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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rodvik v. Rodvik (12/08/2006) sp-6080
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| KARSTEN P. RODVIK, | ) |
| ) Supreme Court No. S- 11986 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-04-04120 CI |
| ) | |
| MAUREEN O. RODVIK, | ) O P I N I O N |
| n/k/a MAUREEN OKEEFE, | ) |
| ) No. 6080 - December 8, 2006 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Fred H. Valdez, Anchorage, for
Appellant. Maureen OKeefe, pro se,
Anchorage, Appellee. Robert R. Polley,
Assistant Public Advocate, and Joshua Fink,
Public Advocate, Anchorage, Guardian Ad
Litem.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
Karsten Rodvik appeals the superior courts resolution
of his divorce proceeding. He challenges the trial courts
decision granting sole legal and primary physical custody of the
couples three children to his former wife, Maureen.
Additionally, he appeals the trial courts decision to order
supervised visitation and child support and its award of legal
fees to Maureen. He also challenges the trial courts division of
property, which resulted in a distribution of marital property
favoring Maureen. Finally, he argues that it was error for the
trial judge to decline to recuse himself from the Rodviks divorce
proceeding. We affirm the trial courts custody and visitation
decision but remand several discrete property issues to the trial
court for further findings.
II. FACTS AND PROCEEDINGS
Karsten and Maureen Rodvik were married in Anchorage in
1990 and separated in 2003. They have three children, ages 13,
11, and 6. Karsten filed a complaint for divorce in January 2004
seeking custody of the three children and child support. Maureen
filed an answer and counterclaim for divorce, seeking custody of
the children and child support.
During the contentious divorce, Maureen filed for and
received a series of protective orders. A domestic violence
protective order was issued on October 24, 2003, after Karsten
agreed to the entry of the order. In her petition for this
protective order, Maureen alleged that Karsten deprived her of
sleep, prevented her from leaving, was verbally abusive, drank
heavily, struck the children, pushed Maureen, butted her with his
shoulder, and grabbed her. Another domestic violence protective
order was granted by Superior Court Judge Peter A. Michalski on
April 23, 2004, on the grounds that Karsten had refused to return
the children after his visitations on multiple occasions and that
he contacted Maureen on matters not related to the children in
violation of the earlier protective order. The court found by a
preponderance of the evidence that Karsten had committed a crime
involving domestic violence against Maureen and that Karsten
posed a threat to the physical safety of Maureen or the children.
A similar protective order was again issued on November 1, 2004.
A fourth protective order was issued on March 2, 2005 by Judge
Michalski in connection with his final decision in the divorce.
The parties stipulated to the appointment of a child
custody investigator to assist in the evaluation of the childrens
best interests because the case involved serious allegations of
parental behavior problems, including domestic violence and
alcohol abuse.
While Maureen was represented by counsel, Karsten
represented himself at trial because his attorney withdrew from
the proceedings on February 10, 2005 with Karstens consent.
Karsten requested a continuance in order to obtain new counsel,
but his request was denied. Karsten did not provide any
discovery leading up to trial, even after the superior court
issued an order requiring Karsten to respond to the discovery
requests of Maureen.
A trial was held from February 28, 2005 through March
2, 2005 before Judge Michalski. In connection with the property
division, Maureen submitted a proposed property division, but
Karsten did not. Testimony at trial in connection with the
property division, discussed more fully below, was based
primarily on Maureens proposed property division. The court
awarded Maureen $158,560 worth of property, $12,560 more than the
$146,000 value of the property awarded to Karsten.
The trial court heard testimony from Maureen, Karsten,
a guardian ad litem (GAL) appointed for the children, an Office
of Childrens Services investigator, the child custody
investigator, the familys pastor, family members, neighbors, one
of the childrens teachers, and the childrens piano teacher. The
child custody investigator issued a report, concluding that
Maureen bore most of the responsibility for the children over the
years, had the most stable source of income, prioritized the
children, was organized and responsive to the childrens needs,
and had largely refrained from criticizing Karsten in front of
the children during the divorce. With respect to Karsten, the
custody investigator determined that he was less capable of
meeting the childrens needs, that he was less responsible for
meeting the childrens needs during the marriage, that he had an
unstable employment history, that he was chronically late, and
that, besides the piano lessons, he was less involved in the
childrens activities than Maureen. The custody investigator also
concluded that Karsten has difficulty separating his emotions
from those of his children, insisting that his sadness and
despair over the end of the marriage is theirs. She added that
[Karstens] denial, anxiety, and sense of urgency regarding the
divorce interfere with his ability to be emotionally available to
the children during this difficult time. The child custody
investigator recommended that Maureen be awarded sole legal and
primary physical custody.
On June 14, 2005, the superior court issued a decree of
divorce and awarded sole legal and primary physical custody of
the children to Maureen. In its findings of fact and conclusions
of law, the superior court based its decision primarily on
Karstens erratic behavior and the emotional impact that his
behavior had had on the children. The trial court also found
that Karstens visits should be supervised.
In order to establish Karstens income as a piano tuner
for purposes of determining child support, Maureen presented an
expert witness, a piano instructor, who spoke to the typical
volume of business and fees generated by piano tuners. Based on
this testimony, the superior court imputed income to Karsten in
the amount of $40,000. The court also found that Karstens
passive-aggressive non-participation and difficulty entitled
Maureen to legal fees.
Maureen filed a motion for entry of additional findings
of fact out of concern that the courts final order not be
vulnerable to legal attack. In response, the trial court issued
additional findings of fact, stating that the property division,
while weighted slightly more in favor of Maureen, was equitable
given the fact that Maureen would be caring for the parties
children who would likely need counseling for years to come. The
additional findings of fact also addressed more specifically how
Karstens denigration of Maureen in front of the children
demonstrated that Karsten could not meet the childrens mental,
emotional, and psychological needs, and how Karsten was unable to
foster a relationship between the children and Maureen. The
trial court also expressly adopted the recommendations of the
GAL.
Karsten appeals the superior courts findings with
respect to the property classification and distribution, child
custody and visitation, child support, and legal fees. He also
argues that Judge Michalski should have recused himself from the
divorce proceedings because Karsten had criticized one of the
judges prior decisions on a constitutional issue and Karsten
worked to effect a change to the Alaska Constitution to overrule
that decision. Karsten was apparently active in the campaign in
support of the amendment and was publicly critical of Judge
Michalskis decision.
III. DISCUSSION
A. Standard of Review
Trial courts have broad discretion in determining child
custody issues.1 We will reverse a trial courts custody
determination only if we are convinced that the trial court has
abused its discretion or that controlling findings of fact are
clearly erroneous.2 We find an abuse of discretion where the
trial court considered improper factors, failed to consider
statutorily mandated factors, or improperly weighed certain
factors in making its determination.3 A factual finding is
clearly erroneous when a review of the entire record leaves us
with a firm conviction that the trial court has made a mistake.4
The trial court has broad discretion in fashioning a property
division in a divorce action.5 Equitable division of marital
assets by the superior court involves a three-step procedure.6
First, the trial court must decide what property is available for
distribution.7 Second, the trial court must value this property.8
Third, the trial court must decide how to allocate the property
in the most equitable manner.9 We review the trial courts
determination of what property is available for distribution
under an abuse of discretion standard.10 The valuation of
available property is a factual determination that should be
reversed only if clearly erroneous.11 The equitable allocation of
property is reviewable under an abuse of discretion standard and
will not be reversed unless it is clearly unjust.12 The refusal
by a judge to recuse himself or herself from a case is reviewed
for an abuse of discretion.13
B. Child Custody and Visitation
1. The trial court did not err in granting sole legal
and primary physical custody to Maureen.
Under AS 25.24.150(c), trial courts must make custody
determinations in the best interests of the child, considering
the following factors:
(1) the physical, emotional, mental,
religious, and social needs of the child;
(2) the capability and desire of each
parent to meet these needs;
(3) the childs preference if the child
is of sufficient age and capacity to form a
preference;
(4) the love and affection existing
between the child and each parent;
(5) the length of time the child has
lived in a stable, satisfactory environment
and the desirability of maintaining
continuity;
(6) the willingness and ability of each
parent to facilitate and encourage a close
and continuing relationship between the other
parent and the child, except that the court
may not consider this willingness and ability
if one parent shows that the other parent has
sexually assaulted or engaged in domestic
violence against the parent or a child, and
that a continuing relationship with the other
parent will endanger the health or safety of
either the parent or the child;
(7) any evidence of domestic violence,
child abuse, or child neglect in the proposed
custodial household or a history of violence
between the parents;
(8) evidence that substance abuse by
either parent or other members of the
household directly affects the emotional or
physical well-being of the child;
(9) other factors that the court
considers pertinent.
The trial court awarded sole legal and primary physical
custody of the children to Maureen, emphasizing the impact
Karstens behavior had on the children. The trial judge commented
that Karsten had insulted and denigrated Maureen in front of the
children in a manner that was emotionally abusive and had hurt
the children in ways it will take them their full maturing to
grow from. The trial court concluded that Karsten could not meet
the childrens emotional and psychological needs and that Karsten
could not facilitate communication between the children and
Maureen. As further grounds for its conclusion, the court also
referred to Karstens repeated violations of protective orders by
contacting Maureen.
The trial courts findings are amply supported by the
record. According to the child custody investigators report,
Maureen has shouldered most of the responsibility for the
children over the years, has had the most stable source of
income, and has largely refrained from criticizing Karsten in
front of the children. She has also prioritized the children and
is organized and responsive to the childrens needs. The custody
investigator determined that Karsten is less capable of meeting
the childrens needs, was less responsible than Maureen for
meeting the childrens needs during the marriage, and has had an
unstable employment history. The custody investigator also
concluded that Karsten has difficulty separating his emotions
from those of his children, insisting that his sadness and
despair over the end of the marriage is theirs, and that [h]is
denial, anxiety, and sense of urgency regarding the divorce
interfere with his ability to be emotionally available to the
children during this difficult time.
The GAL also testified at trial that Karsten made
denigrating comments about Maureen in front of the children and
discussed the divorce in front of them, and that the children
were more frequently absent or tardy when they were in Karstens
care. The GAL testified that Maureen, in contrast, was careful
about shielding the children from the impact of the divorce.
Because the testimony of witnesses at trial and the
recommendations of the GAL and custody investigator support the
findings of the trial court, we conclude that Karstens claims of
error are without merit.
2. The trial court did not err in ordering that
Karstens visitation with the children be
supervised.
Karsten argues that the GALs recommendation does not
provide evidence justifying supervised visitation. The superior
court adopted the recommendations of the GAL and child custody
investigator that visits between Karsten and the children be
supervised. In adopting the recommendations, the trial court
concluded that
[w]ith respect to the children, there are
many many examples of specific things that
were problematic, such as the childrens
tardiness from school and so forth, not
actually getting care, which lead this court
to find that Karstens unsupervised contact
has, and would continue to have, an adverse
effect on the children.
Specifically, the child custody investigator explained her
recommendation: Given [Karstens] emotional nature and
unwillingness to hear other options regarding the divorce, he is
considered to pose some risk[,] and some precautions may need to
be taken during this volatile period . . . . The trial courts
order that the visits be supervised is therefore adequately
supported in the record and the harm to the children from
unsupervised visitation is clearly articulated in its findings.
In J.F.E. v. J.A.S., we held that
the best interests of the child standard
normally requires unrestricted visitation
with the noncustodial parent. Therefore, an
order requiring that visitation be supervised
must be supported by findings that specify
how unsupervised visitation will adversely
affect the childs physical, emotional,
mental, religious, and social well-being and
the other interests set out at AS 25.24.150.[14
]
We also stated that we prefer a plan by which unsupervised
visitation can be achieved.15
The recommendations of the GAL suggested that all
contact between Mr. Rodvik and the children be supervised at
least until Mr. Rodvik obtains a psychological evaluation. The
superior court adopted this plan, stating, [b]ecause of Karstens
apparent lack of insight into his childrens needs, the harm his
actions have done to them and the necessity that he comply with
rules established by the court, it is in the childrens best
interests to immediately implement the [GALs] recommendations . .
. . We conclude that it was reasonable for the superior court to
condition resumption of unsupervised visits on Karstens
psychological evaluation and the resulting recommendations of the
psychologist. In accordance with our preference for unsupervised
visitation, the superior court expressed a willingness to revisit
the issue of unsupervised visitation when it stated that [t]he
need for further supervision would be determined based on the
findings of the evaluation and Mr. Rodviks follow-through on any
recommendations. Thus, the trial court did not err in ordering
supervised visitation and structuring a mechanism by which
Karsten could return to unsupervised visits with the children
after undergoing the psychological evaluation.
C. Property Division
1. We remand to the superior court for
reconsideration of whether certain items
constitute marital property subject to
distribution.
Maureen was the only party to submit a proposed
property division at trial. Karsten has appended to his brief on
appeal a list of property which he alleges was taken by Maureen
and not accounted for at trial. Karsten also argues that his
medical coverage should have been included in the property
division. But Karsten makes this argument for the first time on
appeal. Because, [a]s a general rule, we will not consider
arguments for the first time on appeal,16 we disregard this claim
made by Karsten for the first time on appeal. It was not an
abuse of discretion for the superior court to consider the
property set forth in the exhibits introduced by Maureen to be
the universe of the couples marital property.
Karsten also argues that the trial court erred in
separately listing and valuing a depth finder and radio as assets
when they were attached to the boat as accessories, and in
finding two antique clocks to be marital property. But he did
not present any evidence with respect to these items at trial or
otherwise make any objections to Maureens characterizations of
these items as marital property when given the opportunity at
trial. Thus, Karsten has waived this objection on appeal.17
Karsten did, however, testify that the canoe listed by
Maureen was premarital property. Maureen also conceded at trial
that the canoe, I didnt remember that . . . exact purchase date .
. . Karsten was indicating he had purchased it before marriage so
if that . . . is, in fact, the case, then he, obviously, keeps
the canoe. Thats fine. Exhibit L lists the purchase date of the
canoe as 1990?, the year of the parties marriage. Given that
Karstens testimony was unequivocal and Maureen allowed that she
was not sure when the canoe was purchased and that it could have
been premarital property, we remand to the superior court to
revise its distribution of property to reflect that the canoe was
Karstens premarital property and thus is excluded from the
property division.
Karsten also argues that the trial court failed to
consider various debts when fashioning its property division.
But when asked at trial if his debts were incurred post-
separation, Karsten stated that [t]he only debt I had before this
happened was . . . our mortgage . . . a new truck payment and
loans against my life insurance policies and maybe 500 to a
thou[sand] . . . on [a] credit card. It was therefore not error
for the court to decline to include Karstens credit card debt as
marital debt. It does, however, appear that the trial court
failed to consider marital debts with respect to Karstens life
insurance and the carpet that was installed during the marriage.
Karsten testified about both of these at trial, and neither was
included in the final distribution of assets. On remand, the
superior court should consider whether these should have been
included in the distribution of property as marital debts.
Karsten also claims that the superior court erred in
classifying certain of Maureens debts as marital debt. Maureen
testified at trial that Keefe loan No. 2 was given to Maureen
after the couples separation and that the MBNA Visa card reflects
a debt for attorneys fees incurred by Maureen after the
separation. The superior courts characterization of these as
marital debts in the face of uncontested testimony from Maureen
that they were not is error, and on remand the trial court should
remove these from the marital property distribution.
2. The trial court did not err in its valuation of
the marital property.
The trial court determined that the property values
contained in Maureens proposed division were fair and adopted
them. On appeal, Karsten argues that the superior court erred in
adopting wholesale Maureens proposed property valuations.
Specifically, he disputes the trial courts valuation of some
computers and printers, the marital home, Maureens retirement and
annuity accounts, and some ammunition. But Karsten did not
object to the valuation of the computers and printers or to the
value of Maureens retirement and annuity accounts at trial, and
therefore we will not entertain his objections on appeal.
Karsten next argues that the superior court erred in
valuing the ammunition at $5,000 and maintains that its true
value is $500. The trial court heard conflicting evidence with
respect to the value of the ammunition from Maureen and Karsten,
and both parties admitted that they were not sure about the
amount of the ammunition or its value. It was thus not clearly
erroneous for the trial court, after hearing testimony from both
parties, to accept the estimate of Maureen over that of Karsten.
Conflicting testimony was also heard about the value of
the marital home. Maureen estimated that the net equity in the
house was $111,000. This figure was calculated by taking a high
value of the market analysis ($346,200) and subtracting the
amount of the mortgage ($235,200). Karsten testified that a
broker had estimated to him that the most he could push it would
be $330,000, but, unlike Maureen, Karsten provided no documentary
evidence to support this valuation. Nor did he offer testimony
about the net equity in the home. It was therefore not error for
the trial court to credit Maureens supported testimony over
Karstens unsupported testimony.18
3. The trial court must supplement its findings to
support an uneven distribution of marital
property.
Under AS 25.24.160(a)(4),19 in a divorce action, the
court must considercertain statutory factors when dividing
property. We have held that [i]n the absence of findings to
warrant an unequal division . . . an equal division of the
marital estate is presumptively the most equitable.20
At trial, Karsten requested that the court move toward
a 50/50 distribution rather than the distribution Maureen
proposed, which was skewed in her favor. But the trial court
made two adjustments to Maureens proposed division, allocating
debt owed to Maureens family to Maureen and attributing $5,000
worth of ammunition to Maureen after determining that the gun
collection should be awarded to Maureen. The trial court valued
the allocation as $158,560 to Maureen and $146,000 to Karsten.
In doing so, the court noted that [a]lthough the resulting
distribution is not weighted as heavily in Maureens favor as the
one she proposed, it is more than $12,000 in her favor. . . .
In its order entering additional findings of fact, in
response to Maureens motion, the trial court added the factual
finding that [t]he property division, while weighted slightly in
Maureens favor, is equitable given the fact that Maureen will be
caring for the parties children in the future and the children
will likely need counseling for years to come. Karsten
challenges this uneven allocation of marital property.
According to Turners treatise on equitable distribution
of property, the needs of the children should generally not be a
factor in determining the amount of marital property assigned to
each spouse.21 Turner cites as support for this statement our
decision in Brandal v. Shangin, which concluded that [f]or a
trial court to award one spouse a greater share of the marital
property simply to ease his or her burden of child support
constitutes reversible error. 22 Turner further suggests that
[p]roperty division should be used to meet the needs of the
children only in the presence of a specific reason why this goal
cannot be met with an award of child support alone.23
We conclude that before the superior court may fashion
an uneven distribution of the Rodviks marital property in
Maureens favor on the basis that Maureen will be caring for the
parties children in the future and the children will likely need
counseling for years to come, it must first determine whether the
child support is adequate to meet the childrens counseling needs.
The need for additional findings is reinforced by the superior
courts child support order, which already requires that Karsten
pay half of any of the childrens uncovered medical expenses,
which could include the childrens counseling. We have remanded
this case to the superior court for reconsideration of whether
certain assets constitute marital property and for redistribution
based on its findings. If the superior court deems it necessary
to distribute property in either partys favor based on the needs
of the children, it must explain why the needs of the children
cannot be met with child support alone.
4. The trial court did not err in awarding the
marital guns to Maureen based on 18 U.S.C. 922(g)
but did err in awarding Karstens separate property
to Maureen.
The trial court awarded the entire twenty-one gun
collection in dispute to Maureen, ruling that [g]iven the
dictates of 18 U.S.C. 922(g), the court is compelled not to be
putting into Karstens control anything which would make him a
criminal. Karsten argues that the superior court misinterpreted
the federal statute and that the statute criminalizes only the
receipt of any firearm or ammunition that has been transported in
interstate commerce. Karsten contends that he should be awarded
the entire gun collection and the ammunition.
In order to determine whether Karstens argument on
division of the gun collection has merit, it is first necessary
to examine whether Karsten was permitted to possess any firearms
or ammunition under the federal statute at the time the trial
court divided the parties property. 18 U.S.C. 922(g)(8) states:
It shall be unlawful for any person
(8) who is subject to a court order
that
(A) was issued after a hearing of
which such person received actual notice, and
at which such person had an opportunity to
participate;
(B) restrains a person from harassing,
stalking, or threatening an intimate partner
of such person or child of such intimate
partner or person, or engaging in other
conduct that would place an intimate partner
in reasonable fear of bodily injury to the
partner or child; and
(C) (i) includes a finding that such
person represents a credible threat to the
physical safety of such intimate partner or
child; or
(ii) by its terms explicitly
prohibits the use, attempted use, or
threatened use of physical force against such
intimate partner or child; . . .
. . . .
to ship or transport in interstate or foreign
commerce, or possess in or affecting
commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has
been shipped or transported in interstate or
foreign commerce.
Prior to the divorce trial, the trial court had issued
three protective orders against Karsten upon Maureens petitions
on: October 24, 2003; April 23, 2004; and November 1, 2004. The
October 2003 protective order was based on allegations by Maureen
that Karsten was verbally abusive, drank heavily, and had struck
both Maureen and the children. The April 2004 and November 2004
protective orders were issued after findings that Karsten had
violated previous protective orders. In connection with its
final order on custody and property division in the divorce, the
trial court issued a fourth protective order on March 2, 2005,
which was designed to last one year. Although Karsten disputes
the interpretation of the statute and its application to him, he
does not argue that the protective orders do not meet the
criteria listed in 18 U.S.C. 922(g)(8).
Decisions analyzing 18 U.S.C. 922(g)(8) have assumed
that the statute applies to simple possession of a firearm, as
well as receipt of a firearm through interstate commerce.24 For
example, in United States v. Emerson, the defendant was indicted
for simple possession of a firearm while subject to a restraining
order in violation of 18 U.S.C. 922(g)(8).25 There, the
defendant had purchased the firearm about a year before the
restraining order was entered.26 The Fifth Circuit held that
18 U.S.C. 922(g)(8) was constitutional as applied to the
defendants possession of a weapon while subject to a domestic
violence restraining order.27 And, in United States v. Lippman,
the defendant was subject to a domestic violence restraining
order against him when he was arrested for possession of two
firearms.28 He was found guilty by a jury of violating 18 U.S.C.
922(g)(8), and the Eighth Circuit upheld the conviction,
concluding that 18 U.S.C. 922(g)(8) did not violate the Second
Amendment.29 In People v. Adams, the New York trial court
analyzed whether a defendant, who was subject to a court order of
protection, was entitled to a waiver under the probation rules
that would allow him to apply for a hunting license and use a
hunting rifle.30 The court examined both state and federal law
and determined that the defendant, for as long as the [court
order of protection] is in effect, is barred by 18 U.S.C. []
922(g)(8) from possessing a firearm, including a hunting rifle.31
Finally, in Towell v. Steger, the Missouri Court of Appeals
examined whether to remove an order of protection issued by the
trial court, noting that
[u]nder the Federal Gun Control Act, 18
U.S.C. [] 922(g)(8), a person under an order
of protection may not possess a firearm, even
for recreational purposes. Therefore,
Appellant may violate federal laws if he
possesses hunting weapons or legitimately
hunts. The mere possession of firearms while
under an order of protection violates 18
U.S.C. [] 922(g)(8).[32]
Thus, the court recognized a person who is subject to a
protective order could not possess a gun.33
Karsten has pointed to no case concluding that 18
U.S.C. 922(g)(8) does not prohibit possession of a firearm or
ammunition by a person who is subject to a protective order. As
it is not disputed that the trial court entered a valid
protective order when it issued the divorce decree, Karstens
possession of any firearm, whether received before the issuance
of the restraining order or after, was illegal under the statute.
Thus, based on the case law interpreting 18 U.S.C. 922(g)(8),
the superior court was at least reasonable in concluding that
federal law imposes a barrier to awarding firearms to Karsten
while a protective order is in effect.34
Although the trial court did not err in awarding the
marital guns to Maureen, we analyze separately the question
whether it was error for the trial court to award to Maureen the
gun that was Karstens separate property. There was testimony at
trial that one of the twenty-one guns in the collection was
Karstens separate property. When Karsten was asked at trial if
any of the other guns were premarital, he stated [w]ell, there
are others on there that are definitely premarital but he did not
offer further evidence regarding the guns. Karsten identified
four guns as his separate property in his motion to reconsider
the findings of fact and conclusions of law issued by the
superior court. Karsten again argues in his brief on appeal that
the four guns are premarital property. Under AS 25.24.160(a)(4),
although the trial court is to provide for the division of the
property acquired only during marriage, the court, in making the
division, may invade the property . . . of either spouse acquired
before marriage when the balancing of the equities between the
parties requires it. Ordinarily a decision to invade separate
property must be accompanied by specific findings justifying the
invasion.35 But in this case, the trial court stated that it
would not award the guns to Karsten based on the federal statute
because such an award would make [Karsten] a criminal. Because
the trial courts overriding reason for awarding the guns to
Maureen was expressed, we conclude that the trial courts findings
are sufficient to justify this limited invasion of Karstens
separate property, consisting of four guns.
D. The Trial Court Did Not Abuse Its Discretion in
Imputing $40,000 of Income to Karsten for Purposes of
Determining Child Support.
Karsten argues that the trial court engaged in
speculation when imputing $40,000 as his income for purposes of
calculating child support. A trial court has broad discretion to
impute income based on the most complete evidence before it . . .
. This discretion is particularly broad where the reason for the
incomplete record is the parents own unresponsiveness. 36
Karsten is a self-employed piano tuner. Karsten never
provided complete discovery with respect to his income,37 and he
introduces the figure of $36,000 as his actual projected gross
income for 2005 for the first time on appeal, with no supporting
documentation. At trial, an expert piano instructor testified
about the general earning capacity of piano tuners such as
Karsten. The expert stated that most piano tuners in the area
charge about $100 for a piano tuning visit, noting that this can
vary depending upon the level of experience of the technician.
The expert further testified that over the long term, a piano
tuner can build up a client base so that he can tune three to
four pianos per day. The expert conceded under Karstens cross-
examination that Karsten was not a highly skilled expert, which
would impact the rates that Karsten was able to charge. But the
superior court gave Karsten the opportunity to elicit testimony
from the expert that would clarify for the court how much money
Karsten could expect to make given his level of skill, and
Karsten declined the opportunity. The superior court addressed
Karsten, stating: If hes the expert in the area and knows . . .
this business . . . Ill let you ask him what he thinks you would
be expected to make if you were working as hard as you could. Do
you want to ask him that? Karsten responded: No, not really.
The expert also testified that piano tuners in the area spent
anywhere from twenty to twenty-five percent of their earnings on
overhead costs.
In its findings and conclusions, the trial court
determined that Karsten could tune two pianos per day at $100 per
job. Based on this, the trial court imputed $50,000 worth of
gross revenue to Karsten, and adjusted that earning capacity to
$40,000 per year for purposes of calculating child support. This
figure estimates the number of pianos tuned per day based on
Karstens number of years of experience and skill level and
includes a deduction of twenty percent for overhead costs.
Because Karsten provided no other evidence with respect to his
income at trial, and declined to inquire of the expert how much
he could be expected to earn, the superior court did not err in
imputing this income to Karsten.38 However, under Civil Rule
90.3, federal income tax is deductible from the adjusted gross
income in order to arrive at the adjusted annual income for child
support purposes. Therefore, on remand, the court should ask the
parties to brief the question of the appropriate deduction for
federal income tax from Karstens imputed income of $40,000.
E. The Superior Court Did Not Err in Awarding Maureen
Legal Fees.
Under AS 25.24.140(a)(1), a spouse may be awarded
expenses, including attorney fees and costs that reasonably
approximate the actual fees and costs required to prosecute or
defend the action in divorce proceedings. The award of attorneys
fees in divorce actions is within the broad discretion of the
trial court.39
The superior court awarded Maureen $10,000 in legal
fees based on Karstens conduct during the course of the
litigation. Karsten argues that it was error for the superior
court to award Maureen attorneys fees because the parties are of
comparable economic standing and should each have borne their own
attorneys fees.
In Alaska, cost and fee awards in a divorce are not to
be based on the prevailing party concept, but primarily on the
relative economic situations and earning powers of the parties.40
This is because in divorce actions the purpose of awarding
attorneys fees is to assure that both spouses have the proper
means to litigate the divorce action on a fairly equal plane.41
Trial courts also have the discretion to increase an
award of attorneys fees where a party has acted in bad faith or
engaged in vexatious conduct.42 When determining whether bad
faith or vexatious conduct warrants an increase in attorneys
fees, we explained in Kowalski that
one partys misconduct does not authorize the
court to disregard the relative economic
situations and earning powers of the parties
. . . . [I]n making an increased fee award,
the court must first determine what fee award
would be appropriate under the general rule,
and only then increase the award to account
for a partys misconduct. Failure to follow
this two-step process constitutes an abuse of
discretion.[43]
We further explained in Kowalski that
the court must make explicit findings of bad
faith or vexatious conduct and clearly
explain its reasons for deviating from the
general rule. When the court finds that one
spouses misconduct has unnecessarily
increased the other spouses costs, the court
must identify the nature and amount of these
increased costs.[44]
Under these standards, the superior court did not abuse
its broad discretion in awarding Maureen attorneys fees. The
superior court reasoned that
[g]iven the kind of passive-aggressive non-
participation and difficulty, not to mention
specific incidents raised by Maureens counsel
in his final argument, it would be fair and
appropriate that Karsten contribute in
addition to the division of property, that
Karsten pay $10,000 of Maureens fees.
Maureens counsel in his closing offered the following foundation
for the award of attorneys fees:
Now, a cursory glance at the record will
demonstrate that even if you leave off the
pre-divorce domestic violence action which
related to the parties separation, Mr.
Rodviks vexatious conduct since the beginning
of this case has required her to receive two
additional long-term protective orders, to
ask that he be held in contempt, to ask that
the court order the house be sold, to ask
that he be ordered to return the children
from Minnesota last summer.
We conclude that these specific allegations of bad faith and
vexatious conduct, incorporated by reference into the superior
courts order, adequately support imposition of attorneys fees in
favor of Maureen.
The superior court did not explicitly engage in step
one of the two-step process described in Kowalski, assessing the
relative economic situations and earning powers of the parties.
But the record reveals that Karsten and Maureen are of comparable
economic standing, as income of $40,000 was imputed to Karsten
and Maureen reportedly earned $32,030. We determine that the
Kowalski standard has been satisfied because implicit within the
trial courts findings was a threshold determination of relative
equality of the parties income. This fee award was thus
justified by the trial courts finding that Karsten dramatically
increased Maureens litigation costs, affecting her ability to
litigate the divorce action on an equal plane.
F. It Was Not Error for Judge Michalski To Decline To
Recuse Himself.
Under AS 22.20.020(a)(9), a judge should recuse himself
or herself whenever the judicial officer feels that, for any
reason, a fair and impartial decision cannot be given. A judges
conclusion that he or she can decide the case fairly will
constitute an abuse of discretion only when it is plain that a
fair-minded person could not rationally come to that conclusion
on the basis of the known facts.45 In Perotti v. State, the court
of appeals held that disqualification under subsection (a)(9) is
also mandated when, under the circumstances of the case, it is
predictable that an unmistakable appearance of bias will arise
from a judges participation in a case.46
On February 10, 2005, Karstens attorney, Wayne Ross,
sent a letter to Judge Michalski requesting that the judge recuse
himself. Ross stated that he had come across a law review
article which stated that Judge Michalski reached a decision
which was the catalyst for the Alaska Marriage Amendment defining
marriage as a union between a man and a woman. In the same law
review article, Karsten was mentioned in a footnote as the head
of a group that was critical of Judge Michalskis decision.47 The
request for recusal was based upon this purported conflict. We
conclude that Judge Michalski did not abuse his discretion when
he refused to recuse himself under these circumstances. By
virtue of holding a judicial office, judges are in a position to
render decisions capable of sparking controversy and spirited
public comment. It was not an abuse of discretion for Judge
Michalski to conclude that he was capable of rendering an
unbiased decision despite a litigants vocal opposition to a
decision the judge issued in his official capacity.
IV. CONCLUSION
We AFFIRM the superior courts determination that
Maureen is entitled to sole legal and primary physical custody
and that supervised visitation pending the outcome of a
psychological evaluation is appropriate. With respect to the
division of marital property, we REMAND to the superior court for
a reassessment of the classification of the canoe, Karstens debt,
and Keefe loan No. 2. We AFFIRM the superior courts valuation of
the marital property and its award of the gun collection to
Maureen. Because we conclude that the superior court did not
offer adequate support for its decision to allocate more than
fifty percent of the Rodviks property to Maureen, we REMAND so
that the superior court may set forth its reasoning should it
conclude on remand that an unequal distribution of the marital
properties is still warranted. Although it was not error for the
trial court to impute income of $40,000 to Karsten, we REMAND for
consideration of a federal income tax deduction from the imputed
income. Because the superior court did not abuse its discretion
in determining that Karstens bad faith and vexatious conduct
warranted the imposition of attorneys fees, we AFFIRM that award.
Finally, because it was not an abuse of discretion for Judge
Michalski to refuse to recuse himself from this proceeding, we
AFFIRM his decision not to recuse himself.
_______________________________
1 Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002).
2 Id.
3 Id.
4 Id.
5 Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994).
6 Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).
7 Id.
8 Id.
9 Id.
10 Cox, 882 P.2d at 913.
11 Id. at 913-14.
12 Id. at 914.
13 Hallam v. Alaska Airlines, Inc., 91 P.3d 279, 283
(Alaska 2004).
14 930 P.2d 409, 413-14 (Alaska 1996).
15 Fardig v. Fardig, 56 P.3d 9, 14-15 (Alaska 2002).
16 Hoffman Constr. Co. of Alaska v. U.S. Fabrication &
Erection, Inc., 32 P.3d 346, 355 (Alaska 2001).
17 Lee v. State, 141 P.3d 342, 352 (Alaska 2006).
18 It is also notable that Karsten submitted a financial
declaration on February 4, 2003, when he was represented by
counsel, for purposes of determining interim child support.
Karstens declaration stated that the marital home was valued at
$350,000, with a $239,000 mortgage, and the net equity of the
real estate was listed as $111,000.
19 Under AS 25.24.160(a)(4), the trial court is to provide
for the division between the parties of their
property, including retirement benefits,
whether joint or separate, acquired only
during marriage, in a just manner and without
regard to which of the parties is in fault;
however, the court, in making the division,
may invade the property, including retirement
benefits, of either spouse acquired before
marriage when the balancing of the equities
between the parties requires it; and to
accomplish this end the judgment may require
that one or both of the parties assign,
deliver, or convey any of their real or
personal property, including retirement
benefits, to the other party; the division of
property must fairly allocate the economic
effect of divorce by being based on
consideration of the following factors:
(A) the length of the marriage and
station in life of the parties during the
marriage;
(B) the age and health of the parties;
(C) the earning capacity of the
parties, including their educational
backgrounds, training, employment skills,
work experiences, length of absence from the
job market, and custodial responsibilities
for children during the marriage;
(D) the financial condition of the
parties, including the availability and cost
of health insurance;
(E) the conduct of the parties,
including whether there has been unreasonable
depletion of marital assets;
(F) the desirability of awarding the
family home, or the right to live in it for a
reasonable period of time, to the party who
has primary physical custody of children;
(G) the circumstances and necessities
of each party;
(H) the time and manner of acquisition
of the property in question; and
(I) the income-producing capacity of
the property and the value of the property at
the time of division.
20 Miles v. Miles, 816 P.2d 129, 131 (Alaska 1991).
21 Brett R. Turner, Equitable Distribution of Property
8.22 (3d ed. 2005).
22 36 P.3d 1188, 1194 (Alaska 2001) (citing Arndt v.
Arndt, 777 P.2d 668, 670 (Alaska 1989)).
23 Turner, Equitable Distribution of Property 8.22 n.3
(3d ed. 2005).
24 See, e.g., United States v. Lippman, 369 F.3d 1039 (8th
Cir. 2004) (holding that defendants conviction under 18 U.S.C.
922(g)(8) for possession of firearms did not violate the Second
Amendment); United States v. Emerson, 270 F.3d 203 (5th Cir.
2001) (concluding that 18 U.S.C. 922(g)(8) did not violate the
Second or Fifth Amendments and defendants indictment for
possession of firearm was permitted); United States v. Kafka, 222
F.3d 1129 (9th Cir. 2000) (holding that defendants conviction for
possession of firearm was proper and did not violate due
process); and People v. Adams, 747 N.Y.S.2d 909 (N.Y. Sup. 2002)
(determining defendant was not entitled to probation waiver to
allow him to possess firearm because such possession was not
allowed under 18 U.S.C. 922(g)(8)).
25 270 F.3d at 211-12.
26 Id. at 212.
27 Id. at 263-65.
28 369 F.3d at 1040-41.
29 Id. at 1044.
30 747 N.Y.S.2d at 919.
31 Id. at 919.
32 154 S.W.3d 471, 475 (Mo. App. 2005).
33 Id.
34 Public policy reasons could also have supported the
trial courts decision to grant the marital guns to Maureen, even
in the absence of the federal statute. Congress had a clear goal
of keeping firearms out of the hands of people who had committed
acts of domestic violence and made the following legislative
findings when it passed the law:
(1) [D]omestic violence is the leading
cause of injury to women in the United States
between the ages of 15 and 44;
(2) firearms are used by the abuser in
7 percent of domestic violence incidents . .
. and
(3) individuals with a history of
domestic abuse should not have easy access to
firearms.
H.R. Rep. No. 103-395 (1993).
35 Murray v. Murray, 788 P.2d 41, 42 (Alaska 1990).
36 Byers v. Ovitt, 133 P.3d 676, 682 (Alaska 2006) (citing
Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992)).
37 Karsten presented some documents regarding his salary
in connection with interim child support. Karstens gross monthly
income for January 2004 was listed as $2,534.00. For October
2003 through December 2003, his income was listed as $14,705.37.
Karsten and Maureens 2001 joint income tax return, showing an
adjusted gross income of $35,874, and their joint 2002 income tax
return, showing an adjusted gross income of $34,519 were also
included.
38 Karsten also challenges the trial courts findings
allocating the expenses for medical costs, child support arrears,
and health insurance premiums, but he did not contest these
issues at trial and disputes Maureens figures for the first time
on appeal. We therefore decline to address them here.
39 Kowalski v. Kowalski, 806 P.2d 1368, 1372 (Alaska 1991)
(citing Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska
1987)).
40 Lone Wolf, 741 P.2d at 1192 (citations omitted).
41 Id.
42 Kowalski, 806 P.2d at 1373.
43 Id.
44 Id.
45 Amidon v. State, 604 P.2d 575, 577 (Alaska 1979).
46 806 P.2d 325, 327 (Alaska App. 1991).
47 The footnote in the article stated:
See Mary Ann Pease & Karsten Rodvik,
Preventing Redefinition of Marriage Doesnt
Hurt Anyone, Anchorage Daily News, Oct. 18,
1998, at H4. Professor Mary Ann Glendon of
Harvard has described the habits and
attitudes of judges with grandiose visions of
judicial authority, practitioners eager to
blaze new trails to the nations crowded
courthouses, and legal scholars yearning to
be philosopher-kings and -queens. Mary Ann
Glendon, A Nation Under Lawyers 282-83
(1994).
Kevin G. Clarkson, David Orgon Coolidge & William C. Duncan, The
Alaska Marriage Amendment: The Peoples Choice on the Last
Frontier, 16 Alaska L. Rev. 213 n.82 (1999).
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