Opinion
Supreme Court No. S-10441.
March 9, 2005.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Rene J. Gonzalez, Judge, Superior Court No. 3AN-98-04147 Civil.
Laureen Connelly, pro se, Anchorage, Appellant. Rhonda F. Butterfield, Law Offices of David W. Baranow, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
In this divorce and child custody proceeding, the wife appeals the superior court's orders finding that she is responsible for paying a share of the fees for the guardian ad litem (GAL) and that she is owed no spousal support arrears. We affirm the order regarding GAL fees but reverse the order regarding spousal support arrears and remand to the superior court for a hearing on this issue.
II. FACTS AND PROCEEDINGS
Laureen Connelly and Charles Pidge were married in 1992 and had one daughter. Pidge filed for divorce in February 1998. In April 1998 an administrative child support order was entered requiring Pidge to pay $1,097 per month in child support.
On April 24, 1998, the superior court issued an order appointing Pamela Montgomery as the GAL to represent the parties' daughter. The order further stated:
All of the costs and fees incurred by Ms. Montgomery as the child's Guardian ad Litem shall be paid from the assets of the marital estate. The parties shall make the arrangement for payment of Ms. Montgomery's costs and fees directly with her office.
On March 26, 1999, the superior court entered findings of fact and conclusions of law regarding the division of the marital estate and reorientation alimony. The findings noted that since the separation Pidge had been paying the marital obligations and providing interim spousal support and child support. The findings further stated: "Additionally, Charles has been ordered by the court to be responsible for the costs of the appointed Guardian ad Litem." The superior court ordered Pidge to pay Connelly $1,600 per month in spousal support for a period of twelve months. The superior court stated that the monthly house mortgage payment of $1,321 should be paid out of the $1,600 support award, and gave Pidge the option of paying the mortgage directly and paying Connelly the balance of $278.81 per month.
On September 13, 1999, Connelly submitted a motion for order to show cause why Pidge should not be held in contempt for failing to make the mortgage payments. She alleged that Pidge had failed to make the mortgage payments in June, July, August, and September 1999.
On September 27, 1999, the GAL filed a request for an order requiring payment of the guardian ad litem and visitation supervision fees. She stated that she was owed $6,850.98 for this case, but that both Connelly and Pidge maintained that the other was responsible for the debt. In October 1999 Connelly filed a response. She argued that the superior court had already found that Pidge was fully responsible for the GAL fees, quoting the superior court's statement in its March 1999 findings that Charles has been ordered by the court to pay the GAL fees.
On December 2, 1999, the superior court held a hearing on both the GAL's request relating to her fees and Connelly's motion relating to the mortgage payments. At the hearing, the GAL testified that there was an outstanding balance and that the only payment she had received for work on this case was $3,500 from Pidge.
The December 2 hearing also addressed the dispute over whether Pidge had been complying with the spousal support order. In addition to the $1,097 child support obligation, Pidge was required to pay $1,600 in spousal support: a monthly house mortgage payment of approximately $1,321, and an additional payment of $278.81 per month. Connelly testified that Pidge had paid only $700 of the $1,321 mortgage payment in May and that he did not pay the mortgage in June, July, or August 1999. The superior court admitted into evidence Connelly's cancelled checks showing that she paid GMAC, the mortgage company, $2,564.47 in July, $1,319.99 in August, and $1,331.99 in September. Connelly's attorney argued at the hearing that Pidge owed $5,285 in support arrears.
Pidge testified that the Child Support Enforcement Division (CSED) had mistakenly garnished his wages for the full $1,600 spousal support award, which included the mortgage payment amount. The superior court admitted into evidence several exhibits submitted by Pidge. The exhibits included a notice from CSED in April 1999 indicating that CSED would collect the full $1,600 monthly spousal support award ordered by the superior court on March 26, 1999. On August 5, 1999, CSED issued a notice modifying its order to withhold $1,375.81 per month, the correct amount for child and spousal support assuming that Pidge paid the mortgage directly. The exhibits also included canceled checks from Pidge to GMAC and records of payments made to CSED for child and spousal support. The evidence offered by Pidge at the hearing indicated that at the end of October 1999 he was $1,696.57 behind in his support payments. The superior court did not make a ruling at the hearing but indicated that it would enter orders regarding the GAL fee and spousal arrears issues at a later time.
On January 25, 2000, the parties informed the superior court that they had settled the child custody issues in the case and put the details of the settlement on the record. On January 27, 2000, the superior court issued supplemental findings of fact and conclusions of law approving the custody settlement agreement and finding "[t]hat the parties should share payment equally of the expenses and fees of the Guardian ad Litem."
Pidge's twelve-month spousal support obligation ended at the end of March 2000. On June 8, 2000, Connelly filed a motion for entry of judgment in which she requested that the superior court reduce to judgment all of the spousal arrears owed by Pidge. In the affidavit attached to the motion, Connelly stated that the superior court had never ruled on the issues raised in the December 2, 1999 hearing. She stated that the evidence presented at the December hearing showed that Pidge had missed his spousal support payments in June, July, and August and had only made one-half of his payment in May. She also stated that Pidge made his payments from September 1999 through February 2000, but did not make his final payment in March 2000. She concluded that Pidge owed $5,946.71 in spousal support, not including interest.
Also on June 8, 2000, Connelly filed a motion to correct clerical errors in judgment under Alaska Civil Rule 60(a) requesting that the superior court delete the portion of the January 27, 2000 supplemental decree and supplemental findings of fact and conclusions of law providing that she pay half of the GAL fees. In the accompanying memorandum, she cited the March 1999 property settlement order stating that Pidge had been ordered to pay the GAL fees and argued that the decree requiring her to contribute to the fees was a clerical error.
On June 23, 2000, Pidge filed a combined opposition regarding post-decree motions opposing Connelly's motion for entry of judgment and her motion to correct clerical errors in judgment. In his accompanying affidavit, Pidge stated that he paid the spousal support obligation in full. On June 30, 2000, the superior court entered an order denying Connelly's motion for entry of judgment, noting that the property issues had been presented at trial on March 15,1999, and the superior court had "entered a [j]udgment resolving all property issues between the parties on March 26, 1999."
Also on June 30, 2000, the superior court entered an order regarding payment of the GAL fees. The superior court noted that when the GAL was initially appointed in 1998, the court ordered that the fees be paid from the marital estate. The court then stated that the marital estate ceased to exist when the divorce decree was entered on March 26, 1999, and ordered that "both parties be equally responsible for all remaining balances owed to the GAL. Each party shall make arrangements with Ms. Montgomery's office to pay for one half of the costs and fees owed to her office." Connelly did not appeal this order.
On July 7, 2000, the superior court found that Connelly was entitled to reasonable attorney's fees for the divorce litigation due to Pidge's superior economic situation and awarded Connelly $15,000 in attorney's fees. On September 14, 2001, the GAL filed a motion for judgment against Connelly for unpaid fees. On September 19, 2001, Pidge filed a motion for leave to deposit net award proceeds in the court registry. In this motion, Pidge requested permission to deposit $9,753.22 into the court registry as full satisfaction of the $15,000 attorney's fees award of July 7, 2000. He arrived at that amount by subtracting two attorney's fees judgments, including interest, that he had been awarded in the case but that Connelly had never paid. Pidge requested permission to submit the funds in the court registry because there were competing claims on the money from two of Connelly's former attorneys as well as from the GAL. On September 27, 2001, the superior court granted Pidge's motion to allow him to deposit $9,753.22 into the court registry in satisfaction of the attorney's fees award, and directed all claimants to the funds to submit their claims to the court.
On September 25, 2001, CSED filed a motion to reconcile spousal support charges. In its supporting memorandum, CSED stated that it could not determine whether spousal support arrears were owed in this case. Connelly had presented CSED with evidence that she had made mortgage payments to GMAC during the spousal support period when Pidge was responsible for those payments. Pidge did not present any proof to CSED that he had made the mortgage payments but contended that the superior court had already ruled that he owed no more spousal support. CSED asked the court to confirm whether Connelly was owed spousal support arrears. On October 19, 2001, Pidge filed a partial opposition and request for limited hearing regarding CSED's motion. Pidge argued that the issue of spousal support for the period between April and November 1999 had already been resolved by the court, and requested a limited hearing where he would present proof of his mortgage payments for the remaining period from December 1999 through March 2000. CSED did not oppose Pidge's request for a hearing and filed a reply stating that "a hearing may be helpful in this matter."
On November 5, 2001, the superior court issued an order finding that no spousal support arrears were owed. Also on November 5, 2001, the superior court issued an order regarding the release of money in the court registry. The court found that among the three claimants to the funds — the GAL and two of Connelly's former attorneys — the GAL had priority. The court ordered the clerk to pay the GAL her outstanding fees from the registry and to use the remainder to pay one of the attorneys.
Connelly appeals the superior court's order of November 5, 2001 finding that Pidge did not owe spousal support arrears, and the November 5, 2001 order directing the clerk to pay the GAL from the court registry.
III. DISCUSSION
A. Standard of Review
The trial court's findings of fact are reviewed for clear error. Legal issues are subject to de novo review. B. The Guardian ad Litem Fees
Glover v. Glover, 92 P.3d 387, 391 (Alaska 2004).
Turner v. Alaska Communications Sys. Long Distance, Inc., 78 P.3d 264, 266 (Alaska 2003).
Connelly argues that the superior court's order that the GAL be paid from the court registry, which held the funds collected in satisfaction of Connelly's attorney's fees award, should be reversed. She contends that Pidge is solely responsible for the GAL fees, citing the superior court's statements in the findings of fact section of the March 1999 property settlement order that Pidge had previously been ordered to pay the GAL fees. Pidge argues that (1) Connelly is barred from arguing that she is not responsible for the GAL fees because she failed to appeal the June 2000 order in which the superior court ordered that both parties be equally responsible for those fees; and (2) the superior court acted within its discretion in ordering Connelly to pay a share of the GAL fees.
We conclude that Connelly is barred from challenging the superior court's November 2001 order that the GAL be paid from the court registry. In June 2000 Connelly filed an Alaska Civil Rule 60(a) motion to correct clerical errors in judgment, arguing that the court incorrectly ordered both parties to pay a share of the GAL fees in the supplemental decree and supplemental findings of fact and conclusions of law. On June 30, 2000, the superior court issued an order denying that motion. Connelly did not timely appeal the June 2000 order. We have held that a party's failure to appeal an issue decided against the party in a prior post-judgment motion bars subsequent consideration of the issue decided. Connelly raises the same objections to having to pay part of the GAL fees in the current appeal as she did in the Rule 60(a) motion. She is therefore barred from challenging the superior court's decision ordering that the GAL be paid from the court registry. C. Spousal Support Arrears
See Jensen v. Froissart, 982 P.2d 263, 267 (Alaska 1999) (where superior court rejected husband's argument that divorce decree obligations had been discharged by husband's subsequent bankruptcy and husband failed to appeal, husband was barred from relitigating issue); L.H. v. Y.M., 961 P.2d 414, 417 (Alaska 1998) (husband's failure to appeal post-divorce order terminating husband's unsupervised visitation barred him from relitigating entitlement to visitation through subsequent motion in same case); Calhoun v. Greening, 636 P.2d 69, 71-72 (Alaska 1981) (failure to appeal a denial of a motion to set aside a judgment bars successive motion to set aside the judgment).
We note that Connelly's substantive arguments regarding the GAL fees appear to have no merit. The superior court's March 26,1999 findings regarding the property division simply describe how Pidge had been paying the "marital obligations" during the separation, including the payment of the GAL fees that the superior court had previously ordered to be paid "from the assets of the marital estate"; this statement in the findings does not constitute a ruling ordering Pidge to be solely responsible for payment of the GAL fees.
Connelly also challenges the superior court's November 5, 2001 order finding that no spousal support arrears are owed. She argues that the facts in the record were insufficient to support the superior court's finding. We agree.
It is unclear whether the superior court's June 30, 2000 order denying Connelly's motion for entry of judgment constitutes a finding on the question of spousal support arrears; the order does not address the allegations that Pidge failed to make support payments and simply states that the March 1999 judgment setting forth the property division and spousal support obligations "resolv[ed] all property issues between the parties." In any event, we note that Pidge does not argue that Connelly's appeal from the November 2001 spousal support order is barred by the superior court's June 2000 order.
Connelly also argues that the superior court's findings were inadequate under Alaska Civil Rule 52(a). But this rule does not apply to a decision on a motion to reconcile spousal support; Rule 52(a) provides that "[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b)."
As Pidge acknowledges in his brief, the evidence he presented at the December 1999 hearing indicated that he owed $1,696.57 in spousal support for the period from April through October 1999. As Pidge notes, CSED began withholding the proper amount from his paychecks by October 1999; the amount owed through the end of October therefore was not reduced through overpayment to CSED during the remainder of the support period. Pidge argues that his opposition to CSED's motion below showed that he made a payment on October 3, 2001 to CSED which would cover any arrears in the spousal support due. But in his opposition papers below he refers to the October 3, 2001 payment as payment for a child support arrearage unrelated to Connelly's spousal support claims. It therefore appears that based on the undisputed evidence in the record Pidge owes at least $1,696.57 for the period from April through October 1999.
The parties dispute whether Pidge made the March 2000 mortgage payment. Pidge's request for a hearing at which he would present documentary evidence of his mortgage payments was unopposed. We find that it was error not to hold an evidentiary hearing before ruling on this factual dispute. We therefore reverse the order finding that no spousal support arrears are owed. On remand, the superior court shall hold an evidentiary hearing to determine if Pidge owes Connelly spousal support arrears for the period from April 1999 through March 2000.
IV. CONCLUSION
We AFFIRM the superior court's decision ordering that the GAL be paid from the court registry. We REVERSE the order finding that no spousal support arrears are owed and REMAND the case to the superior court to hold an evidentiary hearing to determine if arrears are owed.