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Jordan v. Jordan (7/30/99) sp-5144
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Notice: This opinion is subject to 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, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL JOSEPH JORDAN, )
) Supreme Court No. S-8459
Appellant, )
) Superior Court No.
v. ) 4BE-95-224 CI
)
LUCY EVAN JORDAN, ) O P I N I O N
)
Appellee. ) [No. 5144 - July 30, 1999]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Bethel,
Dale O. Curda, Judge.
Appearances: Michael Joseph Jordan, pro se,
Seward. Mark Regan and James J. Davis, Jr., Juneau, and Robert K.
Hickerson, Anchorage, Alaska Legal Services Corporation, for
Appellee.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
This appeal arises from Michael and Lucy Jordan's
divorce. The superior court denied court-appointed counsel to
Michael, awarded custody of the couple's three children to
Lucy, and accepted the couple's property settlement agreement.
Michael appeals these actions. We affirm.
II. FACTS AND PROCEEDINGS
Lucy and Michael Jordan were married in Lower Kalskag in
1983. The Jordans have two daughters and a son: daughters
J.J. (fifteen years old) and F.J. (twelve), and son S.J.
(thirteen). Lucy alleges that Michael beat her and attempted to
strangle her with a rabbit snare in January 1995. Michael was
convicted of first-degree assault for these attacks and is
presently serving an eight-year sentence at the Spring Creek
Correctional Center in Seward. Lucy filed a complaint for divorce
in August 1995.
Michael raises eight separate issues for review which
this opinion will address in four sections: (1) child custody
issues; (2) denial of counsel issues; (3) property settlement
issues; and (4) sanctions under Alaska Civil Rule 11. The
specific procedural and factual history of each of these claims,
along with the standard of review for each, will be discussed in
its respective section.
III. DISCUSSION
A. Child Custody Issues
In early August 1995 the three children went to live
with Michael's brother and sister-in-law in North Carolina.
S.J., the son, was later sent to live with Michael's sister and
brother-in-law in Virginia. In February 1996 the court issued an
interim custody order giving custody of the girls to Lucy. The
girls returned immediately to Lower Kalskag. The court awarded
interim custody of S.J. to Michael with physical placement and
custody to remain with Michael's sister and brother-in-law in
Virginia. The court found that S.J.'s special academic, social,
emotional, and physical needs were being well addressed there.
S.J. was to spend the summers with Lucy and his sisters in Lower
Kalskag.
When S.J. returned to Lower Kalskag for his 1996 summer
visit, Lucy filed a motion seeking to have S.J. stay
permanently. This motion was denied and S.J. returned to Virginia
for the school year.
After numerous delays, the Jordans' divorce went to trial
on February 10, 1997. On February 3 Lucy, an Alaska Native,
filed a pre-trial memorandum seeking the immediate return of S.J.
In this memorandum she raised, for the first time, Indian Child
Welfare Act [Fn. 1] (ICWA) issues relating to S.J. living with
non-Native, non-parent relatives outside of Alaska.
The court issued its opinion and order on March 4, 1997.
In that decree the court found, among other things, that S.J.
should "at least finish the school year [in Virginia] before
returning to Lower Kalskag." The decree provided that S.J.
would "return to Kalskag as soon as possible, consistent with his
best interests." The court rejected Lucy's ICWA argument, stating
that it was barred by equitable estoppel and waiver doctrines.
Lucy sought and was granted a petition for review from
this court. In an order dated June 5, 1997, we vacated and
remanded the case back to the superior court and held that,
with regard to the custody of S.J., the case was governed by ICWA
and Turner v. Pannick. [Fn. 2]
ICWA requires that, before a foster care placement may be
made in a case involving an Indian child, the court must make "a
determination, supported by clear and convincing evidence,
including testimony of qualified expert witnesses, that the
continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical
damage to the child."[Fn. 3]
In Turner, we held that for a non-parent to gain custody
of a child, the non-parent -- in this case Michael's family
-- must prove either that the parent (Lucy) is unfit or has
abandoned the child or that the welfare of the child requires that
the non-parent be awarded custody. [Fn. 4]
A hearing on remand was held on August 22, 1997. There
Michael put on witnesses who testified to S.J.'s educational
progress, S.J.'s interaction with the village and his family,
Lucy's behavior as a parent and her recent drinking habits.
On September 24, 1997, the superior court ruled that Michael had
not met either the ICWA or Turner burdens and ordered that S.J.
stay in Lower Kalskag with Lucy and not return to Virginia for the
school year.
1. Even if the superior court should not have excluded
Michael's expert witnesses, any error was harmless.
Michael argues that the court erroneously disregarded
testimony of expert witnesses. [Fn. 5] The court stated that
it rejected the proposed experts because: (1) none of the witnesses
presented evidence regarding Lucy's parental fitness, nor had
they had any contact with Lucy, thus, these experts would not help
Michael overcome his Turner burden; and (2) none of the proposed
experts was familiar with Native or Yupik culture and thus
would not qualify as ICWA experts.
We have noted the following guidelines for the acceptance
of expert witnesses under ICWA:
The Department of Interior issued Guidelines
for State Courts, 44 Fed. Reg. 67583-95 (1979) (hereinafter
Guidelines). Those applicable to 25 U.S.C. sec. 1912(f) state:
Persons with the following
characteristics are most likely to meet the requirements for
a qualified expert witness for purposes of Indian child custody
proceedings:
(i) A member of the Indian child's
tribe who is recognized by the tribal community as
knowledgeable in tribal customs as they pertain to family
organization and childrearing practices.
(ii) A lay expert witness having
substantial experience in the delivery of child and family
services to Indians, and extensive knowledge of prevailing
social and cultural standards and childrearing practices within the
Indian child's tribe.
(iii) A professional person having
substantial education in the area of
his or her specialty.
Matter of Parental Rights of T.O., 759 P.2d 1308, 1309 n.3 (Alaska
1988) (emphasis added).
The superior court's ruling rejecting the witnesses as
experts was problematic. At least two of the witnesses, Burroughs
and Cooke Read, appeared to meet the third basis to qualify as
expert witnesses -- "substantial education"in the field of their
specialty -- as both had graduate degrees in their field of
specialty. The superior court appears to have ruled that because
the proposed witnesses did not meet the first two guidelines they
were unqualified, without considering the third guideline.
However, even if this exclusion was questionable, it
caused no harm, because the proposed experts had no knowledge of
Lucy's parental fitness, nor the services available to S.J. in the
Lower Kalskag public schools. Therefore, given the high ICWA and
Turner barriers to gaining non-parental custody, the testimony,
even if credited, could not have led to S.J.'s removal from Lucy's
custody. Under these circumstances, even if it was technical error
to exclude the experts' testimony, it was harmless.
2. The superior court did not abuse its discretion by
failing to order substance abuse counseling for Lucy as a condition
of custody.
Michael also contends that the court erred because it did
not order substance abuse counseling for Lucy as a condition of
custody. [Fn. 6] This argument is unavailing. The record does not
show that Michael ever asked that Lucy be required to undergo
alcohol counseling as a condition of custody. Furthermore, the
court found "uncontroverted"evidence that Lucy had not had any
problem with alcohol in the past year and that she was an excellent
parent.
B. Counsel Issues
Lucy was and still is represented by counsel. Michael
was originally represented by an attorney but contends that he ran
out of funds and thus was unable to continue to afford counsel. On
October 8, 1996, Michael, now pro se, asserted that he was indigent
and filed a motion for appointment of counsel. Along with this
motion, Michael filed a financial statement which listed family
assets of $212,000 and debts of $36,000, for a total unencumbered
net family worth of $176,000.
The court denied Michael's motion for appointment of
counsel, finding: "Mr. Jordan is not indigent, on the face of his
financial statement. This court would consider motions to
liquidate part of the marital estate to allow Mr. Jordan to hire an
attorney." Michael asserts that he made a proposal to liquidate
assets on which the court never acted, but the record does not
support this assertion. Michael appeared pro se, telephonically
from Spring Creek, for the rest of the proceedings.
The assets listed on Michael's financial statement break
out as follows: (1) land, buildings, and trailers, $190,000; (2)
motor vehicles, $6,000; (3) snow machines and boats, $16,000.
This financial statement is less extensive and detailed
than a marital asset list and proposed property division sent by
Michael to Lucy's attorney on May 20, 1996. This letter became the
basis of the property settlement and is the only detailed listing
of the marital assets in the record.
The most valuable asset is the family home in Lower
Kalskag, which Michael valued at $118,000. Michael stated that he
built an apartment and a restaurant/grocery adjacent to the home
and he valued these buildings and fixtures at $94,000. Thus, the
total value of the Lower Kalskag property was $212,000.
Prior to the marriage, Michael acquired a one-half
interest in sixty acres of land in Copper Center. Michael stated
that the value of the one-half interest was $60,000 less a $36,000
mortgage, for total equity of $24,000. It is not clear if this
land became part of the marital estate or if the mortgage was paid
out of marital funds, but Michael listed it as marital property.
Therefore, the value of the Jordans' real property, by
Michael's own valuation, was $236,000.
While Michael was not required to list other personal
property and tools in the financial statement to the court, he
listed significant chattels in his letter to Lucy's attorney
including: $21,418 in household items, $2,594 in fishing gear and
nets, $2,200 in logging equipment and $16,730 in building
materials. The value of these additional assets totals $42,942.
Thus, a rough estimate of the value of the Jordans'
marital property, using Michael's valuations, was $300,942
($236,000 real property, plus $6,000 in motor vehicles, plus
$16,000 in boats, plus $42,942 in other assets, equals $300,942).
At the beginning of the trial on February 10, 1997,
Michael renewed his objections to proceeding without counsel and
reiterated that he was indigent. This objection was noted and
denied, the court finding that Michael had been given ample time to
liquidate assets to hire a lawyer.
1. The superior court did not clearly err in
determining that Michael was not indigent.
It is well established that the due process clause of the
Alaska Constitution [Fn. 7] gives an indigent parent, in some
instances, the right to court-appointed counsel in a child custody
proceeding. [Fn. 8] Because Michael was not indigent, however, he
does not have the right to court-appointed counsel. [Fn. 9]
Indigency is defined in the Public Defender Agency statute as
follows:
"indigent person"means a person who, at the
time need is determined, does not have
sufficient assets, credit, or other means to
provide for payment of an attorney and all other
necessary expenses of representation without
depriving the party or the party's dependents of
food, clothing, or shelter . . . . [Fn. 10]
Given that the Jordans had $200,000 to $300,000 in
marital assets, it would appear that sufficient assets
existed for Michael to pay for an attorney without encumbering the
family home. Michael was given ample opportunity to ask the court
to allow him to liquidate assets but he chose not to do so.
We have previously held: "Nonindigents who must pay for
counsel may choose to forego counsel because they believe
that the benefits of counsel's service are outweighed by its
costs. The fact that our market system forces nonindigents to
make such a choice has never been regarded as a deprivation of the
right to counsel . . . ."[Fn. 11]
C. Property Settlement Issues
The May 20, 1996 letter that Michael sent to Lucy's
attorney which listed, valued, and proposed a division of the
marital property became the starting point for the ultimate
voluntary settlement entered into at trial. At trial, this letter
was entered into evidence. This agreement was memorialized in
the Findings of Fact and Conclusions of Law issued by the court on
May 30, 1997. The settlement was quite similar to that proposed in
Michael's letter and much of it was negotiated on the record.
The settlement's main points are that Lucy received the bulk of the
marital property, including the Lower Kalskag home. Michael
received the Copper Center land, a boat, a truck, logging
equipment, construction and welding equipment, tools, all of
his personal property, and miscellaneous other items.
1. The superior court did not err in accepting the
Jordans' property settlement agreement.
Michael now protests this property settlement. Michael's
principal argument is that the court erred by not (1)
determining what assets are marital; (2) valuing those assets; and
(3) equitably dividing the assets. This three-step process has
become known as applying the "Wanberg [Fn. 12] factors."
Michael misconstrues the law. The Wanberg factors are not
applied to settlement agreements. Instead, we have held that
"insofar as an agreement relates to the division of property,
the separation agreement should be controlling in the absence of
fraud, duress, concealment of assets or other facts showing that
the agreement was not made voluntarily and with full
understanding."[Fn. 13] Michael does not make such a showing.
Indeed, that argument would be nonsensical, since his May 20, 1996
letter formed the template for the final agreement, and his
vigorous negotiations during [Fn. 14] and after [Fn. 15] the trial
were almost entirely successful.
For these reasons, the superior court did not err in
enforcing the property settlement agreement.
D. Civil Rule 11 Sanctions
Michael asserts that Civil Rule 11 [Fn. 16] sanctions
should be imposed upon Lucy's attorney for two contacts he had
with persons outside of the court. But Michael's assertions do not
bring these matters within the purview of Rule 11, which
governs pleadings, motions, and other papers filed with the court.
Michael's allegations, if true, may be brought to the
attention of the Alaska Bar Association. But they are collateral
to this appeal and do not form a basis for overturning any action
of the superior court in resolving this case.
IV. CONCLUSION
We AFFIRM the superior court's decisions in declining to
appoint counsel for Michael, in awarding custody, and in accepting
the couple's property settlement agreement.
FOOTNOTES
Footnote 1:
25 U.S.C. sec.sec. 1901-63.
Footnote 2:
540 P.2d 1051 (Alaska 1975).
Footnote 3:
25 U.S.C. sec. 1912(e).
Footnote 4:
Turner, 540 P.2d at 1055.
Footnote 5:
The determination of the acceptance of expert witnesses under
ICWA is reviewed for abuse of discretion. See Matter of Parental
Rights of T.O., 759 P.2d 1308, 1310 (Alaska 1988).
Footnote 6:
Trial courts are vested with broad discretion in child custody
matters. See Gratrix v. Gratrix, 652 P.2d 76, 79 (Alaska 1982).
We will reverse a trial court's resolution of custody issues only
if we are convinced that the record shows an abuse of discretion or
if controlling factual findings are clearly erroneous. See id. at
79-80.
Footnote 7:
See Alaska Const. art. I, sec. 7.
Footnote 8:
See Flores v. Flores, 598 P.2d 893, 893-94 (Alaska 1979).
Footnote 9:
Since the determination of Michael's indigency is a factual
question, the superior court's decision is subject to the "clearly
erroneous"standard of review. See Adrian v. Adrian, 838 P.2d 808,
811 (Alaska 1992); Alaska Rule of Civil Procedure 52(a) (a trial
court's factual findings "shall not be set aside unless clearly
erroneous"). To reverse such findings, we must be left with "a
definite and firm conviction on the whole record that the judge
made a mistake." Smith v. Smith, 673 P.2d 282, 283 (Alaska
1983)(citations omitted).
Footnote 10:
AS 18.85.170(4).
Footnote 11:
State v. Albert, 899 P.2d 103, 112-13 (Alaska 1995).
Footnote 12:
Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).
Footnote 13:
Notkin v. Notkin, 921 P.2d 1109, 1111 (Alaska 1996) (quoting
Kerslake v. Kerslake, 609 P.2d 559, 560 n.1 (Alaska 1980)(internal
quotation marks omitted)).
Footnote 14:
At one point in the trial, Michael interrupted Lucy's testimony
to "get to the bottom line: Am I going to be able to have my
property [the Copper Center land]?" He obtained that property,
then commenced an on-the-record negotiation, in which he obtained
every item of property he sought. Over the next two days, the
negotiations continued outside of court and were reported by
counsel and Mr. Jordan to the court each day. They ended with
agreement on "the final outstanding issue in the property part of
this case."
Footnote 15:
The superior court noted in the Findings of Fact and
Conclusions of Law that "[a]fter the trial [Michael] contacted
[counsel for Lucy] and stated that there were other items, marital
and otherwise, that he wanted to be awarded." Lucy agreed to all
but certain of the requested items. These concessions were wrung
after Michael agreed on the record to have reached "final"
agreement with Lucy as to property.
Footnote 16:
Civil Rule 11 provides, in part:
Every pleading, motion and other paper of
a party represented by an attorney shall be signed by at least one
attorney of record in the attorney's individual name. . . . The
signature of an attorney or party constitutes a certificate by the
signer that . . . to the best of the signer's knowledge,
information, and belief formed after reasonable inquiry it is well
grounded in fact and is warranted . . . , and that it is not
interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless expense in the cost of litigation.
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