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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Joymot v. Skillings-Donat (09/25/2009) sp-6417
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
| SARAH JAYMOT, | ) |
| ) Supreme Court No. S- 13204 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-08- 4681 CIV | |
| v. | ) |
| ) O P I N I O N | |
| ) | |
| ELIJAH SKILLINGS-DONAT, | ) No. 6417 - September 25, 2009 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Andrew Josephson, Law Offices
of G. R. Eschbacher, Anchorage, for
Appellant. Phyllis A. Shepherd, Law Office
of Dan Allan & Associates, Anchorage, for
Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
WINFREE, Justice.
I. INTRODUCTION
This appeal concerns child custody, child support, and
property disputes between two parents who lived together for
several years but never married, then separated and agreed to
share custody of their minor child. Three years later, after
moving to Oregon, the mother filed suit seeking sole custody of
their child and a share of proceeds from the sale of the family
house. The superior court granted the father sole legal and
primary physical custody, entered a child support award in the
fathers favor, and denied the mothers claim to a share of the
house-sale proceeds. We affirm the custody ruling as within the
superior courts discretion, affirm the denial of a child support
arrearage award because the claim was not raised at trial, but
vacate the property ruling and remand for further proceedings to
establish necessary factual findings.
II. FACTS AND PROCEEDINGS
A. Facts
Sarah Jaymot and Elijah Skillings-Donat met in
California in 1999. They moved to Alaska together in August 1999
and settled in Anchorage, where they lived together until July
2002.
Sarah and Elijahs daughter was born in January 2002.
That summer the family moved to Haines, and in the fall they
moved into a house purchased for $80,000. Sarah testified that
she contributed her Permanent Fund Dividend to the down-payment
on the house and that the proceeds from the sale of a jointly-
owned travel trailer were also spent on the house. Sarahs name
was not placed on the title, nor was she an obligor on the house
loan. She testified that she asked Elijah several times during
their relationship to place her name on the title, but he did
not. Elijah testified that he was always extremely clear about
not putting [Sarahs] name on the title of anything, and never did
so. Substantial improvements were made to the house while the
couple lived there together, but the parties dispute whether
Sarah contributed to those improvements.
While living together, Sarah paid the couples bills.
But the parties dispute Sarahs actual financial contribution.
Sarah testified:
I paid all the monthly bills. I, at least,
took care of it. Received them; sent them
out in the mail. Sometimes theyd all be
written out of his bank account, and he would
sign the checks, and sometimes they would get
written out of my bank account, and we put
money in. Sometimes they just got paid out
of my bank account.
Elijah testified that he made out checks on his personal account
to Sarah for the purpose of paying bills:
[S]he offered to pay the bills. So she
always usually would pay the bills. But I
didnt want to spend the time to do the math,
and write all the checks, and everything, so
she would do that, and I would write her a
check for the amount of the bills that she
was going to be writing. I did that on -- I
did it just for efficiency, and, then, also,
when I was out of town, or wouldnt be there,
I would sign blank checks. And then you will
notice that much of the writing on these
checks is her writing. I believe there is
only one or two that were written by me, but
theyre all signed by me.
At trial Sarah produced checks showing mortgage and truck
payments made from her account, and Elijah produced checks made
out to Sarah from his account.
In June 2005 Elijah and Sarah ended their relationship
and Sarah moved out of the house. They entered into an informal
agreement for equal shared custody of their daughter. They both
continued to reside in Haines.
In August 2007 Sarah informed Elijah that she would be
moving to Portland, Oregon. On August 22, 2007, Elijahs
girlfriend had an altercation with Sarah and her mother, who was
visiting in Haines. Sarahs mother testified that Elijahs
girlfriend arrived at Sarahs workplace and began to argue with
Sarah, pushed Sarahs mother and told her to get out of the way,
and then grabbed Sarahs daughters arm and told her, [y]our
grandmother is trying to take you away from us, and were not
going to let that happen. Sarah petitioned for domestic violence
protective orders against Elijah and his girlfriend, even though
Elijah was not present when the altercation occurred. Sarah was
granted an ex parte protective order against Elijahs girlfriend,
but she was denied a protective order against Elijah. On August
30 Sarah filed a request to dissolve the protective order,
explaining her reason as consent to mediation for child custody
if order is dropped.
In early September 2007 Sarah and Elijah signed an
agreement to share legal and physical custody of their daughter,
who was to rotate between Haines and Portland every six months.
Their daughter remained in Haines with Elijah during the fall of
2007 while Sarah moved to Portland. In January 2008 their
daughter moved to Portland to begin her six months with Sarah.
On January 11, 2008, Elijah sent Sarah an e-mail
stating that he would take their daughter for a vacation during
her spring break. Elijah and Sarah argued via e-mail over
whether Elijah would be allowed to see their daughter then and,
if so, for how long. In response to Elijahs January 25 e-mail
stating that he would arrive in Portland the following Thursday
to take their daughter for the weekend, Sarah directed all future
communications to her attorney. She filed this action shortly
thereafter.
B. Proceedings
In March 2007 Sarah filed a petition with the Alaska
Department of Revenue, Child Support Services Division (CSSD) for
child support from Elijah. In August 2007 CSSD served Elijah
with a child support order requiring him to pay $524 per month,
as well as $3,144 in arrears from March 1, 2007.
In January 2008 Sarah filed suit seeking sole legal
custody, primary physical custody, increased child support, and a
share of property acquired during the course of the couples
relationship. Elijah moved for interim relief in the form of a
temporary grant of primary physical custody requiring the
daughter to return to Alaska. Sarah opposed the motion for
interim relief and moved for the appointment of a custody
investigator. The superior court denied Elijahs motion but
modified the parties existing custody agreement, ordering Sarah
to return the daughter to Alaska on June 14, 2008. The court
also denied Sarahs motion for a custody investigator.
A bench trial was held in late June 2008. On July 1,
2008, the court awarded Elijah sole legal and primary physical
custody. The court found both parents were capable of providing
for their daughters needs, but also found they had difficulty
communicating and compromising with one another. The court
stated that [t]o the extent the emotional capacity of the parents
to properly parent is an issue, it appears from the testimony of
them on the stand, that the father is more composed and capable
of extracting himself from the anger of the moment and concluded
this factor tipped slightly in [Elijahs] favor.
The court found that: (1) regarding each parents
ability to foster a relationship between the daughter and the
other parent, the evidence tends to show that [Sarah] is less
capable of doing so, in part it seems due to her anger about
[Elijahs] unwillingness to marry her and her belief that she
should get the benefits of his property; (2) Sarah refuses to
speak with [Elijah] and fails to promote communication . . .
refused reasonable requests to visit and only grudgingly allows
contacts with the father; (3) as to [Sarahs] ability to meet the
emotional and social needs of the child (which requires close
connection with the father) and willingness to facilitate and
encourage close contact with the other parent, [Sarah] provides a
less satisfactory environment for the child; (4) Elijah and
Sarahs daughter was too young to express a preference for either
parent and appeared to love both; and (4) there was no history of
domestic violence or drug abuse by either parent.
The court concluded that it was in the daughters best
interests to be primarily in Elijahs custody. The court ordered
that: (1) the daughter reside with Elijah during the school
year; (2) Sarah have visitation from the first Sunday after the
end of school until two weeks before the start of the next school
year; (3) the parents alternate winter and spring holidays with
the daughter; and (4) Elijah continue to have custody of the
daughter for the remaining summer months of 2008, with Sarah to
have visitation during the first week of August.
As to property acquired during the relationship, the
court found that Sarah and Elijah did not have an intent to
engage in a domestic partnership and that their property and debt
remains separate property.
Sarah moved for reconsideration of the trial courts
custody order, arguing that the court: (1) failed to account for
the fact that [she] very well could move back to . . . Haines,
Alaska and failed to rule in the alternative that should [she]
return to Haines, Alaska, [fifty-fifty] custody should be
ordered; (2) should have ordered that transportation costs be
split fifty-fifty; (3) should have ordered that the daughter
spend the remaining weeks of summer 2008 with Sarah; (4) failed
to consider the possibility that Sarah may be able to exercise
more visitation should she come to Alaska during the school
[year]; (5) should have granted Sarah spring break and Christmas
visitation every year; (6) failed to consider Thanksgiving
vacation; and (7) erred by not granting shared legal custody
because there is no indication that this animosity will continue.
The court denied the motion for reconsideration without comment.
The court entered a final custody order mirroring its
earlier findings of fact and conclusions of law. On September 8,
2008, the court entered a final child support order requiring
Sarah to pay Elijah $395 per month.
Sarah appeals both the courts custody order and its
decision not to award her any property acquired while the parties
cohabited. Sarah also contends that the court erred by not
ordering Elijah to pay additional child support arrears.
III. STANDARD OF REVIEW
A trial courts resolution of child custody issues is
reviewed for abuse of discretion, and its underlying factual
findings are reviewed for clear error.1 In a child custody case,
abuse of discretion is established if the trial court considered
improper factors, or improperly weighted certain factors in
making its determination. 2 A courts factual findings are
clearly erroneous when our review of the entire record leaves us
with a definite and firm conviction that a mistake has been made. 3
We give particular deference to the trial courts factual findings
when they are based primarily on oral testimony, because the
trial court, not this court, performs the function of judging the
credibility of witnesses and weighing conflicting evidence.4
A trial courts determination of the parties intent
regarding ownership of property they acquired during cohabitation
is an application of law to facts that is reviewed de novo.5
Child support awards are reviewed for abuse of
discretion and will not be set aside unless a review of the
record as a whole leaves us with a definite and firm conviction
that a mistake has been made. 6
IV. DISCUSSION
Sarah raises numerous points on appeal, but her
arguments can be categorized into seven separate points. She
argues that the trial court: (1) failed to indicate which
factors it considered important in its custody determination;
(2) abused its discretion by not awarding shared legal custody of
the daughter; (3) abused its discretion by determining it was in
the daughters best interests to award Elijah primary physical
custody; (4) abused its discretion by not ordering an alternative
custody arrangement in the event Sarah moved back to Haines; (5)
abused its discretion by not awarding the visitation Sarah
requested; (6) erred by ruling that Sarah and Elijah did not
intend to share equally the equity in the house while they lived
there together; and (7) erred by entering a child support order
that did not account for arrears dating back to 2005.
A. Custody Issues
1. The trial court clearly indicated which factors it
considered important in its custody determination.
The trial court is to determine custody in accordance
with the best interests of the child by considering the list of
statutory factors set forth at AS 25.24.150(c).7 [T]he trial
court need not make express findings on all statutory factors;
instead, its findings must either give us a clear indication of
the factors which the superior court considered important in
exercising its discretion or allow us to glean from the record
what considerations were involved. 8 Sarah argues that the trial
courts ruling fails to do so.
In its findings of fact and conclusions of law the
trial court found that: (1) the daughter does not have any
unusual needs; (2) both parents are mentally and financially
capable of meeting their daughters needs, but that Elijahs
emotional capacity to parent is slightly greater; (3) Sarah is
less willing to facilitate and encourage close contact with the
other parent than is Elijah; (4) the daughter is too young for
her preference to be given weight but appears to love both
parents; and (5) there is no history of drug abuse or domestic
violence by either parent. The court made clear two factors
tipped the balance in favor of granting Elijah custody: his
greater willingness to allow the other parent to have contact
with the daughter and his greater emotional self-control,
allowing him to better meet the daughters social and emotional
needs.
Because we can easily identify the factors important to
the courts custody determination, the order is not, as Sarah
argues, foundationally flawed.
2. Declining to order joint legal custody of the
daughter was not an abuse of discretion.
Joint legal custody means that both parents share
responsibility in the making of major decisions affecting the
childs welfare.9 The legislature has expressed a preference for
joint legal custody,10 and a court may award joint custody if it
is in the best interests of the child.11 However, joint legal
custody is only appropriate when the parents can cooperate and
communicate in the childs best interest.12 The superior court
found that both parents are arrogant and selfish, and that
[affects] their communication and ability to compromise with each
other. The court further found that Sarah refuses to speak with
the father and fails to promote communication. Both findings are
supported by the record: Sarah stated in an affidavit that [i]t
has been clearly proven that in the decision on [the daughters]
custody arrangement the two parents cannot communicate, and
therefore cannot jointly make decisions that affect the outcome
of [the] daughters life.
It was therefore within the trial courts discretion to
decide that awarding sole legal custody is in the childs best
interests.
3. It was not abuse of discretion to determine that
granting Elijah sole legal and primary physical
custody was in the daughters best interests.
The trial court granted Elijah sole legal and primary
physical custody of the daughter after concluding [i]t is in the
best interest of the child to be primarily in the fathers
custody. Sarah argues the court abused its discretion by
reaching this conclusion, specifically by determining that:
(1) Elijah is better able to meet the daughters needs; (2) Elijah
is more willing to allow her contact with their daughter than
vice-versa; and (3) there is no evidence of domestic violence in
Elijahs household.
a. It was not error to find that Elijah is
better able to meet the daughters physical,
emotional, mental, religious, and social
needs.
To determine a childs best interests, the trial court
must consider the capability and desire of each parent to meet
the childs physical, emotional, mental, religious, and social
needs.13 The court found that both parents are mentally and
financially capable of providing for their daughter and meeting
her needs, but that Elijah is better able to meet the daughters
emotional and social needs because he is more composed and
capable of extracting himself from the anger of the moment and
because Sarah refuses to speak with the father and fails to
promote communication.
Sarah asserts that this finding is erroneous, arguing
primarily that Elijah does not require their daughter to attend
school as regularly as she should, has not historically taken
care of their daughters medical needs, has a work schedule that
will interfere with raising their daughter, and has underutilized
his custody time.
Sarah produced the daughters fall 2007 school
attendance record, when Elijah had custody under their informal
agreement, showing the daughter missed eighteen days of school
during a single semester while in Elijahs custody. Sarah also
points to a portion of Elijahs testimony suggesting he does not
make his children (their daughter and his girlfriends daughter,
who resides with Elijah and his girlfriend) go to school if they
do not want to go. But Elijah made this statement while
discussing his effort to supplement formal education with home
instruction; he was referring to his girlfriends daughter and
explaining that a decision had not yet been made on home-
schooling. Elijah testified that he was satisfied with the
Haines public school and would send his and Sarahs daughter
there: But, with [her], its clear. She wants to go to school
really bad. She thrives in the social environment, so I think
public school is the best thing for her. He also testified that
ten of the daughters absences from school were due to family
trips taken to Whitehorse and Connecticut. The court
specifically found that [t]he parties both value education and
promote it, the fathers numerous trips with his daughter . . .
notwithstanding. This finding is not clearly erroneous.
Sarah argues that she had the historic practice of
caring for the [daughters] medical needs and implies that Elijah
did not adequately do so. She points to Elijahs testimony that
he had never brought her to the clinic, except for her teeth and
asserts he was unaware that the daughter had contracted Hand-Foot-
and-Mouth Disease. There is no evidence in the record that the
daughter actually suffered from or was diagnosed with this
disease,14 and the full context of Elijahs statement that he never
took his daughter to the clinic is as follows: Ive never brought
her to a doctor. Shes been very healthy. Sarah brought her to
the clinic quite often, and felt, regularly, like she was sick
and having problems. I never brought her to the clinic, except
for her teeth. This evidence does not prove that Elijah is
incapable or less capable than Sarah of meeting their daughters
physical or medical needs.
Sarah points to her testimony regarding Elijahs work
schedule to suggest that he is less able to meet the daughters
needs because of frequent travel. Sarah testified that while she
and Elijah lived together he traveled for work during the spring,
summer, and fall months. Elijah, on the other hand, testified
that his field work season is in the summer. He stated that
[s]ummer is a more difficult time for me because of my career,
but I work from home, and Im in my house all day long for that
entire school year. The court made no explicit finding on this
issue, but the custody and visitation framework appears to fit
Elijahs work schedule.
Sarah asserts that Elijah did not fully utilize his
custody time with their daughter. She explains that when she
decided to move to Portland and the couple agreed on a rotating
custody schedule, Elijah agreed that his six months would run
from July 1 to December 31, 2007, notwithstanding that it was
already September 7, 2007 when the parties agreement was signed.
Considering that the daughter would already have begun school in
Haines by that time and a move would have been disruptive for
her, Elijahs decision does not necessarily suggest ambivalence
towards having custody, especially in light of his later attempts
to visit her in Portland.
Sarah also argues that Elijah took frequent trips after
their separation, during which times Sarah took their daughter
for additional periods of custody lasting from a few days to two
weeks. Sarahs testimony on this point is insufficient to
establish that Elijah did not value his time with the daughter.
In determining that Elijah is better able to meet the
daughters physical, emotional, mental, religious, and social
needs, the superior court relied heavily on evidence of Sarahs
negative behavior. Sarah called the police three times in 2007
to report that Elijah had not returned their daughter to her
custody on time, as per their informal agreement. The August
police report states:
Sarah JAYMOT reporting her ex, Elijah DONAT,
has not returned her daughter to her. JAYMOT
stated there is no custody agreement that has
been written up, they have had a verbal
agreement for the past 2 years that they are
to exchange their daughter every Sunday.
JAYMOT stated she would only like this
documented as she is going to court for a
custody battle.
The other two reports similarly exhibit Sarahs desire to document
Elijahs breach of the informal custody agreement. She also
sought a domestic violence restraining order against Elijah after
the incident with his girlfriend even though Elijah was not
present. In light of these incidents, the trial courts findings
that Elijah is more composed and capable of extracting himself
from the anger of the moment and that Sarahs anger and inability
to get along with Elijah demonstrate her inability to meet [the
daughters] need for healthy modeling are not clearly erroneous.
The evidence Sarah presented to show Elijahs inability
to meet their daughters needs is unconvincing. It was not error
to determine that Sarahs confrontational and negative behavior
rendered Elijah the parent better able to meet their daughters
needs.
b. It was not error to find that Elijah was the
parent more willing to encourage a close
relationship between the daughter and the
other parent.
The trial court must consider the willingness and
ability of each parent to facilitate and encourage a close and
continuing relationship between the other parent and the child in
determining the childs best interests.15 In this case the
superior court determined that both parents are intelligent
enough to give lip service to promoting the others contact with
the child, but that the evidence showed Sarah is less capable of
doing so. The court noted that Sarah refuses to speak with
[Elijah] and fails to promote communication. She has refused
reasonable requests to visit and only grudgingly allows contacts
with [Elijah]. Sarah argues that the courts finding is
erroneous.
We do not agree with the superior courts
characterization of Elijahs visitation requests as reasonable.
Less than a week after transferring their daughter to Sarahs
custody, Elijah sent a terse e-mail stating: What are the dates
of [the daughters] spring break? I plan to be there with a car
to spend the week with her. I need the dates to plan now.
Elijah then told Sarah he had already purchased tickets and
threatened to file for custody in court if she did not honor the
intent of the agreement to support [the daughters] right to visit
her father. He also stated that he would be visiting Portland
the following week to take the daughter for the whole weekend.
These were commands, not requests, without prior notice and
paired with a threat of litigation. The finding that Sarah
refused reasonable requests to visit is clearly erroneous.
On the other hand the courts finding that Sarah fails
to promote communication with Elijah is not clearly erroneous;
there is evidence that Sarah hindered Elijahs contact with their
daughter. Elijah testified that Sarah regularly threatened to
take their daughter away from him as a bargaining chip when he
was trying to leave her. In March 2008 Sarah purchased a
telephone line so Elijah could speak with their daughter at his
convenience, but Elijah testified that he frequently was unable
to get through to her and that its extremely clear when I talk to
her that she is on speaker phone, and that [Sarah and her
boyfriend] are direct[ ] participant[s] to the dialogue. It was
not clearly erroneous to conclude that Sarah fails to promote
communication between the daughter and Elijah, and that she also
has tried to limit it.
Sarah argues the trial court erred in finding Elijah is
the parent most willing to foster communication, pointing to
evidence that Elijah sometimes failed to timely return their
daughter to Sarah per their informal custody agreement, that he
did not notify Sarah before taking the child on a trip to
Connecticut, and failure to initiate phone contact with their
daughter. Although there is conflicting evidence on Elijah and
Sarahs respective capacities to put aside their differences and
foster a relationship between the child and the other parent, we
are not left with a definite and firm conviction the court erred
in determining that Elijah is more capable in this regard.
The trial court relied heavily on this determination in
making its custody ruling. It is essential to have a custodial
parent willing to foster an open relationship with the other
parent when a great distance separates the [child] from the non-
custodial parent, and it is reasonable for the superior court to
place enhanced importance on this factor when making its
decision.16 Given the physical distance between mother and father
at the time of trial, it was not an abuse of discretion to place
substantial weight on this factor when determining the best
interests of the child.
c. It was not error to find a lack evidence of
domestic violence in the proposed custodial
household.
The trial court must consider any evidence of domestic
violence, child abuse, or child neglect in the proposed custodial
household in determining the childs best interests.17 The
superior court in this case found no history of domestic violence
. . . by either parent. Sarahs opening brief discusses the
altercation between Elijahs girlfriend, Sarah, and Sarahs mother,
then observes that the court did not discuss the incident in its
factual findings. In her reply brief Sarah disputes Elijahs
argument that her attempt to obtain a domestic violence
restraining order against Elijahs girlfriend was unjustified (the
magistrate chose to grant her a stalking protective order) by
contending that there was a domestic relationship at issue: the
relationship between . . . [Elijahs girlfriend] and [the
daughter] . . . . [T]hey were household members as the [domestic
violence] statute defines it. Sarah thus implies that there is
evidence of domestic violence in Elijahs home.
Sarah is correct that the daughter and Elijahs
girlfriend were household members as defined by the domestic
violence statute: adults or minors who live together or who have
lived together.18 Domestic violence is defined in relevant part
as the commission of a crime listed in AS 11.41 by one household
member against another.19 Alaska Statute 11.41 includes the
crimes of assault,20 custodial interference,21 and kidnapping.22
Assuming Elijahs girlfriend committed assault, it was against
Sarahs mother, not against Sarah and Elijahs daughter. Elijahs
girlfriends conduct as described in the protective order
application and the trial testimony grabbing Sarah and Elijahs
daughters hand and telling the child that she would not allow
Sarahs mother to take the child away is not assault, custodial
interference, or kidnapping.23 The finding that there is no
history of domestic violence by either party is not clearly
erroneous.
4. It was not abuse of discretion to decline to order
an alternative custody arrangement in the event
Sarah moved back to Haines.
Sarah argues that the trial court abused its discretion
when it failed to order an alternative schedule when one was
requested by [Sarah], in the event that [Sarah] returned to
Haines, Alaska. Sarah did not make such a request in her pre-
trial pleadings or at trial, nor did her trial testimony indicate
that she might consider moving back to Haines. She first raised
this possibility in her motion for reconsideration. She now
asserts that she moved back to Haines in September 2008.
A trial court is under no obligation to consider an
issue raised for the first time in a motion for reconsideration.24
An issue raised in this manner is untimely and is not properly
before the court on appeal.25 Because Sarah neither made the
argument nor introduced any evidence that would support it at
trial, the argument is waived.26
B. Property Issues
The trial court found that the parties did not have an
intent to engage in a domestic partnership and that their
property and debt remains separate property. Sarah argues this
is erroneous.
When two people reside together in an intimate
relationship, the property they acquire while cohabiting should
be distributed according to the parties express or implied
intent.27 We have rejected in such cases the rule that the party
who has title or possession is necessarily entitled to ownership
of property, because that rule tends to operate purely by
accident or perhaps by reason of the cunning, anticipatory
designs of just one of the parties.28 [A]bsent an express
agreement, courts should closely examine the facts in evidence to
determine what the parties implicitly agreed upon.29 This
determination is an application of law to facts that is reviewed
de novo.30
It is undisputed that Sarah and Elijah cohabited and
shared an intimate relationship for several years. Only their
intent regarding property ownership is at issue in this appeal.
In Bishop v. Clark, we identified several factors to
consider when determining the cohabiting parties intent:
[W]hether the parties have (1) made joint
financial arrangements such as joint savings
or checking accounts, or jointly titled
property; (2) filed joint tax returns; (3)
held themselves out as husband and wife; (4)
contributed to the payment of household
expenses; (5) contributed to the improvement
and maintenance of the disputed property; and
(6) participated in a joint business venture.
Whether they have raised children together or
incurred joint debts is also important.[31]
Bishop involved a property dispute between a couple who had dated
and lived together for thirteen years; they had two children, but
never married.32 Between 1981 and 1995 they worked two fishing
permits as a joint enterprise, and the woman gave the man all of
her fishing permit proceeds, keeping only a small personal
allowance.33 They filed separate income tax returns. The man
purchased real property using the parties commingled funds, but
titled it in his name.34 The trial court found an implicit
agreement of the parties to live together indefinitely and to
share in the fruits of that relationship as though they were
married and awarded the woman a one-half interest in disputed
property, including real property titled only in the mans name.35
We affirmed that decision in light of the couples use of joint
checking and savings accounts for payment of household expenses,
commingling of business income with the mans separate account
from which household expenses were paid, and raising two children
together.36
Our decision in Tolan v. Kimball addressed a property
dispute between a couple who dated and lived together for roughly
eight years.37 The woman purchased a house and titled it in her
name only; the man testified that he contributed $3,600 to the
down payment and closing costs.38 He also testified that the
couple chose not to place his name on the title because he had
defaulted on a previous mortgage.39 He paid the woman $200 per
week, an amount greater than the monthly mortgage. The woman did
not declare the payments as rent on her tax return.40 Finally,
the man made extensive home renovations demonstrating the kind of
significant planning and design decisions . . . that only a
homeowner would make.41
We affirmed the trial courts decision awarding one-half
the value of the house to each party on the ground that it
reflected the parties intent to share the property equally.42 We
observed that the woman had later expressly refused the mans
request to put his name on the title and stated that such refusal
could be an indicator of intent not to share an interest of the
property, but we also noted that the woman had made statements
suggesting that her refusal to place the mans name on the title
was a cunning, anticipatory design on her part alone, rather
than an indicator of the parties mutual intent.43
In this case it appears undisputed that Sarah
contributed a Permanent Fund Dividend and her share of monies
from the sale of a jointly-owned travel trailer to the down-
payment on the house, yet the trial court concluded that Sarah
and Elijah did not intend to share ownership of property as would
a married couple. We cannot determine whether this conclusion is
correct because there are no findings on several factors relevant
to their intent.
The court found that Sarah and Elijah did not title
their property in joint title except for a vehicle that [Elijah]
inherited from an uncle that [Sarah] put in both their names, and
according to the parties testimony, they neither kept joint bank
accounts nor filed joint tax returns. The court also found that
Elijah provided the funds for many bills that were paid by
[Sarah], though she acted as the household bookkeeper while they
were together.
There was no finding whether Sarah contributed to the
payment of household expenses.44 According to both parties
testimony, Sarah would write herself a check on Elijahs account,
have him sign it, and then pay the bills from her own checking
account:
Sometimes [checks for monthly bills would]
all be written out of his bank account, and
he would sign the checks, and sometimes they
would get written out of my bank account, and
we put money in. Sometimes they just got
paid out of my bank account.
The evidence could support a finding that Sarah and Elijah
maintained a de facto joint checking account from which both
contributed to expenses, or that Sarah was merely a conduit
through which Elijah paid the mortgage and household expenses.
The evidence showed that substantial improvements were
made on the house during the time the parties cohabited, but the
trial courts findings do not address whether Sarah contributed to
the improvements or maintenance on the house.45 Sarah contended
she purchased materials and contributed a substantial amount of
labor. Although she could not remember how many hours of work
she put in, she stated that ninety percent of the renovations
were completed by the time she moved out and that 30, 35% of
whatever was cleared after the sale of that property would be a
fair estimation of her contributions in both cash and sweat
equity. She stated that because she worked as a waitress, her
earnings were primarily in cash and she was therefore unable to
show how much money she contributed to the renovations. Elijah
contended that he made the house improvements and that Sarah
lacked the necessary skills to contribute.
The court further failed to find whether Sarah and
Elijah held themselves out as husband and wife.46 The court noted
Elijahs testimony that Sarah would represent the couple as
getting married but that he never intended marriage and would
correct Sarah in front of others. The court did not state
whether it credited this testimony, which Sarah contradicted.
Because the evidence is conflicting on key Bishop
factors and because there are not sufficient findings to allow
our review of its determination of the parties intent, we vacate
the property distribution decision and remand the issue to the
trial court for further proceedings and additional factual
findings.
C. Child Support Issue
The trial court entered a child support order requiring
Sarah to pay Elijah about $400 per month. Sarah observes that
the order does not account for child support she is allegedly
owed for the period between July 2005, when the couple separated,
and March 2007, when CSSDs child support order became
retroactively effective. Because a parent is obligated to
support his or her child regardless of whether a support order
exists,47 Sarah contends the court erred by failing to account for
the child support allegedly owed her during the period between
July 2005 and March 2007.
Sarah did not raise the issue of child support arrears
for that period in her pre-trial pleadings or at trial.48 The
trial court granted custody to Elijah and ordered that [i]f the
parties cannot agree on the amount of child support, and if new
child support guidelines affidavits are needed, then the parties
are to prepare and file them, but there is no evidence Sarah
raised the arrearage issue at that time. Her motion for
reconsideration does not mention child support.
Because Sarah did not raise the issue of child support
arrears in proceedings below, she has waived it.49 We recognize
that a parent may not waive the right to receive child support
payments by acquiescence or private agreement unless that
agreement is approved by the court.50 But when a parent does not
assert a right to past-due support payments at trial, that right
cannot be considered on appeal.
V. CONCLUSION
The custody and child support orders are AFFIRMED. We
VACATE the decision regarding property distribution and REMAND to
the superior court for further proceedings and additional
findings of fact and conclusions of law.
_______________________________
1 Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008)
(citing Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000)).
2 Id. (quoting Gratrix v. Gratrix, 652 P.2d 76, 80
(Alaska 1982)).
3 Id. (quoting Dingeman v. Dingeman, 865 P.2d 94, 96
(Alaska 1993)).
4 Id. (quoting Ebertz v. Ebertz, 113 P.3d 643, 646
(Alaska 2005)) (internal citations and quotation marks omitted).
5 Bishop v. Clark, 54 P.3d 804, 810-11 (Alaska 2002)
(citing Wood v. Collins, 812 P.2d 951, 955-56, 955 n.4 (Alaska
1991)).
6 Harvey v. Cook, 172 P.3d 794, 797 (Alaska 2007)
(quoting Moore v. Moore, 893 P.2d 1268, 1269 (Alaska 1995)).
7 AS 25.24.150(c) provides in part:
In determining the best interests of the
child the court shall consider
(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 . . .
(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.
8 Chesser v. Chesser-Witmer, 178 P.3d 1154, 1158 (Alaska
2008) (quoting Smith v. Weekley, 73 P.3d 1219, 1225 (Alaska
2003)).
9 Farrell v. Farrell, 819 P.2d 896, 899 (Alaska 1991)
(quoting 17 A.L.R. 4th 1015 n.1) (internal quotation marks
omitted).
10 Id. at 898 n.1 (quoting ch. 88, 1(a), SLA 1982).
11 AS 25.20.060(c).
12 Farrell, 819 P.2d at 899.
13 AS 25.24.150(c)(1)-(2).
14 On cross-examination Sarahs counsel asked Elijah, Didnt
[the daughter] just have Hoof-Foot-and-Mouth [sic] disease in
October? Wasnt she diagnosed with that in October and had to
miss some school for that? Do you recall that? Elijah answered
that he did not. No evidence of this illness was produced at
trial.
15 AS 25.24.150(c)(6).
16 Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005).
17 AS 25.24.150(c)(7).
18 AS 18.66.990(5)(B).
19 AS 18.66.990(3)(A).
20 AS 11.41.200-.230.
21 AS 11.41.320-.330.
22 AS 11.41.300.
23 See AS 11.41.200-.230, .300, .320-.330.
24 Blackburn, 103 P.3d at 906 (quoting J.L.P. v. V.L.A.,
30 P.3d 590, 597 n.28 (Alaska 2001)) (internal quotation marks
omitted).
25 Id. (citing Stadnicky v. Southpark Terrace Homeowners
Assn, Inc., 939 P.2d 403, 405 (Alaska 1997)).
26 We note that if Sarah has returned to Haines, nothing
prevents her from moving to modify the custody order. Cooper v.
State, 638 P.2d 174, 179 (Alaska 1981) (A motion to modify
custody may be made at any time during the minority of the child
involved, and the superior court has an obligation to consider
such a request.).
In her list of points on appeal, Sarah contends the
trial court abused its discretion by not awarding her visitation
(1) every winter and spring break (instead of every other winter
and spring break), (2) Thanksgiving break, and (3) in the event
she travels to Alaska. Her brief points to no evidence and makes
no argument why the visitation awarded her is an abuse of
discretion. The argument is therefore waived. However the
specifics of the visitation framework also may be subject to
modification if she has returned to Haines.
27 Bishop 54 P.3d at 811 (quoting Wood, 812 P.2d at 956).
28 Tolan v. Kimball, 33 P.3d 1152, 1156 (Alaska 2001) (per
curiam) (quoting Beal v. Beal, 577 P.2d 507, 509 (Or. 1978))
(internal quotation marks omitted).
29 Bishop, 54 P.3d at 811 (quoting Wood, 812 P.2d at 956).
30 Id. at 810-11, 811 n.11.
31 Id. at 811 (internal citations omitted).
32 Id. at 807.
33 Id.
34 Id.
35 Id. at 808.
36 Id. at 811.
37 33 P.3d at 1152-53.
38 Id.
39 Id. at 1153.
40 Id.
41 Id. at 1154.
42 Id. at 1155-56. The superior court found the parties
had formed an informal but express agreement that each party was
entitled to one-half the value of the house. Id.
43 Id. at 1156 (quoting Beal, 577 P.2d at 509).
44 See Bishop, 54 P.3d at 811.
45 See id.
46 See id.
47 Skinner v. Hagberg, 183 P.3d 486, 489-90 (Alaska 2008).
48 Sarah states that Elijah raised the issue of the [child
support] start date during trial. However Elijah was referring
to the 2007 date on which CSSD first charged him with child
support obligations in discussing a $60 per month credit to his
obligation. This credit reduced his arrears for the period from
September 2007 to February 2008 by roughly $360. Neither the
notice of adjustment nor Elijahs testimony raised the issue of
potential arrears for the period before Sarah contacted CSSD in
March 2007.
49 See Harvey, 172 P.3d at 802 (holding that parent who
listed cause of action for child support arrears in complaint but
who submitted no motions on the claim and failed to present
evidence or request findings regarding past support during the
custody hearing itself waived the claim).
50 Paxton v. Gavlak, 100 P.3d 7, 13 (Alaska 2004).
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