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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jerry B. v. Sally B. (6/10/2016) sp-7107

Jerry B. v. Sally B. (6/10/2016) sp-7107

           Notice:   This opinion is subject to correction before publication in the P                      ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                         

JERRY  B.,                                                             )  

                                                                       )     Supreme  Court  No.  S-15684  

                                 Appellant,                            )  


                                                                       )     Superior Court No.  1JU-11-00638 CI  

          v.                                                           )  


                                                                       )     O P I N I O N  


 SALLY B.,                                                             )  


                                                                       )     No. 7107 - June 10, 2016  

                                 Appellee.                             )  




                         ppeal from the Superior Court of the State of Alaska,  


                      First Judicial District, Juneau,PhilipM. Pallenberg, Judge.  


                      Appearances:  Jerry B., pro se, Haverhill, Massachusetts,  


                      Appellant.  No appearance by Appellee Sally B.  


                      Before:  Stowers, Chief Justice, Fabe, Winfree, Maassen,  


                      and Bolger, Justices.  


                      BOLGER, Justice.  



                      A husband and wife separated after the husband was charged with sexually  


abusing their minor daughter.  The husband eventually pleaded guilty to the crime of  


indecent exposure in the first degree.  In the civil divorce suit, the superior court took  


judicial notice of the conviction, concluded that the husband's sexual offense was the  


cause of his current financial woes and was therefore a form of economic misconduct,  


and divided the marital property 70-30 in the wife's favor. The court also concluded that  

----------------------- Page 2-----------------------

the wife had not wasted or otherwise misused marital funds she had withdrawn between                                                                                                                                                                               

separation and trial and accordingly declined to recapture those funds in the property                                                                                                                                                                            


                                            The   husband   appeals,   claiming   the   superior   court   should   not   have  

considered his criminal offense and by doing so demonstrated bias against him.                                                                                                                                                                                                The  

husband also contends that the superior court abused its discretion by favoring the wife                                                                                                                                                                                        

in the property division and that his due process rights were violated.                                                                                                                                 

                                            Weconcludethat                                           theimpartiality ofthesuperiorcourt cannot                                                                                                   bereasonably   

questioned,   that   the   court   properly   considered   the   husband's  conviction   and   its  

consequences in the property division, and that the husband's due process rights were   

not violated. But the superior court erred by treating the wife's attorney's fees as marital                                                                                                                                                                           

expenses, by failing to address the husband's request for fees, and by adjusting the                                                                                                                                                                                               

property division to account for expenses the husband was separately obligated to pay.                                                                                                                                                                                                            

Accordingly, we remand this case for further proceedings consistent with this decision.                                                                                                                                                                          

II.                   FACTS AND PROCEEDINGS                            

                                                                                                                1 married in August 1999, and moved to Juneau in the  

                                            Jerry B. and Sally B.                                                                                                                                                                                                                   

early 2000s.  They have three children:  Lara, born in December 1994; John, born in  


June 2001; and Daniel, born in March 2006.   For most of their marriage, Jerry held  


relatively high-paying investment jobs, while Sally raised their children as a stay-at- 


home mother.  


                                            Jerry was arrested in April 2011 on allegations that he sexually abused Lara  


repeatedly over an eight-year period.  He was indicted the next week on 100 counts of  




                                            We use pseudonyms throughout this opinion to  protect the privacy of  


family members.  

                                                                                                                                           -2-                                                                                                                                              7107  

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sexual abuse of a minor in the first degree.                                     In April 2012, however, the superior court                            

dismissed the indictment.  A grand jury soon reindicted Jerry on four counts of sexual  




                         Within a week of Jerry's April 2011 arrest, Sally filed for divorce. Alleging  


that Jerry had "a history of domestic violence and sexual abuse," Sally requested primary  


physical and sole legal custody of the parties' children and asked the superior court to  


require that Jerry's contact with the children be supervised.  Jerry denied the claims of  


domesticviolenceand sexual abuseand requested joint legal andsharedphysical custody  


of  the  children.                Sally  peremptorily  challenged  the  superior  court  judge  originally  

                                      4  and the case was reassigned to Superior Court Judge Philip M.  


assigned to the case, 

Pallenberg, who also was presiding over Jerry's criminal case.  


                         Early in the proceedings Sally moved for interim attorney's fees and costs,  


spousal maintenance, and child support.  She noted that she had "been a stay-at-home  


mother for the last 12 years[] and [was] currently unemployed," while Jerry "earn[ed]  


over  $170,000  per  year  working  for  [a  state  agency]."                                                Jerry  opposed  the  motion,  


pointing out that his incarceration prevented him from earning an income. The superior  


court  determined  that  it  would  not  award  Sally  "interim  attorney's  fees,  spousal  


maintenance, or child support in excess of the minimum amount" if Jerry was no longer  


receiving income from his previous employer.  But the court allowed Sally "to make  


            2            AS 11.41.434(a)(2).   



                         The grand jury charged Jerry with one count of sexual abuse of a minor in  


the first degree, AS 11.41.434(a)(2), one count of attempted sexual abuse of a minor in  

the first degree,              id., and two counts of sexual abuse of a minor in the second degree.                                                               


AS 11.41.436(a)(3).  

            4            See Alaska R. Civ. P. 42(c).  


                                                                             -3-                                                                      7107

----------------------- Page 4-----------------------

reasonable   withdrawals   [from   marital   accounts]   for   attorney's   fees   and   for   living  


                                                 In   response   to   this   order   Sally   requested   a   hearing  "to   address   [her]  

continuing difficulty in accessing marital funds to support herself and the parties' three                                                                                                                                                                                                              

children, pay all the marital bills, and also to pay her attorney's fees." The superior court                                                                                                                                                                                                           

granted this request for hearing.                                                                                         The court's subsequent written order specified that                                                                                                                               

 Sally "shall promptly be paid one-half of [Jerry's] deferred compensation account, less                                                                                                                                                                                                                     

25% to be withheld for federal income tax" and "one-half of [Jerry's] [Supplemental                                                                                                                                                                                  

Annuity Plan] account, less 35% to be withheld - 25% for federal income tax plus 10%                                                                                                                                                                                                                      

for the early withdrawal penalty."                                                                                          The court informed the parties that it would "hold in                                                                                                                                  

abeyance until trial any decision on whether or how the above distributions should affect                                                                                                                                                                                                             

the overall property distribution."                                                                                          

                                                 In November Sally moved for a protective order to stay Jerry's proposed                           

depositions of Sally and Lara and all other discovery in the case until the conclusion of                                                                                                                                                                                                                          

                                                                                                          5       The superior court granted the motion but clarified that  

Jerry's criminal proceedings.                                                                                                                                                                                                                                                                                

"[t]he issue . . . [was] not whether [Jerry would] get[] to take these depositions . . . [but]  


when he may take them - before or after his criminal trial."  (Emphases in original.)  


Because  the  court  concluded  that  "the  primary  reason  [Jerry]  wants  to  take  the  


depositions now is to defend against the sexual abuse allegations" - that is, not to  


prepare for his civil divorce trial - the court stayed all discovery in the civil case until  


the resolution of Jerry's criminal case.  


                                                 In April 2012 Sally asked the superior court for permission to lease the  


marital residence.  Sally claimed both she and Lara had "very strong and very negative  


                        5                        Lara's guardian ad litem joined Sally's motion, and the State also filed a                                                                                                                                                                                           

motion in Jerry's criminal case to preclude Jerry from deposing Sally and Lara in the                                                                                                                                                                                                                          

civil case.                           

                                                                                                                                                        -4-                                                                                                                                              7107

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associations with the marital home as the location where [Jerry] repeatedly sexually                                                                                                                   

abused [Lara], and verbally and emotionally abused [Sally], over a period of years,"                                                                                                                      

which made it "very difficult" for Sally and Lara to continue living there. Sally indicated                                                                                                           

that by renting a smaller home in downtown Juneau and by leasing out the marital home,                                                                                                                       

she could save about $375 monthly.   Over Jerry's objection the superior court granted                                                                              

Sally's request, but limited the lease period to 12 months.                                                                                          


                                  In late 2012 Jerry pleaded guilty to indecent exposure in the first degree.                                                                                                                  

All other charges against him were dismissed.  


                                  In  March  2013  Jerry  -then  self-represented  - once  again  sought  to  


depose Sally.  Sally moved for a protective order prohibiting the deposition, claiming  


Jerry would violate his conditions of parole by deposing her.  The superior court denied  


Sally's motion but ordered that the deposition be conducted telephonically.  Jerry then  


sought to videotape the deposition,  and  when Sally  refused  to attend  a videotaped  


deposition, Jerry moved to compel her participation, arguing that "video is essential to  


his understanding of what actually occurred in the room." At a hearing on the matter the  


court reiterated that Jerry could depose Sally telephonically but "not by videotape." The  


court also denied Jerry's request to view the deposition via video feed in real time,  


without recording. Jerry then declined to depose Sally, claiming his inability to view the  


deposition would prevent him from effectively questioning Sally.  


                                  In June Jerry asked the superior court to extend the marital home lease  


period an additional nine months. Sally opposed this extension and cross-moved for the  


                 6                See   AS   11.41.458(a)(1).     Indecent  exposure   in   the   first   degree   under  

subsection (a)(1) is a class C felony whereby an offender (1) "knowingly exposes [his  

or her] genitals" and (2) "knowingly masturbates"(3) "within                                                                                              theobservation of a person                      


under 16 years of age" (4) "with reckless disregard for the offensive, insulting, or  


frightening effect the act might have." AS 11.41.458; AS 11.41.460(a).  

                                                                                                           -5-                                                                                                  7107

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immediate sale of the property. She argued that "being legally and economically tied to                                                                                                                                         

a sex offender who has abused one's children is, in and of itself, emotionally damaging                                                                                                                    

and draining."                          The court granted Sally's cross-motion to sell the residence and denied                                                                                                    

Jerry's request to extend the lease. Agreeing with Sally's argument, the court concluded                                                                                                                  

that because "[Sally] is the victim of a serious felony offense committed by [Jerry]                                                                                                                               

against the parties' child, I believe it would be entirely inappropriate to force [Sally] to                                                                                                                                    

                                                                                                                                                                       7    (Footnote omitted.)  

remain in a business relationship with [Jerry] against her will."                                                                                                                                       

                                   In November Jerry moved to disqualify Judge Pallenberg for bias.  Jerry  


noted that Judge Pallenberg had been exposed to potentially prejudicial information in  


the criminal case. Jerry further argued that Judge Pallenberg's exposure to this evidence  


had caused the judge to form opinions about the allegations against Jerry.  As a result,  


Jerry argued, Judge Pallenberg's adjudication of the criminal case created an appearance  


of bias in the civil proceedings.  


                                   Jerry  also  argued  that  Judge  Pallenberg's  decisions  in  the  civil  case  


demonstrated  actual  bias.                                                    Jerry  argued  that  Judge  Pallenberg,  when  ruling  on  


interlocutory orders, ignored Jerry's affidavit-supported denial of all charges while  


improperly relying on (1) arguments in Sally's  briefings that were unsupported by  


evidence; (2) Sally's accusations against him, which were based in hearsay; and (3) the  


indecent exposure conviction. Jerry also took issuewith thecourt's conclusionthat Sally  


met  the  legal  definition  of  "victim."                                                                     And  Jerry  complained  that  the  court  had  


demonstrated bias in favor of Sally by ordering the sale of the marital home and by  




                                   The superior court concluded that Sally met the definition of "victim" in  


AS 12.55.185(19).  

                                                                                                               -6-                                                                                                                7107  

----------------------- Page 7-----------------------

prohibiting him from deposing her in person or by video.                                                                The superior court denied                 


Jerry's disqualification motion, and the reviewing court affirmed this denial.                                                                                

                           The superior court held a trial in January 2014.  At the outset the parties  


stipulated to a child custody agreement awarding Sally sole legal and primary physical  


custody of John and Daniel.9                                 Sally agreed to keep John and Daniel in counseling until  


she was advised by the counselor that counseling was no longer necessary.  The parties  


also stipulated to the value of many of the couple's most significant assets and debts; the  


property stipulation did not, however, cover the parties' vehicles or household goods.  


And it did not address  


                           how the property should be divided[,] the economic impacts  


                           of the divorce[,] . . . the characterization of the property[,] . . .  


                           [or the] characteriz[ation] [of] property already distributed to  


                           the parties, . . . in particular whether property distributed to  


                           [Sally] post-separation should be considered as a property  


                           distribution as opposed to spousal and child support.  


                           Because of the parties' custody agreement and property stipulation, the  


issues at trial were limited to the classification of property, the valuation of the items not  


covered by the stipulation, and the equitable division of the marital estate.  


                           The property division issue was the most contentious.   Sally presented  


testimony suggesting that Jerry was capable of finding high-paying work and was living  


inexpensively off the generosity of his mother, while Sally was struggling as a working  


mother to support her children's needs.   Accordingly, she argued a disproportionate  


              8            Under AS 22.20.020(c) every order denying a motion for disqualification                                              

is assigned to another judge for review.                          

              9            By this time Lara had reached the age of majority and therefore was not  


affected by the custody agreement.  


                                                                                     -7-                                                                             7107

----------------------- Page 8-----------------------


division of the marital property                                                                                         in her favor would be equitable.                                                                                                   Jerry presented   

testimony  that   he   was   unable   to   find   lucrative   work   because   potential   employers  

inevitably discovered his sexual offender status and because the Financial Industry                                                                                                                                                                                                     

Regulatory Authority's rules prohibited him from working in his former field, that                                                                                                                                                                                                                       

 Sally's financial irresponsibility was the cause of her financial struggles, and that a 50-50                                                                                                                                                                                                  

property division would be equitable because his financial situation was now worse than                                                                                                                                                                                                                  

 Sally's situation.                                            The parties also disputed whether Sally's pretrial withdrawals from                                                                                                                                                                    

marital accounts should be treated as spousal maintenance or as advances against the                                                                                                                                                                                                                        

property distribution.                                                         

                                                The parties also disagreed about the classification and treatment of the                                                                                                                                                                                    

education savings accounts they had set up for their children.                                                                                                                                                                            Sally asked that the                                             

accounts be set aside and exempted from the property division. Jerry contended that the                                                                                                                                                                                                                      

accounts were marital property and should be treated as such.                                                                                                                                                                   

                                                In August the superior court entered a memorandum decision and order.                                                                                                                                                                                                      

                                                                                                                                                                                                                                            11   "the only fair and  

The court concluded that under the AS 25.24.160(a)(4) factors                                                                                                                                                                                                                                            

equitable division of property is one that is distributed unevenly in [Sally's] favor." The  


court reasoned that "a party who commits a serious crime which destroys his ability to  


earn a living has committed economic misconduct" and that Jerry should not be legally  


rewarded in the property division for the effects his conviction had on his financial  


circumstances.                                                (Emphasis  in  original.)                                                                     The  court  also  determined  that  the  sharp  


reduction in household income - through no economic fault of Sally - and Sally's  


child-care responsibilities strongly supported a property division award in her favor.  


With regard to Sally's withdrawals from marital accounts, the court concluded that such  


                        10                      See  AS  25.24.160(a)(4).  

                        11                      See  also  Merrill  v.  Merrill,  368  P.2d  546,  547  n.4  (Alaska   1962).  

                                                                                                                                                       -8-                                                                                                                                                           7107  

----------------------- Page 9-----------------------

pretrial depletion of marital assets may be factored into the property division only if the                                                                                                                                                                                                                                                                                                                                                                     

 depletion was unreasonable; the court found that Sally had not misused the funds made                                                                                                                                                                                                                                                                                                                                                             

 available to her between separation and trial.                                                                                                                                                                                                   Accordingly, the superior court awarded                                                                                                                                         

 Sally about 70% of the marital estate and did not recapture her previous withdrawals of                                                                                                                                                                                                                                                                                                                                                                             

marital funds.                                                               

                                                                        Withregard                                                      to theeducation savings accounts, thesuperiorcourtconcluded                                                                                                                                                                                                                       

that "they remain[ed] the property of the parents" and were "technical[ly] . . . marital                                                                                                                                                                                                                                                                                                                                  

property."    But the court found that "the act of establishing [an education savings]                                                                                                                                                                                                                                                                                                                                           

 account constitutes an agreement between the parties to set these funds aside for the                                                                                                                                                                                                                                                                                                                                                                        

 children's education."                                                                                                  The court further reasoned that "the children should not suffer                                                                                                                                                                                                                                                        

more than they already have by having their college funds plundered to meet their                                                                                                                                                                                                                                                                                                                                                                     

parents' needs."                                                                           Accordingly, the court excluded these accounts from the property                                                                                                                                                                                                                                                                      

 division and granted Sally management authority over them. But the court provided that                                                                                                                                                                                                                                                                                                                                                                      

 "[n]o funds shall be withdrawn from those accounts other than for the child[ren]'s                                                                                                                                                                                                                                                                                                                            

 educational expenses except by agreement of both parties or by order of the court."                                                                                                                                                                                                                                                                                                                                                                               

                                                                        The    superior    court    denied    Sally's    request    for    attorney's    fees.      It  

 acknowledged that Jerry "paid a very large sum for representation by counsel during the                                                                                                                                                                                                                                                                                                                                                                        

preliminary stages of this case," funded primarily by loans from his mother, and that                                                                                                                                                                                                                                                                                                                                                                      

 "[Jerry] was not represented at all" through most of the proceedings and at trial. Quoting                                                                                                                                                                                                                                                                                                                                        

 from our opinion in                                                                                            Lone Wolf v. Lone Wolf                                                                                                                    , the superior court found that because                                                                                                                                  

 attorney's fees awards in divorce cases are intended to "assure that both spouses have the                                                                                                                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                                                                                                                                                               12   and  because  

proper   means   to   litigate   [a]   divorce   action   on   a   fairly   equal   plane"                                                                                                                                                                                                                                                                                                                                        

                                    12                                 Lone   Wolf  v.  Lone   Wolf,  741  P.2d   1187,   1192  (Alaska   1987).  

                                                                                                                                                                                                                                  -9-                                                                                                                                                                                                                  7107  

----------------------- Page 10-----------------------

"ordering an unrepresented party to pay the other party for their lawyer would seem to                                                                                                   


make the playing field less level," granting Sally attorney's fees was inappropriate.                                                                                                      

                             Jerry moved for reconsideration of the property division order. He argued  


that the superior court had "improperly considered moral fault with respect to [his] future  


earnings and financial circumstances," that his due process rights had been violated  


throughout the proceedings, that the property division should have accounted for Sally's  


withdrawal of marital assets and included the education savings accounts, and that Judge  


Pallenberg  was  biased  against  him.14                                                 The  court  summarily  denied  the  motion  for  


reconsideration buttreatedthebias claimas arenewed request fordisqualification,which  


it also denied.  The reviewing court affirmed the denial of this second disqualification  




                             Jerry appeals.  




                             Although we review the denial of a motion to disqualify a judge based on  


actual  bias  for  abuse  of  discretion,15  


                                                                                            "we  independently  review  a  request  for  

               13            At trial, Jerry also made a brief request for attorney's fees in his closing                                                                    

argument. The superior court appears to have overlooked Jerry's attorney's fees request                                                                                       

and did not rule on the issue.                                   Jerry does not raise it here.                     

               14            Jerry made a number of additional claims that are not listed here because  


he did not renew them on appeal.  


               15            Greenway  v.  Heathcott,  294  P.3d  1056,  1062  (Alaska  2013)  (citing  


 Wasserman v. Bartholomew, 38 P.3d 1162, 1170 (Alaska 2002)).  


                                                                                          -10-                                                                                    7107

----------------------- Page 11-----------------------


disqualification of a judge based on the appearance of impropriety."                                                              However, where   

a party asserts only "an                     appearance  of partiality, as distinguished from actual bias, we                                                

require the complaining party to make a 'greater showing' for reversal."                                                               17  


                         We review the superior court's decision to stay discovery for abuse of  

                    18   though  we  use  our  "independent  judgment  to  determine  whether  [the  


superior] court has applied the correct legal test."19  


                         "We review the superior court's property division for abuse of discretion,"  


but an order to recapture marital assets spent between separation and trial is not justified  


without specific findings, based on evidence, that "the assets in question were actually  


wasted, dissipated, or converted to non-marital form."20  


                         We "review constitutional questions de novo, and will adopt the rule of law  


that is most persuasive in light of precedent, reason, and policy."21  


             16          Griswold v. Homer City Council                              , 310 P.3d 938, 941 (Alaska 2013) (citing                                      

Greenway, 294 P.3d at 1062-63;                                  Phillips v. State               , 271 P.3d 457, 459 (Alaska App.                        


             17          Carr v. Carr, 152 P.3d 450, 459 (Alaska 2007) (emphasis added) (quoting  


Long v. Long, 816 P.2d 145, 156 (Alaska 1991)).  


             18          Armstrong v. Tanaka , 228 P.3d 79, 82 (Alaska 2010); see also Alaska R.  


Civ. P. 26(c) ("[T]he court in the judicial district where the deposition is to be taken may  


make any order which justice requires to protect a party or person from annoyance,  


embarrassment, oppression, or undue burden or expense . . . .").  


             19          Armstrong , 228 P.3d at 82.  


             20          Day v. Williams, 285 P.3d 256, 260 (Alaska 2012).  


             21          Garibay v. State, Dep't of Admin., Div. of Motor Vehicles, 341 P.3d 446,  


448 (Alaska 2014) (quoting Alvarez v. State, Dep't of Admin., Div. of Motor Vehicles,  


249 P.3d 286, 291 (Alaska 2011)).  


                                                                             -11-                                                                       7107

----------------------- Page 12-----------------------



           A.         The Proceedings Did Not Create An Appearance Of Judicial Bias.  


                      The superior court twice denied Jerry's motions for disqualification, and  


the reviewing court affirmed the decision in both cases.  Jerry argues that the superior  


court  erred  by  denying  these  motions,  citing  a  "[s]et  of  facts"  which  he  claims  

                                                                             22  For the reasons discussed below, Jerry  



demonstrate an "appearance of [judicial] bias." 

has not demonstrated an appearance of bias by Judge Pallenberg, and we reject Jerry's  


bias claims.23  


                      1.	        Judge Pallenberg's role as judge in both the civil and criminal  


                                 cases does not give rise to an appearance of bias.  


                      Jerry argues that Judge Pallenberg's exposure to evidence in the criminal  


case influenced his decisions in the civil divorce proceedings.  Jerry notes that while  


presiding over the criminal prosecution, Judge Pallenberg both heard testimony from  


Sally and Lara that was never introduced in the civil case and was exposed to statements  


by  Jerry  that  were  later   suppressed   as   illegally  obtained.                                            Jerry  argues  that  


Judge Pallenberg improperly relied on this evidence in his adjudication of the civil  




           22         Although Jerryalleged actual                     bias in his motionsfordisqualification,                        hedid   

not renew this claim on appeal.                       

           23         Jerry  makes  several  claims  that  he  did  not  raise  in  his  motions  for  


disqualification.   Specifically he claims that Judge Pallenberg failed to keep the two  


cases "procedurallyand substantively separate," that he "appear[ed] to act as an advocate  


for [Sally]," and that he "express[ed] . . . a fixed opinion about dispositive facts" before  


hearing any evidence.  Because these claims were not raised before the superior court,  


we consider them only for plain error, and find none.  See Patterson v. GEICO Gen. Ins.  


Co., 347 P.3d 562, 570 (Alaska 2015) (quoting Swaney v. Granger, 297 P.3d 132, 136  


(Alaska 2013)).  


                                                                     -12-	                                                             7107

----------------------- Page 13-----------------------

                              When presiding over separate but related proceedings, a judge inevitably                                                                    

will be confronted with evidence in one proceeding that is irrelevant or inadmissible in                                                                                                          

the   other.     But   we   repeatedly   have   held   that   a   judge   has   no   obligation   to   order  


disqualification merely because he or she presided over a related proceeding or case.                                                                                                             

We recently noted:  


                              Trial judges are often called upon to compartmentalize their  


                              decisions - to review evidence that is later declared to be  


                              inadmissible or to rule on similar legal issues at different  


                              stages of a contested case.  Generally, these decisions do not  


                              create an appearance of impropriety unless the judge hears  


                              something  or  does  something  so  prejudicial  that  further  


                              participation would be unfair to the parties.[25]  


                                             a.	           The superior court properly relied on Jerry's conviction  


                                                           for indecent exposure.  


                              Jerry first contends that Judge Pallenberg "consistently relied upon [his]  


belief that [Jerry] committed the crime of indecent exposure" despite a lack of "evidence  


admitted in the divorce case that [Jerry] committed [that] crime."  But evidence of that  


offense was introduced in the civil case, because the superior court took judicial notice  


of Jerry's indecent exposure conviction.26  


               24             See, e.g.          ,   Carr v. Carr                , 152 P.3d 450, 459-60 (Alaska 2007);                                                    Lacher v.   

Lacher, 993 P.2d 413, 420-21 (Alaska 1999);                                                            R.J.M. v. State, Dep't of Health & Soc.                                         

Servs., 946 P.2d 855, 869-70 (Alaska 1997),                                                          superseded by statute on other grounds                                                    ,  

Ch. 99,  1, 18, SLA 1998,                                     as recognized in Rowan B., Sr. v. State, Dep't of Health &                                                                  

Soc. Servs.              , 320 P.3d 1152, 1158 n.24 (Alaska 2014).                                       

               25             GraceL.v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  


329 P.3d 980, 988-89 (Alaska 2014).  


               26             See Lane v. Ballot, 330 P.3d 338, 342 n.16 (Alaska 2014) ("Courts may  


take judicial notice of criminal convictions pursuant to Alaska Rules of Evidence 201  


and 203."); see also  Alaska R. Evid. 201(c) ("A court may take judicial notice . . .  



                                                                                            -13-	                                                                                    7107

----------------------- Page 14-----------------------

                               Jerry acknowledges the superior court's reliance on his indecent exposure                                                                          

 conviction,   but  he argues that the court was not "allowed                                                                                to   use judicial notice to                          

 establish that [he] had committed the acts for which he was convicted." This is incorrect.                                                                                                              

As we recently reiterated:                                    "A criminal conviction for a serious crime has a collateral                                                       

 estoppel effect in a subsequent civil action relying on the same set of operative facts.                                                                                                                

 Thus 'a criminal conviction . . . could be introduced as conclusive proof (rather than                                                                                                      

merely persuasive evidence) of the facts necessarily determined.' "                                                                                      27  

                               However,   Jerry   correctly   notes   that   collateral   estoppel   does   not  


 automatically apply. We have adopted three prerequisites to the imposition of collateral  


 estoppel:  (1) the criminal conviction must have been for a serious criminal offense;  


 (2) the defendant must have had a full and fair hearing; and (3) the issue on which the  


                                                                                                                                                                                   28     Since  

judgment is offered must have been necessarily decided in the previous trial.                                                                                                             


 there can be no dispute that Jerry was convicted of a serious criminal offense, which  


                                               29  Jerry takes issue with the two latter requirements.  

 includes any felony,                                                                                                                                                  


                26             (...continued)  


whether requested or not."); Alaska R. Evid. 203(b) ("Judicial notice may be taken at any  


 stage of the proceeding.").  

                27             Lane, 330 P.3d at 341 (footnote omitted) (quoting Lamb v. Anderson,  


 147 P.3d 736, 739 (Alaska 2006)); Wyatt v. Wyatt, 65 P.3d 825, 831-32 (Alaska 2003).  


 The fact that Jerry pleaded guilty instead of being convicted by a jury is irrelevant, since  


 "[a] nolo contendere or guilty plea has the same effect as a conviction following trial."  


Lane, 330 P.3d at 341 n.9 (citing Lamb, 147 P.3d at 744).  


                28             Scott v. Robertson, 583 P.2d 188, 191-92 (Alaska 1978); see also Lamb,  


 147 P.3d at 739-42 (discussing the expansion of Scott to a wider variety of contexts).  


                29             See Howarth v. State, 925 P.2d 1330, 1334 (Alaska 1996) ("[F]elonies are  


 always serious offenses.").  


                                                                                               -14-                                                                                        7107

----------------------- Page 15-----------------------

                       First, Jerry argues that collateral estoppel cannot be applied if there are                                               


"indicia of irregularity" surrounding the conviction,                                                                                            

                                                                                            and he claims that such indicia are  


present because his conduct did not satisfy all elements of the crime of indecent exposure  


in the first degree.  But we have not held that any "indicia of irregularity" can prevent  


the  application  of  collateral  estoppel;  rather  "a  criminal  conviction  .  .  .  should  be  



admissible absent strong showing of irregularity." 

                       Jerry does not claim he was denied a full and fair hearing with regard to his  


guilty  plea.32             Indeed,  Jerry  was  represented  by  counsel  throughout  his  criminal  


proceedings, and he does not contend that he was involuntarily coerced into pleading  


guilty. Instead, Jerry argues that the State's stipulation at a post-sentencing hearing that  


"there were no witnesses to . . . the particular crime he pled guilty to" invalidates one of  


the elements of his offense - that he masturbated "within the observation of a person  


under 16 years of age."33                      (Emphasis in original.)  However, Jerry did not appeal his  


                                                                                                                     34  Considering that  

criminal conviction in light of the State's "no witnesses" stipulation.                                                                         


            30         See  Lamb,   147  P.3d  at  744.  

            31         Id.   (quoting   Scott,   583  P.2d  at   192   (omission   in   original)   (emphasis  


            32         See  Bearden  v.  State  Farm  Fire  &  Cas.  Co.,  299  P.3d  705,  711-12  (Alaska  

2013);  Lamb,   147  P.3d  at  744;  Scott,  583  P.2d  at   192.  

            33         AS  11.41.458(a).  Neither we nor the court of appeals has ever evaluated  


whether "within the observation" means "observation range" or "actual observation,"  


and the pattern jury instruction's use note explicitly highlights the lack of clarity on this  


issue  and  takes  no  position  on  "whether  the  child  .  .  .  must  observe  the  act  of  


masturbation."  See Alaska Crim. Pattern Jury Instruction No.  11.41.458 (rev.  2009).  


            34         Cf. Lyman v. State, 824 P.2d 703, 705 (Alaska 1992) ("If the prior decision  


is reversed on appeal, a party always may institute a direct action under [Alaska] Civil  



                                                                       -15-                                                                  7107

----------------------- Page 16-----------------------

Jerry made this decision while fully represented in the criminal case, he should not be                                

allowed to deny the conviction and its underlying elements now.                                                                 

                             Second, Jerry argues                        that the"essentialelements                               ofthe offense" of indecent            

exposure under AS 11.41.458 greatly limit the adverse inferences the court was allowed                                                                                   

to make.              He claims that the offense is one of "recklessness," so "any assumption of                                                                                     

intent or deviancy may not be collaterally estopped." But two elements of his conviction                                                                           

were (a) "          knowingly  masturbat[ing]" while (b) "                                           knowingly  exposing [his] genitals in the                                     

                                                            35  Jerry's claimthat knowingly masturbating in the presence  

presence of another person."                                                                                                                                           

of a young child does not constitute deviant behavior is simply not colorable, hence  


AS 11.41.458's classification as a sexual offense.36  


                             Jerry also claims that "since the elements [of indecent exposure] do not  


require that the crime be against a member of the family or be in the family home, these  


facts may not be collaterally estopped."  But collateral estoppel by criminal conviction  


may be used in a civil case to prove that the offender committed the crime against a  


                                      37  and there is no dispute that the "[]other person" referenced in the  

particular person,                                                                                                                                                                 


              34             (...continued)  


Rule 60(b)(5) to vacate the judgment that rested on the preclusive effect of the earlier  


reversed judgment." (quoting Holmberg v. State, Div. of Risk Mgmt., 796 P.2d 823, 829  


(Alaska 1990))).  

              35             AS 11.41.458(a) (emphasis added); AS 11.41.460(a) (emphasis added).  


              36             See AS 12.63.100(6)(A) (" '[S]exual offense' has the meaning given in  


AS  11.41.100(a)(3).");  AS  11.41.100(a)(3)  ("  '[S]exual  offense'  means  an  offense  


defined in AS 11.41.410-11.41.470.").  


              37             See, e.g., Lane v. Ballot, 330 P.3d 338, 342-43 (Alaska 2014) (affirming  


introduction of criminal conviction to show that defendant sexually assaulted plaintiff);  


Lamb, 147 P.3d at 739-44 (affirming introduction of criminal conviction to show that  


defendant driver struck and injured plaintiff); Scott, 583 P.2d at 190-94 (same).  


                                                                                        -16-                                                                                  7107

----------------------- Page 17-----------------------

  elements of Jerry's conviction was Lara. Moreover, none of the court's decisions turned                                                       


  on the fact that the offense occurred in the family home.                                                

                        For these reasons, the superior court was well within its discretion to take  


judicial notice of Jerry's conviction in the criminal case and to rely on that conviction as  


 conclusive evidence that Jerry committed the crime of indecent exposure in the first  


degree against Lara.  


                                    b.	         The superior court did not rely or appear to rely on a  


                                               belief that Jerry also committed sexual abuse.  


                         Jerry also claims that the superior court relied on a belief that he committed  


  the separate crime of sexual abuse of a minor.  Specifically, Jerry notes that in granting  


  Sally's request to sell the marital home, Judge Pallenberg stated:  


                          [Sally]  makes  the  following  statement,  with  which  the  


                          superior court agrees: "[Sally] is entitled to be free of [Jerry]  


                          at the earliest opportunity, and that includes not being wed in  


                          any fashion to the house where the sex abuse occurred." . . .  


                          Under the circumstances, where [Sally]  is the victim of a  


                         serious  felony  offense  committed  by  [Jerry]  against  the  


                         parties' child , I believe it would be entirely inappropriate to  


                          force [Sally] to remain in a business relationship with [Jerry]  


                          against her will.  


  (Emphasis added.) (Footnote omitted.)  Jerry interprets this statement to mean Judge  


  Pallenberg fully agreed with Sally that Jerry committed sexual abuse against Lara in the  


  marital home.  But Judge Pallenberg immediately reframed Sally's claim against Jerry  


  to match the actual conviction.  Judge Pallenberg's statement meant that he agreed with  




                         As  discussed  below,  the  court  merely  quoted  Sally's  claim  that  Jerry  


  sexually abused Lara in her bedroom.  

                                                                           -17-	                                                                  7107  

----------------------- Page 18-----------------------

Sally's general point that she was entitled to be free of Jerry and that his agreement                                                                                                                        

stemmed from the fact Jerry committed "a serious felony offense . . . against the parties'                                                                                                                             


                                    Critically, Judge Pallenberg did not use any variant of the term "sexual                                                                                                          

abuse" in his own description of the offense nor did he refer to the multiple offenses                                                                                                                              

originally charged. He relied only on Jerry's indecent exposure conviction in his ruling.                                                                                                                                                    

And the court's orders throughout the civil case turned on the lone indecent exposure                                                                                                                             

offense, not the other accusations of sexual abuse.                                                                                       

                                                      c.	                The superior court's treatment of Sally as a "victim" did                                                                                                

                                                                         not give rise to an appearance of bias                                                                     .  

                                    Jerry also argues that Judge Pallenberg used Sally's status as a "victim" in                                                                                                                      

                                                      39  to "afford special status in the divorce proceeding."  Specifically,  

the criminal dispute                                                                                                                                                                                    

Judge Pallenberg referenced Sally's "victim" status when granting her request to sell the  


marital home and when partially granting her request for a protective order.  But Judge  


Pallenberg  thoroughly  explained  his  reasoning  in  the  order  denying  Jerry's  first  


disqualification motion:  


                                    I believe it is fair to consider, in making a decision about  


                                    whether the marital home should be sold, the fact that one of  


                                    the  spouses  committed  a  crime  of  a  somewhat  sensitive  


                                    nature against the parties' child in the home.   Similarly, I  


                                    believe  it  was  fair  to  consider,  in  ruling  on  the  motions  


                                    concerning the deposition of [Sally], the nature of [Jerry's]  


                                    criminal conviction.  


Whether Judge Pallenberg correctly interpreted AS 12.55.185(19)(B) and applied it to  


this case is irrelevant to Jerry's bias claim.   Judge Pallenberg provided a plausible  


explanation for his legal reasoning that did not depend on information gleaned from the  




                                    See AS 12.55.185(19)(B) (If a person "against whom an offense has been  


perpetrated" is a minor, "victim" means "a parent . . . of the person.").  

                                                                                                                -18-	                                                                                                        7107  

----------------------- Page 19-----------------------


criminal trial.                    Even if Judge                Pallenberg's reasoning was incorrect, "the                                                 fact that a judge       

commits error in the course of a proceeding does not automatically give rise to an                                                                                                     

                                                            41       Judge  Pallenberg's  decisions  on  this  matter  do  not  

inference   of   actual   bias."                                                                                                                                                     

demonstrate bias.  


                                            d.	            The          superior                 court's              statements                    in       the         criminal  


                                                          proceeding do not indicate bias.  


                             Relatedly,  Jerry  argues  that  Judge  Pallenberg  made  statements  in  the  


criminal case that suggest bias against him.  But - critically - Jerry does not point to  


any specific incidents where Judge Pallenberg's views from the criminal case "might  


have carried over and actually influenced the judge's decisions on the matters at stake  

in the divorce proceedings."42  


                                                                    Therefore this argument also fails.  


                             2.	            Judge Pallenberg's out-of-court contacts with Sally and Daniel  


                                            do not give rise to an appearance of bias.  


                             At Jerry's criminal sentencing hearingJudgePallenberg told theState's and  


Jerry's attorney at a bench conference that his son and Daniel recently had been in a  


 swim class together, and that he occasionally saw Sally when picking up his son from  


the pool but did not interact with her.  Judge Pallenberg went on to say that he "didn't  


think [these contacts] had any significance until I read all the materials [and read that]  


there           was          discussion                 in       some            of       the        letters           and         elsewhere                  of       [Daniel's]  

               40             Cf. Carr v. Carr                  , 152 P.3d 450, 460 (Alaska 2007) ("Judge Smith's written                                                     

decision denying Kelly's recusal motion thoroughly explained the judge's basis for                                                                                                    

refusing to remove himself from the case and persuasively refuted Kelly's accounting                                                                                 

of actual and apparent bias.").                    

               41            Perotti v. State, 806 P.2d 325, 328 (Alaska App. 1991) (citing State v.  


Anchorage , 513 P.2d 1104, 1112 (Alaska 1973)); see also Newcomb v. State, 800 P.2d  


935, 942 (Alaska App. 1990).  


               42             Carr, 152 P.3d at 459.  


                                                                                          -19-	                                                                                   7107

----------------------- Page 20-----------------------

 behaviors, . . . [which] I suppose . . . may have some relevance for sentencing."                                                                                                                                                                                                                                                          Jerry's  

 lawyer responded by stating, "That's fine." Jerry                                                                                                                                                        himself did not overhear thisdisclosure   

 and attests that he read the transcript of the proceeding for the first time while preparing                                                                                                                                                                                                                                      

 his appellate briefing.                                                                      

                                                         Jerry concedes that "these facts . . . likely would not require recusal" in the                                                                                                                                                                                                                       

 criminal case, but he notes that Judge Pallenberg did not make this disclosure in the civil                                                                                                                                                                                                                                                             

 case wherein "[Sally's] parenting acumen and [Daniel's] mental health were highly                                                                                                                                                                                                                                                             

 relevant."   (Footnote omitted.)                                                                                                 Jerry claims, first, that Judge Pallenberg's contacts with                                                                                                                                                             

 Daniel and Sally "give[] a strong . . . appearance of bias" and, second, that Judge                                                                                                                                                                                                                                                             

 Pallenberg's alleged "failure to comply with the Code of Judicial Conduct disclosure                                                                                                                                                                                                                                          


 requirements [is] a factor indicative of bias requiring disqualification."                                                                                                                                                                                                                                       

                                                         Canon 3(E)(1)(a) of the Alaska Code of Judicial Conduct provides that "a  


judge shall disqualify himself or herself in a proceeding in which the judge's impartiality  


 might reasonably be questioned, including . . . where . . . the judge has a personal bias  


 or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed  


 evidentiary facts concerning the proceeding." But "a judge has an obligation not to order  


                             43                          Jerry   did   not   raise   this   issue   in   his   two   motions   for   disqualification.   

 Nevertheless we do not treat this issue as waived, because Jerry attests that he did not                                                                                                                                                                                                                                                                    

 have notice of this conversation until he was preparing his appellate briefing.                                                                                                                                                                                                                                                    See Vent   

 v.  State, 288 P.3d 752, 755 (Alaska App. 2012) (addressing a claim of error that was not                                                                                                                                                                                                                                                                    

 raised before the superior court because appellant only learned of the error after the                                                                                                                                                                                                                                                                      

 superior court issued its written decision).                                                                                          

                                                                                                                                                                              -20-                                                                                                                                                                     7107

----------------------- Page 21-----------------------


disqualification   'when   there   is   no   occasion   to   do   so,'   "                                                  and   Judge   Pallenberg's  

inadvertent contacts with Daniel and Sally are not nearly significant enough to warrant                                                                       

recusal or reversal.     

                           Recently in            Phillips v. State               the court of appeals reviewed an order denying                              

disqualification   where   the   trial   judge   knew   the   victim's   sister,   lived   in   the   same  

                                                                                                                        45  In reviewing the judge's  

neighborhood as her, and attended a social event at her house.                                                                                                 

decision to deny disqualification, the court of appeals noted:  "[I]t is generally agreed  


that the mere fact that a judge maintains an ordinary social relationship . . . either with  


[one or more] parties to the proceeding or with the attorneys . . . does not provide a valid  


basis for disqualifying that judge from presiding over proceedings involving [these]  


persons."46              Likewise, "the fact that the judge may [be] acquainted with [the alleged]  


victim of the crime [the] defendant [is] accused of committing is generally deemed to be  


insufficient to mandate [the judge's] disqualification."47  Accordingly, because there was  


no evidence in the record to support the accusation that the judge's relationship with the  


victim's  sister  "exceeded  mere  social  acquaintance  or  social  friendship,"  the  court  


concluded that there was no appearance of bias.48  


             44            Grace L. v. State, Dep't of Health &Soc. Servs, Office of Children's Servs.                                                                      ,  

329 P.3d 980, 988 (Alaska 2014) (quoting                                              Amidon v. State                , 604 P.2d 575, 577 (Alaska              


             45            271 P.3d 457, 462 (Alaska App. 2012).  


             46            Id .  at  469-70  (alterations  in  original)  (quoting  RICHARD   E.   FLAMM,  


  UDICIAL DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES  195 (2d ed.                                                                                         



             47            Id . at 470 (alterations in original) (quoting FLAMM, supra note 46, at 206).  


             48            Id .  

                                                                                   -21-                                                                            7107

----------------------- Page 22-----------------------

                                                      Heretheappearanceofbias claimstems                                                                                                                            fromJudgePallenberg'sdisclosure                                                                   

 in the criminal case that his son was in the same swim class as Daniel and that he had                                                                                                                                                                                                                                                         

 observed Sally picking Daniel up from the pool.                                                                                                                                                   But nothing in the record suggests that                                                                                                      

Judge Pallenberg had any direct interactions with either Sally or Daniel, and Judge                                                                                                                                                                                                                                                  

Pallenberg noted that he "stayed at the far end of the . . . waiting area" and avoided                                                                                                                                                                                                                                       

 interacting with Sally. This "relationship" between Judge Pallenberg and Sally or Daniel                                                                                                                                                                                                                                           

was far less significant that the relationship between the judge and the victim's sister in                                                                                                                                                                                                                                                           

Phillips  and would not cause reasonable people to doubt Judge Pallenberg's ability and                                                                                                                                                                                                                                                         

willingness to be fair.                                                

                                                      Jerry   also   argues   that,  regardless   of   the   appearance   of   bias,   Judge  

Pallenberg gained "personal knowledge of disputed evidentiary facts concerning the                                                                                                                                                                                                                                                               

proceeding" fromobserving                                                                                         Daniel's behavior and Sally's parenting abilities. He                                                                                                                                                             claims  

that both Daniel's mental health and Sally's parenting abilities were disputed facts in the                                                                                                                                                                                                                                                        

 case.   But though the property division decision implicitly referenced Daniel's mental                                                                                                                                                                                                                                           

health, it did so only in passing and did not make a finding about whether Daniel has a                                                                                                                                                                                                                                                                   

mental illness. Moreover                                                                              the record does not support Jerry's claimthat                                                                                                                                      Judge Pallenberg  

                                                                                                                                                                                                                                                    49            And  Sally's  parenting  

 gained   personal   knowledge   about   Daniel's   mental   health.                                                                                                                                                                                                                                                  

 abilities were not at issue in this case because the parties reached a pretrial  custody  


 agreement which gave Sally sole legal and primary physical custody.  


                                                      Because  there  is  no  evidence  that  Judge  Pallenberg  gained  personal  


knowledge that was relevant to a disputed fact in the proceedings here, Judge Pallenberg  


had no duty to disclose the swimming pool incidents to Jerry in the civil setting.  We  


 conclude that Jerry's "extrajudicial contacts" claim has no merit.  


                           49                         Judge Pallenberg stated only that his son was in the pool with Daniel and                                                                                                                                                                                                                 

that the children "were friendly with each other . . . [but] never had any associations                                                                                                                                                                                                                      

 away from the pool."                                                                   

                                                                                                                                                                        -22-                                                                                                                                                               7107

----------------------- Page 23-----------------------


                     3.	       The attenuated connection between this case and a government  


                               official does not give rise to an appearance of bias.  


                     Jerry alleges that in November 2011 Sally sent a letter to a government  


 official, which outlined the sexual abuse charges against Jerry and asked the official to  


 personally intervene in the case.  Later, during the divorce proceedings, Sally began  


 working in the official's office. Jerry theorizes that because Judge Pallenberg previously  


 applied for a Supreme Court opening and because the official played a part in the judicial  


 nomination process, Judge Pallenberg had an incentive to favor Sally in the proceedings  


 to gain the official's favor.  Jerry believes "a reasonable person would assume that the  


 court's career aspirations might result in an inability to [act impartially]."  


                     But  the  Supreme  Court  vacancy  to  which  Jerry  refers  was  filled  in  


 January 2013, and Sally did not begin working in the official's office until January 2014.  


 It is therefore unclear how this attenuated connection could possibly have affected Judge  


 Pallenberg's decision-making process.  If Jerry means to argue that the possibility of a  


future  vacancy led to the appearance of impropriety, the superior court correctly pointed  


 out that one would need to assume "that there will be a future supreme court vacancy  


 while  [the  official]  remains  in  office,  that  [Judge  Pallenberg]  would  apply  for  the  


 position, that Sally continues to work for the [official] at that time, and that [the official]  


 consults  with  his  receptionist  on  judicial  appointments."                                   We  agree  that  these  


 "speculative assumptions" would not lead a reasonable person to question the court's  


 impartiality, and we reject this claim of bias.  

                                                                -23-	                                                        7107

----------------------- Page 24-----------------------

                         4.	          The   superior   court's   legal   errors   do   not   give   rise   to   an  

                                      appearance of bias                    .  

                         Finally, although Jerry acknowledges that adverse rulings alone are not                                                              

                                                    50  he claims the legal errors he alleges elsewhere in his brief  

sufficient to require recusal,                                                                                                                             

create an appearance of bias.   While Jerry is correct that the superior court erred in  


certain respects, as discussed below, none of the court's decisions was so arbitrary as to  


create "a perception that the judge's ability to carry out judicial responsibilities with  


integrity, impartiality[,]andcompetence[was]impaired."51  

                                                                                                              Therefore,wealsoreject this  


claim of bias.  


             B.	         Jerry's Claims Relating To The Superior Court's Discovery Rulings  


                         Are Waived.  


                         At the request of Sally and the State, the superior court delayed discovery  


in the civil divorce case until the resolution of the criminal case.  The court also granted  


Sally's subsequent request for a protective order specifying that Jerry's deposition of her  


could be conducted only telephonically and without video recording.  Jerry argues that  


the  court  erred  by  delaying  his  opportunity  to  depose  Sally  and  that  it  abused  its  


discretion by limiting the means by which he could conduct discovery.  


                         The  party  alleging  error  bears  the  burden  of  showing  the  error  was  


prejudicial.52              Because Jerry ultimately declined to depose Sally, he has not met his  


burden.   Jerry has not shown that the superior  court's requirement of a telephonic  


             50          See Labrenz v. Burnett                      , 218 P.3d 993, 1002 (Alaska 2009) ("[W]e have                                        

repeatedly cautioned [that] 'judicial bias should not be inferred merely from adverse                                                                

rulings.' " (quoting                 Tillmon v. Tillmon                  , 189 P.3d 1022, 1027 n.13 (Alaska 2008))).                          

             51          Id . (quoting Ogden v. Ogden, 39 P.3d 513, 516 (Alaska 2001)).  


             52          Zamarello v. Reges, 321 P.3d 387, 392 (Alaska 2014) (quoting Heinrichs  


v. Chugach Alaska Corp., 250 P.3d 535, 535 (Alaska 2011)); see also Alaska R. Civ.  


P. 61 (harmless error).  


                                                                              -24-	                                                                       7107

----------------------- Page 25-----------------------

deposition was prejudicial because he has not shown how such a deposition would have                                                                                                  

differed from a videotaped deposition, or a deposition he was able to watch via video                                                                                               



feed.           Without knowing what testimony Sally would have given, it is impossible for us  



                                                                                                            were affected by the superior court's  

to determine how Jerry's "substantial rights" 


requirement, if at all.   Similarly, we have no way to determine how taking Sally's  


deposition after the criminal trial would have prejudiced Jerry.  Because Jerry has not  


shown that the alleged error was prejudicial, we reject this claim.  


               C.	            The  Superior  Court  Did  Not  Err  By  Permitting  The  Sale  Of  The  


                              Marital Home.  


                              In July 2013, after Jerry pleaded guilty to indecent exposure but before the  


divorce trial, Sally asked the superior court for permission to sell the marital home.  She  


argued that thesalewould quicken the "complete economic separation of the parties"and  


"provide some level of economic support for [their] children."   She later added that  


"being legally and economically tied to a sex offender who has abused one's children is,  


in and of itself, emotionally damaging and draining. " Jerry opposed the pretrial sale and  


requested that the property continue to be leased.  He argued that Sally was "unlikely to  


be awarded the marital home" under the AS 25.24.160(a)(4) factors and that it was "not  


in the best interest of the children to rush the home sale."  


                              Thesuperior court granted Sally'smotion,concluding that because"[Sally]  


is the victim of a serious felony offense committed by [Jerry] against the parties' child,  


I  believe  it  would  be  entirely  inappropriate  to  force  [her]  to  remain  in  a  business  

               53             See State ex rel. Anderson v. Miller                                               , 882 P.2d 1109, 1113 (Or. 1994)                                 

(noting that even if a party subject to a protective order conducted a non-videotaped                                                                        

deposition, "[a]n appellate court would have difficulty assessing what different impact                                                                                          

a videotaped deposition may have had on a jury").                                                

               54             Alaska R. Civ. P. 61.  


                                                                                            -25-	                                                                                    7107

----------------------- Page 26-----------------------

 relationship with [Jerry] against her will." (Footnote omitted.) The court also noted that                                                                                                                                                                                                   

 Jerry likely would be unable to provide significant child support, which meant Sally                                                                                                                                                                           

 likely would be favored in the property division and Jerry likely would not be awarded                                                                                                                                                                                      

 the home.                           Moreover, the court pointed out that Jerry did not state a desire to                                                                                                                                                               live  in the   

 marital home and instead sought permission to continue leasing out the property.                                                                                                                                                                                                        As a   

 result,   the   court   concluded   that   the   circumstances   of   the   case   were   "unusual"   and  

justified a pretrial sale of the property.                                                                                             

                                               In   Watega v. Watega                                                   we held that "[w]hile AS 2[5].24.140(b)(6) does not                                                                                                                      

 provide any limitation on a court's ability to permit a sale of marital property, . . . courts                                                                                                                                                                                 

 do not have unlimited discretion to permit the sale of marital property prior to the                                                                                                                                                                                               

                                                                                                                                                                  55   Such a pretrial sale should be allowed  

 division of the property in a divorce judgment."                                                                                                                                                                                                                               

 "sparingly and only for pressing reasons, such as for the prevention of waste of marital  


 assets."56                          We concluded that protecting a party's credit was "not a sufficiently strong  


 reason to justify a court-authorized sale over [that party's] objection" to the sale when  


 the "sale of the property did nothing to increase or preserve the assets of the marital  



                                               The superior court correctly concluded it was presiding over "an unusual  


 divorce case," and Jerry is incorrect that there was no evidence to support Sally's motion  


 for permission to sell the home.  Sally claimed in her complaint that Jerry had "a history  


                        55                      143 P.3d 658, 663 (Alaska 2006) (citing                                                                                                  Randazzo v. Randazzo                                                           , 875 A.2d        

 916, 924 (N.J. 2005)).                                                         Alaska Statute 25.24.140(b)(6) provides that the superior court                                                                                                                                          

 may issue a "necessary protective order[] . . . prohibiting a spouse from disposing of the                                                                                                                                                                                                     

 property of either spouse or marital property without the permission of the other spouse                                                                                                                                                                                          

 or  a court order                                       ." (Emphasis added.)                          

                        56                      Watega, 143 P.3d at 663.  


                        57                    Id . at 664.  


                                                                                                                                               -26-                                                                                                                                       7107

----------------------- Page 27-----------------------

of domestic violence and sexual abuse," and she submitted an affidavit noting that Jerry                                                                                                        

had been arrested for sexual abuse of a minor.                                                              By the time the court authorized the sale                                             

of the marital residence, Jerry had pleaded guilty to indecent exposure in the first degree                                                                                                 

for the act of masturbating in Lara's presence.                                                                   Jerry was collaterally estopped from                                         

                                                                                                                            58       On  these  facts  alone,  it  was  

denying   this   act,   for   the   reasons  discussed   above.                                                                                                                                  

reasonable for the court to infer that Sally would wish to separate herself from business  


relationships with him.  


                               Moreover the superior court was correct that there was little reason to delay  


the sale.  Neither party was living in the residence.  Jerry presented no evidence that  


Sally would sell the home for an unreasonably low amount.  Accordingly, the superior  


court did not abuse its discretion in allowing Sally to sell the marital residence before  



                D.             Division Of Property  


                               The  equitable  division  of  marital  assets  involves  a  three-step  process:  


"(1) deciding what specific property is available for distribution, (2) finding the value of  


the property, and (3) dividing the property equitably."59                                                                               The parties stipulated to the  


values of most of their assets, and Jerry does not contest the superior court's valuation  


of the remaining assets.  Instead he argues that the court erred by failing to recapture  


money Sally spent between separation and trial and that the court abused its discretion  


by awarding the majority of the marital estate to Sally.  


                58             See supra               notes 26-38 and accompanying text.                                          



                               Beals v. Beals, 303 P.3d 453, 458 (Alaska2013)(citing Doylev. Doyle, 815  


P.2d 366, 368 (Alaska 1991)); Wanberg v. Wanberg, 664 P.2d 568, 570 (Alaska 1983).  

                                                                                                 -27-                                                                                          7107

----------------------- Page 28-----------------------


                     1.        Determination of property available for distribution  


                               a.	       The  superior  court  properly  interpreted  the  parties'  


                                         property value stipulation.  


                     Jerry argues that the superior court "disregard[ed] the parties' property  


stipulation"  by  failing  to  use  the  stipulated  values  for  the  assets  Sally  already  had  


withdrawn and for the credit card debt Jerry already had paid.   Jerry claims that the  


"stipulation limited the court's discretion to determining whether 'property distributed  


to [Sally] post-separation should be considered as a property distribution as opposed to  


spousal and child support.' "  


                     But far from disregarding the stipulation, the superior court cited it, quoted  


it, relied upon its values, and provided an explanation whenever it deviated from those  


values.        Furthermore  the  stipulation  in  no  way  limited  the  court's  discretion  in  


characterizing and  allocating the marital property.                               To  the  contrary,  the stipulation  


provided that "the court may use the [attached] property values . . . as the basis for its  


allocation of marital property and debts" and left the parties "free to make arguments to  


the court concerning how the property should be divided; the economic impacts of the  


divorce; or the characterization of the property."  (Emphasis added.)  


                     The stipulation also made clear that there was "no agreement as to how the  


court should characterize property already distributed" to Sally - the assets Jerry most  


heavily contests in this appeal. And the statement that there was "no agreement [between  


the parties] . . . as to whether the property distributed to [Sally] post-separation should  


be considered as a property distribution as opposed to spousal and child support" does  


not mean that the parties agreed that the property must be treated as one or the other.  


                     In short, the actual stipulation and Jerry's interpretation of it bear little  


resemblance to one another. The superior court's order correctly applied the stipulation.  


We reject this claim.  

                                                               -28-	                                                         7107

----------------------- Page 29-----------------------

                                                     b.	              The superior court erred by treating Sally's attorney's                                                                          

                                                                      fees as marital expenses.                  

                                   After the September 2011 hearing, the superior court authorized Sally to                                                                                                                    

withdraw funds from a supplemental annuity plan and a deferred retirement account to                                                                                                                                           

pay for living expenses and attorney's fees.                                                                        In its property division decision, the court                                                       

noted that it had informed the parties it would postpone the characterization of the                                                                                                                                       

accounts and the treatment of Sally's withdrawals until trial.                                                                                                   The court also noted that                                 

it   had   summarized  the   legal   framework   for   the   treatment   of   these   funds   at   the  


September 6 hearing.                                        Citing  Day v. Williams                                        ,                                                                               

                                                                                                                                  the court concluded that it could not  


"recapture" already-spent funds and credit them in the property distribution absent a  


finding that Sally had "wasted or otherwise improperly used the funds."  Jerry argues  


that it was inappropriate to apply Day to this case because already-spent funds may be  


"properly included in the final property division [where the] property was provided with  


the understanding that it was an allocation of marital property."  He cites Sandberg v.  



Sandberg for this proposition. 

                                   Jerry's argument that the court should have relied upon Sandberg instead  


of Day is unpersuasive. Unlike Sandberg, the parties did not reach a "binding settlement  


agreement" that specified how the distribution in question should be characterized and  


treated.62                   To the contrary their property values stipulation expressly reserved these  


issues for trial, as discussed above. Jerry also points to the court's initial order regarding  


these funds, which stated that Sally's withdrawals from the retirement accounts would  


be treated as an "advance against the property distribution."   But Jerry ignores the  


                  60               285 P.3d 256 (Alaska 2012).                                 

                  61               See  322 P.3d 879, 891 n.42 (Alaska 2014).                                                       

                  62               Id.  

                                                                                                             -29-	                                                                                                     7107

----------------------- Page 30-----------------------

footnote in that order, which stated that "[t]he court does not intend to rule now on                                                                                                    

whether   there   are   offsets   or   credits   that   may   reduce   the   effective   amount   of   this  

advance."   He also ignores the court's order following the September 6, 2011 hearing,                                                                                       

which explicitly stated that "[t]he court will hold in abeyance until trial any decision on                                                                                               

whether or how the above distributions should affect the overall property distribution in                                                                                                  

this   case."     Because   neither   the   parties'   stipulation   nor   the   superior   court's   orders  

expressly determined the resolution of this issue, this case bears no similarity to the                                                                                                 

"unusual circumstances" which justified the superior court's deviation fromthe                                                                                              Day  rule  


in  Sandberg.  

                             Accordingly the superior court correctly applied Day to the facts of this  


case, at least as a general matter.   The court had awarded Sally only the minimum  


                                                                                                                      64  and therefore did not abuse its  

permissible child support amount of $50 per month,                                                                                                                                        


discretion by declining to treat Sally's withdrawals as interim support.  And the court  


found that Sally's post-separation expenses were reasonable and not evidence of waste  


or misuse, which meant the court was required to value the account as of the date of trial,  


not the date of separation.  


                             However,Jerry pointsout that Sally paid pretrial attorney'sfees using these  


funds.  The superior court denied Sally's requests for both interim and final attorney's  


fees, and Sally used about $30,000 of her withdrawals on attorney's fees.  But Day 's  


holding applies only to expenditures for "marital purposes or normal living expenses,"65  


and attorney's fees to fund a divorce case qualify as neither a marital nor living expense  


               63            Id.  

               64            See  Alaska  R.  Civ.  P.  90.3(c)(3).  

               65            Day,  285  P.3d  at  264 (quoting  Partridge  v.  Partridge,  239  P.3d  680,  692  

(Alaska  2010)).  

                                                                                           -30-                                                                                     7107

----------------------- Page 31-----------------------


 absent a finding that they are necessary "to level the playing field."                                                                                                                                                                                                      We therefore   

remand this matter to the superior court to reconsider this aspect of the property division.                                                                                                                                                                                                      

                                                                           c.	                      The superior court had discretion to set the education                                                                                                                                

                                                                                                    savings accounts aside for the benefit of the children.                                                                                                                       

                                                  The parties had education savings accounts for their three children with a                                                                                                                                                                                                  

total value of $56,000.                                                               The court determined that these accounts were "technically the                                                                                                                                                                   

property of the parents and not of the children" and thus "marital property."                                                                                                                                                                                                                      But the   

 court  also   found   that   "the   act   of   establishing   a   529   [education   savings]   account  

 constitutes an agreement between the parents to set these funds aside for the children's                                                                                                                                                                                                    

 education" and that "the children should not suffer more than they already have by                                                                                                                                                                                                                                    

having their college funds plundered to meet their parents' needs."                                                                                                                                                                                      The court therefore                     

 declined to include these accounts in the property distribution, assigned them to Sally to                                                                                                                                                                                                                                

manage, and required that Sally receive permission from Jerry or the court if she wished                                                                                                                                                                                                                

to use the funds for noneducational purposes.                                                                                                                               

                                                  Jerry argues that the superior court erred by exempting these funds                                                                                                                                                                              fromthe   


normal   property   distribution.     He   cites   an   out-of-state   case                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                      as  well  as  Turner's  

                                                                                                                                              68 to support this claim. He contends that the court  


Equitable Division of Property treatise 

had "no evidence of a joint intention to use the funds for college," and he highlights  


 Sally's statement that the funds were not her "area of expertise."  


                                                  But Jerry's citations - which suggest that education savings accounts are  


marital property unless the parents' names are not on the account or the account was set  


                         66                       Berry v. Berry                                          , 277 P.3d 771, 779 (Alaska 2012) (quoting                                                                                                                                Dragseth v.   

Dragseth, 210 P.3d 1206, 1212 (Alaska 2009)).                                                                                                          

                         67                       Drumheller v. Drumheller, 972 A.2d 176 (Vt. 2009).  


                         68                       BRETT  R. T                               URNER, E                           QUITABLE  DISTRIBUTION OF                                                                              PROPERTY   5:15, at 308                                                      

 (3d ed. 2005).                                        

                                                                                                                                                          -31-	                                                                                                                                                 7107

----------------------- Page 32-----------------------


up as a trust                   - do not support his full argument, because the superior court agreed that                                                                                             

the accounts were "technically" marital property.                                                                         And Turner's treatise provides the                                            

rationale on which the superior court relied:                                                                    "If the parents' names remain on the                                                   

accounts, it could still be argued that they own the account in some form of implied trust                                                                                                            

for the benefit of the children."                                          70  

                                Jerry's argument that there was "no evidence of a joint intention to use the  


funds  for  college"  also  is  unpersuasive,  because  creating  three  education  savings  


accounts  for  three  children  is  itself  evidence  that  the  parties  had  such  intention.  


Moreover, although Sally testified that she did not have expertise in understanding the  


legal intricacies of the accounts, she also stated that she intended for the accounts to be  


"designated" for her children's education.  Even Jerry testified that "[Daniel] has a 529  


plan,  and  John  and  Lara  have  educational  IRAs,"  though  he  also  expressed  his  


willingness to liquidate the accounts in the event of a family emergency.  Based on this  


evidence, the court's finding that the accounts were intended to be used for the benefit  


of the children was not clearly erroneous.   We therefore affirm the superior court's  


decision to set apart the education savings accounts fromthe rest of the property division.  


                                2.              Property distribution  


                                Alaska Statute 25.24.160(a)(4) requires the superior court, in dividing  


marital property, to "fairly allocate the economic effect of divorce" by considering nine  


specific factors:  


                                                (A)  the length of the marriage and station in life of the  


                                                parties during the marriage;  


                                                (B)  the age and health of the parties;  


                69              See id.         ("If the parents' names are on the account, and there is neither a trust                                                                            

nor an enforceable contract, the account is marital property.").                                                          

                70              Id.  


                                                                                                   -32-                                                                                             7107

----------------------- Page 33-----------------------

                                                 (C)   the earning capacity of the parties, including their                                                             

                                                 educationalbackgrounds,                                       training, employment                                 skills,  

                                                 work   experiences,   length   of   absence   from   the   job  

                                                 market,   and   custodial   responsibilities   for   children  

                                                 during the marriage;       

                                                 (D)   the financial condition of the parties, including                               

                                                 the availability and cost of health insurance;                                     

                                                 (E)   the conduct of the parties, including whether there                                                             

                                                 has been unreasonable depletion of marital assets;                                                        

                                                 (F)  the desirability of awarding the family home, or                                                                       

                                                 the right to live in it for a reasonable period of time, to                                                                  

                                                 the   party   who   has   primary   physical   custody   of  



                                                 (G)  the circumstances and necessities of each party;  


                                                 (H) the time and manner of acquisition of the property  


                                                 in question; and  


                                                 (I) the income-producing capacity of the property and  


                                                 the value of the property at the time of division.  


The statute also requires the court to make this division "without regard to which of the  



parties is in fault." 

                                 The court discussed each AS 25.24.160(a)(4) factor in turn and ultimately  


concluded that "the only fair and equitable division of property is one that is distributed  


unevenly in [Sally's] favor" because she "will have to shoulder the financial burden of  


raising the children to adulthood with little child support from [Jerry]." The court noted  


that Sally had custody of John and Daniel, that both parties' financial circumstances were  


"drastically lowered" as a result of Jerry's arrest and conviction, and that Sally was not  


responsible for this reduction in income while Jerry's financial circumstances were  


"solely a result of the crime he committed."  Jerry argues that the superior court clearly  




                                 AS 25.24.160(a).  

                                                                                                     -33-                                                                                              7107  

----------------------- Page 34-----------------------

erred by finding that his conviction                                                                                       caused his poor financial situation.                                                                                    Jerry also   

contends the court committed legal error by considering his moral fault, by dismissing                                                                                                                                                             

his low earning capacity, and by considering Sally's child-care responsibilities vis-à-vis                                                                                                                                                                

his likely inability to pay his child support obligation.                                                                                                                   Accordingly, he claims the court                                                         

abused its discretion by unevenly distributing marital assets in Sally's favor.                                                                                                                                                                        

                                                                a.	                   The superior court properly weighed the circumstances                                                                                         

                                                                                      and   necessities   of   the   parties   in   dividing   the   parties'  


                                           The   superior   court   stated   two   bases   for  disregarding   Jerry's   financial  


circumstances.  First, it found that Jerry's crime constituted economic misconduct and  


therefore weighed against him under AS 25.24.160(a)(4)(E), which directs the court to  

consider "the conduct of the parties."                                                                                   72  Second, when considering "the circumstances  


and necessities of each party" pursuant to AS 25.24.160(a)(4)(G), the court found that  


Jerry's  low  earning  capacity  was  "a  self-inflicted  wound"  and  therefore  gave  his  


financial circumstances no weight.  Because we hold that the court properly considered  


Jerry's own fault for his financial situation under the "circumstances and necessities"  


factor, we do not address whether Jerry's crime also constituted economic misconduct.  


                                           As an initial matter, Jerry argues that the court clearly erred by concluding  


that his indecent exposure conviction caused his economic difficulties, which he claims  


resulted  instead  from the  first-degree  sexual  abuse charges  levied  against  him and  


subsequently dismissed.  However, this argument is contradicted by his own testimony  

                     72                    See Jones v. Jones                                          , 942 P.2d 1133, 1139 (Alaska 1997) ("[A] court may                                                                                                             

take into account economic misconduct under sub[section] (E), but it may not consider                                                                                                                                                                     

a party's moral or legal marital failings which do not amount to economic misconduct.").                                                                                                                                              

                                                                                                                                    -34-	                                                                                                                             7107

----------------------- Page 35-----------------------

at trial, where he claimed he was ineligible to work in the financial services industry                                                                                                             

because of his conviction.                                         The superior court did not clearly err by agreeing with Jerry                                                                            

that his conviction was a reason for his financial difficulties.                                                           

                                 Jerry's primary argument against the division is that any consideration of                                                                                                         

his crime in the equitable distribution process constituted improper consideration of                                                                                                                              

"moral fault."                         Jerry is correct that AS 25.24.160(a)(4) requires the court to divide                                                                                            

property   "without   regard  to  which   of   the   parties   is   in   fault."     However,   we   have  

construed "fault" in this statute as "moral or legal misconduct which has led to the failure                                                                                                             

                                           73  The statute does not require the court to ignore the reasons behind  

of the marriage."                                                                                                                                                                  

Jerry's "circumstances and necessities."  Nor does it prevent the court from considering  


how Jerry's own conduct caused his financial situation simply because that conduct also  


may have factored into the failure of the marriage.  Rather, the statute requires the court  


to divide property "without regard to" marital fault; in other words, a court may not tip  


the equities against a party because it believes that party's moral or legal misconduct was  



to blame for the marital breakdown.                                                             


                                 Jerry also argues that this court "has already ruled that . . . parent[s] may  


not be held responsible for their lower earning potential due to incarceration."  But the  


holding of Bendixen v. Bendixen, which Jerry cites for this proposition, is not nearly as  


broad  as  he  suggests  and  addresses  only  the  statutory  definition  of  "voluntary  


                 73              Jones, 942 P.2d at 1139 (citing  Hartland v. Hartland, 777 P.2d 636, 642  

                                                                   URNER, supra note 68,  8.24, at 895 ("Fault is universally  

(Alaska 1989));                          see also              T                                                                                                                            

defined as serious misconduct which causes the marital breakdown or otherwise places  


a significant burden on the marital relationship.") (emphasis in original).  


                 74              See Hartland, 777 P.2d at 642 ("Under the concept of no-fault divorce, a  


court cannot rely on one party's fault in ending the marriage to justifying awarding a  


greater portion of the marital property to the other spouse.").  


                                                                                                       -35-                                                                                                 7107

----------------------- Page 36-----------------------


unemployment"    in    the    child    support   context.                                  Bendixen 's    holding    does    not  


automatically apply to every area of family law, as Jerry implies.                                              

                      The court made detailed findings with respect to each equitable factor, and  


clearly explained why Jerry's economic circumstances did not weigh in his favor.  The  


court reasoned: "In arguing that the court should award him a larger share of the marital  


estate because of the economic effect of his crime, [Jerry] seems to the court much like  


a person who burns down his house and then complains that he is homeless."  To award  


Jerry  a  greater  share  of  the  marital  estate  as  a  result  would,  the  court  explained,  


"essentially be rewarding him for his crime."  Accordingly, the court did not consider  


Jerry's "self-inflicted" loss of income as an equitable point in his favor, and found  


instead that "the equities [lay] strongly in [Sally's] favor."  


                      This decision was within the court's discretion to make. The superior court  


"has  wide  discretion  to  ascribe  different  weights  to  the[]  factors,"77                                          and  we  have  


                                                                                                                                   78  Here,  

repeatedly emphasized the trial court's broad discretion when dividing property.                                                        


           75         962 P.2d 170, 172 (Alaska 1998).               



                      See  In  re  J.J.J.,  718  P.2d  948,  953  (Alaska  1986)  ("Circumstances  


[including incarceration] resulting from the noncustodial parent's own conduct cannot  


excuse such a parent's significant failure to provide support or maintain meaningful  


communication."); see also Ebert v. Bruce L., 340 P.3d 1048, 1055 (Alaska 2014)  


(applying J.J.J. 's holding).  

           77         Cartee v. Cartee, 239 P.3d 707, 715 (Alaska 2010) (first citing Veselky v.  


 Veselky, 113 P.3d 629, 637 (Alaska 2005); then citing Cox v. Cox, 882 P.2d 909, 913  


(Alaska 1994)).  


           78         See id. at 712 ("We review a trial court's equitable division of property  


between parties at divorce for abuse of discretion, and we will not disturb the result  


unless it is clearly unjust.") (citing Walker v. Walker, 151 P.3d 444, 447 (Alaska 2007));  


id. at 713 ("Where the trial court makes . . . threshold findings, we generally will not  



                                                                     -36-                                                              7107

----------------------- Page 37-----------------------

the court's reasoning and findings fully support its conclusion.                                                                                                                               It is clear from the                             

court's order that it considered Jerry's crime only insofar as it caused his financial                                                                                                                                          

difficulties, and there is no indication that the court considered marital fault in dividing                                                                                                                                      

the property or penalized Jerry for committing "moral fault." The court therefore did not                                                                                                                                                        

abuse its discretion in the way it considered Jerry's financial circumstances.                                                                                                                                               

                                                          b.	                The superior court's findings are insufficient to support   

                                                                             a division based on the needs of the children.                                                                

                                       Jerry argues that the superior court erred by basing its property division in                                                                                                                                 

part on Sally's child-care responsibilities and Jerry's expected low future child support                                                                                                                                           

payments.     Jerry   is   correct   that   child   support   and   property   division   are   generally  


"separate and distinct . . . questions."                                                                                                                                                                                            

                                                                                                              But the superior court may consider child support  


issues in the property division when there is "a specific reason why [the needs of the  



children] cannot be met with an award of child support alone." 

                                       Here the superior court noted that all three of the parties' children would  


likely need "ongoing therapy" and that Sally would "likely receive very little child  


support from [Jerry]" given his "limited income."  These findings alone, however, are  


not sufficient to justify the unequal award based on the needs of the children or to allow  



meaningful review by us.                                                         The parties' custody agreement required Jerry to pay child  

                   78                  (...continued)  


reevaluate the merits of the property division.") (citing Nicholson v. Wolfe, 974 P.2d 417,  


422 (Alaska 1999)).  

                   79	                 See Arndt v. Arndt, 777 P.2d 668, 670 (Alaska 1989).  


                   80                 Engstrom v. Engstrom, 350 P.3d 766, 774 (Alaska 2015) (quoting Rodvik  


v. Rodvik, 151 P.3d 338, 347 (Alaska 2006)).  


                   81                  See Pfeil v. Lock, 311 P.3d 649, 653 (Alaska 2013) ("Factual findings  


supporting marital property distribution 'must be sufficient to indicate a factual basis for  



                                                                                                                       -37-	                                                                                                                7107

----------------------- Page 38-----------------------

 support as well as any future counseling expenses for the children; the superior court's                                                                                                                                                                                                                                                                                                  

reference   to   Jerry's   "limited   income"   does   not,   without   more,   show   that  this   was  

insufficient to meet the needs of the children.                                                                                                                                                                        Although it was not necessarily improper                                                                                                                  

 for the superior court to rely on this factor in dividing the marital estate, we conclude that                                                                                                                                                                                                                                                                                                            

this case should be remanded to the superior court to reconsider and explain this aspect                                                                                                                                                                                                                                                                                                       

of the property division.                                                

                                E.	                             Due Process   

                                                                Jerry also claims the superior court made "numerous errors which violated                                                                                                                                                                                                                                              

 [his] due process rights." We have already rejected two of these claims - that the court                                                                                                                                                                                                                                                                                                            

was biased against him, and that he had the "right to have a decision based only on                                                                                                                                                                                                                                                                                                                             

evidence properly admitted" - so they are not included in the following analysis.                                                                                                                                                                                                                                                                                                                        We  

alsohavealready determined that                                                                                                                              thesuperior court erredby consideringJerry's                                                                                                                                                                            criminal  

act in the property division, so we do not reach Jerry's claim that this also violated his                                                                                                                                                                                                                                                                                                                     

due process rights.                                                                         

                                                                 1.	                            Noticeofproposedactionandgrounds                                                                                                                                                               assertedandopportunity                                           

                                                                                                to respond.   

                                                                                                a.	                             Property stipulation   

                                                                Jerry   claims   that   the   court   "disregarded"   the   parties'   property   value  

 stipulation.  He argues that the document placed the burden on Sally to prove that her                                                                                                                                                                                                                                                                                                                      

post-separation expenditures were for living expenses, while the superior court's legal                                                                                                                                                                                                                                                                                                              

analysis placed the burden on him to show that Sally had wasted or misused marital                                                                                                                                                                                                                                                                                                        

 funds. But for the reasons discussed above, Jerry misreads the parties' stipulation, which                                                                                                                                                                                                                                                                                                     

                                81                              (...continued)  


the conclusion reached.' " (quoting Cartee, 239 P.3d at 713)); Doyle v. Doyle, 815 P.2d  


 366, 368 (Alaska 1991) ("[T]he trial court must render findings of ultimate fact that  


 support any decreed property division; the findings must be explicit and sufficiently  


detailed to give [us] a clear understanding of the basis of the trial court's decision.").  

                                                                                                                                                                                                      -38-	                                                                                                                                                                                           7107

----------------------- Page 39-----------------------

explicitly reserved for trial the treatment of Sally's expenditures and did not require her                                                                                                                                                                             

to prove that they were a form of interim spousal or child support.                                                                                                                                                 

                                          Relatedly, Jerry argues that he "would not have proceeded to trial without                                                                                                                                      

receiving [Sally's] financial records if he had known that the [superior] court would                                                                                                                                                                        

place   on  him the burden of proving that the retirement assets were [unreasonably]                                                                                                                                             

dissipated." He also claims he "would have filed an interlocutory appeal if the court had                                                                                                                                                                              

properly informed him that [Sally's] pre-trial award of the marital assets could or would                                                                                                                                                                      


be treated as interim support."                                                                        

                                          But  superior  courts  have  no  obligation  to  advise  pro  se  litigants  on  


substantive law.83   And at the September 2011 hearing, Sally's attorney indicated that  


 Sally would be arguing that her expenditures were legitimate living expenses, and the  


court stated that it would reserve ruling on the issue until trial.  Jerry therefore was on  


notice for more than two years about the approach the court eventually would adopt at  


trial - the "typical[]" approach under our precedent.84  


                     82                   Because Sally's expenditures using marital funds were never "treated as                                                                                                                                                          

interim support," we take this claim to mean he should have been informed that the court                                                                                                                                                                          

might   exclude   these   assets   from   the   property   distribution   under  Day   v.   Williams,  

285 P.3d 256 (Alaska 2012).                                            

                     83                   See McLaren v. McLaren, 268 P.3d 323, 334 (Alaska 2012).  


                     84                   See Day, 285 P.3d at 264 ("Marital assets that are spent after separation for  


marital purposes or normal living expenses are not typically taken into account in the  


final property division." (quoting Partridge v. Partridge, 239 P.3d 680, 692 (Alaska  



                                                                                                                                   -39-                                                                                                                            7107

----------------------- Page 40-----------------------

                                      b.           Property division   

                          Similarly, Jerryarguesthathedid not haveadequate"noticethat moral fault                                                              


could be considered as a factor in [the] property division."                                                                                                   

                                                                                                                     He notes that Sally's trial  


position was that Jerry's earning capacity remained high despite his conviction, not that  


Jerry's poor finances should be discounted in the property division.  Jerry further notes  


that the superior court correctly stated at trial that moral or legal "fault . . . isn't a factor"  


in the property division.  And he claims that the court obtained affirmation from both  


parties that the issue of his sexual offense was "irrelevant" to the property division  




                          But Jerry was on notice that the superior court might consider his criminal  


conviction with regard to the parties' financial circumstances.  In its September 2013  


order granting Sally's requestto sell themarital residence, thecourt cited Jerry's criminal  


conviction while rejecting his analysis of the AS 25.24.160(a)(4) factors:   "If, as he  


claims in his pleadings, his earnings capacity is low because of his criminal conviction,  


he will be unable to pay significant child support.  The children's financial needs would  


then have to be considered when the court looks to the 'circumstances and necessities of  


each party.' "  Moreover, our case law clearly establishes that the superior court has  


significant discretion "to ascribe different weights to [the AS 25.24.160(a)(4)] factors  

                                                                      86  this includes the discretion to give little or no  


upon hearing the evidence at trial"; 

weight to a party's financial circumstances if equity so demands.  


             85           We interpret this claim to mean Jerry lacked notice that the court might                                                          

conclude   that  his  sex   offense   conviction   was   the   cause   of   his   poor   economic  

circumstances and that he should not "benefit" from his conviction in the property                                                                    


             86           Cartee, 239 P.3d at 715 (first citing Veselky v. Veselky, 113 P.3d 629, 637  


(Alaska 2005); then citing Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994)).  


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                                                Jerry's claim that the parties agreed his sex offense was irrelevant to the                                                                                                                                                                                  

property division is also without merit.                                                                                                       In the portion of the trial transcript Jerry cites,                                                                                                   

the parties did agree that there was no need to go into the reasons why Daniel and Lara                                                                                                                                                                                                                 

were misbehaving and "creating . . . chaos in the home" in the two years immediately                                                                                                                                                                                       

preceding   the   divorce.     But   there   was   no   blanket   agreement   that   Jerry's   "sexual  

misconduct was irrelevant to the property division," as Jerry claims.                                                                                                                                                        

                                                2.                      Right of confrontation            

                                                Jerry argues that the superior court's "reliance upon testimony reviewed in                                                                                                                                                                                       

the criminal case but not admitted in the divorce case" violated his right to confront and                                                                                                                                                                                                                 

cross-examine witnesses.                                                                        But Jerry points to no instance where the superior court                                                                                                          

"reli[ed] on testimony reviewed in the criminal case."                                                                                                                                                       Moreover the Confrontation                             

                                                                                                                                                                  87         Although Jerry is correct that the U.S.  

Clause applies only to criminal proceedings.                                                                                                                                                                                                                                                            

 Supreme Court has adopted its guarantees in civil cases "where administrative and  


regulatory actions [are] under scrutiny,"88  this is not such a case.  And while the ability  


to cross-examine witnesses at trial is certainly a component of due process, Jerry cross- 


examined all of Sally's witnesses.  


                                                3.                      Right to counsel  


                                                Jerry argues that thesuperior courtdeniedhis constitutional right to counsel  


by awarding Sally a "de facto" attorney's fee award while he was forced to represent  


himself pro se for lack of funds.  However, the right to state-funded counsel is typically  


(but not exclusively) limited to criminal proceedings, and the case Jerry cites to support  


                        87                      See  U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall                                                                                                                                                                            

enjoy the right . . . to be confronted with the witnesses against him."); Alaska Const.                                                                                                                                                                                                         

art. I,  11 ("In all criminal prosecutions, . . . [t]he accused is entitled . . . to be confronted                                                                                                                                                                               

with the witnesses against him.").                                                              

                        88                       Greene v. McElroy, 360 U.S. 474, 496-97 (1959).  


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his alleged right to counsel,                             Flores v. Flores                  , holds only that a right to counsel exists in                                       

contested child custody proceedings "where an indigent party's opponent is represented                                                                       

                                                                                       89   Because Jerry does not contest the court's  

by counsel provided by a public agency."                                                                                                                              

child custody determination, Flores is inapplicable.  


                            As  discussed  above,  however,  there  is  an  inconsistency  between  the  


superior court's finding that Sally did not waste or misuse marital funds (including the  


$30,000  she spent  on  attorney's  fees)  and the court's denial of Sally's request for  


attorney's fees.  But this inconsistency appears to be a factual error on the part of the  


court, not an infringement on Jerry's alleged right to counsel.  


                            4.            Adequacy of record and court's reasoning  


                            Finally, Jerry claims the superior court "repeatedly failed to make findings  


sufficient for appellate review."  First, Jerry argues that the court was required to make  


explicit findings for denying his attorney's fees request,90  


                                                                                                                            and he notes that the court  


never addressed the request he made for attorney's fees in his closing argument and later  


rejected his motion for interim attorney's fees as moot in light of the judgment. Second,  


Jerry claims that he was ordered to pay a total of $9,432.54 post-separation for credit  


card debt and a mortgage payment, which the court did not mention in its order, and he  


argues that the court was required to "make factual findings on whether a credit is  

                            91     And  third,  Jerry  claims that the  court  considered  his child  support  


obligation and Sally'schild-careresponsibilitieswithoutfindingthat thechildren's needs  


              89            598 P.2d 893, 896 n.12 (Alaska 1979).                               

              90            Cf. Houston v. Wolpert, 332 P.3d 1279, 1285-86 (Alaska 2014) (requiring  


such findings with regard to attorney's fees requests pertaining to actions to modify,                                                                              

vacate, or enforce child custody or visitation orders).  


              91            See Berry v. Berry, 978 P.2d 93, 96 (Alaska 1999).  


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were not being met.                                                  We already found that the superior court did not make sufficient                                                                                                                             

findings to justify basing the property division on the needs of the children; because we                                                                                                                                                                                               

are remanding the case for further findings on the matter, we do not address whether the                                                                                                                                                                                                

lack of findings also violated Jerry's due process rights.                                                                                                            

                                             Jerry fails to argue on appeal why his request for attorney's fees should                                                                                                

have   been   granted,   so   the   claim   arguably   is  waived.     However   this   case   must   be  

remanded for further proceedings regarding Sally's pretrial attorney's fees expenditures                                                                                                                                                               

and other aspects of the property division. We therefore also direct the superior court to                                                                                                                                                                                                  

rule on Jerry's request at trial for attorney's fees.                                                                                                               92  

                                             Jerry's claim regarding post-separation expenses is without merit.  Jerry  


used "[t]he unpaid balance on [his] income" - that is, marital funds - to pay off the  


credit card debt Sally incurred in the months after the parties' separation.  The court's  


finding that Sally had not wasted or misused marital assets encompasses these expenses.  


Therefore Jerry's credit card payments fell within the court's Day analysis, rendering  


recapture inappropriate and requiring no further explanation by the court.   And it is  


unclear why Jerry thinks he deserves a mortgage payment credit, since the documents  


he cites show he already was reimbursed for this payment, which means he effectively  


never paid it.  Jerry points to no evidence demonstrating that he made other mortgage  



                       92                    For example in                                    Edelman v. Edelman                                                    , we directed the trial court to consider                                                        

the   issue   of   attorney's   fees   on   remand   even   though   the   appellant   in   the   divorce  

proceeding had "fail[ed] to specify in her briefing both the basis for any award and the                                                                                                                                                                                                

amount she s[ought]," because we already were remanding the case for findings on the                                                                                                                                                                                                    

valuation   and   distribution   of   property  and   because   the   trial   court   "denied   without  

explanation" the appellant's motion for attorney's fees.                                                                                                                                  3 P.3d 348, 359 (Alaska 2000)                                                       

(noting that the lack of specificity in the appellant's briefing would "normally be fatal  


to her argument").  

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                                                                                    For these reasons, Jerry's underlying claim that he suffered a due process                                                                                                                                                                                                                                                                                                                                                   

violation because the court's findings and reasoning were inadequate is without merit.                                                                                                                                                                                                                                                                                                                                                                                                                                   

V.                                        CONCLUSION  

                                                                                    The superior court's decision on the attorney's fees and property division                                                                                                                                                                                                                                                                                                                                               

issues is REMANDED for reconsideration consistent with this decision. The balance of                                                                                                                                                                                                                                                                                                                                                                                                                                                                

the judgment is AFFIRMED.                                                                             

                                                                                                                                                                                                                                                                                          -44-                                                                                                                                                                                                                                  7107

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