Danny SHERRILL, Appellant, v. Paulita SHERRILL, Appellee.
No. S-15844.
Supreme Court of Alaska.
May 13, 2016.
373 P.3d 486
We AFFIRM the judgment of the superior court.
FABE, Justice, not participating.
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
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
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
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,
(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,
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
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
B. The Superior Court Did Not Err In Dividing The Marital Estate Or In Granting Child Custody, But It Was Error To Base Child Support On An Income Of $110,000.
1. The order dividing the marital estate is not “clearly unjust.”
Danny challenges the order dividing marital property, which required him to pay Paulita $35,000 by January 31, 2015. He claims that he already paid Paulita more than that amount after they separated in 2011 and that he donated several items to her, including a house in the Philippines, a car, and various furniture items and appliances. Danny further asserts that Paulita was awarded $3,500 at the second hearing, not $35,000.
In equitably dividing marital property, a superior court exercises broad discretion.26 “[W]e will not disturb [a division] unless the result is clearly unjust.”27 When
The record supports the property order. Danny agreed to pay Paulita $35,000 both verbally and in writing, affirmed at least three times that the amount was “fair and equitable,” and volunteered a payment deadline. Further, during the proceedings, Danny never mentioned making any payments to Paulita other than $1,600 in monthly child support. Receipts in the record total about $24,000 and indicate that Danny generally paid Paulita either $1,500 or $1,600 each month. And although the superior court did initially say “$3,500,” he immediately acknowledged his error, corrected himself, and repeated the $35,000 amount twice. Such circumstances do not justify disturbing the property order because the record does not support finding the division “clearly unjust.”29
2. The superior court did not abuse its discretion in entering the child custody order.
Danny appears to challenge the custody order based on his allegation that Paulita kidnapped their daughter and concealed her location.
“The superior court has broad discretion in determining custody awards so long as the determination is in the child‘s best interests.”30 In determining custody, the superior court “may consider only those facts that directly affect the well-being of the child“;31 a child‘s best interests must be evaluated in light of the
As Danny attested, Danny and Paulita “did not have a disagreement [about custody].” Throughout the proceedings, they agreed that Paulita would have primary physical custody, they would share legal custody, and Danny would have liberal visitation. Danny and Paulita confirmed that this arrangement served their daughter‘s best interests; Danny volunteered that Paulita was adequately caring for their daughter; and nothing in the record suggests that these sentiments were incorrect. The court adopted Danny and Paulita‘s agreement, and there are no red flags that might justify a deviation. Therefore we conclude that the superior court did not abuse its discretion in entering the child custody order.
3. The record does not support the child support order.
Danny contends that the child support order is “much higher than fair” because the court did not acknowledge his small retired
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.”36 Where “no question of law is involved, [a] superior court[] ha[s] broad discretion in making child support determinations“; we review those decisions for abuse of discretion.37
Under
It appears that the superior court used an incorrect income cap of $110,000 to estimate Danny‘s income. Because Danny stated he could not fully document his income, the court determined (and Danny agreed) that $110,000 was a fair estimate. The court apparently based this estimate on Danny‘s 2013 tax return, showing a total income of approximately $135,000, and its assumption that income above $110,000 would not impact the child support determination. But as Paulita observed, Danny‘s reported income exceeds $120,000, the income ceiling that generally applies to child support determinations.44
Further, contrary to Danny‘s assertions, the superior court was not required to consider the temporary nature of his contract work. Though a court must engage in “a probing review of [the noncustodial parent‘s] financial affairs,”45 the “determination [of child support] will necessarily be somewhat speculative because the relevant income figure is expected future income.”46 “[A] court must examine all available evidence to make the best possible calculation.”47 When an obligor has had a “very erratic income in the past[,] ... the court may choose to average the obligor‘s past income over several years.”48 A court “will
Though Danny may hold contract jobs only periodically, like the one he held during the proceedings, he did not provide an income history that would have allowed the superior court to average his income over several years. Danny provided only his 2013 federal tax forms, his retiree account statement, and a few bank statements. The court relied on this information when it determined child support;
Because the record indicates that the court misinterpreted the income ceiling in
C. The Proceedings Did Not Evidence Bias Or An Appearance Of Bias.
Danny claims the proceedings evidenced bias because the court did not express interest in his claims. This lack of interest, he asserts, led him to not submit evidence about Paulita and her allegedly illegal actions because he wanted to avoid irritating the court. He further claims that the court wrongly credited Paulita‘s statements and challenges the manner in which the proceedings were conducted.
Judges should seek to “preserv[e] the appearance of impartiality.”50 They also have a duty not to disqualify themselves “when there is no occasion to do so.”51 Critical, disapproving, or even hostile remarks do not, by themselves, evidence bias unless the remarks “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”52 Similarly, mere “expressions of impatience, dissatisfaction, annoyance and even anger, that are within the bounds of what imperfect men and wom-
en ... sometimes display” do not establish bias.53
Nothing in the record suggests the court was biased. Danny and Paulita appeared willing to settle, and they acknowledged their difficulties with communicating constructively. The court periodically invited Danny to air his concerns, and Danny did so: Danny stated that Paulita had made visitation difficult, expressed his desire to have meaningful visitation, and noted that Paulita held her own financial accounts during their marriage. The court acknowledged these concerns, invited Danny to submit evidence, and advised Paulita that her initial proposed custody arrangement would not be fair to Danny. Though the court may have expressed doubt regarding some of Danny‘s concerns—asking, for example, that Danny only introduce evidence if relevant—any such doubt was unremarkable.
The record also does not support Danny‘s claim that the court wrongly credited Paulita‘s statements. The final orders adopt the parties’ agreements regarding custody and marital property, and the child support order reflects an annual income that Danny affirmed was reasonable. Danny and Paulita also each confirmed that the custody and property agreements were fair and that they would be able to communicate effectively; the court accepted their verbal confirmations. Therefore it is not clear how the court wrongly credited Paulita‘s statements and, even assuming it did, how such an error would have prejudiced Danny.
Finally, the manner in which the proceedings were conducted does not suggest bias. Throughout the proceedings Danny appeared to be fully engaged. He voiced concerns as issues arose, and he asked to submit evidence, which the court invited him to do. Before each hearing, he confirmed he could
On this record, we find no appearance of bias.
V. CONCLUSION
We AFFIRM the superior court‘s marital property division and child custody orders. We REMAND the child support order for reconsideration consistent with this opinion.