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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
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
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. )
)
A
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.
I. INTRODUCTION
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
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the wife had not wasted or otherwise misused marital funds she had withdrawn between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
division.
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
1
We use pseudonyms throughout this opinion to protect the privacy of
family members.
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2
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
3
abuse.
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).
3
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).
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reasonable withdrawals [from marital accounts] for attorney's fees and for living
expenses."
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.
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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.
6
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).
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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
7
The superior court concluded that Sally met the definition of "victim" in
AS 12.55.185(19).
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prohibiting him from deposing her in person or by video. The superior court denied
8
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.
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10
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).
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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).
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"ordering an unrepresented party to pay the other party for their lawyer would seem to
13
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
motion.
Jerry appeals.
III. STANDARD OF REVIEW
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)).
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16
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
discretion,
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.
2012)).
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)).
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IV. DISCUSSION
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
dispute.
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)).
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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
24
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 . . .
(continued...)
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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.").
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First, Jerry argues that collateral estoppel cannot be applied if there are
30
"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
31
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
added)).
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
(continued...)
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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
38
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
38
As discussed below, the court merely quoted Sally's claim that Jerry
sexually abused Lara in her bedroom.
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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'
child."
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
39
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-----------------------
40
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.
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----------------------- 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
43
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).
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----------------------- Page 21-----------------------
44
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
1979)).
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.
J
2007)).
47 Id . at 470 (alterations in original) (quoting FLAMM, supra note 46, at 206).
48 Id .
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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."
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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.
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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
53
feed. Without knowing what testimony Sally would have given, it is impossible for us
54
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.
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----------------------- 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
estate."57
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.
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----------------------- 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
trial.
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.
59
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
60
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.
61
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.
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----------------------- 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
63
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-----------------------
66
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
67
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-----------------------
69
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.
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(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
children;
(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
71
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
71
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-Ã -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'
property.
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
74
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.").
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75
unemployment" in the child support context. Bendixen 's holding does not
76
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).
76
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
(continued...)
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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
79
"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
80
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
81
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
(continued...)
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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.").
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----------------------- 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
82
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
2010))).
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----------------------- Page 40-----------------------
b. Property division
Similarly, Jerryarguesthathedid not haveadequate"noticethat moral fault
85
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
decision.
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
division.
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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----------------------- Page 41-----------------------
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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----------------------- Page 42-----------------------
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
appropriate."
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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----------------------- Page 43-----------------------
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
payments.
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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----------------------- Page 44-----------------------
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.
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