Thad SNIDER, Appellant, v. Michele SNIDER, Appellee.
No. S-15613.
Supreme Court of Alaska.
Sept. 25, 2015.
357 P.3d 1180
MAASSEN, Justice.
Terry C. Aglietti, Aglietti, Offret & Woofter, Anchorage, for Appellant.
Ian Wheeles, Law Office of Ian Wheeles, Anchorage, for Appellee.
OPINION
MAASSEN, Justice.
I. INTRODUCTION
A father filed for divorce and sought sole physical custody of the couple‘s only child. Shortly before trial the father moved for a continuance. The court vacated the first scheduled trial day, used the second to take testimony from out-of-state witnesses, then continued taking evidence a few days later. Partway through that day‘s proceedings the court informed the parties it was their last opportunity to present evidence. The father objected, and in post-trial pleadings he presented the affidavit testimony of two other witnesses he had intended to call. The superior court denied his requests to present additional evidence.
Because the lack of clarity in the proceedings led the father to reasonably believe he would have another opportunity to call witnesses, we hold that the superior court abused its discretion when it failed to give him that opportunity. We remand the case to the superior court for a limited presentation of additional testimony. We reject the father‘s arguments that the superior court erred by denying a motion for recusal and in its weighing of the best interest factors relevant to the award of physical custody. Finally, we outline the legal principles relevant to the treatment of one property issue on remand.
II. FACTS AND PROCEEDINGS
Thad and Michele Snider were married in 2008 and had a son in 2009. In 2013 Michele took the child with her to visit her family in Washington. Deciding she did not want to return to Alaska or her marriage, she informed Thad by telephone that she wanted a divorce. Nonetheless, she invited Thad to their son‘s upcoming birthday party in Washington and bought him a round-trip plane ticket for the occasion.
By agreement, Thad had a few days alone with their son after he arrived in Washing-
The court held a pretrial conference in October 2013, and, although Thad‘s counsel mentioned a few scheduling and health-related issues, the court set a two-day divorce and custody trial for December 18 and 19 without objection.1
In mid-December, however, Thad moved for a continuance. His counsel claimed to be “absolutely underprepared” for trial because he had only recently received Michele‘s discovery; he was still affected by an injury to his leg; he had just finished a criminal trial; and—based in part on his interactions with Michele‘s counsel—he thought “it was kind of presumed that we were going to [be] continuing this matter.” He had not yet written a trial brief or filed a witness list.
Michele‘s counsel agreed that the two lawyers had discussed a continuance. He explained, however, that before he could consult with Michele about it she had purchased airline tickets for herself and her mother to attend the December trial. He suggested that they use part of the two days set aside for trial to “at least tak[e] their testimony while they‘re in town.” The court agreed: it vacated the first day of trial and set aside two hours on the second day, December 19, to hear the testimony of Michele “and grandma, if she‘s a witness . . . and preserve the testimony.” The court noted, “They‘re up here. That‘s the only way I‘ll be able to judge their credibility.” The court also stated, twice, that the parties would “hold off on the property division” if that was “a real issue.”
The proceedings on December 19 accordingly consisted of the testimony of Michele and her mother and focused largely on custody. Although Michele‘s testimony addressed a few property issues, the court reminded the parties that their time was limited and they could deal with property “at a different time,” with the witnesses on the phone if necessary. But at the end of the day the court informed the parties there was time available on December 24 if they wanted to continue putting on evidence while the out-of-state witnesses were present. Although Thad‘s counsel had planned to close his office on Christmas Eve and spend the holiday at a lodge in the Bush, the parties agreed to continue with the testimony on the 24th.
On December 24 Michele testified primarily about the couple‘s property. She identified as marital property a cabin that had been deeded to her and Thad by his father Robert. During cross-examination, the court asked Thad‘s counsel whether he was going to call Robert as a witness; Thad‘s counsel replied, “Not today. We will. I suspect we‘re not getting it finished today.” The court then stated, “I plan on finishing today.” A few minutes later the court reiterated that they were in their last day of trial: “We‘re going to finish today. This is the only other trial day you have. . . . And this is not going to turn into a three-day trial.” The court explained that the parties had originally been offered two afternoons to try the case, that it had afforded them that much time, and that it had no more trial days available until June. Thad‘s lawyer objected that “that‘s going to be unfair to Mr. Snider,” but the parties nonetheless continued with their presentation of evidence (including, in addition to the testimony of Michele, testimony from Thad and from Michele‘s sister) and closing arguments.
Just before the court recessed, Thad‘s counsel asked that the judge recuse himself. The attorney offered nothing but his opinion as a basis for the motion, stating that “I do not believe you can be unbiased or objective.” The court denied the motion, and Thad‘s counsel responded, “Okay. I‘ll put that motion in writing.” Thad did not follow up with any written recusal motion.
In January 2014 Thad filed an affidavit from his father Robert, attesting that the deed to the cabin discussed at trial was actually a security agreement and that Robert had never intended title to pass to Thad and
Michele moved to strike the affidavits, and Thad filed a response which again explained why he thought he had been unfairly surprised by the course of proceedings. The superior court granted Michele‘s motion to strike, also stating that while Thad had not filed a formal motion for more trial time, his “constructive request for additional time is denied.”3
The superior court put an oral decision on the record in May 2014, awarding the parties joint legal custody of their son. For physical custody, the court evaluated the child‘s best interests in light of the relevant statutory factors4 and found them all equal between the parties except “the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.”5 The court found this factor to favor Michele, and it therefore awarded her primary physical custody. In its division of property, the court found the cabin to be marital because it was titled in the parties’ names and because “Mr. Snider failed to meet his burden to show that it was something else.”
Thad moved for reconsideration. He argued once more that the superior court had led him to believe he would have the opportunity to present more evidence after December 24. The superior court denied the motion and entered written findings of fact and conclusions of law reflecting its oral decision.
Thad appeals.
III. STANDARDS OF REVIEW
We review a superior court‘s ruling on a party‘s request to reopen evidence for abuse of discretion.6 Also, “[a] judge‘s decision that he is actually capable of conducting a fair trial is reviewed for abuse of discretion. The separate question whether a judge‘s participation in a case would lead reasonable people to question his ability to be fair is a question of law reviewed de novo.”7
“Trial courts have broad discretion in determining child custody,” and “[w]e will set aside the superior court‘s custody determination only if the court abused its discretion or if its findings of fact are clearly erroneous.”8
IV. DISCUSSION
A. It Was An Abuse Of Discretion To Refuse Thad‘s Request To Reopen The Evidence.
Thad argues that the superior court led him to believe he would be allowed to present
At the outset we emphasize that if the superior court had simply denied Thad‘s motion for a continuance outright at the December 16 hearing, it is very unlikely we would have found an abuse of discretion.9
“A party who seeks to continue a case set for trial must show that he acted with due diligence upon the grounds for which the continuance is sought,”10 and the record in this case reveals no such showing.11
But the court did not deny the motion to continue trial; instead it scheduled one day of proceedings to take the testimony of the two out-of-state witnesses, explaining, “I‘m going to allow [Michele‘s counsel] to put on his testimony, for his client and [whatever other] witness that he has up here. They‘re up here. That‘s the only way I‘ll be able to judge their credibility. We‘ll hold off on the property, if that‘s a real issue.” Michele‘s counsel confirmed that the proceeding would be for “just my two witnesses” and offered to schedule it for the later of the two available days, December 19, to give Thad‘s counsel more time to prepare.
On December 19, as contemplated, Michele and her mother testified largely about custody. When questioning by Thad‘s counsel strayed into property issues, the superior court noted that “these are some items we can deal with at a different time“; the court repeated that “the purpose of this” was that “[w]e have these witnesses up in person,” and “I‘d like to see them today. . . . I‘d like to wrap it up pretty quick and get to redirect. And get the grandmother in here to testify, so I can judge her credibility.” And when Michele completed her testimony, the court advised her, “We‘ll hear from you again, when you‘re on the phone sometime, on the other issues.”
It was at the end of the day that the superior court suggested taking more evidence on December 24. Again, the court was focused on the availability of the out-of-state witnesses: “[I]f you wish to have a hearing[] while your client is here . . . I can do it the afternoon on the 24th. . . . It‘s Christmas Eve, but if you want to have your clients here and the parties are available, we‘ll take Christmas Eve afternoon to accommodate the out-of-state witnesses.”12 Although Thad‘s counsel was taken by surprise by the court‘s suggestion—he explained he had planned to release his staff on Christmas Eve, close his office, and spend the holidays at a lodge—he did consent to it, and the court thanked him “for [his] accommodation while they‘re here.” It could be inferred from bits of conversation that the participants had different views of what was
It was only partway into Michele‘s testimony on December 24 that the superior court clarified it was the last day of trial. Thad‘s lawyer said he had expected to call other witnesses later, and he protested that closing the evidence would be unfair to his client. He laid out his objection with more detail in three post-trial memoranda: his response to Michele‘s objections to the post-trial filing of Robert Snider‘s affidavit (in which he asked for more trial time), his response to Michele‘s motion to strike the deSilva affidavit (again asking for more trial time), and his motion for reconsideration of the court‘s oral decision (in which he asserted that the proceedings had denied him due process). He outlined the procedural basis for his belief that December 24 was not going to be his last opportunity to present evidence, and he described the testimony from Robert Snider and Jeremiah deSilva that he had been prevented from introducing.
In deciding whether to hold the record open for additional evidence, a court should consider the importance of the evidence, the diligence of the proponent of the evidence, and the possible prejudice to the other party.14 The additional evidence that Thad offered could make a difference to the superior court‘s decision. Thad explained in his post-trial filings that Robert Snider—grantor of the deed to the disputed cabin—would testify that the deed reflected a security interest rather than a transfer of title to the marital estate; this was an issue to which the parties devoted significant trial time but which was decided against Thad specifically because he failed to produce sufficient evidence of the parties’ intent. DeSilva was to testify about alleged substance abuse by a member of Michele‘s household who would have some responsibility for the child‘s care. The superior court found the relevant best interests factor15 equal between the parties, finding no “evidence of substance abuse [that would] . . . affect the emotional, physical well[-]being of the child. So this is neutral.” Because all factors but one were equal in the superior court‘s analysis, according different weight to any one of them may have affected the court‘s decision to grant primary physical custody to Michele.16
Under these circumstances, once Thad had submitted the post-trial affidavits of the witnesses he would have presented given the chance, it was an abuse of discretion to deny his request to reopen the evidence.17 Given the potential importance of the evidence we cannot say that the error was harmless.18 We therefore vacate the superior court‘s decisions on child custody and marital property and remand for further proceedings, limited to the testimony of Robert Snider and deSilva and any necessary rebuttal. Such proceedings shall be completed within 90 days of the date of this opinion.
B. The Denial Of Thad‘s Motion For Recusal Was Not Error.
Thad also argues that the superior court erred when it denied his motion for recusal for bias. “To prove a claim of judicial bias, the claimant must show that the judge formed an opinion of [him] from extra-judicial sources, resulting in an opinion other than on the merits.”19 And although a judge must “consider the appearance of partiality in addition to actual bias; we have also explained that when a party seeks a judge‘s recusal solely due to the appearance of partiality, ‘a greater showing is required.‘”20 Thad fails to make that showing here.
Thad first finds bias in the judge‘s failure to provide the additional time Thad expected for the presentation of evidence. But while we agree that this was an abuse of discretion, “a ruling against a party, even an incorrect ruling, is not evidence of judicial bias.”21
Thad also finds bias in certain of the court‘s factual findings, largely about custody, which he contends were unsupported by the record. While one of the superior court‘s findings—that Thad “worked long hours, oftentimes seven days a week“—appears to be erroneous,22 the “controlling findings of fact” are not.23 As a whole, the factual findings
C. Although The Superior Court Must Reconsider Its Custody Decision On Remand, There Was No Abuse Of Discretion In Its Weighing Of The Best Interest Factors Thad Addresses On Appeal.
Thad also argues that the superior court erred in awarding primary physical custody to Michele. Although we are vacating the custody decision for further consideration in light of the additional evidence to be heard on remand, Thad‘s arguments are independent of the reasons for remand, and we address them so that he need not raise them again.26 We find no error in the superior court‘s weighing of the best interest factors that Thad addresses in his appeal.
In a divorce proceeding, the superior court “shall determine custody in accordance with the best interests of the child.”27 “We will set aside the superior court‘s custody determination only if the court abused its discretion or if its findings of fact are clearly erroneous.”28 “The superior court abuses its discretion if it ‘consider[s] improper factors in making its custody determination, fails to consider statutorily mandated factors, or assign[s] disproportionate weight to particular factors while ignoring others.‘”29
Thad first argues that the superior court erred by finding “the love and affection exist-ing between the child and each parent”30 to favor Michele. Thad‘s premise is simply mistaken; the superior court found this factor equal between the parties.
Second, Thad challenges the superior court‘s finding that “the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity”31 was equal between the parties. Thad argues that because the child had not lived with Michele in Washington for more than a few days, “the judge assumed, without evidence, that the [child‘s] life would have been stable had he remained there because Thad submitted no evidence to the contrary.” But the superior court considered two components of the stability factor, “maintaining geographic continuity and maximizing relational stability,” and applied the principle that “courts may properly award primary custody to the relocating parent when that parent offers superior emotional stability.”32 The superior court explicitly noted that “[s]tability, oftentimes, is not a particular location and instead . . . can be based upon the relationship with the parties.” And the superior court‘s conclusion regarding Michele‘s emotional connection to the child is supported by its factual findings, which in turn are supported by the evidence.
Furthermore, since the parties had signed an interim custody agreement granting Thad physical custody—at Thad‘s insistence and before Michele had retained counsel—Michele could not make the kind of showing of long-term stability that Thad argues was required. Thad‘s argument amounts to a “continuity test centered entirely on the child‘s geographical stability,” which we have specif-
Thad also argues that the superior court abused its discretion by failing to provide “symmetric consideration” of the effects on the child of separation from Thad and separation from Michele as required by Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).35 The mother in that custody case was considering a move to Florida, and, after several remands from this court,36 the superior court awarded her primary physical custody only if she remained in Alaska.37 The superior court based its decision in part on its finding that the child “would be devastated if he had to move to Florida away from his father.”38
At trial, however, it had been “undisputed that [the child] would be devastated by either custody choice: living in Alaska without his mother or living in Florida without his father,” and we concluded that the superior court had improperly failed to address the impact on the child if he stayed in Alaska without his mother.39 We held that “[p]erforming the best interests analysis based on [a parent‘s] assumed move requires symmetric consideration of the consequences to [the child] both if she leaves with him and if she leaves without him“; we therefore reversed the superior court‘s decision.40
In this case, although the superior court acknowledged the child‘s “stable environment” in Alaska where he had been living with Thad since shortly after the separation, it is true that the court discussed more specifically the child‘s close emotional ties to his mother and his maternal grandmother in Washington. But the court ultimately concluded that the stability factor favored neither parent. Again, the court‘s findings are well supported by the record. And unlike Moeller-Prokosch, we can see from the superior court‘s discussion of the stability factor that it did consider both parents’ situations individually; there was therefore no abuse of discretion.41
Without considering the additional evidence that on remand may affect the superior court‘s award of custody, we see no abuse of discretion in the superior court‘s weighing of the best interest factors that Thad addresses on appeal.
D. Whether The Cabin Is Marital Property Must Be Determined By Reference To Circumstances Relevant To The Parties’ Intent.
Finally, because the character of the cabin formerly titled in the name of Thad‘s father will be a focus of the proceedings on remand, we take this opportunity to describe the parameters of that decision. The evidence already adduced shows that Robert signed a quitclaim deed to the property in the names of Thad and Michele. Thad testified that he and Michele helped Robert pay his past-due taxes, and to secure Robert‘s repayment of this debt (at Michele‘s insistence) Robert put the cabin in Thad and Michele‘s names. Thad testified that Robert still considered the cabin his residence.
As the superior court recognized in its decision, “[d]eeds absolute on their face can be reformed into security agreements based on clear and convincing evidence that a security was intended.”44 Here, however, the superior court found that Thad had failed to carry his burden to prove the existence of a security agreement, and the cabin was marital property.
In deciding whether a security interest was intended, Alaska courts “look to the intention of the parties at the time of execution,” and “[i]n the absence of any writing the intention is to be determined from all of the facts and circumstances of the transaction in which the deed was executed, in connection with the conduct of the parties after its execution.”45 In making that determination,
[s]ome of the various circumstances that may be considered are: The adequacy or inadequacy of consideration as compared to the value of the property, which is often stated to be the single most important factor. Retention or nonretention of possession. The conduct of the parties before and after the execution of the instrument. The financial condition of grantor at the time of execution of the instrument. The overall relationship of the parties—financial, business, debtor-creditor, etc. Whether the grantor or grantee paid the taxes. The construction of improvements after the execution of the deed. Whether or not revenue stamps were affixed to the instrument.46
And “[t]here are others. Generally it can be said that no one of the circumstances is necessarily controlling, but that all present are to be considered.”47
On remand, and with the addition of Robert‘s testimony, the superior court will need to consider the cabin‘s status as marital property in light of all relevant evidence of the parties’ intent.
V. CONCLUSION
We VACATE the superior court‘s decisions on child custody and the division of marital property and REMAND for further proceedings consistent with this opinion, to be completed within 90 days. We retain jurisdiction.48