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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barlow v. Thompson (12/18/2009) sp-6443
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
| ELKAM BARLOW, | ) |
| ) Supreme Court No. S- 13206 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07-08383 CI | |
| v. | ) |
| ) O P I N I O N | |
| TRACY THOMPSON, | ) |
| ) No. 6443 December 18, 2009 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Stephanie E. Joannides, Judge.
Appearances: Elkam Barlow, pro se,
Anchorage. No brief filed by Appellee.
Before: Carpeneti, Chief Justice, Eastaugh,
Fabe, Winfree, and Christen, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
I. Elkam Barlow appeals a custody determination granting
Tracy Thompson sole legal and primary physical custody of their
daughter. Barlow argues that the superior court did not have
jurisdiction to hear the case; that the judge impermissibly acted
as lay counsel for the mother; that the court was biased against
him; and that the court disregarded Thompsons alleged
interference with Barlows visitation. We affirm as to each of
these arguments.
Barlow also argues that the court erred in calculating
the amount of child support he owed. Because the record does not
contain the findings necessary to support an imputation of income
to Barlow, we remand this issue for further proceedings.
II. FACTS AND PROCEEDINGS
A daughter was born in October 1996 to Tracy Thompson
and Elkam Barlow. Thompson and Barlow never married but lived
together for a short time after their daughter was born. When
their daughter was two-and-a-half years old, Thompson
unilaterally moved out of state with her, returning to Alaska
when the child was approximately five years old. At some point,
Thompson married Joshua Thompson, her current husband.
In July 2007 Thompson filed a complaint for custody of
the child. When Barlow filed his answer, he marked on the answer
form that he disagree[d] that the court has jurisdiction to
decide custody.
In December 2007 Barlow filed a motion to dismiss for
lack of jurisdiction. Superior Court Judge Stephanie E.
Joannides denied the motion, citing AS 25.30.300 as the basis for
jurisdiction. Barlow continued to challenge the courts
jurisdiction, both at a February 2008 hearing and through various
written filings.
Barlow also filed a Notice of Dismissal for Bias,
asking that the judge be removed from the case. The judge denied
this motion, and Superior Court Judge Patrick J. McKay later
affirmed the denial. Pending Judge McKays decision on the
recusal issue, the case was referred to Superior Court Master
Jonathon Lack.
The master conducted a custody, visitation, and support
hearing attended by both parties pro se. The master recommended
that Thompson have sole legal custody and primary physical
custody of their daughter, and that Barlow pay $452 per month in
child support. The master also proposed a visitation schedule,
recommending that the court not implement part of the schedule
until Barlow had completed an anger management assessment and a
co-parenting course at his expense. Judge Joannides approved the
masters report and signed the final child support order.
Barlow appeals. He argues that: (1) the superior court
did not have jurisdiction to hear the case; (2) the court erred
in calculating the amount of child support owed; (3) the judge
impermissibly acted as lay counsel for Thompson; (4) the judge
and the master were biased against him; and (5) Thompson
repeatedly disregarded the courts orders and interfered with
Barlows visitation with their daughter.
III. DISCUSSION
A. Standard of Review
Whether a superior court has jurisdiction is a question
of law that we review de novo.1
A superior court has broad discretion in determining
child custody, and we will not set aside a child custody
determination unless the superior court has abused its discretion
or its relevant factual findings are clearly erroneous.2 We will
set aside the courts factual findings as clearly erroneous only
if review of the entire record leaves us with a definite and firm
conviction that a mistake has been made.3 We review for abuse of
discretion a superior courts evidentiary rulings.4 We also
review for abuse of discretion the weight given by the superior
court to the factors in AS 25.24.150(c) for determining the best
interest of a child.5
A superior courts factual findings regarding a partys
income when awarding child support are reviewed for clear error.6
A courts factual findings imputing income to a child support
obligor are reviewed for clear error.7 We will vacate a child
support award based on imputed income and remand for further
proceedings if there are insufficient findings for us to
determine whether it was error to impute income.8
B. Whether the Superior Court Had Jurisdiction
A. Barlow argues that the superior court did not have
jurisdiction to hear this case. He argues that because he
indicated on his response to Thompsons complaint that he
disagree[d] that the court has jurisdiction to decide custody,
subject matter jurisdiction was not granted to the court by both
parties. He cites Alaska Civil Rule 12(h)(3), which states that
[w]henever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter the court
shall dismiss the action. He also argues that the superior court
denied him procedural due process by not dismissing the case.
Barlows jurisdictional arguments are without merit. To
exercise jurisdiction over a case, a court must have subject
matter jurisdiction over the claims asserted9 and personal
jurisdiction over the parties.10 Alaska Statute 22.10.020 grants
the superior court general subject matter jurisdiction over these
kinds of cases.11 And the Uniform Child Custody Jurisdiction and
Enforcement Act grants the superior court subject matter
jurisdiction to hear certain child custody disputes.12 As Judge
Joannides noted in her order denying Barlows motion to dismiss
for lack of jurisdiction, the custody dispute over the parties
child is such a dispute. Alaska Statute 25.30.300 provides in
relevant part: [A] court of this state has jurisdiction to make
an initial child custody determination only if . . . this state
is the home state of the child on the date of the commencement of
the proceeding. The record shows that the child lived in Alaska
when Thompson filed her complaint for custody and that the child
had lived in Alaska for approximately six years before the filing
date. Barlow does not contest these facts. The superior court
therefore had subject matter jurisdiction over the dispute.
The superior court also had personal jurisdiction over
Barlow. Although consent of the party is one of the traditional
grounds for personal jurisdiction,13 a defendants consent is not
usually necessary for personal jurisdiction to lie.14 Under AS
09.09.015(a)(1)(A), for example, Alaska courts have personal
jurisdiction over any defendant who is a natural person present
in [Alaska] when served. Because Barlow was served in Alaska, he
could not deprive the superior court of personal jurisdiction
over him by withholding his consent.
It may be that Barlow believes that the text of Civil
Rule 12(h)(3) entitled him to a dismissal merely because he
raised a suggestion that the court lacked jurisdiction. If so,
he misreads the rule. The rule provides that a party may raise a
question about jurisdiction. If there is no jurisdiction, the
court must dismiss the action. But if the court determines there
is jurisdiction, it must reject the partys suggestion. In
effect, the rule simply establishes that the court must consider
the partys suggestion and must dismiss if the suggestion is
meritorious. The rule does not state or imply that the court
must dismiss if the suggestion, as here, is without merit.
The superior court correctly ruled that it had
jurisdiction regardless of Barlows attempts to deny jurisdiction
to the court.
C. Whether the Superior Courts Child Support Calculations Were
Erroneous
The masters report states that Barlow is in arrears in
excess of $25,000 in child support and the final child support
order requires Barlow to pay $452 per month. Barlow objects to
both of these amounts because they are based on calculations by
the Alaska Child Support Services Division (CSSD), which, he
argues, incorrectly listed Thompson as the custodial guardian
even though custody had not at that point been determined by a
court. He also argues that the court erroneously calculated his
monthly support obligation because the court based its figure on
Barlow having full-time employment that paid fifteen dollars per
hour, and it can easily be determined that [his] wage has not
been high enough to substantiate such an outrageous monthly
obligation.
Any error in the arrearages calculation is harmless.
The issue of arrearages was not before the superior court and
there is no indication the amount of unpaid child support
affected the courts child support or custody determinations. The
arrearages calculation affected the masters recommendation that
Thompson be allowed to collect their daughters permanent fund
dividend, but Barlow does not appeal this aspect of the support
order.
Nonetheless, requiring Barlow to pay $452 per month in
child support was reversible error. It appears this figure was
largely based on an imputation to Barlow of annual income in 2008
of $31,200, calculated at fifteen dollars per hour, for forty
hours of work per week, for fifty-two weeks a year. But Barlow
testified only that he had earned fifteen dollars per hour when
he last worked full time, approximately one year earlier. An
affidavit from a CSSD employee showed that Barlow had actually
received income of $5,946.75 in 2007 and $10,548.08 in 2006.
A court can in its discretion impute income where a
party is voluntarily and unreasonably underemployed. 15 In
deciding whether an obligor is unreasonably underemployed, the
court must consider the totality of the circumstances, . . .
[which] include such factors as whether the obligors reduced
income is temporary, whether the change is the result of economic
factors or of purely personal choices, the childrens needs, and
the parents needs and financial abilities.16 The masters report
states that Barlow testified that he was unemployed because he
was waiting for a job which was suitable [so] that he could
support himself and [their daughter]. That would imply Barlow
was voluntarily underemployed, but the master did not
specifically find that Barlow was also unreasonably
underemployed. Such a finding would have had to address work
history, job qualifications, and job opportunities.17 We are
therefore unable to determine whether the implied imputation of
income is clearly erroneous.18 We vacate the monthly support
award of $452 and remand to the superior court for recalculation
of Barlows monthly child support obligation. If the award is to
be based on imputed income, the requisite findings for imputation
must be made.
D. Whether the Superior Court Acted Improperly
Barlow argues that Judge Joannides and the master acted
improperly in a variety of ways. These arguments are addressed
briefly below.
1. The superior courts citation to AS 25.30.300
Barlow challenges Judge Joannidess citation to AS
25.30.300 in the order denying Barlows motion to dismiss for lack
of jurisdiction. Barlow first argues that Thompson alone had the
responsibility to provide legal arguments opposing his motion to
dismiss, that Thompson failed to do so, and that therefore any
legal authority cited by the judge was insufficient to deny his
motion. He also argues that by citing the statute, the judge
impermissibly acted as lay counsel for Thompson. Finally, he
argues that the courts citation to the statute shows that the
judge was biased against him.
These arguments are without merit. As Judge Joannides
noted in her order denying Barlows motion to dismiss for lack of
jurisdiction: A court is entitled to cite to the Alaska Statutes
in its decision. The court recognizes that [Thompson] did not
address [Barlows] jurisdictional objections by opposition
(written). Nonetheless a court must base its decisions on the
law. We agree. And it was entirely appropriate for the court to
cite a statute that controlled the disputed issue, even though
the parties did not. The parties had a full opportunity to brief
the jurisdictional dispute. Judge Joannides did not act
impermissibly, and correctly and properly rejected Barlows motion
to dismiss.
2. The masters evidentiary rulings and factual findings
1. Barlow argues that two of the masters evidentiary rulings
and six of the masters factual findings show that the master was
biased against him. First, Barlow argues that the master was
biased because the master allowed testimony from Thompsons
witnesses, who had not interacted with Barlow for over eight
years, but disregarded . . . Barlows testimony referring to 10
years ago. Barlow did not object to the testimony of Thompsons
witnesses, and he does not specify what part of his own testimony
the master allegedly disregarded. The master properly sustained
two of Thompsons hearsay objections to Barlows testimony; both
objections concerned Barlows proposed testimony about events
their daughter had described to him, but that he had not
witnessed himself.19 There is no indication that any of the
exceptions to the hearsay rule applied here. The master was also
permitted to resolve factual disputes and assess the credibility
of witnesses.20
Second, Barlow argues that the master was biased
because he allowed Thompsons witnesses to give hearsay testimony
but did not allow Barlow to play a recording of what Barlow
describes as their daughters first hand testimony. The master
explained that, when there is no objection to hearsay testimony,
the testimony comes in; but he also emphasized that he would base
his report and recommendations only on admissible evidence.
Barlow raised no hearsay objections to Thompsons witnesses
testimony at the hearing. And Barlow has not plausibly explained
on appeal what testimony should have been excluded and why it was
inadmissible hearsay under Alaska Evidence Rule 801(c). He
therefore has not demonstrated it was an abuse of discretion for
the master to admit or consider the testimony of any of Thompsons
witnesses.
Barlow has likewise failed to plausibly explain why
excluding the childs out-of-court statements was an abuse of
discretion. In excluding the recording of the daughter answering
Barlows questions about her home life, the master characterized
Barlows questions as more appropriate for a custody
investigation. The master also noted that the judge had ordered
a custody investigation but that one or more of the parties had
refused to cooperate. Regardless of whether the masters
characterization was accurate, Barlow has not identified any
potential hearsay exception applicable to the out-of-court
statements of their daughter, who is not a party. These
evidentiary rulings were not an abuse of the masters discretion,
and the rulings do not show bias.
Finally, Barlow challenges six of the factual findings
in the masters report and argues that the master was biased
because he did not equally weigh the factors listed in AS
25.24.150 when the master made his custody recommendation.
Testimony at the hearing supports each of the masters challenged
proposed findings. The masters findings are therefore not
clearly erroneous.
Also, nothing in the masters weighing of the statutory
factors suggests that the master was biased against Barlow.
Although we will find the superior court abused its discretion if
it . . . assigned disproportionate weight to particular factors
while ignoring others, 21 courts have considerable discretion in
determining the importance of each statutory factor in the
context of a specific case.22 The master was not required to
weigh the factors equally.23 The factual findings therefore do
not reflect an abuse of discretion, much less any bias.
3. The anger management assessment
Barlow argues that Judge Joannides was biased against
him because she ordered Barlow, but not Thompson, to complete an
anger management assessment at his own expense. He argues that
the court based the order exclusively on allegations of domestic
violence, and that allegations have been made by both parties.
The master not Judge Joannides first recommended an
anger management assessment. And the masters report does not
mention any allegations that Barlow committed domestic violence.
Moreover, the report states that it is apparent that Mr. Barlow
has significant communication deficiencies in that he becomes
argumentative when he does not get his way, indicating that the
anger management assessment requirement stemmed from the masters
personal observations of Barlows behavior, not from allegations
raised by Thompson.
The masters report also states that Barlow raised one
incident of domestic violence in the Thompson household, but he
had no direct knowledge and as such the testimony was of limited
value to the court. The master was in the best position to
evaluate the witnesses credibility and testimony,24 and it was
permissible for him to recommend that only Barlow complete an
anger management assessment. Barlow has not demonstrated that
requiring him, and not Thompson, to complete an anger management
assessment shows bias or was error.
4. Thompsons alleged interference with Barlows visitation
Barlow argues that Thompson repeatedly disregarded the
courts visitation order in an alleged attempt to damage the
relationship between Barlow and their daughter. His appellate
brief mentions three specific incidents, two of which he did not
present to the superior court and therefore did not preserve for
appeal. During Barlows testimony about the one incident he did
raise, Master Lack stated: Nothing could be more clear to me than
the two of you cant get along and cant talk to each other. This
statement indicates that the master took into account the parties
inability to cooperate, and that the master could have found that
the alleged interference was simply a result of that inability.
The master was in the best position to evaluate the witnesses
credibility and testimony,25 and the custody order was permissible
despite Thompsons alleged interference. Barlow has not
demonstrated that there was an abuse of discretion by the master
or the superior court.
IV. CONCLUSION
We therefore AFFIRM the superior courts custody order
but VACATE the amount of the support award and REMAND for further
proceedings regarding child support.
_______________________________
1 Atkins v. Vigil, 59 P.3d 255, 256 (Alaska 2002).
2 Dragseth v. Dragseth, 210 P.3d 1206, 1207 (Alaska
2009).
3 Id.
4 In re D.J.A., 793 P.2d 1033, 1036 n.2 (Alaska 1990).
5 Puddicombe v. Dreka, 167 P.3d 73, 75 (Alaska 2007) (In
child custody cases, we will find the superior court abused its
discretion if it considered improper factors in making its
custody determination, failed to consider statutorily mandated
factors, or assigned disproportionate weight to particular
factors while ignoring
others. ) (quoting Silvan v. Alcina, 105 P.3d 117, 120 (Alaska
2005)).
6 Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003) (citing
Routh v. Andreassen, 19 P.3d 593, 595 (Alaska 2001)).
7 Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008)
(citing Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998)).
8 OConnell v. Christenson, 75 P.3d 1037, 1041 (Alaska
2003) (The absence of specific findings that justify imputing .
. . income . . . renders it impossible for this court to
determine whether the [lower] court was clearly erroneous in its
imputation decision. For this reason, we vacate the child
support award and remand the question of imputed income.); see
also Nass v. Seaton, 904 P.2d 412, 418-19 (Alaska 1995).
9 Nw. Med., Inc. v. State, Dept of Revenue, 151 P.3d 434,
438 (Alaska 2006) (Subject matter jurisdiction is a prerequisite
to a courts ability to decide a case . . . .).
10 Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)
(discussing federal constitutional constraints on courts ability
to subject a defendant to a judgment in personam).
11 AS 22.10.020(a) provides in relevant part that [t]he
superior court is the trial court of general jurisdiction, with
original jurisdiction in all civil and criminal matters,
including probate and guardianship of minors and incompetents.
12 AS 25.30.300.910.
13 See Intl Shoe, 326 U.S. at 318.
14 Alaskas long-arm statute, AS 09.05.015, grants Alaska
courts personal jurisdiction over parties in any case . . . in
which the exercise of jurisdiction is permissible under the
Fourteenth Amendment. Polar Supply Co. v. Steelmaster Indus.,
Inc., 127 P.3d 52, 55 (Alaska 2005) (quoting Cramer v. Wade, 985
P.2d 467, 471 (Alaska 1999)). AS 09.05.015 provides in part:
(a) A court of this state having
jurisdiction over the subject matter has
jurisdiction over a person served in an
action according to the rules of civil
procedure
(1) in an action, whether arising in or
out of this state, against a defendant who,
when the action is commenced,
(A) is a natural person present in this
state when served;
(B) is a natural person domiciled in
this state;
(C) is a domestic corporation; or
(D) is engaged in substantial and not
isolated activities in this state, whether
the activities are wholly interstate,
intrastate, or otherwise . . . .
15 Tillmon v. Tillmon, 189 P.3d 1022, 1030 (Alaska 2008).
See Alaska R. Civ. P. 90.3(a)(4) (The court may calculate child
support based on a determination of the potential income of a
parent who voluntarily and unreasonably is unemployed or
underemployed. . . . Potential income will be based upon the
parents work history, qualifications, and job opportunities.).
16 Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008)
(internal citations and quotation marks omitted).
17 See Tillmon, 189 P.3d at 1030.
18 See OConnell v. Christenson, 75 P.3d 1037, 1041 (Alaska
2003).
19 Alaska Evidence Rule 801(c) provides: Hearsay is a
statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.
20 See Bowman v. Blair, 889 P.2d 1069, 1072 n.5 (Alaska
1995) (We review the . . . masters [factual] findings under the
clearly erroneous standard . . . . Due regard shall be given to
the opportunity of the master to judge the credibility of the
witnesses.) (citations omitted); see also Alaska R. Civ. P. 52(a)
(Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses. The
findings of a master, to the extent that the court adopts them,
shall be considered as the findings of the court.).
21 Puddicombe v. Dreka, 167 P.3d 73, 75 (Alaska 2007)
(quoting Silvan v. Alcina, 105 P.3d 117, 120 (Alaska 2005)).
22 See Michele M. v. Richard R., 177 P.3d 830, 838 (Alaska
2008) (Trial courts have discretion in determining what weight to
give a childs preference [under AS 25.24.150].); Jenkins v.
Handel, 10 P.3d 586, 591 (Alaska 2000) ([T]he superior court did
not abuse its discretion in giving greater weight to other
important factors [than to the childrens preferences under AS
25.24.150] . . . .); Bird v. Starkey, 914 P.2d 1246, 1249 n.4
(Alaska 1996) (stating that trial courts findings regarding best
interests of child under AS 25.24.150 need not be extensive, but
must . . . give us a clear indication of the factors which the
superior court considered important in exercising its
discretion).
23 See Michele M., 177 P.3d at 838; Jenkins, 10 P.3d at
591; Bird, 914 P.2d at 1249 n.4.
24 See Evans v. Evans, 869 P.2d 478, 481 (Alaska 1994).
25 See Bowman, 889 P.2d at 1072 n.5 (Due regard shall be
given to the opportunity of the master to judge the credibility
of the witnesses.) (citations omitted).
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