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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wells v. Barile (10/16/2015) sp-7060
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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
TAMMY S. WELLS, )
) Supreme Court No. S-15590
Appellant, )
) Superior Court No. 3PA-03-00176 CI
v. )
) O P I N I O N
PRIMO J. BARILE, )
) No. 7060 - October 16, 2015
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Vanessa White, Judge.
Appearances: Tammy Wells, pro se, Palmer, Appellant.
Primo Barile, pro se, Palmer, Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
Tammy Wells appeals the superior court's grant of a motion to modify child
custody filed by her former husband Primo Barile. Tammy also challenges the court's
child support order, its order that she reimburse Primo for half their child's Permanent
Fund Dividends (PFDs), and a writ of assistance the court issued for the custody order's
enforcement. She also alleges that several of the superior court's rulings show judicial
bias and a failure to give her the leniency appropriate to her status as a pro se litigant.
----------------------- Page 2-----------------------
We conclude that the superior court abused its discretion when it ordered
Tammy to reimburse Primo for the PFDs without taking into account, as an offset, the
amounts that Primo may have owed Tammy for medical care. We reverse the judgment
on this issue and remand for further proceedings. On all other issues we find no error
and affirm.
II. FACTS AND PROCEEDINGS
Tammy Wells and Primo Barile married in 1995 and divorced in 2004.
They have a son, born in 1997. Tammy married Lance Wells after her divorce from
Primo and has two children with Lance.
Tammy and Primo shared physical custody of their son on a "50/50 basis"
1 Neither parent was required to pay child
pursuant to an order entered in January 2009.
support to the other. The 2009 order required Tammy to apply for their son's PFDs but
divide them equally with Primo. The order also required the parents to keep their son
on their health insurance as long as it was available at reasonable cost through their
employers, and to share the cost of any reasonable health care expenses not covered by
insurance, up to a maximum of $5,000 annually.
A. Lance's Motion To Modify Custody
Tammy and Lance divorced in 2013. The permanent custody order entered
in their divorce provided for joint legal and shared physical custody of their two children.
Lance moved to modify custody in early 2014, seeking primary physical and sole legal
custody. After holding an interim hearing in February, Superior Court Judge Kari
Kristiansen found a substantial change in circumstances and granted Lance's motion.
As relevant here, Judge Kristiansen found "more than ample evidence" that Tammy
1 The 2009 custody order followed this court's remand for an evidentiary
hearing on Tammy's motion to modify custody. See Barile v. Barile, 179 P.3d 944, 947
(Alaska 2008).
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"present[ed] a danger to the minor children based on threats of self-harm and substance
abuse, and leaving the children unattended." She ordered that Tammy undergo a
complete psychological evaluation and have only supervised visitation with the children.
B. Primo's Motion To Modify Custody
In November 2013 Primo had moved to modify the 2009 custody order
from his and Tammy's divorce, arguing that Tammy's recent divorce from Lance, her
abandonment of their son while she traveled to Costa Rica on a humanitarian mission,
and their son's worsening grades at school constituted a substantial change in
circumstances. Primo sought sole legal and primary physical custody, with Tammy's
visitation limited to "[e]very other weekend until [she] has a stable emotional, financial
and home life." Primo did not ask for child support, but he did ask that Tammy
reimburse him for half of their son's yearly PFDs as required by the 2009 order.
Tammy opposed Primo's motion. She contended that his allegations of a
substantial change in circumstances relied largely on inadmissible hearsay. She denied
abandoning their son for her trip to Costa Rica, asserting that she left him temporarily
in Lance's care, with Primo's knowledge, so that he could continue attending the same
high school as his half-brother. She also asserted that their son's difficulties with school
were unrelated to the custody situation. She contended that Primo had agreed to pay for
their son's braces, and she denied owing Primo his share of the child's PFDs because she
had used it to pay for the braces - an expense the parties were required to split evenly
under the terms of the 2009 order.
In his reply Primo asked the superior court to consider the findings made
on Tammy's emotional health in the proceedings involving her divorce from Lance.
In March 2014 Superior Court Judge Vanessa White held an evidentiary
hearing on Primo's motion to modify custody. Both Primo and Tammy represented
themselves, and they both presented witnesses. Of relevance here, Primo called Lance,
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who testified about Judge Kristiansen's findings on his motion to modify custody in the
separate divorce proceeding. Judge White questioned Primo and Tammy's son on the
record but outside the presence of his parents, where he testified that he would prefer to
live with his mother.
Following the hearing, the superior court made extensive oral findings. It
granted Primo's motion to modify custody, awarding him sole legal and primary physical
custody of the parties' son, with Tammy having visitation every other weekend. It found
a substantial change in circumstances based on the child's poor academic performance
while in Tammy's care, Tammy's decision to leave for Costa Rica at a time when her son
was on academic probation, and Tammy's emotionalism and threats of self-harm.
In making its findings on Tammy's emotional state, the superior court cited
Judge Kristiansen's interim order in Tammy and Lance's divorce, stating that because
it was "fairly contemporaneous in time" she was "very confident in finding . . . that
Lance Wells [had] testified consistently in both proceedings," and she found Lance's
testimony to be "extremely credible." The superior court also found Primo's testimony
credible, but it did not credit Tammy's testimony because she was "all about denial and
not about accepting any responsibility." The court found the child's testimony credible
but found that he was "in a slightly parentified relationship with his mom," and also that
his preference for his mother was motivated partly by the difference in discipline
between the two households. The superior court declined to give collateral estoppel
effect to Judge Kristiansen's findings on Tammy's emotional state, but it concluded, as
Judge Kristiansen had, that Tammy "presents a risk of emotional harm to the children
and demonstrates a significant degree of instability."
The superior court also issued a tentative child support order pending an
opportunity for the parties to weigh in on whether the court should impute income to
Tammy. As for Tammy's use of the PFDs, the superior court ordered her to submit
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documentation to support her claim that she had used Primo's half of the funds to help
pay for her son's braces.
Tammy filed a "notice of compliance" along with documents showing her
payment of the orthodontic bills. She noted that the braces cost $5,600 and that half of
their son's PFDs for the years 2010 to 2013 was $2,116.50, leaving $683.50 that Primo
still owed for his half of the braces' cost. In response Primo argued that orthodontic
work was not medically necessary, that he had never agreed to help pay for it, and that
the 2009 order gave Tammy no discretion as to whether she should turn over half the
PFDs to him.
C. The Superior Court's Writ Of Assistance And Tammy's Motion For
Reconsideration
In April 2014 Primo moved that Tammy's visitation be supervised and
asked for a writ of assistance to enforce the custody order. He alleged that Tammy was
encouraging their son to run away during Primo's custody time and was supporting his
delinquency from school. The superior court issued the requested writ, which provided
that "[a]ny peace officer to whom this Writ is delivered is authorized to assist" Primo in
enforcing the custody order. The writ stated that Tammy had "refused and/or failed to
obey [the custody order] and is harboring and supporting a child that is listed and
regarded as a 'runaway' in the eyes of the law."
Tammy moved for reconsideration of the superior court's custody order and
challenged the writ of assistance based on false premises. The court denied the motion
for reconsideration but reserved for hearing Tammy's challenge to the writ. It scheduled
a show-cause hearing on several issues: Tammy's failure to submit the necessary income
information for the calculation of her child support obligation, her failure to pay half of
the PFDs to Primo, and her challenge to the writ of assistance.
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D. The Show-Cause Hearing
The show-cause hearing was held in June 2014. After hearing from both
parties, the court ordered that Tammy submit her 2013 tax return by the end of the week
or be found in contempt; that Tammy reimburse Primo for half of their son's PFDs for
the years 2010 through 2013; and that the writ of assistance required no modification or
clarification. In July the superior court signed a judgment against Tammy in the amount
of $2,407.44, reflecting half of the PFDs for four years plus prejudgment interest on that
amount.
Tammy raises 16 issues on appeal, but we group her arguments as follows:
that the superior court (1) erred by granting Primo's motion to modify custody; (2) erred
by ordering Tammy to pay child support when Primo had not requested it; (3) erred by
ordering Tammy to reimburse Primo for half of their son's PFDs; (4) erred by issuing
the writ of assistance; (5) displayed judicial bias; and (6) failed to apply the less stringent
procedural standards to which pro se litigants are entitled. Primo's single-page brief
argues simply that this custody case is now moot because the parties' son turned 18 in
March 2015, while the appeal was in the briefing stage.
III. STANDARD OF REVIEW
We review the superior court's custody determination for abuse of
2
discretion. "An abuse of discretion occurs when the superior court considers improper
factors in making its custody determination, fails to consider statutorily mandated
factors, or assigns disproportionate weight to particular factors while ignoring others."3
"We apply de novo review to child support issues involving a question of law such as
2 Graham R. v. Jane S., 334 P.3d 688, 692 (Alaska 2014).
3 Martin v. Martin , 303 P.3d 421, 424 (Alaska 2013) (quoting Heather W.
v. Rudy R., 274 P.3d 478, 481 (Alaska 2012)) (internal quotation marks omitted).
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----------------------- Page 7-----------------------
interpreting a civil rule, interpreting the terms of a child support order, and determining
4
But "[w]here no question of law is
the correct method for calculating child support."
involved, superior courts have broad discretion in making child support determinations,
and we review the superior court's decision for an abuse of discretion."5
"We review de novo the question of whether a judge appears biased, which
6
We review other procedural decisions for
is assessed under an objective standard."
abuse of discretion.7
IV. DISCUSSION
A. The Superior Court Did Not Err In Granting Primo's Motion To
Modify Custody.
Tammy contends that the superior court erred when it granted Primo's
motion to modify custody and awarded him sole legal and primary physical custody of
their son. The boy reached the age of majority while this appeal was pending. Tammy's
8
challenge to the custody order would therefore be moot if it were not for its relevance
4 Millette v. Millette , 240 P.3d 1217, 1219 (Alaska 2010) (footnotes omitted).
5 Id.
6 Sagers v. Sackinger, 318 P.3d 860, 863 (Alaska 2014) (citing Griswold v.
Homer City Council , 310 P.3d 938, 941 n.6 (Alaska 2013)).
7 Norris v. Norris , 345 P.3d 924, 928 (Alaska 2015).
8 See Hermosillo v. Hermosillo, 962 P.2d 891, 892 n.1 (Alaska 1998)
(declining to address father's custody or visitation arguments "because they became
moot when [the child] turned 18 years of age"). Tammy filed her appeal in July 2014,
and her son turned 18 in March of this year. See AS 25.20.010 ("A person is considered
to have arrived at majority at the age of 18, and thereafter has control of the person's
own actions and business . . . except as otherwise provided by statute.").
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9
to the amount of past child support, which is also challenged on appeal. We therefore
review the custody order and conclude that it should be affirmed.
A court "may modify a custody award if it determines that (1) a change in
circumstances requires the modification of the award and (2) the modification is in the
10
best interests of the child." Tammy disputes that either requirement was met. She
argues first that the superior court clearly erred in finding a substantial change in
circumstances based on her emotional instability, presenting a risk of emotional harm to
her son. She contends that the superior court, in making this finding, improperly relied
on Judge Kristiansen's findings in the interim custody hearing involving Tammy's two
children with Lance.
Judge White noted Judge Kristiansen's findings in her oral decision, but she
expressly declined to give them any collateral estoppel effect11 on grounds that they were
from an interim hearing - and thus "no[t] based on complete information" - and that
only Lance had been represented by counsel, meaning that "there was no [parity] in
terms of the parties['] ability to present evidence." Judge White's thorough review of
the evidence in her oral decision makes it clear that she did not rely on Judge
Kristiansen's findings as a substitute for her own, as Tammy implies: Judge White made
9 See Turinsky v. Long, 910 P.2d 590, 594 n.9 (Alaska 1996) (addressing
visitation order because of its potential effect on child support, but finding visitation
issues otherwise moot because child had reached age of majority).
10
Graham R. v. Jane S., 334 P.3d 688, 694 (Alaska 2014) (quoting
AS 25.20.110(a)) (internal quotation marks omitted).
11
See Morris v. Horn, 219 P.3d 198, 208 (Alaska 2009) (explaining that
"[t]he doctrine of issue preclusion, or collateral estoppel," permits that " 'an issue of fact
which is actually litigated in a former action may, under certain circumstances, be
regarded as conclusive in a subsequent case' " (quoting F.T. v. State , 862 P.2d 857, 864
n.13 (Alaska 1993))).
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----------------------- Page 9-----------------------
her own findings from the record before her while noting that Judge Kristiansen had
some of the same concerns. We see no error.
Tammy next contends that the superior court erred in its determination of
her son's best interests because it failed to give sufficient weight to his preference that
12
But a court does not abuse its discretion simply
Tammy have physical custody.
because it orders a custody arrangement that differs from a child's stated preference.
"The superior court has discretion to determine whether a child is capable of forming a
13
trustworthy preference," and it is within its discretion to conclude that the child's stated
14
preference is unreliable because it is based on a reluctance to hurt either parent or
15
because it is otherwise "immature or improperly motivated."
Here, the superior court stated that it was "factoring in [the child's]
preference" but was unwilling to "give it a lot of weight." It found that the boy's
preference for his mother was influenced by his belief that separation would be harder
on her than on his father and also that he would have more freedom with his mother
because Primo imposed more discipline, both academically and socially. The record
supports these findings. The court did not clearly err in making them, nor did it abuse
12 See AS 25.24.150(c) (providing that in determining the best interests of the
child for custody purposes, a court is to consider "[a] child's preference [regarding
custody] if the child is of sufficient age and capacity to form a preference").
13 Thomas v. Thomas, 171 P.3d 98, 103 (Alaska 2007).
14 See Rooney v. Rooney, 914 P.2d 212, 218 (Alaska 1996) ("[W]here a stated
preference [of a child] results entirely from the child's desire to satisfy his parent's
wishes - or because he does not wish to offend either of them - such a preference does
not fall within the statutory ambit.").
15 Thomas, 171 P.3d at 103.
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its discretion when, after weighing all the relevant factors, it ordered a custody
arrangement that was contrary to the child's stated preference.
B. The Superior Court Did Not Abuse Its Discretion In Ordering Tammy
To Pay Child Support.
Tammy contends that the superior court abused its discretion when it
ordered her to pay child support even though Primo did not request it in his motion to
modify custody. When the superior court granted Primo's motion, the arrangement
changed from shared physical custody on a "50/50 basis" - an arrangement under
which neither parent paid child support to the other - to one parent having primary
physical custody. The superior court entered a tentative child support order reflecting
this change and ordered Tammy to submit her Child Support Guidelines affidavit and
2013 income tax return so the court could calculate child support. This was plainly the
proper course; a significant modification of the physical custody schedule is likely to
16
require a new child support determination, regardless of whether a parent requests it.
Alaska Civil Rule 90.3(a) sets out the framework for determining a child support award
when "one parent is awarded primary physical custody," as happened here when the
court granted Primo's motion.
16 See Swaney v. Granger, 297 P.3d 132, 137 n.15 (Alaska 2013) (even
though mother's "request to modify custody was silent as to child support," court
observed "that under Rule 90.3(a) the change of a child's primary physical custodian
from one parent to the other ordinarily will require modification of an existing support
order").
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Tammy raises a number of constitutional challenges to the Child Support
17
Finding
Guidelines. They were not timely raised below, and we consider them waived.
no error, we affirm the superior court's child support order.
C. It Was An Abuse Of Discretion To Find The Orthodontics Expenses
Ineligible For Reimbursement Based On Factors Other Than The
Terms Of The 2009 Custody Order.
Tammy argues that the superior court abused its discretion in ordering her
to reimburse Primo for half the PFDs she received on their son's behalf between 2010
and 2013. She contends that she had a right to use Primo's share of the PFDs because
Primo failed to pay half of their son's uninsured orthodontic expenses pursuant to the
2009 child support order, and she simply offset Primo's half of the PFDs against what
he owed her. We agree that this issue requires further consideration on remand.
The superior court heard from both parties on this subject at the June 2014
show-cause hearing. Primo did not dispute that the child's braces cost $5,600, though
he claimed he did not know whether they served a legitimate medical purpose. The court
17 Because Tammy raises them for the first time on appeal, she has waived her
arguments that the Child Support Guidelines violate due process and the right to privacy
and constitute an unconstitutional taking. See Beach v. Handforth-Kome, 314 P.3d 53,
57 n.10 (Alaska 2013) ("By raising this argument for the first time on appeal, Beach has
waived it."). Tammy did raise other legal challenges to the child support award in the
superior court in a motion for reconsideration: that the Guidelines fail to comply with
federal regulations, violate the Supremacy Clause of the U.S. Constitution, violate equal
protection, and usurp powers delegated to the federal government. The superior court
denied reconsideration without specifically addressing these arguments, but it was not
required to address them, as arguments raised for the first time on reconsideration are
waived. McCarter v. McCarter , 303 P.3d 509, 513 (Alaska 2013). We also note that we
have rejected similar constitutional challenges to Civil Rule 90.3 in the past. See, e.g.,
Lawson v. Lawson , 108 P.3d 883, 886 (Alaska 2005) (holding that Rule 90.3 does not
violate the Fourth Amendment, the Fifth Amendment, or the right to privacy); Coghill
v. Coghill, 836 P.2d 921, 928-30 (Alaska 1992) (holding that Rule 90.3 does not violate
equal protection and due process).
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----------------------- Page 12-----------------------
found that the parties had discussed their son's need for braces but that Primo was
disinclined to pay for them because of his own financial circumstances. The court
faulted both parents for the ensuing impasse: Primo because he failed to follow up with
the orthodontist to see whether braces were a necessary expense that he was obliged to
share, and Tammy because when Primo refused to share the cost she took "unilateral
action" by keeping Primo's half of the PFDs and putting it toward the orthodontic
expenses. The superior court ruled that Tammy should have continued to pay Primo his
half of the PFDs pursuant to the 2009 order regardless of what she thought he owed her
and should have sought assistance from the court if she wanted him to share in the
orthodontic expenses. The court also determined that, by getting the braces without
Primo's consent, Tammy had acted "at [her] own expense" and was not entitled to
reimbursement. It entered judgment in favor of Primo in the amount of $2,407.44 for the
unpaid PFDs and prejudgment interest.
We conclude that this was an abuse of discretion. The 2009 custody order
required the parties to share equally in their son's PFDs, but it also required that they
share equally in "[t]he cost of the child[]'s reasonable health care expenses not covered
by insurance" up to $5,000 in a calendar year. The custody order further specified that
"[a] party shall reimburse the other party . . . within 30 days after receiving the health
care bill." The custody order imposed no other conditions on reimbursement. There was
no requirement that a parent consent to medical care before having to share in its cost,
and no indication that a parent could forfeit the right to reimbursement by proceeding
unilaterally to incur an otherwise valid health care expense. The superior court correctly
observed that both parties shared fault for the impasse over their son's orthodontic
expenses. But its decision that Tammy should not be reimbursed for the cost of the
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----------------------- Page 13-----------------------
braces was based on factors other than those imposed by the 2009 order that governed
the parties' rights and responsibilities under the circumstances.
The superior court was correct to observe that parties are expected to
comply with the court's orders with regard to custody and the sharing of expenses, and
we sympathize with the court's apparent frustration with the litigants' inability to resolve
this matter themselves. But entering a money judgment in favor of one parent against
the other in order to resolve a relatively minor dispute over children's shared expenses
should be a last resort, especially in cases like this one where each parent alleges that the
other owes money.
We reverse the July 2014 judgment and remand this issue to the superior
court so that it can reconsider whether Tammy is entitled to reimbursement under the
terms of the 2009 child custody order. The court should make findings with regard to
the amount of the reasonably necessary orthodontic expenses and whether that amount
is partially or wholly offset by what Tammy owes Primo for his half of the PFDs. We
leave it to the superior court's discretion to determine whether the existing factual record
is sufficient for these purposes or whether it needs to invite further submissions from the
parties before deciding the issue.
D. Tammy's Challenge To The Writ Of Assistance Is Moot.
Tammy challenges the writ of assistance the superior court issued for the
enforcement of its custody order, contending that it falsely identified their son as a
"runaway" and falsely accused Tammy of encouraging him to leave Primo's lawful
custody. But because their son has reached the age of majority, any dispute over the use
of the writ to enforce the custody order "has lost its character as a present, live
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----------------------- Page 14-----------------------
18
controversy." Tammy would be entitled to no relief on this issue even if she were to
prevail, and we therefore consider it moot.19
E. Tammy's Allegations Of Judicial Bias Are Without Merit, And The
Superior Court Did Not Abuse Its Discretion In Its Treatment Of
Tammy As A Pro Se Litigant.
Tammy refers to several of the superior court's rulings as "tend[ing] to
prove prejudice and bias of the Court." But these allegations of bias are merely "another
iteration of [her] own discontent with the court's substantive rulings" and therefore fail
20
to establish bias. We also reject Tammy's contention that several of the superior
court's rulings "tend[] to demonstrate" its failure to hold her to less stringent standards
21 Tammy refers specifically
than if she were a lawyer, as required under Breck v. Ulmer .
to the superior court's denial of a motion that asked the court to explain why it rejected
Tammy's claims of bias in her motion for reconsideration of the custody order. But the
superior court based its rulings on the lack of merit in Tammy's positions, not on
18 Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
177 P.3d 1181, 1185 (Alaska 2008) (quoting Peter A. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 146 P.3d 991, 994 (Alaska 2006)).
19 Peter A., 146 P.3d at 994 ("If the party bringing the action would not be
entitled to any relief even if it prevails, there is no 'case or controversy' for us to
decide.").
20 Ward v. Urling, 167 P.3d 48, 58 (Alaska 2007).
21 745 P.2d 66, 75 (Alaska 1987), cert. denied, 485 U.S. 1023 (1988).
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----------------------- Page 15-----------------------
procedural defects in Tammy's pleadings that could have been corrected.22 The court did
not violate the rule of Breck in making its substantive rulings.
V. CONCLUSION
We REVERSE the superior court's order and judgment requiring Tammy
to reimburse Primo for their son's PFDs and REMAND for further findings on whether
an offset for the orthodontic expenses is appropriate. In all other respects we AFFIRM
the judgment of the superior court.
22 Bauman v. State, Div. of Family & Youth Servs. , 768 P.2d 1097, 1099
(Alaska 1989) (declining "to extend Breck to require judges to warn pro se litigants on
aspects of procedure when the pro se litigant has failed to at least file a defective
pleading"); Breck , 745 P.2d at 75.
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