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S.L. v. J.H. (10/28/94), 883 P 2d 984
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-5699
) Superior Court No.
v. ) 3AN-91-4325 CI
J.H., ) O P I N I O N
Appellee. ) [No. 4139 - October 28, 1994]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Elaine M. Andrews, Judge.
Appearances: William T. Ford,
Anchorage, for Appellant. Allen M. Bailey,
Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton, and Eastaugh,
In 1987 S.L. and J.H. obtained a divorce in Louisiana.
The Louisiana court granted the parties joint legal custody of
their two children, awarding S.L. primary physical custody of the
daughter, K.H., and awarding J.H. primary custody of the son,
M.H. In August 1988 S.L. moved to Alaska with K.H.
In May 1991 S.L. filed a motion in the Superior Court
of the State of Alaska to modify custody in which she sought sole
legal custody of K.H. and requested that any future visitation by
J.H. with K.H. be restricted to Alaska. J.H. opposed the motion,
and in turn moved that the superior court specify that he have
six weeks of summer visitation with K.H.
In April and May of 1992, the superior court held two
days of hearings on the two motions. At the conclusion of the
hearings the superior court rendered an oral decision which
preserved both the joint legal custody arrangement and S.L.'s
primary physical custody over K.H., and which allowed J.H. summer
visitation with K.H. in Louisiana.1
J.H. then filed a motion for an award of full
attorney's fees pursuant to AS 25.20.115, arguing that S.L.'s
motion to modify custody was not made in good faith. The
superior court entered an Order for Attorney Fees and Costs
awarding J.H. $2,095.24 in attorney's fees and costs.2
Next, J.H. moved for entry of judgment on the unpaid
award of attorney's fees. S.L. filed an "Opposition to Motion
for Judgment and Request to Set Aside Previously Entered Order
for Payment of Attorney's Fees." The superior court denied
S.L.'s request to set aside the attorney's fees and cost award,
and ordered entry of judgment on the unpaid attorney's fees and
costs.3 S.L. now appeals from the judgment for unpaid attorney's
fees and costs.
Alaska Statute 25.20.115 states as follows:
In an action to modify, vacate, or enforce
that part of an order providing for custody
of a child or visitation with a child, the
court may, upon request of a party, award
attorney fees and costs of the action. In
awarding attorney fees and costs under this
section, the court shall consider the
relative financial resources of the parties
and whether the parties have acted in good
This court has not yet considered an award of attorney's fees and
costs under AS 25.20.115. However, we have considered
AS 25.24.140(a)(1) which provides that a court may order one
spouse to pay the attorney's fees and costs of the other spouse
in a divorce action.4 We have held that cost and fee awards
under AS 25.24.140(a)(1) are to be based primarily on the
relative economic situations and earning powers of the parties.
Cooke v. Cooke, 625 P.2d 291, 293 (Alaska 1981). In addition, we
have held that one party's bad faith or vexatious conduct may
justify an increased fee award to the other party. Kowalski v.
Kowalski, 806 P.2d 1368, 1372-73 (Alaska 1991).5 In construing
AS 25.24.140(a)(1), we have required the superior court to make
explicit findings of bad faith conduct, and to offer explicit
reasons for deviating from the general rule which allows such
awards according to the parties' financial circumstances and
relative earning powers. Id.
Because the superior court in this case failed to enter
any findings regarding its award of attorney's fees and costs,
and did not include any findings in connection with its Order
Granting Judgment for Unpaid Attorney's Fees and Costs, we are
unable to ascertain whether the superior court considered the
issues of S.L.'s alleged bad faith and the parties' relative
financial resources as mandated by AS 25.20.115. As we have with
regard to AS 25.24.140(a)(1), we hold that in making an award of
attorney's fees and costs under AS 25.20.115, a court must make
explicit findings as to the parties' relative financial resources
and whether the parties acted in good faith.
However, unlike this court's interpretation of
AS 25.24.140(a)(1), under AS 25.20.115 the parties' relative
financial resources do not necessarily take primacy over the
presence or absence of good faith. Thus, in considering whether
or not to award attorney's fees and costs under AS 25.20.115, the
methodology used by the trial court should differ from that set
out in Kowalski.
It has been our practice to remand a case to the
superior court when its findings are not detailed enough or
sufficiently explicit to allow meaningful review. Murray v.
Murray, 856 P.2d 463, 466 (Alaska 1993); see also Sloan v.
Jefferson, 758 P.2d 81, 86 (Alaska 1988).6 Given the superior
court's apparent noncompliance with the requirements of
AS 25.20.115, we conclude that this case should be remanded to
the superior court for the purpose of affording it the
opportunity to enter findings of fact regarding the relative
financial resources of the parties, and whether the parties acted
in good faith, in explanation of any award it makes of attorney's
fees and costs.7
REMANDED for further proceedings consistent with this
1 Almost a year later, J.H. submitted a proposed order
denying S.L.'s motion to modify custody which was subsequently
signed by the superior court.
2 Between the time that J.H. filed his motion for an
award of attorney's fees and costs and the entering of the
superior court's order awarding attorney's fees and costs, S.L.
filed no opposition.
3 Neither the denial of S.L.'s request to set aside the
attorney's fees and costs award nor the judgment on the unpaid
attorney's fees and costs included any findings.
4 Alaska Statute 25.24.140(a)(1) provides as follows:
During the pendency of the action, a spouse
may, upon application and in appropriate
circumstances, be awarded expenses, including
attorney fees and costs that reasonably
approximate the actual fees and costs
required to prosecute or defend the
action . . . .
5 In Kowalski, we held that the court must follow a two-
step process in deviating from the general rule under which an
award of attorney's fees and costs is based on the parties'
relative economic situations and earning powers. Id. at 1373.
First, the court must determine what fee award would be
appropriate under the general rule, and second, the court may
then increase the award to account for the party's misconduct.
6 When a party files a motion and the opposing party
fails to respond, the superior court may construe the failure to
respond as a nonopposition, and may grant the motion if the
relief requested appears to be justified. Cf. Willie v. State,
829 P.2d 310, 312-13 (Alaska App. 1992) (construing former Alaska
Criminal Rule 40(d) (recodified as amended at Alaska Criminal
Rule 42(c)), and noting that Civil Rule 77(c) contains similar
language). Nonetheless, the severity of such a sanction demands
that the superior court impose it only with great caution. The
superior court may neither permit its powers under Civil Rule 77
"to replace or in any way minimize its duty to exercise its
independent judgment on all matters,"nor "accept one party's
assertions as to the present state of the law simply because the
opposing party fails to adequately respond." State v. Johnson,
525 P.2d 532, 535 n.4 (Alaska 1974). Therefore, the superior
court is obligated to carefully examine the motion and any
supporting materials in order to determine if granting the motion
is warranted. Id. at 534-35.
7 If upon remand the superior court deems it necessary to
supplement the existing record and/or conduct further
proceedings, it is empowered to do so.
8 We retain jurisdiction of this appeal. After the
superior court has filed its findings of fact with this court the
parties will be afforded the opportunity to file supplemental
briefs if deemed necessary.