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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Williams v. Williams (5/27/2011) sp-6561
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
PHYLLIS WILLIAMS, )
) Supreme Court No. S-13527
Appellant, )
) Superior Court No. 3AN-00-11199 CI
v. )
) O P I N I O N
DeJEAUX WILLIAMS, )
) No. 6561 - May 27, 2011
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, William F. Morse and John
Reese, Judges.
Appearances: Phyllis Williams, pro se, Anchorage, Appellant.
DeJeaux Williams, pro se, El Paso, Texas, Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
CARPENETI, Chief Justice.
I. INTRODUCTION
A divorced mother appeals the superior court's denial of four motions to
reconsider child support, visitation arrangements, appointment of a court custody
investigator, and her share of her ex-husband's military retirement pay. We affirm the
superior court's decision on each issue except for visitation, which we decline to reach
on mootness grounds. We also reject the mother's claim that the superior court judge
handling the case exhibited bias against her.
----------------------- Page 2-----------------------
II. FACTS AND PROCEEDINGS
After 14 years of marriage, Phyllis and DeJeaux Williams divorced in 2000.
They have one child, Camerin, born November 23, 1995. Phyllis and Camerin live in
Alaska and DeJeaux lives in Texas. The relationship between the parties is contentious,
and the past ten years have seen near-constant litigation on the issues of child support,
visitation, custody, and property division. Phyllis raises similar types of issues in her
appeal to this court. Both she and DeJeaux are pro se.
A. Military Retirement
DeJeaux was in the military during the parties' entire 14-year marriage.
However, the property settlement provisions of the parties' original divorce decree,
issued in December 2000, did not specifically address DeJeaux's future military
retirement pay. In July 2001, the superior court amended the decree to hold that upon
DeJeaux's retirement, Phyllis was entitled to "one half (½) times 170 months of married
military service divided by the total number of months defendant eventually serves in the
military." It appears DeJeaux retired sometime in 2006. In June 2007, citing the
Uniformed Services Former Spouses' Protection Act1 (USFSPA), the court awarded
Phyllis 35% of DeJeaux's retirement pay. The court explained how it reached this
percentage as follows: "50% x (months of military service during marriage) ÷ (total
months of active service)[,] more fully defined as: 50% x 168 months ÷ 240 months =
35%."
In January 2009, citing generally to the USFSPA, Phyllis asked the superior
court to increase her entitlement to DeJeaux's military retirement pay from one-third to
50%. The court denied Phyllis's request, explaining that the 35% determination was
1 10 U.S.C. § 1408.
-2- 6561
----------------------- Page 3-----------------------
properly "based upon the number of years the parties were married and the number of
years DeJeaux was in the military."
On April 3, 2009, Phyllis again moved to increase her share of the military
retirement to 50%, this time invoking Alaska Civil Rule 60(b) and arguing, in part, that
new evidence had been discovered. Phyllis did not say what the new evidence was,
though she may have been referring to a copy of the pamphlet entitled "Uniformed
Services Former Spouses' Protection Act: Dividing Military Retired Pay," a publication
of the Defense Finance and Accounting Service that Phyllis referenced on one of the two
pages of her motion. Phyllis filed a similar motion three days later, this time including
the aforementioned pamphlet. DeJeaux opposed the motion, arguing that the original
determination was proper and nothing had changed since it was made. At an April 23,
2009 hearing, the superior court denied Phyllis's motion, explaining that the court's
previous division of the marital portion of the retirement was correct. A written order
denying the motion was issued the same day. Phyllis appeals this determination.
B. Visitation
Camerin was five years old when the parties divorced in 2000. In the
original divorce proceeding, the parties agreed that Phyllis would have sole legal and
physical custody of Camerin, and DeJeaux would have "reasonable rights of visitation
as the parties may amicably agree to." In July 2001, finding that the parties were
incapable of informally managing DeJeaux's visitation rights in Camerin's best interests,
the superior court began formally setting visitation. At the time, DeJeaux was supposed
to transfer out of Alaska around October 2011. The court ordered that once DeJeaux
moved, visitation would be permitted during half of summer vacations and on various
alternating holidays; the court also ordered that Camerin be accompanied on all flights
due to his age. In January 2002, the court ordered DeJeaux to pay two-thirds of all
visitation-related travel expenses. It appears at least one visit took place before 2003.
-3- 6561
----------------------- Page 4-----------------------
In October 2006, DeJeaux filed a motion to enforce his visitation rights.
DeJeaux alleged that Phyllis was preventing him from speaking to Camerin, refusing to
return calls, and interfering with his attempts to plan visitation. DeJeaux stated that he
had not seen Camerin in two years. Phyllis responded that she had not interfered in any
way, and that the lack of visitation was because DeJeaux did not want to spend the time
or money required.
In November 2006, the court noted that it was unclear what visitation had
occurred in the previous five years, that the parties disagreed about the reasons for the
lack of visitation, and that it could not "determine whether a party has been disobeying
the visitation order or whether there were other reasons for the current dispute." The
court ordered Phyllis to cooperate with DeJeaux in setting up the Christmas visit to
which DeJeaux was entitled under the 2001 visitation order, and it set a hearing for the
following January to reevaluate the situation. Because the parties could not agree on the
location of the Christmas visit, the visit did not take place.
At the January 2007 hearing, DeJeaux said that although he could not afford
to pay travel expenses for the spring visit to which he was entitled, he did want Camerin
to visit in the summer. The court ordered that Camerin could visit DeJeaux in Texas in
summer 2007, but only after DeJeaux traveled to Alaska and spent time with Camerin
there. The court explained that this was necessary because "Camerin has not seen
DeJeaux for so long and . . . is somewhat apprehensive about traveling to see DeJeaux,"
and this arrangement would permit Camerin to "become more comfortable with
DeJeaux."
At an April 2007 status conference, the parties acknowledged that they had
not been in phone contact since the previous hearing, but they disagreed about why.2
2 DeJeaux said he had been calling Phyllis and produced phone records, some
(continued...)
-4- 6561
----------------------- Page 5-----------------------
DeJeaux told the court that if he paid for a ticket to fly to Alaska, the expense of the
flight would limit the activities he and Camerin could do together. The court questioned
DeJeaux at length about his finances, then ordered that he must spend four days in
Alaska, but could then spend 17 days in Texas with Camerin. It is unclear whether this
visit ever took place.
In March 2008, DeJeaux filed another motion seeking an order requiring
Phyllis to cooperate with his efforts to interact with Camerin. Phyllis did not respond,
and the court staff found that her phone number was out of service. In July 2008,
DeJeaux moved again to establish a visitation schedule, stating that he had not spoken
to Camerin in a year because he did not know Phyllis's phone number. The court set a
hearing, ordered Phyllis not to bring Camerin to the hearing, and said that it would
"consider appointing a child custody investigator for the limited purpose of speaking to
Camerin in an informal and less threatening setting to learn his preferences about
visitation."
At a July 2008 hearing, DeJeaux said he wanted to bring Camerin to Texas
in August, but he had only reserved a one-way ticket for his son. Phyllis objected, and
the court said it would consider the visit if DeJeaux also bought a return ticket. The
hearing was continued to the next day. At that hearing, DeJeaux said he could not afford
the return ticket and therefore would not go through with the summer visit. The court
then considered the possibility of a Christmas 2008 visit; the court ordered that flight
details be arranged in advance, that DeJeaux pick up Camerin in Alaska, and that
2 (...continued)
of them showing calls at unusual hours, and Phyllis said that she did not pick up the
phone for unknown numbers, that she did not receive many of the calls, and that Camerin
told her not to answer the phone if DeJeaux called. But Phyllis also at an earlier point
said that her phone did not display the number of the person calling.
-5- 6561
----------------------- Page 6-----------------------
3
Camerin could then fly home by himself. The court said to DeJeaux: "If you do not get
the travel arrangements made and financed, then I'm likely to cancel your future
visitations." Phyllis asked the court to appoint a custody investigator to determine
Camerin's preference, but the court did not respond to this proposal.
At a hearing in October 2008, DeJeaux said that he could not afford the
Christmas visit, but that he hoped for a visit in the summer of 2009. In January 2009,
Phyllis moved for an order to eliminate all visits in Texas. She seemed to argue that the
long gaps in communication and Camerin's visit-related anxiety meant out-of-state visits
were not in Camerin's best interest. She also argued that Camerin did not want to see
DeJeaux and he was "old enough to know how he feels and why." The court denied the
motion on the grounds that there were no changed circumstances that would justify
modifying the visitation order.
At an April 2009 hearing, the parties began discussing the logistics for
Camerin's summer 2009 visit; Phyllis said she planned to take Camerin to Japan for the
summer and DeJeaux said he wanted a summer visit in Texas. The court suggested that
Camerin visit DeJeaux in Texas on the way from Japan, and ordered the parties to
research the cost of changing the flights to accomplish this. Around this time, Phyllis
sought the court's intervention; she argued that visitation in Texas would not be in
Camerin's best interests and requested appointment of a custody investigator to
determine whether visitation was in Camerin's best interests. She alleged that Camerin
and DeJeaux had no bond with each other and had not spoken in over a year, and that the
last visit in Texas had not gone well. DeJeaux responded that he loved Camerin and
3 In a written order following the hearing, the court specified that DeJeaux
had to propose dates by October and pay 60% of Camerin's travel costs, as well as 100%
of his own.
-6- 6561
----------------------- Page 7-----------------------
wanted a relationship, but that Phyllis had interfered with his attempts to communicate
with his son.
On April 23, 2009, the court denied Phyllis's requests to cancel visitation
and appoint a custody investigator. Phyllis appeals this order.
C. Child Support
The parties' initial divorce decree required DeJeaux to pay $548 per month
in child support. Since then, the amount of the support obligation has fluctuated in
response to changes in DeJeaux's income. In June 2004, the court granted a motion of
the Child Support Services Division (CSSD) to increase support to $709 per month,
minus a medical insurance credit of $5.67. In June 2006, not long after DeJeaux retired,
the court granted a CSSD motion to decrease support to $381. In January 2007, the court
granted a CSSD motion to increase support to $556 per month4 based in part on
DeJeaux's receipt of a VA school stipend in the amount of $922 per month. The court
ordered that this change be effective as of July 1, 2006.
In June 2007, however, the court expressed concern that its most recent
support order was incorrect; specifically, the court questioned whether the VA school
stipend should have been included in the calculations. The court asked the parties and
CSSD to revisit the calculation and "file a report of their reconsideration of the proper
child support." In response, CSSD revised its calculation of DeJeaux's monthly
obligation to $359 per month. However, because this was less than a 15% decrease from
DeJeaux's prior obligation of $381, CSSD asked the court to leave the June 2006 order
intact.5 The court agreed and in September 2007 ordered that DeJeaux's "monthly
4 This figure did not include a medical insurance credit, as DeJeaux had not
given CSSD "sufficient information to calculate said credit."
5 See Alaska R. Civ. P. 90.3(h)(1) ("A final child support award may be
(continued...)
-7- 6561
----------------------- Page 8-----------------------
obligation of $381 will be reinstated effective 1 July 2006, the date the order of 19
January 2007 made the erroneous increase effective."
In January 2009, Phyllis moved for an increase in child support. The court
ordered DeJeaux to provide updated income data. DeJeaux complied, and the court
considered the new data in February 2009. Using the new data, the court determined that
DeJeaux's annual income "translates to a monthly child support obligation of $587."
However, the court found that "[t]he current order is for $556. That increase of $31 is
less than 15% of the current obligation, therefore the potential increase is not great
enough to warrant modification." On that basis, the court denied Phyllis's motion.
In February 2009, Phyllis filed a motion informing the court of an error in
its earlier decision. Phyllis pointed out that the court had based its decision on the fact
that the existing support order was for $556, while in fact the support order then in effect
was for $381. In early March, Phyllis filed additional documents in support of her
motion to increase support to $587. Later that month the court issued an order indicating
that it believed Phyllis was correct about the court's error and the need for an increase,
and gave DeJeaux time to respond. DeJeaux opposed the increase but did not
specifically dispute that the court had used an incorrect figure in its February 4
calculation. In April 2009, the court increased DeJeaux's monthly child support
obligation to $587.
A few days after the court increased DeJeaux's support obligation, Phyllis
filed a new motion concerning child support. Phyllis asked the court to increase child
support even beyond $587, alleging that the $587 figure did not reflect funds from
5 (...continued)
modified upon a showing of a material change of circumstances . . . . A material change
of circumstances will be presumed if support as calculated under this rule is more than
15 percent greater or less than the outstanding support order.").
-8- 6561
----------------------- Page 9-----------------------
DeJeaux's VA school stipend and that DeJeaux's retirement pay had increased again.
Phyllis asked that any increase be made effective either November 2006, February 2008,
or July 2008, dates on which Phyllis had previously submitted documents to the court
concerning child support. She also asked the court to require DeJeaux to provide updated
income data and for a signed release allowing the court to access DeJeaux's bank
statements and other financial documents. DeJeaux opposed any increase, arguing that
the previous order was correct and that he could not afford to pay any more. In April
2009, the court denied Phyllis's motion without any explanation. Phyllis appeals this
decision.
D. Dental Expenses
In June 2004, the superior court ordered DeJeaux to provide dental
insurance for Camerin. In August 2006, Phyllis incurred $232 in dental bills for Camerin
arising from a routine cleaning and cavity filling. DeJeaux claimed that he had Camerin
covered by insurance at that time; the court ordered DeJeaux to show proof of insurance,
but DeJeaux did not comply. The parties addressed this issue at a hearing in May 2007.
The court then ordered DeJeaux to show proof of insurance, and to "reimburse Phyllis
for the $232 that would likely have been covered by a dental plan." At a July 2008
hearing, Phyllis alleged that DeJeaux had not yet paid her the money. DeJeaux
responded that he had paid by money order but did not have a receipt or any other proof
of payment. The court ordered DeJeaux to pay the $232 and show proof of payment.
In February 2009, Phyllis filed a motion for contempt, alleging that
DeJeaux still had not complied with the court order to pay her the $232. DeJeaux again
responded that he had paid, but still produced no proof of payment. At an April 2009
hearing, DeJeaux was evasive on the subject of proof of payment, but continued to claim
he had already paid. By the hearing on April 23, 2009, DeJeaux still had not provided
proof of payment.
-9- 6561
----------------------- Page 10-----------------------
An order on Phyllis's motion for contempt was issued on May 20, 2009,
two weeks after her appeal was filed.6
E. Superior Court Bias
The Williamses' case was initially assigned to Superior Court Judge John
Reese, on October 12, 2000. Judge Reese retired in 2004. In May 2006, the case was
ultimately reassigned to Superior Court Judge William F. Morse. Audio recordings of
the hearings in this case suggest that Phyllis's exchanges with Judge Morse may have
been tense. In her July 13, 2008 motion to change child support, she requested that there
be no hearing and attached an explanatory letter that said, in part, "I'm scare[d] of you
judge, [s]orry!" Her brief seems to accuse Judge Morse of bias in favor of DeJeaux
rather than looking out for Camerin's best interests, of ignoring or overlooking crucial
information that would have led to a different outcome, and of not following through on
statements that he made during hearings.
III. STANDARD OF REVIEW
We review a trial court's equitable division of marital property under the
abuse of discretion standard; we will not disturb it unless the result is clearly unjust.7
Whether the trial court applied the correct legal rule in exercising this discretion is a
question of law that we review de novo.8
6 Phyllis Williams v. DeJeaux Williams trial court docket,
http://www.courtrecords.alaska.gov/pa/pa.urd/pamw2000.docket_lst?75464493 (last
visited April 18, 2011).
7 Walker v. Walker, 151 P.3d 444, 447 (Alaska 2007).
8 Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994).
-10- 6561
----------------------- Page 11-----------------------
A trial court's ruling on an Alaska Civil Rule 60(b) motion is reviewed for
abuse of discretion; it will not be disturbed unless we are left with "the definite and firm
conviction on the whole record that the judge ha[s] made a mistake."9
The question of whether to deny a motion to modify visitation without a
hearing is a matter of law we review de novo.10 We generally review the trial court's
decision to appoint or not appoint a custody investigator for abuse of discretion.11
Decisions to modify a child support award are generally reviewed for abuse
of discretion.12 We review factual findings regarding a party's income when awarding
child support for clear error.13
IV. DISCUSSION
Since filing her appeal, Phyllis has filed a number of additional motions in
the superior court covering custody issues similar to those that were the subjects of the
April 23, 2009, written orders and hearing. In some cases, Phyllis's brief addresses the
substance of these more recent motions and rulings, rather than the April 2009 decisions.
Under the appellate rules, we cannot review these issues. Appellate Rule 204(b) permits
9 Thomas v. Thomas, 581 P.2d 678, 679 (Alaska 1978) (quoting Gravel v.
Alaskan Vill., Inc., 423 P.2d 273, 277 (Alaska 1967)).
10 Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999) (quoting C.R.B. v.
C.C., 959 P.2d 375, 378 (Alaska 1998)).
11 D.D. v. L.A.H., 27 P.3d 757, 761 (Alaska 2001);Pearson v. Pearson, 5 P.3d
239, 242 (Alaska 2000).
12 State, Dep't of Revenue, Child Support Enforcement Div., ex rel. Husa v.
Schofield, 993 P.2d 405, 407 (Alaska 1999). Cf. Tillmon v. Tillmon, 189 P.3d 1022, 1026
(Alaska 2008) ("Whether a trial court applied the correct method of calculating child
support is a matter of law to which we apply our independent judgment.").
13 Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003) (citingRouth v. Andreassen,
19 P.3d 593, 595 (Alaska 1998)).
-11- 6561
----------------------- Page 12-----------------------
an appeal from a "final order or judgment," but this final order must be specified in the
notice of appeal.14 As Phyllis's appeal was filed on May 4, 2009, and her jurisdictional
statement states that she is appealing from "the April 23, 2009 final judgment," we have
confined our review to the oral and written decisions issued on April 23, 2009.
A. The Superior Court Did Not Abuse Its Discretion By Denying Phyllis's
Rule 60(b) Motions.
In April 2009, Phyllis filed two motions for reconsideration of military pay
under Alaska Civil Rule 60(b) - one on April 3 and a second on April 6. Judge Morse
issued two written denials on April 23. He denied Phyllis's motions for lack of
timeliness, as well as on the merits, writing, "The motion . . . is untimely. But even if
timely, the Court would deny the motion. The Court can only divide the marital portion
of the retirement benefit and none of the disability benefit." The superior court did not
err by denying Phyllis's motions, whether on the grounds of timeliness or on the merits.
1. Phyllis's 60(b) motions to reconsider allocation of DeJeaux's
military retirement were untimely.
In a divorce proceeding where marital property has been divided, a divorce
decree incorporating a property judgment constitutes a final judgment and may be
modified to the same extent as any equitable decree of the court.15 Under
AS 25.24.160(a) a court has authority to divide property, but the statute does not
authorize a court to distribute assets on a "piecemeal basis" when the parties' property
rights have been incorporated into a final judgment.16 Other than a Civil Rule 77(k)
motion for reconsideration, which must be made within ten days of the court's order, an
14 Alaska R. App. P. 204(b).
15 O'Link v. O'Link, 632 P.2d 225, 228 (Alaska 1981) (citing Thomas v.
Thomas, 581 P.2d 678, 679 n.4 (Alaska 1978)).
16 Lowe v. Lowe, 817 P.2d 453, 456 (Alaska 1991).
-12- 6561
----------------------- Page 13-----------------------
Alaska Civil Rule 60(b) motion provides the only available means for seeking relief from
a final judgment of property division.17 Rule 60(b) allows relief from a final judgment
or order only for specified reasons:
(1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an
adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the
judgment.
It is not necessary that the ex-spouse specify which of these reasons the 60(b) motion
falls under.18
Though Phyllis raised several different grounds for relief in her April 3 and
April 6 motions, her appeal is primarily concerned with only one of these grounds. She
contends that the superior court misinterpreted the USFSPA when dividing DeJeaux's
military retirement pay. If true, this would fall under Rule 60(b)(1), which applies when
the trial court has made a mistake of law.19 While Rule 60(b)(1) claims must normally
17 Id.
18 Clauson v. Clauson, 831 P.2d 1257, 1259-61 (Alaska 1992) (granting relief
to ex-wife under 60(b)(6) though she had cited no statute for her motion to modify a final
divorce decree).
19 See Alaska Truck Transp., Inc. v. Berman Packing Co., 469 P.2d 697, 699
(Alaska 1970).
-13- 6561
----------------------- Page 14-----------------------
be filed within one year,20 claims that the trial court has made a mistake of law constitute
a special exception, and become time-barred after 30 days.21 Though it is unclear
whether Phyllis is appealing the July 2001 amended divorce decree in which the
calculation was formalized, or the June 2007 order in which numbers were assigned to
the calculation, she filed her 2009 motions well over 30 days after the final judgment.
Her motion was therefore untimely, and the superior court did not err by dismissing the
motions on that basis.
2. The superior court did not abuse its discretion by awarding
Phyllis 35% of DeJeaux's overall military retirement pay.22
Phyllis contends on appeal that the superior court misapplied the law by
awarding her "one-third" of DeJeaux's military retirement pay. DeJeaux claims that the
current calculation is correct under the law. DeJeaux is correct.
The USFSPA allows a court to divide military retirement pay between
spouses if one spouse served at least ten years of active duty during the marriage, but
caps the former spouse's share at 50% of the service member's disposable retired pay,
that is, gross retired pay minus authorized deductions.23 When the parties divorce prior
to the service member's retirement, a formula is typically used as the basis for calculating
20 Alaska R. Civ. P. 60(b).
21 Alaska Truck Transp., Inc., 469 P.2d at 700 (holding that Rule 60(b)(1)
claims for errors of law should be subject to a 30-day time limitation).
22 As just explained, Phyllis's Rule 60(b) motions were untimely and could
be dismissed on this basis. In light of Phyllis's pro se status, we nevertheless take this
opportunity to explain how the superior court calculated the military retirement pay
division.
23 10 U.S.C. § 1408(a)(4), (e)(1).
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----------------------- Page 15-----------------------
the ex-spouse's award.24 The current version of the pamphlet Phyllis appended to her
motion provides a useful explanation of the governing law:
A formula award is an award expressed in terms of a marital
fraction, where the numerator covers the period of the parties'
marriage while the member was performing creditable
military service, and the denominator covers the member's
total period of creditable military service. The former
spouse's award is usually calculated by multiplying the
marital fraction by ½.[25]
In other words, the marital fraction represents the percentage of the retirement pay that
may be considered marital property. The numerator is expressed in whole months, and
is provided by court order.26 The Department of Defense supplies the denominator "in
terms of whole months of service creditable for retirement eligibility."27 We have upheld
this calculation - one-half times the marital fraction - as fairly representing the
proportion a spouse should receive.28
24 DEPARTMENT OF DEFENSE FINANCIAL MANAGEMENT REGULATIONS, Ch.
29, Vol. 7B, at 290601(E), http://comptroller.defense.gov/fmr/07b/07b_29.pdf (last
visited May 18, 2011) ("If the former spouse and the member were divorced before the
member became entitled to receive military retired pay, then the retired pay award may
be expressed as a formula or hypothetical retired pay award in accordance with
paragraphs 290607 and 290608.").
25 DEFENSE FINANCE &ACCOUNTING SERVICEUNIFORMED SERVICES FORMER
SPOUSES' PROTECTION ACT ATTORNEY INSTRUCTION: DIVIDING MILITARY RETIRED
PAY, 6 (2010), http://www.dfas.mil/garnishment/retiredmilitary/AttorneyInstruction
01-04-10.pdf (last visited Nov. 24, 2010).
26 Id. at 7.
27 Id.
28 See Doyle v. Doyle, 815 P.2d 366, 370 (Alaska 1991) (calculating the wife's
share of her ex-husband's military pension as one-half of 19/20, because husband and
(continued...)
-15- 6561
----------------------- Page 16-----------------------
Citing to the USFSPA, Phyllis maintains that she is entitled to 50%, not
35%, of DeJeaux's military retirement pay. But she is not entitled to 50% of DeJeaux's
military retirement pay - only 50% of the portion earned during the marriage.29 The
current judgment already awards Phyllis 50% of the marital fraction, using the following
calculation: "50% x (months of military service during marriage) ÷ (total months of
active service) more fully defined as: 50% x 168 months ÷ 240 months = 35%." Though
this gives Phyllis 35% of DeJeaux's disposable retired pay overall, it is also 50% of the
marital portion, and 50% of the marital assets is presumed to be an equitable division.30
The trial court may overcome the presumption of fairness of a 50/50
division of marital property by applying the Merrill31 factors to give the divorcing
spouses unequal shares.32 Though she mentions the Merrill factors in passing, however,
Phyllis states no facts or reasons why she is entitled under that case to more than 50% of
the marital portion. Rather, her sole reason seems to be that 50% of the disposable
retired pay is her statutory entitlement, which is not actually the case. The current order
28 (...continued)
wife were married for 19 of the 20 years that the husband served in the army); Chase v.
Chase, 662 P.2d 944, 945-46 (Alaska 1983) (upholding an award of one-half of 19/20
of the retiree's military retirement pay, where the divorcing husband had entered the
military one year prior to the marriage and retired after 20 years of service). Notably,
Phyllis cites Chase in support of her claim, indicating that she may have misinterpreted
the ruling.
29 Retirement pay earned outside the marriage is DeJeaux's, but the money
earned for time served during the marriage belongs to both DeJeaux and Phyllis.
30 Tybus v. Holland, 989 P.2d 1281, 1286 (Alaska 1999).
31 Merrill v. Merrill, 368 P.2d 546, 547-48 n.4 (Alaska 1962).
AS 25.24.160(a)(4) codifies and expands on these factors.
32 See, e.g., Tybus, 989 P.2d at 1286.
-16- 6561
----------------------- Page 17-----------------------
is consistent with the requirements of the USFSPA and is not clearly unjust.33 Therefore,
we will not disturb the superior court order.
B. Phyllis's Appeal Concerning The Summer 2009 Visit is Moot.
Phyllis appeals the denial, without a hearing, of her motion to terminate the
summer 2009 visit. That issue is now moot. "A claim is moot if it has lost its character
as a present, live controversy,"34 and the summer of 2009 has passed. As no live
controversy exists, and no exception to the mootness doctrine appears applicable to this
case, we decline to reach the question of whether the denial was appropriate.35
C. The Superior Court Did Not Abuse Its Discretion In Not Appointing
A Custody Investigator.
In July 2008, in response to a motion by DeJeaux to establish a visitation
schedule, the superior court issued an order which mentioned, in part, that the court
would "consider appointing a child custody investigator for the limited purpose of
speaking to Camerin in an informal and less threatening setting to learn his preferences
about visitation." In April 2009, Phyllis moved to appoint a custody investigator for the
33 McCoy v. McCoy, 926 P.2d 460, 463 (Alaska 1996) ("The superior court's
distribution will not be disturbed unless it is so clearly unjust as to constitute an abuse
of discretion.").
34 See Akpik v. State, Office of Mgmt. & Budget, 115 P.3d 532, 535 (Alaska
2005) (quoting Kodiak Seafood Processing Ass'n v. State, 900 P.2d 1191, 1195 (Alaska
1995)).
35 After Phyllis filed this appeal in May 2009, she filed new motions in
September 2009 and February 2010 seeking to end future visits. But Phyllis's appeal is
limited to decisions made by the superior court in April 2009. The September 2009 and
February 2010 post-appeal motions and accompanying decisions are not properly before
this court, as they were filed well after Phyllis's appeal. We therefore decline to reach the
merits of these motions.
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purpose of determining Camerin's visitation preferences. The superior court denied
Phyllis' motion on April 23, 2009. Phyllis challenges this decision of the superior court.
A trial court has wide discretion to decide when a child custody
investigation is appropriate.36 The purpose of these investigations is to assist trial judges
in determining a child's best interests.37 To that end, "[u]nless it can be shown that a
court would be unable to determine the child's best interest without a custody
investigation, a trial court does not abuse its discretion when it decides not to appoint an
investigator."38
Though Phyllis's argument regarding the custody investigator is unclear,
she appears to have two main contentions. First, she claims that an investigator should
be appointed because Judge Morse said he would consider it. This argument fails
because there is no requirement in the law that a judge appoint a custody investigator
simply because he said he would consider it.
Second, she cites toBrooks v. Brooks,39 in which we stated that trial courts
facing "hearsay-based allegations [of domestic violence] have the option to order a child
custody investigator to interview the child or children and to consider the investigator's
report in deciding whether to hold a hearing on the basis of those allegations."40 But
Brooks does not support Phyllis's claims. The portion she quotes supports rather than
36 D.D. v. L.A.H., 27 P.3d 757, 761 (Alaska 2001) (citingPearson v. Pearson,
5 P.3d 239, 242 (Alaska 2000)).
37 Id.
38 Id.
39 Mem. Op. & J. No. S-13544, 2010 WL 143494 (Alaska, Jan. 13, 2010).
40 Id. at *3.
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defeats the discretionary standard granted to the trial court, giving the trial court the
"option" of appointing a custody investigator rather than making it mandatory.41
Phyllis offers no evidence to support the notion that the superior court
cannot determine Camerin's best interests without a child custody investigator. Because
Phyllis has not made a showing that Judge Morse abused his discretion, she has failed
to show any error.
D. The Superior Court Did Not Err In Its Handling Of Matters
Concerning Child Support.
1. Calculation
Modifications of child support are generally governed by AS 25.24.170,
Civil Rule 90.3, and this court's precedent.42 When a party moves to increase a child
support obligation, the burden lies upon the moving party to show by a preponderance
of the evidence that there has been a "material and substantial change in income."43
Absent this showing, a court may reject a motion to modify without a hearing.44 A
material change of circumstances is presumed where the support calculated is 15%
greater or less than the existing support order.45 In considering the proposed
41 Id.
42 See, e.g., Tillmon v. Tillmon, 189 P.3d 1022, 1027-28 (Alaska 2008).
43 Routh v. Andreassen, 19 P.3d 593, 596 (Alaska 2001) (citing Dewey v.
Dewey, 886 P.2d 623, 629 (Alaska 1994)).
44 Acevedo v. Burley, 944 P.2d 473, 475-76 (Alaska 1997).
45 Ward v. Urling, 167 P.3d 48, 52 (Alaska 2007).
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modification of child support, the court evaluates the child's needs, the parents' needs,
and the parents' financial capabilities.46
Phyllis claims on appeal that the amount of child support currently ordered
is incorrect, and that the tax returns used in the calculation reflect neither Dejeaux's
military benefits nor his disability benefits. But her evidence falls short of meeting her
burden of proof. Her evidence consists of allegations that DeJeaux has more assets than
reported in his income tax returns, but she produces no facts or written documentation
showing this. Nor does she produce any calculation showing that DeJeaux has had a
change in circumstances that would increase her entitlement by at least 15%. In support
of Phyllis's claim, she cites an Iowa case holding that veterans' disability benefits are
income even though they are tax-exempt. Yet that is not in dispute: The superior court's
order includes veterans' disability benefits in the child support calculation.
Though this court has acknowledged the validity of concerns that income
tax returns might not be reflective of true income,47 "a court cannot presume a party is
obstructive per se when the party provides a substantial response to requests for
evidence."48 The trial court is only required to arrive at a " 'reasonable assessment' of
the obligor's earning capacity"; though there must be "sufficient evidence from which
the court can make informed calculations,"49 perfect evidence is not required. In this
case, the superior court had a variety of documents from which to calculate child support,
including, as it noted, DeJeaux's "2007 tax return, a document showing his retirement
46 Dewey, 886 P.2d at 629 (citing Curley v. Curley, 588 P.2d 289, 292 (Alaska
1979)).
47 Routh, 19 P.3d at 596 (citing Ogard v. Ogard, 808 P.2d 815, 819 (Alaska
1991)).
48 Id.
49
Ward, 167 P.3d at 54.
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pay effective 2 January 2009, and a letter showing that he will be getting a reduction in
his disability pay in November 2009." From this the superior court could reasonably
calculate DeJeaux's earning capacity. Phyllis has not shown that the court clearly erred
in its valuation of DeJeaux's child support payments.
2. Alleged cancellation of past-due child support payments
Phyllis claims that DeJeaux was nearly $4,000 behind in child support
payments when Judge Reese retired and that Judge Morse improperly cancelled
DeJeaux's arrears. Phyllis appears to feel that she has a second claim of arrears as well,
for a different time period: A copy of a CSSD audit of DeJeaux's child support payments
is included in Phyllis's excerpt of record, and she has drawn an arrow to a balance of
$3,493 in October 2007, then another arrow to a zero balance in July 2008, following an
"adjustment" of $2,878.74 that occurred in October 2007. In her brief she refers to it as
"where in fact Mr. Williams' arrears were zero[ed] out."50
As a procedural matter, a party seeking to collect past-due child support
payments must first reduce the arrears to a judgment in the trial court, under
AS 25.27.226.51 Once this has occurred, the custodian may begin proceedings to enforce
50 As discussed in Part II.C, supra, there is evidence in the record suggesting
that DeJeaux overpaid his child support amount in 2006 and 2007, paying $556 per
month when he should have paid $381 per month. In a September 2007 order, the
superior court corrected the error, then suggested that DeJeaux was "entitled to a credit
towards his future child support" to the extent that he had overpaid, though it noted that
it did not know how CSSD handled these credits. CSSD made the $2,878.74 adjustment
one month later. Though Phyllis claims that this is an instance where DeJeaux's arrears
were cancelled, it appears that the alleged cancellation is in fact an adjustment that CSSD
made to account for DeJeaux's overpayment of child support.
51 AS 25.27.226 outlines the procedure for collecting past-due payments. The
statute provides:
(continued...)
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that judgment. The Child Support Enforcement Division can also initiate the process of
obtaining a judgment for arrears, and the original divorce decree between Phyllis and
DeJeaux actually states that "[a]ny issue as to Mr. Williams' arrears since the October
10, 2000 effective date of the interim Child Support Order can be dealt with by the Child
Support Enforcement Division."
Nothing in the record indicates that the superior court ever entered a
judgment for the alleged arrears, nor that Phyllis attempted to obtain such a judgment and
was denied. As there is no judgment in the superior court to appeal, the issue of arrears
is not properly before this court.
E. Phyllis Did Not Show That Judge Morse Was Personally Biased
Against Her.
51 (...continued)
To collect the payment past due, the custodian of a child, or
the [Child Support Services] agency on behalf of that person,
shall file with the court (1) a motion requesting establishment
of a judgment; (2) an affidavit that states that one or more
payments of support are 30 or more days past due and that
specifies the amounts past due and the dates they became past
due; and (3) notice of the obligor's right to respond. Service
on the obligor must be in the manner provided in AS
25.27.265. The child's custodian, or the agency on behalf of
the custodian, shall file with the court proof of service of the
petition, affidavit, and notice. The obligor shall respond no
later than 15 days after service by filing an affidavit with the
court. If the obligor's affidavit states that the obligor has paid
any of the amounts claimed to be delinquent, describes in
detail the method of payment or offers any other defense to
the petition, then the obligor is entitled to a hearing. After the
hearing, if any, the court shall enter a judgment for the
amount of money owed. If the obligor does not file an
affidavit under this section, the court shall enter a default
judgment against the obligor.
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To prove a claim of judicial bias, the claimant must show that the judge
formed an opinion of her from extrajudicial sources, resulting in an opinion other than
on the merits.52 Phyllis has not made this showing. Merely making decisions that a
plaintiff considers unfavorable is not bias, and though Phyllis accuses Judge Morse of
not looking out for Camerin's best interests, Judge Morse's rulings are supported by the
record. Forming an opinion from available evidence does not constitute personal bias.53
In addition, while Phyllis quotes Judge Morse and impliedly accuses him
of not following through on assertions he made at the hearings, she relies on the summary
of proceedings rather than the actual hearing tapes. The summary is not a transcript; it
is intentionally truncated. For instance, citing the July 31, 2008 hearing, she quotes
Judge Morse as saying to DeJeaux, "sir if no travel arrangements made and financed I
will cancel future visitation," which is how his words appear in the Summary of
Proceedings. Judge Morse's actual words were, "If you do not get the travel
arrangements made and financed, then I'm likely to cancel your future visitations." His
actual statements are not as Phyllis claims, and provide no grounds for concluding that
Judge Morse behaved improperly, or made promises to her that he did not keep.
F. Other Claims
The issue of unpaid dental expenses recurs in Phyllis's brief, appearing in
her Table of Contents, her Statement of the Case, and in her Argument section (although
not in her Statement of Points on Appeal). Her essential claim is that DeJeaux owes her
$232 in unpaid dental expenses; the superior court has not disputed this, though she has
been unable to collect the money. In February 2009, she filed a motion for contempt
against DeJeaux. According to the trial docket, the superior court issued an order on this
52 Peterson v. Ek, 93 P.3d 458, 467 n.20 (Alaska 2004) (citing United States
v. Grinnell Corp., 384 U.S. 563, 583 (1966)).
53 Id.
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motion on May 20, 2009, two weeks after Phyllis filed the present appeal.54 The ruling
is outside the scope of Phyllis's appeal, and so we decline to reach the issue of dental
55
expenses.
It is possible that Phyllis has raised other issues in her brief. To the extent
that she has, we have not discussed them because we are unable to discern an argument,
or because the statement was made too briefly or in the absence of meaningful context.
We have held that even for pro se litigants, "[w]here a point is given only cursory
statement in the argument portion of a brief, the point will not be considered on
appeal."56 Arguments not appearing above have been waived.
V. CONCLUSION
Because Phyllis's two 60(b) motions were untimely and lacked merit, we
AFFIRM the superior court's order denying the motions to reconsider the military pay
division. Because the motion concerning 2009 visitation is moot, we DISMISS Phyllis's
appeal of the superior court's order denying reconsideration of visitation. Because the
superior court correctly calculated child support and did not cancel past-due support
amounts, we AFFIRM the court's orders regarding child support. We AFFIRM the
superior court's denial of Phyllis's motion for appointment of a child custody
investigator because the superior court did not err in deciding not to appoint a custody
54 Phyllis Williams v. DeJeaux Williams trial court docket,
http://www.courtrecords.alaska.gov/pa/pa.urd/pamw2000.docket_1st?75464493 (last
visited April 18, 2011).
55 To the degree that Phyllis has a valid claim, she may be able to obtain
assistance from Child Support Services pursuant to AS 25.27.107-.225. In part, these
provisions provide litigants a means of requesting an audit for overdue child support
payments, reducing this amount to a judgment, and having the amount collected.
56 A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (citingAdamson v. Univ. of
Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991)).
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investigator. Finally, we determine that Phyllis's claim that Judge Morse was improperly
biased against her lacks merit.
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