| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Carr v. Carr (02/09/2007) sp-6098
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
| KELLY CARR, | ) |
| ) Supreme Court No. S- 11598 | |
| Appellant, | ) |
| ) Superior Court No. 3PA-01-1378 CI | |
| v. | ) |
| ) O P I N I O N | |
| CONNIE CARR, | ) |
| ) No. 6098 - February 9, 2007 | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Palmer, Eric Smith, Judge.
Appearances: Ann DeArmond, Sterling &
DeArmond, P.C., Wasilla, for Appellant.
Candice M. Bales, Law Office of Candice M.
Bales, Palmer, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
Soon after Kelly and Connie Carr separated in 2004,
Kelly was indicted for sexually abusing minors and possessing
child pornography. Connie then filed for divorce. With Kellys
consent, Superior Court Judge Eric Smith presided over both the
divorce and the criminal cases. After a jury convicted Kelly in
the criminal case, Judge Smith held a trial on disputed property
issues in the divorce; Kelly participated telephonically from the
jail. The court ruled against Kelly on most points in dispute.
Kelly later moved to set aside the property order, alleging that
by the time Judge Smith decided the property issues, he had
formed a bias against Kelly because of evidence presented during
the criminal trial. Judge Smith refused to recuse himself and
denied Kellys motion. On appeal Kelly claims that the superior
court erred in deciding disputed property issues and in requiring
Kelly to participate telephonically at trial. He also renews his
assertions of bias, contending that Judge Smith should have
stepped down from the case and granted a new trial. Our review
of the record reveals no clear error or abuse of discretion in
the courts rulings on property issues and on Kellys presence at
trial; we also find no support in the record for Kellys claims of
actual and apparent judicial bias. We therefore affirm.
II. FACTS AND PROCEEDINGS
Kelly and Connie Carr married in 1985. They have two
children, a son and a daughter. In 1994 the family hit a moose
while driving in their car; the accident caused relatively minor
injuries to Connie and the children but left Kelly with a spinal
injury that rendered him a quadriplegic. The family sued the
manufacturer of their car, Subaru, and recovered a net $250,000
in August 2000. The settlement funds were distributed with four
separate checks: each child received a check for $1,000; Connie
was paid ten percent of the total funds; and the remaining eighty-
nine percent went to Kelly.
It is undisputed that the funds Kelly recovered
compensated him for noneconomic losses and, as a result, became
Kellys separate property when he received the payment. Kelly
temporarily deposited the settlement proceeds into three
accounts: the parties joint checking account, a savings account,
and a money market account. Soon after, Kelly transferred the
money into his stock account.
Meanwhile, in 1996, Kelly and Connie had purchased a
lot in Palmer from a contractor who agreed to build them a new
home on the property; the cost of the contract totaled $119,452.
Kelly and Connie financed the transaction with a mortgage through
the USDA Rural Development Service.
Soon after the new house was built, its basement began
flooding. Kelly and Connie sued their contractor and eventually
recovered $43,095. They received the money for this settlement
in October 2000 about three months after receiving the Subaru
settlement funds and deposited it into their joint checking
account.
While their suit against the contractor was pending,
Kelly and Connie obtained an additional loan from USDA Rural
Development in the amount of $20,000.1 The same day the parties
received the settlement funds for their contract claim, Kelly
combined funds from the Subaru settlement and the contract
settlement to pay off the outstanding balances on the parties two
outstanding USDA Rural Development loans. These payments totaled
$136,990 $93,895 of which came from Kellys savings and stock
accounts.
Kelly and Connie separated less than a year later, in
September 2001. On November 26, 2001, the state filed multiple
charges against Kelly for possessing child pornography and
sexually abusing minors, including his daughter and a niece.
In February 2002 Connie filed for divorce. With Kellys
approval, both the criminal case and the divorce case were
assigned to Superior Court Judge Eric Smith. Judge Smith stayed
the divorce proceedings pending Kellys trial in the criminal
case. Kelly was released on bail and allowed to remain in the
marital home until his criminal trial. A jury found Kelly guilty
on the criminal charges in March 2004. He was remanded to
custody after being found guilty.
The divorce proceedings resumed soon after the criminal
case was tried. Judge Smith held a hearing to resolve disputed
custody and property issues on June 2 and 4, 2004. Before the
hearing, Kelly moved for an order requiring the Department of
Corrections to transport him to court for the divorce
proceedings; he asked that the department bear the costs of his
transportation, asserting that he was indigent. The department
opposed Kellys motion, contending that Kelly had failed to show
that he was indigent or that he needed to be personally present
to participate in the proceedings. The court denied Kellys
motion, noting that he could appear telephonically.
The main controversy at trial centered on dividing the
parties assets and determining who owned the marital home.
Connie argued that the court should divide the marital property
equally and contended that the home was marital property. Kelly
chiefly maintained that the court should treat eighty-nine
percent of the value of the house as his separate property. In
taking this position, he asserted that the home had been paid for
with the Subaru settlement monies, eighty-nine percent of which
had been his separate property. Kelly also asked the court to
award him monthly alimony payments of $400 so that he could
obtain a college degree. He further sought an award of attorneys
fees.
The superior court issued findings of fact and
conclusions of law resolving the property issues on June 17,
2004. Its decision treated the parties home as a marital asset,
divided the marital estate evenly, and denied Kellys requests for
spousal support and attorneys fees. To implement the property
division, the court directed Connie to pay Kelly $67,370 within
ninety days after the court issued its order.
On June 25, 2004 eight days after issuing his findings
and conclusion in the divorce case Judge Smith presided over the
sentencing hearing in Kellys criminal case. During the hearing,
Judge Smith described his reaction to some of the images of child
pornography presented during the trial, saying:
They made me want to scream, to put it
bluntly. It was all I could do to restrain
myself. Its one of the most difficult
moments Ive had on the bench since I became a
judge. Its almost been eight years. But I
just wanted to run out of the room screaming.
They were awful.
Nearly nine months later, in March 2005, Kelly filed a
motion in the divorce case, seeking to set aside the property
division under Civil Rule 60(b) on grounds of newly discovered
evidence. Kellys newly discovered evidence consisted of Judge
Smiths remarks at Kellys sentencing hearing, which, according to
Kelly, demonstrated that the judge was biased against him and
should not have presided over the divorce proceedings. Kelly
also moved to disqualify Judge Smith from ruling on the Rule
60(b) motion.
Judge Smith denied Kellys request to recuse himself.
Superior Court Judge Dan A. Hensley affirmed this decision,
ruling that Kelly had failed to establish that Judge Smith was
biased. Judge Smith then proceeded to consider Kellys motion for
relief from judgment, denying the motion both on its merits and
because it was untimely.
Kelly now appeals the superior courts order
distributing the marital property, its denial of his motion to
appear personally at the divorce trial, as well as its subsequent
order denying his motion for relief from judgment.
III. DISCUSSION
A. Classifying the Marital Home
Kelly insists that the superior court erred in
classifying the parties residence as marital property. He
argues, as he did below, that the loans on the residence were
paid off with money from his savings and stock accounts, eighty-
nine percent of which can be traced back to his personal injury
settlement, which was his separate property. Accordingly, Kelly
reasons, eighty-nine percent of the homes equity should have been
treated as his separate property. Kelly insists that he never
intended to donate any portion of his Subaru settlement funds to
the marital estate, and he claims that he used his settlement
monies to pay off the mortgages only because he believed it would
be a sound investment to park his money in the house instead of
investing it in the stock market.
Connie responds that [t]he house was acquired as a
marital asset and always remained a marital asset. She insists
that, even if Kelly did not intend to donate his Subaru
settlement funds to the marriage when he originally received
them, the funds transmuted [in]to a marital asset when they were
used to pay off the house.
In ruling on this point, the superior court agreed with
Connies position, expressly rejecting Kellys theory: The house
clearly was marital at the time it was purchased. [Kellys]
argument therefore really is that by paying off the mortgage, the
house transmuted largely into his personal property. In addition
to noting that it had found no case law to support Kellys theory
of reverse transmutation, the court found that Kellys actions
during the marriage demonstrated that he intended to use the
Subaru settlement funds as marital assets:
While [Kelly] denied it at trial, the
monies used to pay off the loans were
contributed to the marriage. The parties
were in severe financial straits; the
payments resolved many of their financial
difficulties. [Kelly] routinely used his
personal funds to pay marital expenses, and
in this case he used the settlement funds to
pay off credit cards. Most important, the
house remained titled in both parties names
when they received their new title to the
house, and they continued to reside there and
to treat the home as their marital residence.
Although Kelly adamantly disputes these findings, it is
not our role as an appellate court to reweigh the evidence or
redetermine disputed factual issues. Whether a spouses separate
property has become marital property through transmutation is an
issue of intent.2 The superior court determines whether this
intent exists by examining the parties words and actions.3
Whether intent to transmute separate property into marital
property exists is an issue of fact.4 Trial courts exercise
broad discretion when dividing marital assets.5 We review a
trial courts decision to classify property as marital only for
abuse of discretion;6 and we review the courts underlying factual
findings only for clear error.7 Here, substantial evidence
supports the superior courts findings. Those findings are not
clearly erroneous, and our review of the record does not persuade
us that the superior court abused its discretion in treating the
home as a marital asset.
B. Imputed Rent
The superior court may impute the rental value of one
partys exclusive use of the marital residence after separation to
that party when it equitably divides the marital estate between
the parties.8 After Kelly and Connie separated, Kelly lived in
the family residence for about twenty-nine months; during most of
that time he was awaiting trial on his criminal charges. In
dividing the marital property, the superior court treated this
period of occupancy as though Kelly had received twenty-nine
months worth of rent from the marital estate. Kelly contends
that the trial court should have imputed only eleven percent of
the rent to him. But his position hinges on his mistaken premise
that eighty-nine percent of the homes equity was his separate
property. Because we have rejected that premise, Kellys
challenge to the order imputing rent lacks merit.
C. Equal Division of the Marital Estate
Kelly next argues that the court should not have
divided the marital estate evenly. We review a trial courts
allocation of property for abuse of discretion and will not
reverse the courts order unless it is clearly unjust.9
Here, in determining how to divide the marital estate,
the superior court simply noted: The parties agree that the
estate should be split 50/50. Kelly disputes this finding.
Although he seems to acknowledge that he never explicitly argued
for an uneven division, he insists that he implicitly sought an
unequal division by arguing that he owned eighty-nine percent of
the equity in the family home: [I]t was clear that if the court
held that the real property was marital [Kellys] position was
that an equitable division required that he receive a greater
share of the marital property.
Connie disagrees. She notes that nowhere in his trial
brief or his testimony at trial did Kelly assert that he should
receive more than fifty percent of the marital estate. Connies
observation has merit. Our review of the record reveals no
backup contention by Kelly implicit or explicit that the court
should divide the marital estate unevenly if it rejected his
argument that eighty-nine percent of the homes equity was his
separate property.
Kelly nonetheless argues that he rebutted the
presumption favoring an equal division10 by presenting evidence
showing that, unlike Connie, he had grave health problems, lacked
earning capacity, had extremely poor financial prospects, and had
never obtained a college degree. Kelly insists that under these
circumstances the statutory factors governing equitable division11
required the court to award him the lions share of the marital
estate. In response Connie points to the reality that Kelly has
now been sentenced to serve a lengthy term in prison, so most of
his material needs will be provided by the state. Further, she
argues, Kellys financial situation at the time of the trial was
actually better than hers, and any financial woes Kelly now faces
have largely been caused by his own criminal conduct.
Our review of the record convinces us that Connie has
the better argument on this point. As the superior court aptly
noted, here both parties lived on low incomes which barely met
their expenses. Although Connies new nursing degree gives her an
advantage in meeting her future needs, Kellys lengthy prison
sentence means that the Department of Corrections will be
responsible for meeting his physical and rehabilitative needs in
the foreseeable future. Since we find no compelling evidence in
the record that would dictate an uneven property distribution
under these circumstances, we see no basis for concluding that
the superior court abused its discretion in evenly dividing the
marital estate.
D. Rehabilitative Maintenance
While testifying at trial, Kelly asked the court to
award him rehabilitative spousal support so that he could obtain
a college degree. He testified that he wanted to study
architecture or design, thought it would take him about three
years to obtain a degree, and estimated that he would need around
$400 per month in support. In rejecting this request at the
conclusion of trial, the superior court, relying on Connies
opposing position, noted that Kelly was not precluded from going
to college during the marriage, and in fact he specifically chose
not to do so. Kelly challenges this ruling, arguing that, given
his physical disability and lack of marketable skills, an award
of spousal support was warranted.
We review decisions concerning spousal maintenance for
abuse of discretion.12 Our case law recognizes spousal
maintenance is usually appropriate only when it is both just and
necessary since [t]he preference in Alaska is to resolve the
financial concerns arising from a divorce by means of the
property division.13 Moreover, we have previously observed that
the form of spousal support Kelly requested here rehabilitative
alimony should usually be reserved for situations in which the
recipient spouse intends to apply the alimony toward job training
designed to lead to employment.14 We have also noted that the
primary factors which should be considered in awarding interim
spousal maintenance are the relative economic circumstances and
needs of the parties and the ability to pay the maintenance.15 We
have emphasized that, to qualify for rehabilitative alimony, a
spouse must at least identify a career goal, a degree program
aimed at realizing that goal, and a time frame during which the
degree may be earned through reasonable diligence.16
Judged by these standards, Kellys request for alimony
seems marginal, at best. Kelly claimed only that he was hoping
to get a degree. He had not yet identified any particular school
or program; he roughly estimated that in order to get that
degree, basically Id need at least three more years of college;
and he made no concrete showing to justify the amount of support
that he requested:
Court: So how much did you say you wanted, sir?
Kelly: Id agree with what [my lawyer]
said. I cant really remember what
she said. She said something for
three years.
Counsel: It was $400.00.
In short, Kellys proposal hardly identified a specific
degree program aimed at realizing a well-defined career goal
within an established time frame. And, as a practical matter,
the proposal might not have appeared reasonably calculated to
enhance Kellys earning potential. Rehabilitative maintenance is
a needs-based, pragmatic remedy designed to be used when
justified by disparity in a divorcing couples circumstances.17
Yet as we have already mentioned, Kellys conviction means that he
will have most of his financial and rehabilitative needs
addressed by the Department of Corrections for the foreseeable
future. Although the superior court was understandably reluctant
to consider this factor because Kellys sentencing hearing
remained pending when the court issued its decision on the
property division, we see no reason to ignore the reality of
Kellys situation now that he has been sentenced. By contrast to
Kelly, Connie now shoulders primary responsibility for the
parties children, and she faces significant financial pressures.
As the superior court accurately observed, at the time of trial
both parties lived on low incomes which barely met their
expenses.
Considering the totality of these circumstances, we
hold that the superior court did not abuse its discretion in
denying Kellys request for rehabilitative alimony.
E. Attorneys Fees
Kelly also challenges the trial courts decision denying
his request for attorneys fees. He points out that he had no
appreciable income during the trial, whereas Connie did. Given
this disparity, Kelly contends, the trial court should have
leveled the playing field by ordering Connie to pay his attorneys
fees.
We have held that a trial court has broad discretion in
awarding attorneys fees in divorce cases.18 In exercising this
discretion, the court must focus on the parties relative economic
situations and earning capacities.19 We will not reverse a trial
courts ruling on attorneys fees unless it is arbitrary,
capricious, or manifestly unreasonable.20
Here, in denying Kellys motion for attorneys fees, the
superior court properly noted that the parties economic
circumstances during this case are the relevant ones not what
plaintiff might make in the future. The court went on to observe
that, at the time of trial, both parties had low incomes that
barely covered their expenses. Because the record supports the
superior courts view of the case and fails to establish any
glaring financial disparity, we hold that the court did not abuse
its discretion in denying Kellys request for fees.21
F. Kellys Request To Appear Personally at Trial
Kelly maintains that the superior court abused its
discretion by denying his pretrial request to allow him to
participate in the divorce trial in person. He insists that the
Department of Corrections could have transported him from the
jail to the courthouse at minimal expense and without delaying
the proceedings. By requiring him to participate in the trial
telephonically, Kelly insists, the court robbed itself of the
opportunity to fairly assess his truthfulness while he testified.
Kelly further suggests that his absence from the courtroom
handicapped his attorney by foreclosing all possibility of
contemporaneous consultation at trial. Under these
circumstances, Kelly claims, [p]rejudice should be presumed.
Initially, we note that the record fails to support
Kellys claim that the court deprived him of the right to consult
with his counsel. To the contrary, the record reveals that the
superior court allowed Kellys lawyer to speak privately with
Kelly both times counsel requested to do so during the course of
the trial.
Furthermore, the record fails to convince us that Kelly
met his burden of showing that his personal presence at trial was
necessary to allow the court to evaluate issues of credibility.
Kellys burden on this point is established by AS 33.30.081(f),
which prohibits courts from ordering a prisoner to be transported
to court for civil proceedings unless the prisoner establishes an
actual and pressing need:
A court may order a prisoner who is a
party or witness to a civil action or a
witness to a criminal action to appear at a
place other than within a correctional
facility only if the court determines, after
providing a reasonable opportunity for the
commissioner to comment, that the prisoners
personal appearance is essential to the just
disposition of the action. In making its
determination, the court shall consider
available alternatives to the prisoners
personal appearance including deposition and
telephone testimony.[22]
We have previously identified several factors to guide
a trial court in determining whether a prisoners personal
appearance is essential to the just disposition in a civil
action:
In making its determination the trial court
may take into account [1] the costs and
inconvenience of transporting a prisoner from
his place of incarceration to the courtroom,
[2] any potential danger or security risk
which the presence of a particular inmate
would pose to the court, [3] the
substantiality of the matter at issue, [4]
the need for an early determination of the
matter, [5] the possibility of delaying trial
until the prisoner is released, [6] the
probability of success on the merits, [7] the
integrity of the correctional system, and [8]
the interests of the inmate in presenting his
testimony in person rather than by
deposition.[23]
We review a trial courts decisions regarding a partys
telephonic appearance for abuse of discretion.24 Under
circumstances similar to those at issue here, we have previously
found that a trial court was well within its discretion in
denying a prisoners motion to appear personally in a civil trial:
While expressing his desire to be present at
trial and intention to testify, [the
appellant] did not demonstrate to the court
what specific information he intended to
convey through his testimony that would
depend on his credibility, nor did he present
the court with any basis on which to believe
that the outcome of the case would depend
upon his presence. Without a specific offer
of credibility-dependent evidence or a
demonstration in his motion of any material
issues he intended to dispute, the court was
well within its authority to deny [the
appellants] motion for transport.[25]
In this case, Kellys pretrial motion to appear
personally at trial advanced no specific offer of credibility-
dependent evidence; it merely noted that Kellys credibility would
be relevant to the courts decisions in classifying and valuing
the marital property. As Judge Smith observed in rejecting this
generalized contention during the trial, Kellys testimony during
the recent criminal trial had given the judge ample opportunity
to observe Kellys demeanor and Kelly offered no reason to expect
that his personal presence during the divorce trial would add
anything new.
Moreover, the main points in contention at trial
Kellys separate ownership of the marital home and his request for
rehabilitative alimony turned largely on evidence concerning
past conduct of the parties that might have manifested their
intentions concerning the status of their marital home and
evidence concerning their current financial status. Because self-
serving testimony describing a partys prior intent regarding a
disputed item of property seldom deserves much weight,26 Kellys
personal presence to give this sort of testimony would not have
been crucial. Accordingly, the court did not abuse its
discretion in concluding that Kellys personal presence was not
essential to the just disposition of the action.27
G. Bias and Recusal
In his last argument, Kelly contends that Judge Smith
was biased. Specifically, he argues that the judge should have
recused himself from the divorce case and granted a new trial
because of his strong adverse reaction to pornographic
photographs introduced during Kellys criminal trial a reaction
Judge Smith failed to disclose until Kellys sentencing hearing,
which occurred eight days after the judge had decided the
property issues in Kellys divorce.
We review a judges decision on an issue of recusal for
abuse of discretion;28 we will reverse a judges refusal to step
down from a case only when it appears patently unreasonable29 or
when a fair-minded person could not rationally come to [the same]
conclusion on the basis of known facts.30 When a claim of bias
only asserts an appearance of partiality, as distinguished from
actual bias, we require the complaining party to make a greater
showing for reversal.31 In deciding whether an abuse of
discretion occurred, we consider the totality of the relevant
circumstances and facts.32
As we have already described in the statement of facts,
a jury found Kelly guilty in his criminal case in March 2004.
Judge Smith imposed his sentence on June 25, 2004. In the
interim, in early June, the judge tried the property issues in
the divorce case, and on June 17 issued his findings and
conclusions resolving those issues. When Judge Smith spoke at
Kellys sentencing hearing, he emphasized the seriousness of
Kellys misconduct; to illustrate the point, the judge described
his own strong reaction to viewing the images of child
pornography that were introduced at the trial.33
Pointing to these remarks, Kelly asserts that Judge
Smiths reaction was so primal, and so visceral, that he could
barely restrain himself. In Kellys view, Judge Smiths remarks
revealed intemperance and established that the judge had formed a
bias against Kelly that must have influenced his judgment when he
ruled against Kelly in the divorce proceedings. Alternatively,
Kelly reasons, if the sentencing remarks fail to show actual
bias, they at least create an impermissible appearance of bias.
But Kelly specifically asked that Judge Smith be
assigned to both of his cases. Moreover, opinions formed by a
judge presiding over a trial do not reflect bias when they merely
address relevant evidence admitted in the course of the trial.34
Here, the views expressed by Judge Smith at the sentencing
hearing described his reaction to photographs of child
pornography admitted during Kellys criminal trial. Judge Smith
had been required to review, evaluate, and rule on the evidence
in the course of the trial. The views Judge Smith expressed at
the sentencing hearing were confined to the nature and character
of the evidence itself and they served only to emphasize the
important bearing that this evidence had on one of the primary
issues the court needed to evaluate in imposing Kellys sentence
the seriousness of his crimes.
Nothing in the judges remarks evinced any inclination
or intention to rely on his negative reaction to the child
pornography except to the extent that this evidence had a
legitimate bearing on the disposition of the criminal case then
under consideration. And Judge Smith said nothing to suggest
that he had formed any generalized bias against Kelly, or that
his reaction to the child pornography might color his judgment of
Kelly in any other context.
Of course, it is undeniably true that Judge Smith
voiced a strong negative reaction to the child pornography. But
such photographs are inherently powerful evidence: their
potential to evoke a strong response from a judge or a juror in a
criminal trial cannot reasonably be viewed as unforeseeable or
surprising. And Kelly suggests no reason to think that the
potential effects of this evidence might not have been apparent
to him when he was originally charged with the crimes. In spite
of this, Kelly expressly stated that he preferred to have Judge
Smith preside over both of his pending cases.
More important, Kelly has never specified how any of
the views Judge Smith expressed in the criminal case might have
carried over and actually influenced the judges decisions on the
matters at stake in the divorce proceedings. Kelly merely
suggests that Judge Smiths bias is evidenced by his rulings
against Kelly in the divorce. But as we have already determined
in reviewing the merits of the disputed rulings, all of Judge
Smiths decisions were carefully explained, find strong support in
the evidence, and are solidly grounded on applicable law. And in
all other respects, Judge Smith appears to have scrupulously kept
Kellys two cases separated both procedurally and substantively
so as to insulate the decisions in the divorce from any
appearance of influence by developments in the criminal case.35
Finally, as Judge Hensley recognized in independently
reviewing and affirming Judge Smiths refusal to recuse himself,
Judge Smiths written decision denying Kellys recusal motion
thoroughly explained the judges basis for refusing to remove
himself from the case and persuasively refuted Kellys accounting
of actual and apparent bias.
Under these circumstances, Kellys claim of bias appears
to be little more than an expression of [his] dissatisfaction
with the superior courts rulings.36 We thus conclude that the
record reveals no actual or apparent bias by Judge Smith and no
abuse of discretion in the courts orders denying Kellys motions
for recusal and to set aside the courts earlier order dividing
the parties marital property.
IV. CONCLUSION
For these reasons, we AFFIRM the superior courts
judgment.
_______________________________
1 During this period, Kelly and Connie also obtained a
loan of $30,000; but this loan was eventually forgiven and has no
bearing on this appeal.
2 Odom v. Odom, 141 P.3d 324, 332 (Alaska 2006).
3 Id.
4 Green v. Green, 29 P.3d 854, 857 (Alaska 2001).
5 Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994).
6 Veselsky v. Veselsky, 113 P.3d 629, 632 (Alaska 2005).
7 Hanson v. Hanson, 125 P.3d 299, 304 (Alaska 2005).
8 Korn v. Korn, 46 P.3d 1021, 1023-24 (Alaska 2002).
9 Harrelson v. Harrelson, 932 P.2d 247, 250 (Alaska 1997)
(quoting Cox, 882 P.2d at 913).
10 See Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska
1992).
11 See AS 25.24.160(a)(4).
12 Silvan v. Alcina, 105 P.3d 117, 125 (Alaska 2005).
13 Fernau v. Rowdon, 42 P.3d 1047, 1058 (Alaska 2002).
14 Jones v. Jones, 835 P.2d 1173, 1178-79 (Alaska 1992).
15 Johnson v. Johnson, 836 P.2d 930, 934 (Alaska 1992).
16 Virgin v. Virgin, 990 P.2d 1040, 1043 (Alaska 1999)
(quoting Myers v. Myers, 927 P.2d 326, 328 (Alaska 1996)).
17 See AS 25.24.160(a)(2) (instructing a court to
consider, among other things, the financial condition of the
parties).
18 Sloane v. Sloane, 18 P.3d 60, 64 (Alaska 2001).
19 Dodson v. Dodson, 955 P.2d 902, 914 (Alaska 1998).
20 Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004).
21 Cooke v. Cooke, 625 P.2d 291, 293 (Alaska 1981)
(reversing an award of attorneys fees under comparable
circumstances).
22 AS 33.30.081(f) (emphasis added).
23 Richard B. v. State, Dept of Health & Social Servs.,
Div. of Family & Youth Servs., 71 P.3d 811, 827 (Alaska 2003)
(quoting B.H. v. W.S. (In re F.H.), 283 N.W.2d 202, 209 (N.D.
1979)).
24 Richard B., 71 P.3d at 817.
25 Id. at 828.
26 See, e.g., Hanson v. Hanson, 125 P.3d 299, 308 (Alaska
2005) (Hanss testimony that he always intended the house to
remain separate property is insufficient to reverse the trial
courts finding of intent because such testimony is accorded less
weight than other, more objective factors. (citing Leis v.
Hustad, 22 P.3d 885, 888 (Alaska 2001) ([S]elf-serving testimony
at trial is entitled to little weight because the parties actions
during the marriage are better indicators of the parties intent
during the marriage.) (citations omitted))).
27 AS 33.30.081(f).
28 Hallam v. Alaska Airlines, Inc., 91 P.3d 279, 283
(Alaska 2004).
29 Long v. Long, 816 P.2d 145, 156 (Alaska 1991) (citation
and internal quotations marks omitted).
30 Id. (quoting Blake v. Gilbert, 702 P.2d 631, 640
(Alaska 1985) (alteration in original)).
31 Long, 816 P.2d at 156 (quoting Alaska Trams Corp. v.
Alaska Elec. Light & Power, 743 P.2d 350, 353 n.7 (Alaska 1987)).
32 Lacher v. Lacher, 993 P.2d 413, 421 n.21 (Alaska 1999)
(quoting Blake v. Gilbert, 702 P.2d 631, 642 (Alaska 1985)).
33 See supra at 5.
34 Both Lacher, 993 P.2d at 420-21, and R.J.M. v. State,
946 P.2d 855, 869-70 (Alaska 1997), reject claims of bias based
on a judges participation in prior judicial proceedings involving
the same party in which negative evidence might have been
introduced.
35 For example, as previously noted, Judge Smith stayed
the divorce proceedings pending trial on Kellys criminal charges
to ensure that the divorce proceedings would not pressure Kelly
to waive his right against self-incrimination in the criminal
case; and although the jury verdict against Kelly was virtually
certain to result in a lengthy prison sentence for Kelly, Judge
Smith expressly declined to consider this possibility as a factor
in ruling on Kellys request for spousal support because Kellys
sentencing hearing had not yet been held.
36 Lacher, 993 P.2d at 421.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
