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Jones v. Jones (11/15/96), 925 P 2d 1339
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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, Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
JAMES L. JONES, )
) Supreme Court No. S-6727
Appellant, )
) Superior Court No.
v. ) 3AN-94-7497 CI
)
ELLEN L. JONES, ) O P I N I O N
)
Appellee. ) [No. 4430 - November 15, 1996]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: William T. Ford, Anchorage, for
Appellant. Roger E. Henderson, Houston &
Henderson, Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews and Eastaugh, Justices and Shortell,
Justice pro tem.
RABINOWITZ, Justice.
I. INTRODUCTION
This appeal arises from a child custody proceeding. The
sole issue on appeal is whether the superior court abused its
discretion by awarding attorney's fees in the amount of $2,500 and
costs to the Ellen Jones.
II. FACTS AND PROCEEDINGS
James Jones and Ellen Jones were divorced on March 20,
1987 in California. The Joneses have two children, born in 1982
and in 1983. Ellen was awarded primary physical custody of both
children, and James was awarded visitation rights during alternate
Christmas holiday vacations and for each summer.
In 1992, James was transferred by the Air Force to
Elmendorf Air Force Base in Anchorage, and Ellen moved to Texas
with the children. The two children arrived in Alaska to visit
with their father in June 1994. James claims in his brief that his
children complained about the way their mother was caring for them.
On August 19, 1994, James registered the California decree in the
superior court of Alaska, and filed a Motion for Modification of
Child Custody. The children remained in Anchorage and their father
enrolled them in Anchorage schools.
Ellen filed an opposition to James's motion and also
moved for dismissal of the motion for lack of jurisdiction, for an
order requiring James to return the children to her, and for costs
and attorney's fees. A hearing before a special master was held.
The special master issued a report and findings, recommending that
the superior court dismiss James's motion for lack of jurisdiction.
The superior court adopted the report and additionally ruled that
California had "continuing jurisdiction."
Thereafter, the California court of original jurisdiction
entered an order requiring James to return the children. On
December 12, 1994, Ellen filed a motion in the superior court to
enforce the California court's order, and also moved for attorney's
fees and costs. On December 15, the superior court ordered that
James return the children to their mother, now in Florida, by
December 19, 1994, and also provided that Ellen could move for
attorney's fees. The order did not specify a time limit in which
the motion should be filed. James apparently did not comply, and
the superior court threatened on December 22, 1994 to hold James in
contempt of court and to arrest him if he did not offer proof that
he paid for his children to fly to Florida on December 23, 1994.
After a single justice declined to grant an emergency motion for a
stay, James complied, and the children were apparently sent home
that same day.
On February 24, 1995, Ellen filed a motion seeking
attorney's fees and costs. The superior court awarded Ellen $2,500
in attorney's fees and costs. This appeal followed.
III. STANDARD OF REVIEW
A trial court's award of attorney's fees will be reversed
on appeal if the award is "arbitrary, capricious, manifestly
unreasonable, or stems from improper motive." Zimin v. Zimin, 837
P.2d 118, 124 (Alaska 1992) (citation omitted).
IV. DISCUSSION
This appeal involves two issues pertaining to attorney's
fees. First, we must decide whether Ellen's motion for attorney's
fees was timely. Second, we address the issue of whether the
superior court made the requisite findings to justify an award of
attorney's fees under the relevant statute.
 A. Was Ellen's Motion for Attorney's Fees Timely?
James asserts that Ellen's motion for attorney's fees was
untimely since she submitted her motion over two months after the
superior court disposed of the underlying custody issue. (EN1)
The superior court explicitly based its award on AS
25.30.070(c). That statute states:
In appropriate cases a court dismissing a
petition under this section may charge the
petitioner with necessary travel and other
expenses, including attorney fees, incurred by
other parties or their witnesses.
The superior court relied on this statute since it referred to AS
25.30.070(b) as the basis for its decision declining jurisdiction.
(EN2)
Awards of attorney's fees in custody cases have been
considered to be outside the scope of Civil Rule 82. L.L.M. v.
P.M., 754 P.2d 262, 264 (Alaska 1988). Nevertheless, James asks
this court to rule that the same ten-day time limit which applies
to motions for attorney's fees under former Civil Rule 82(c) be
applied to motions for attorney's fees based on AS 25.030.070(c).
This argument has some merit. Our decision in L.L.M. to
exempt awards of attorney's fees in custody cases from the
strictures of former Civil Rule 82 was not concerned with the time
limitations of that rule. Rather, that decision was focused
primarily on the appropriate standard that should be used to assess
attorney's fees in custody cases. L.L.M., 754 P.2d at 264.
Former Civil Rule 82(c) states in relevant part:
A motion is required for an award of
attorney's fees under this rule. The motion
must be filed within 10 days, after the date
shown in the clerk's certificate of
distribution on the judgment . . . . Failure
to move for attorney's fees within 10 days or
such additional time as the court may allow,
shall be construed as a waiver of the party's
right to recover attorney's fees.
Unlike former Civil Rule 82, AS 25.30.070(c) sets no time
limitation for making a motion requesting attorney's fees. In
fact, AS 25.30.070 does not seem to require a motion at all,
indicating simply that the court may "charge"the petitioner with
appropriate attorney's fees and costs. With respect to specific
time limitations, we observe that there is nothing unique to
custody cases which would make it more difficult for attorneys to
file motions for attorney's fees and costs in a timely manner.
Additionally, we note that our reasoning in L.L.M. does not require
that parties in custody cases be given more time to file motions
for attorney's fees than provided for in former Rule 82.
Given the lack of a meaningful distinction pertaining to
matters of procedure between attorney's fees awards under AS
25.30.070(c) and awards governed by former Rule 82, we conclude
that a party moving for attorney's fees under AS 25.30.070(c) was
required to file a motion within ten days following the trial
court's final disposition of the controlling custody issue, unless
the trial court grants additional time.
However, as the law stood at the time that this
attorney's fee issue was before the superior court, custody cases
could reasonably be construed as exempt from Civil Rule 82(c) by
virtue of L.L.M. Since AS 25.30.070(c) made no mention of any
applicable procedures at the time that Ellen filed her attorney's
fees motion, there was no ascertainable rule regarding the period
of time that a party had to move for an award of attorney's fees in
custody disputes. Additionally, we note that in her earlier motion
for an order requiring James to return the children pursuant to the
California court's order, Ellen requested that James "be ordered to
pay the defendant's costs and attorneys fees in this action
. . . ." In its order requiring James to return the children to
Ellen, the superior court provided, without stating any explicit
time limit, that Ellen "may move for costs and attorney's fees in
such amount as shall be determined as appropriate by the court."
Under these circumstances, we conclude that the superior
court did not abuse its discretion by implicitly considering
Ellen's motion for attorney's fees to have been timely filed.
Further, we note that all motions for attorney's fees, including
motions grounded on statutes, made after the July 15, 1996
effective date of the amendment to Civil Rule 82(c), must be made
within the ten-day time frame provided for in the current rule.
(EN3)
B. Are the Superior Court's Findings Sufficient to Support
an Award of Attorney's Fees?
Jones also argues that the findings made by the superior
court are not sufficient to support an award of attorney's fees
under AS 25.30.070(c).
His argument relies on our decision in Kimmons v. Heldt,
667 P.2d 1245 (Alaska 1983). However, Kimmons does not address the
standard for awarding attorney's fees when the basis for dismissal
of the case is AS 25.30.070(b), (EN4) which is at issue here. We
think that the reprehensibility standard discussed in Kimmons,
which applies to situations governed by AS 25.30.070(a), (EN5) also
applies to situations governed by AS 25.50.070(b). The essential
distinction between subsections (a) and (b) is not in the quality
of wrongful behavior required; it is whether a petitioner is asking
for an initial custody decree or a modification of a custody decree
of another state. We can think of no persuasive reason to apply
different standards to cases governed by the two subsections,
despite the fact that the two subsections contain different
language. The key inquiry is whether the "petitioner has abducted
the child or has engaged in some other objectionable scheme to gain
or retain physical custody of the child in violation of the
decree. . . ." Comment, 9 U.L.A. 116 (Master ed. 1979).
We previously set guidelines for defining "wrongful"or
"reprehensible"behavior. In Stokes v. Stokes, 751 P.2d 1363, 1366
(Alaska 1988), we wrote:
The UCCJA does not define "wrongful"or
"reprehensible,"nor can we find any reported
cases that have done so. However, the
commentary to section 8 of the Act provides
some guidance:
"Wrongfully"taking under this
subsection does not mean that a
"right"has been violated -- both
husband and wife as a rule have a
right to custody until a court
determination is made -- but that
one party's conduct is so objection-
able that a court in the exercise of
its inherent equity powers cannot in
good conscience permit that party
access to its jurisdiction.
UCCJA  8 commissioners' note, 9 U.L.A. 143
(Master ed. 1979).
We conclude that for conduct to be
wrongful or similarly reprehensible, it is not
necessary that a child be taken in violation
of an outstanding order or decree, nor is it a
defense that no order or decree has been
entered. It is sufficient when the conduct is
"so objectionable that a court . . . cannot in
good conscience permit the party access to its
jurisdiction." Id. See Williams v. Zacher,
35 Or. App. 129, 581 P.2d 91, 94 (1978).
We hold that this same standard applies to the instant case.
Thus the question is whether under this standard the
superior court's findings are sufficient to support an award of
attorney's fees under AS 25.30.070(c). The superior court found
that Jones "wrongfully withheld/retained the children after a
visitation." We hold that this finding is sufficient to support
the superior court's award of attorney's fees. (EN6)
V. CONCLUSION
The superior court's award of attorney's fees is
AFFIRMED.
ENDNOTES:
1. Ellen did, in fact, move for attorney's fees on two occasions
prior to her February 24, 1995 motion. Her filings dated September
21, 1994 and December 12, 1994 both included a request for
attorney's fees. The superior court apparently did not rule on
these motions.
2. AS 25.30.070(b) reads:
If the petitioner for a modification decree
has, without the consent of the person
entitled to custody, improperly removed the
child from the physical custody of the person
entitled to custody or has improperly retained
the child after a visit or other temporary
relinquishment of physical custody, the court
may not exercise its jurisdiction to modify a
custody decree of another state unless it is
necessary in an emergency to protect the child
and the court has jurisdiction under AS
25.30.020(a)(2). If the petitioner has
violated any other provision of a custody
decree of another state, the court may decline
to exercise its jurisdiction if this is just
and proper under the circumstances.
The superior court referred to this statute in two of its
rulings. First, the report of the special master referred to this
statute as the basis for suggesting that jurisdiction be declined,
though the report also referred to another statute that could serve
that function. The superior court subsequently adopted this
report. Second, the superior court relied on AS 25.30.070(b) as
the basis for denying James's motion for reconsideration of the
superior court's order implementing the report of the special
master.
3. Subsequent to the superior court's award of attorney's fees in
this case Civil Rule 82(c) was amended to read: "A motion is
required for an award of attorney's fees under this rule or
pursuant to contract, statute, regulation or law."
4. See note 2 supra.
5. AS 25.30.070(a) reads in relevant part:
If the petitioner for an initial decree has
wrongfully taken the child from another state
or had engaged in similar reprehensible
conduct, the court may not exercise its
jurisdiction unless it is necessary in an
emergency to protect the child and the court
has jurisdiction . . . .
6. In Kimmons, we said that an award of attorney's fees will be
available to one party only when the other party has engaged in
conduct that was "reprehensible from the time that [the party]
commenced the Alaska proceedings." Kimmons, 667 P.2d at 1251.
Jones argues that "at the time he filed his petition asking the
Alaska courts to assume jurisdiction he lawfully had the children
in his possession . . . ." His argument overlooks that portion of
Kimmons where we stated, "[i]f the court finds that commencement or
maintenance by Kimmons of her suit constituted 'reprehensible
conduct,' an award of full attorney's fees from that point forward
would be permissible under the statute." Id. (emphasis added).
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