of Alfonzo and Linda Val
However,
divorce,
by
waived
CSED.
dez's 1988
Alfonzo
where
was ordered
CSED
pay
support.10
In 1994Linda moved
collecting
support
as reimbursement
modify
original
order.11 The
the State for
payments
AFDC
made to the
motion,
granted
increasing
parent,
custodial
the doctrines of waiver or
1-2,
(footnote omitted).
§§
SLA
The added subsection
Dean,
4.
at 1322
provided
may
brought
"[aln
action
be
5.
Id. at 1323.
judgment
support payments
establish a
for child
days past
that are 30 or more
due under a
25.27.225).
(noting
6.
Id. at 1323-24
AS
...
order
if the action is commenced
youngest
the date on which the
child covered
(emphasis
original).
7.
Id. at 1324
years
age."
order
becomes
Ch.
(codified
09.10.140(b)).
§
SLA 1994
at AS
provides:
8.
Id. AS 09.35.020
repealed
This subsection was
effective June 1998.
period
years
elapsed
When a
of five
has
after
132, 54,
§
Ch.
SLA 1998.
entry
judgment
and without an execu-
being
judgment,
tion
issued on the
no execu-
10. 941 P.2d
may
except by
tion
issue
order of the
judgment
which
is entered. The court shall
11.
Id. at 147.
grant
if
motion
the court determines that
just
there are
and sufficient
reasons for the
12.
Id.
failure to obtain the writ of execution within
years
entry
judgment.
five
after the
(emphasis
original).
Id.
Dean,
484 Yet the place.21 order been support had a may apply.[17]
estoppel child-rearing parent incurred custodial footnot Vaidez's relies on Today the court simple fact is child. The expenses, not the right support to is "[the that statement ed belongs to claim reimbursement that a of hold the statute to the child" that of this expenses-in incurred the whomever tolled,18but claim is Bonnie's for limitations the child.22 case Bonnie-not the ini in Valdes distinguishable: is Valdes established, the rationale Today's undermines decision already order was support tial limitations, which serve of behind statutes the estab us concerns case before while the prosecution in the encourage promptness "to the reim an initial order of lishment which injustice thus avoid of actions and child-rearing expenses. past of bursement stale prosecution of may from the result The court distinction. ignores this The court against attempt protect to ... [and] claims reliance with Gro its Valdes builds on then evidence, by faded Revenue, lost difficulties caused Child State, Department ber of 23 witnesses." disappearing memories ex rel. Division Support Enforcement demonstrates, difficult it is aptly case there, As this C.J.W., with in connection stating that financial records acquire or recreate to "we held paternity, action to establish an reimburse to calculate years 20 earlier applies 10 to in AS 09.10.140 tolling provision 90.3. ment under Rule brings the action on be when another even 9 ignores But the of a minor."1 half creates inconsisten Today's decision also subject matter-paternity establish Grober's the court's other case law. Under cies with ment, support.20 child Grober, parent's the custodial application of to a child-rear of Vaidez and Grober for application to seek reimbursement failure support order's estab ing expenses prior to a child-rearing expen for claim reimbursement of the reim cannot be a waiver lishment support a order incurred absent ditures previously we have claim. Yet support bursement that no child Assume unsustainable. prop parent's failure to that a custodial during a child's held order is ever established claim for such erly a reimbursement assert a reimbursement claim minority and that of that claim. a waiver expenses be constituted belongs the child and can actually listed a reim Harvey v. Cook a mother age of child reaches the brought after the against a counterclaim may claim in child reach bursement majority. It follows that the father, pursue the claim at did not non-sup but against a majority, file an action appeal that she was argued She on trial.24 judgment parent, and obtain a porting Relying on to the reimbursement.25 entitled Civil Rule 90.3 of the Alaska the amount have been due the raised in support that would properly child the rule that "issues ordinarily be consid will not minority the trial court during the child's parent custodial added). Pugliese, In Vachon v. (emphasis 21. n. 14 17. Id. at 154 (Alaska 1996), of reimbursement we held that "[o)ther states have The court also notes 18. expenses during periods where no child-rearing ap- conclusion." But reached the same place support calculated un- order is in Ellis, See, e.g., proach Kimble v. is not universal. 90.3. der Rule ("[Wle (Wyo.2004) conclude 101 P.3d right support waived obtain is not that the noting recognized this in 22. We Valdez inaction, act, inability parent's or custodial of child waive reimbursement the State could nonpayment acquiescence to the parents indigent provided custodial it brought within the statute if an action is place. was in order even when a child Hammond, (quoting limitations." Hammond at n. 14. 941 P.2d (Wyo.2000))). 199, 202-03 1998) (holding Ltd., 19. 956 P.2d Packers, Alakayak Columbia 23. v. British "child, age majority, upon reaching the 2002) (quoting 461 n. 121 action, prior bring paternity may and that a (Alaska 1971)). Ogle, Byrne v. majority parent guardian age ad litem a may paternity on behalf of a action maintain child"). Id. Id. *22 appeal," ered on we held the mother waived Likewise,
her claim to the reimbursement.26 Jaymot Skillings-Donat, v. a mother did pre
not raise a reimbursement claim in her pleadings
trial or at trial.27 We concluded claim, stating
the mother waived the "[wle
recognize parent may not waive the
right support payments by to receive child
acquiescence private agreement unless agreement approved by the court. parent right
But when a does not assert a trial,
past-due support payments right at appeal.28
cannot be considered on It is parent
inconsistent to hold that a cannot
waive a by failing reimbursement claim
bring it within the statute of limitations but by failing
can waive it to raise it at trial. reasons, foregoing
For the I would reverse court's determination that Bon-
nie's claim was limited AS
09.10.100(a)'s ten-year statute of limitations. Alaska, Petitioner,
STATE SWENSON, Respondent.
Edwin J.
No. A-10732. Appeals
Court of of Alaska.
July1,2011.
As Corrected Rehearing on Denial of
Aug. Id. at 802-03. (citing Id. at 546-47 Gavlak, Paxton (Alaska 2004)). 27. 216 P.3d