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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Robertson v. Riplett (10/24/2008) sp-6320
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
| DOUGLAS B. ROBERTSON, | ) |
| ) Supreme Court No. S- 12800 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07-4708 CI | |
| v. | ) |
| ) O P I N I O N | |
| CHER L. RIPLETT, | ) |
| ) No. 6320 October 24, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Jack W. Smith, Judge.
Appearances: Douglas B. Robertson, pro se,
Beavercreek, Ohio. David W. Baranow, Law
Offices of David Baranow, Anchorage, for
Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
After registering Ohio child custody orders in Alaska
where his children and former wife were then living, a father
asked the Alaska court to modify an Ohio order that suspended his
visitation rights. The superior court denied his motion. The
father appeals. We affirm. Because the Ohio court has not
relinquished its exclusive jurisdiction and because the father
still resides in Ohio, AS 25.30.320, part of the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA), denied the
superior court jurisdiction to modify the Ohio order. The father
also challenges a superior court order requiring him to serve and
file his 2006 income tax returns. Because his tax returns were
relevant to child support, the superior court did not abuse its
discretion in ordering their production.
II. FACTS AND PROCEEDINGS
Douglas Robertson and Cher Riplett married in July 1994
and divorced in August 2001 in Ohio. They have a son, born in
January 1995, and a daughter, born in January 1997. As part of
the Ohio divorce proceedings, Robertson and Riplett entered into
a shared parenting plan that, among other things, provided that
Ripletts residence would be the childrens primary residence and
that Robertson would have visitation on alternating weekends and
at least one evening each week.
Riplett later filed a motion in the Common Pleas Court
of Clark County, Ohio to restrict or terminate Robertsons
visitation. An evidentiary hearing was held and Ripletts motion
was granted. The presiding magistrate suspended Robertsons
visitation and ordered him to undergo a psychological assessment
and attend and complete an anger management program before
petitioning the court to reinstate his visitation.
But because Robertson had not received proper notice of
the initial hearing, Common Pleas Court Judge Thomas J. Capper
held a two-day supplemental evidentiary hearing and conducted a
best-interests-of-the-child analysis under subsection
3109.051(D) of the Ohio Revised Code. Judge Capper ultimately
found in his February 19, 2003 order that Mr. Robertson has had
no visitations or parenting time with the parties children for
approximately eight months and the totality of the credible
evidence suggests that the childrens overall development has
dramatically improved during this period of time. Judge Capper
suspended Robertsons visitation rights. He also ordered
Robertson to complete a psychological assessment and attend
follow-up counseling, if recommended, and to complete an anger
management program before petitioning the court to reinstate his
visitation rights.
Approximately one month after Judge Capper suspended
Robertsons visitation rights, Robertson filed a motion asking the
Ohio court to lift all restrictions on his visitation.
Approximately three months later, Riplett, her present
husband, and the children moved to Alaska when Riplett was
assigned here by the U.S. Air Force.
Judge Capper conducted an evidentiary hearing in
January 2004 on Robertsons pending motion to lift visitation
restrictions. Judge Capper again considered the best interests
factors and determined in his order of February 24, 2004 that
Robertson had presented no credible evidence to suggest that [he
had] taken any positive steps to address the concerns set forth
in [the] Courts February 19, 2003 Order. After determining that
two of Robertsons witnesses were not credible, Judge Capper
concluded that it seems only fair for [the] Court to afford Mr.
Robertson the opportunity to be professionally evaluated by
specific qualified professionals selected by [the] Court. Judge
Cappers February 24, 2004 order: (1) appointed an Ohio attorney
as guardian ad litem (GAL) for the children, and required
Robertson to pay all resulting costs, including $1,000 as an
initial deposit cost by April 15; (2) ordered Robertson, Riplett,
and the children to submit to psychological evaluations by an
Ohio psychologist, and required Robertson to pay all associated
costs; and (3) ordered Robertson and Riplett to submit to an
anger management assessment by an Ohio clinical psychologist at
Robertsons expense. The order also stated that Robertsons
appointments to facilitate the orders must take place within a
one week period of time in the month of July, 2004 and that the
appointment dates had to be provided to Riplett by June 1, 2004.
In early 2007 Robertson filed an affidavit in the
superior court in Alaska seeking registration of the Ohio Agreed
Judgment Entry and Decree of Divorce and the Ohio Agreed Decree
of Shared Parenting. It appears that Robertson attached to his
affidavit a child custody jurisdiction affidavit, the Ohio
divorce decree, the Ohio order incorporating the parties shared
parenting plan, and the February 2003 and February 2004 Ohio
custody and visitation orders. Robertsons child custody
jurisdiction affidavit acknowledged that the Ohio court had
suspended his visitation.
Riplett initially contested Alaska jurisdiction. The
superior court conducted a hearing on Robertsons motion. Riplett
withdrew her opposition and consented to registering the Ohio
decrees, and the superior court confirmed their registration.
Riplett informed the superior court during the hearing that the
Air Force would soon transfer her to Mississippi. The superior
court ordered Riplett to inform Robertson of any change-of-
station orders.
Robertson thereafter filed a superior court motion to
change custody, support, or visitation. In support he attached a
letter to the court and 2002, 2003, and 2005 character
references. Robertson also filed what he called a Motion for
Expedited Request of Signature on Release of Claim, seeking to
enforce his right under the shared parenting plan to claim the
parties son as his dependent for every year in which Robertsons
gross income is less than $29,000. Robertson also filed various
other motions, including a motion to sanction Riplett for failing
to send Robertson her change-of-station orders and a motion for
an order to prevent the children from being removed from Alaska.
The superior court summarily denied Robertsons motions.
It denied Robertsons Motion for Expedited Request of Signature on
Release of Claim without prejudice, as being premature, and
ordered him to serve and file copies of his 2006 federal and Ohio
state income tax returns in order to permit the proper review of
child support collection and charges/obligations. It also
ordered Robertson to comply with each and every particular of the
February 2003 and February 2004 orders entered by the Ohio court,
including the requirements of psychological and anger management
assessments and the retention of a GAL, before filing further
pleadings seeking modification of visitation. Robertson twice
unsuccessfully moved for reconsideration.
Robertson appeals the denial of his modification motion
and the order compelling him to provide his tax information for
child support review.
III. DISCUSSION
A. The Superior Court Did Not Have Jurisdiction To Modify
the Ohio Custody Orders.
We first consider whether the superior court had
subject matter jurisdiction to consider Robertsons motion to
modify Ohio custody orders. Whether the court had subject matter
jurisdiction is a question of law that we review de novo.1
When the parties divorced in 2001, the Ohio court
provided its initial child custody and visitation determination
by incorporating the parties shared parenting plan into the
divorce decree. The Ohio court modified the original order in
February 2003 when Judge Capper granted Ripletts motion to
suspend Robertsons visitation. In February 2004 the Ohio court
again exercised its jurisdiction when it denied Robertsons motion
to reinstate visitation.
Alaska courts have limited powers to modify foreign
child custody orders. Alaska adopted the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA) in 1998.2 Alaska
Statute 25.30.320, in accordance with the UCCJEA, denies Alaska
courts authority to modify child custody decrees of another state
unless conditions specified in section .320 are met. Per section
.320, the superior court could have modified the Ohio custody or
visitation orders only if at least one of two alternative sets of
conditions had been met.3
First, the superior court would have had jurisdiction
in 2007 to modify the Ohio orders if both of the following
conditions had been satisfied: Alaska had jurisdiction to make an
initial custody determination and, per AS 25.30.320(1), the Ohio
court either had declined jurisdiction or had determined that an
Alaska court provided a more convenient forum. The first
condition was satisfied because Alaska had jurisdiction to make
an initial custody determination.4 But neither of the
alternatives for the second condition was satisfied here: there
is no indication in the record that the Ohio court had declined
jurisdiction or that it had determined that an Alaska court would
be a more convenient forum. Instead, an Ohio statute provides
that Ohio courts exercise exclusive continuing jurisdiction over
child custody determinations until the [Ohio] court or a court of
another state determines that the child, the childs parents, and
any person acting as a parent do not presently reside in this
state.5
Second, an Alaska court would alternatively have had
jurisdiction in 2007 to modify the Ohio order if Alaska had
jurisdiction to make an initial custody determination and, per AS
25.30.320(2), neither parent nor the children resided in Ohio
during the Alaska proceeding. But again, the second condition
was not satisfied here because it is undisputed that Robertson
still resided in Ohio when the Alaska court ruled on his
modification motion and, indeed, that he still resides there.
The Ohio court therefore had exclusive continuing jurisdiction
over the child custody determinations in this case at all times
relevant to this appeal.
That Robertson chose to file suit in Alaska was not
sufficient to give the superior court jurisdiction to modify the
Ohio custody determinations.6 As a court which does not have
subject matter jurisdiction is without power to decide a case,
this issue cannot be waived.7
Although the superior court did not deny Robertsons
modification motion on jurisdictional grounds, we may affirm a
judgment on any grounds that the record supports, even if not
relied on by the superior court.8 It is not surprising the
superior court did not address whether it had jurisdiction to
modify the custody order; Riplett did not raise the issue of
jurisdiction below or in her briefing to this court. Subject
matter jurisdiction, however, may be raised at any stage of the
litigation and if noticed must be raised by the court if not
raised by the parties.9
Normally the appellees failure to raise subject matter
jurisdiction would make it desirable for us to order supplemental
briefing on the topic. But in this case, the resolution of the
subject matter jurisdiction is so self-evident that ordering
supplemental briefing would merely delay the resolution of this
expedited appeal. The absence of subject matter jurisdiction
requires us to affirm the denial of Robertsons modification
motion. This makes it unnecessary to consider the merits of
Robertsons modification argument.
B. The Superior Court Did Not Err in Ordering Robertson To
Submit His Income Tax Returns.
The superior court ordered Robertson to submit his 2006
income tax returns to Ripletts counsel and file the returns with
the court to permit the proper review of child support collection
and charges/obligations. The issue of child support was first
raised by Riplett; she argued in opposing Robertsons superior
court modification motion that no proof as to currency of child
support has been provided by the father, as is incumbent upon
him. We review a superior courts decision regarding child
support for abuse of discretion.10
Robertson first argues that the superior court erred in
entering the order because he contends that the support order has
not been registered in Alaska. The superior courts April 2007
order confirmed registration of the Ohio decree incorporating the
parties shared parenting plan; the plan also contained the
parties child support agreement. Although Robertson did not
separately move to register the support order under AS 25.25.609,11
the child support order was nonetheless properly registered in
Alaska.
Robertson also argues that because he resides in Ohio,
the superior court lacked jurisdiction under AS 25.25.613 to
order him to submit tax information. Robertsons reliance on AS
25.25.613 is misplaced. That statute states that [i]f all of the
individual parties reside in this state and the child does not
reside in the issuing state, a tribunal of this state has
jurisdiction to enforce and to modify the issuing states child
support order in a proceeding to register that order.12 But that
statute does not require that all parties reside in Alaska to
enforce a foreign support order without modification.13 The
superior court did not modify the Ohio support orders. It was
authorized to enforce the Ohio support orders, and it did not
abuse its discretion in requiring Robertson to provide his tax
return as an aid to enforcing his child support obligation.
Robertson further asserts that, per Alaska Civil Rule
90.3, Riplett should be required to submit her income tax
information first. It appears that Robertson is referring to
Civil Rule 90.3(e)(2), which requires that a party making a
written request to another party for documents such as tax
returns submit documentation of his or her annual income for the
same period at the time the request is made. This rule provides
an informal method either parent can use, while a support order
is in effect, to learn whether there has been a large enough
change in the other parents income to justify a change in the
amount of child support.14 Civil Rule 90.3(e)(2) is inapplicable
here because Riplett did not raise the issue of income tax
information in the context of seeking a modification in child
support. She only sought to enforce the Ohio support orders. We
therefore hold that Riplett is not required to produce her income
tax information.
We accordingly affirm the order requiring Robertson to
submit his tax information. We deny Robertsons request that we
order Riplett to submit her tax information.
IV. CONCLUSION
We therefore AFFIRM both the denial of the modification
motion and the order requiring Robertson to submit his 2006
income tax information.
_______________________________
1 B.B. v. D.D., 18 P.3d 1210, 1212 (Alaska 2001) (holding
that superior court had jurisdiction under Alaska Uniform Child
Custody Jurisdiction Act [repealed in 1998 and replaced with
Uniform Child Custody Jurisdiction and Enforcement Act] to modify
Oregon child custody determination).
2 Ch. 133, 2, SLA 1998, codified as AS 25.30.300-.910.
3 AS 25.30.320 provides in pertinent part:
[A] court of this state may not modify a
child custody determination made by a court
of another state unless a court of this state
has jurisdiction to make an initial
determination under AS 25.30.300(a)(1), (2),
or (3) and
(1) the court of the other state determines
it no longer has exclusive, continuing
jurisdiction under provisions substantially
similar to AS 25.30.310 or that a court of
this state would be a more convenient forum
under provisions substantially similar to AS
25.30.360; or
(2) a court of this state or a court of the
other state determines that neither the
child, nor a parent, nor a person acting as a
parent presently resides in the other state.
4 Had there been no prior Ohio child custody
determination, Alaska would have had jurisdiction in 2007 to make
an initial determination under AS 25.30.300(a)(1) because Alaska
was the childrens home state when the Alaska proceeding was
commenced (when Robertson moved in superior court to modify
visitation).
5 Ohio Rev. Code Ann. 3127.16.
6 See Vannatta v. Boulds, 81 P.3d 480, 483 (Mont. 2003)
(holding Montana court did not have jurisdiction to modify North
Dakota order even though father, who resided in North Dakota,
attempted to invoke jurisdiction in Montana).
7 Wanamaker v. Scott, 788 P.2d 712, 714 n.2 (Alaska 1990)
(citing Mundy & Mundy, Inc. v. Adams, 602 P.2d 1021, 1024 (N.M.
1979)).
8 Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996,
1001 (Alaska 2005); cf. Hoffman Constr. Co. of Alaska v. U.S.
Fabrication & Erection, Inc., 32 P.3d 346, 351 (Alaska 2001)
([W]e will consider any matter appearing in the record, even if
not passed upon by the superior court, in defense of the
judgment. However, we will not consider arguments that were not
raised below, unless the issues establish plain error, or the
issues (1) do not depend upon new facts, (2) are closely related
to other arguments at trial, and (3) could have been gleaned from
the pleadings. (internal citations omitted)).
9 Stone v. Stone, 647 P.2d 582, 584 n.1 (Alaska 1982)
(citing OLink v. OLink, 632 P.2d 225, 226 n.2 (Alaska 1981)); see
Alaska R. Civ. P. 12(h)(3). Under the corresponding federal
rule, [i]f the court determines at any time that it lacks subject
matter jurisdiction, the court must dismiss the action. Fed. R.
Civ. P. 12(h)(3); see Rice v. Rice Found., 610 F.2d 471, 474 (7th
Cir. 1979) ([A] federal court, including a court of appeals, must
raise the issue of subject matter jurisdiction on its own motion
where the parties fail to bring it to the courts attention.); see
also State, Dept of Fin. & Admin. v. Tedder, 932 S.W.2d 755, 756
(Ark. 1996) (noting that state supreme court can raise issue of
subject matter jurisdiction on its own motion).
10 Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000)
(holding that superior courts retroactive child support award to
father was abuse of discretion because, although father was court-
designated custodial parent, mother had de facto custody).
11 AS 25.25.609 provides that [i]f a party . . . seeks to
modify, or to modify and enforce, a child support order issued in
another state but not registered in this state, the party or
agency shall register that order in this state in the same manner
provided in AS 25.25.601-.608.
12 AS 25.25.613(a).
13 See AS 25.25.601 (A support order or an income
withholding order issued by a tribunal of another state may be
registered in this state for enforcement.).
14 Alaska R. Civ. P. 90.3 cmt. VIII.B.
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