Opinion
Supreme Court No. S-12143.
June 13, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Homer, Superior Court No. 3HO-03-00165 CI, Harold M. Brown, Judge.
Walter J. Kurka, pro se, Homer. Amy Kurka, pro se, Palmer.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
1. Introduction
Walter and Amy Kurka married in 1987 and had two children during the marriage, Andrew, born in 1992, and Christian, born in 1999. Walter and Amy separated in 2003, and Walter filed for divorce. During the marriage, the Kurkas lived near Homer; they performed contracting work and acquired many items of heavy equipment. After they separated, the superior court awarded interim custody of Andrew and Christian to Amy, who moved to the Matanuska-Susitna Valley. The court also gave Amy interim possession of various items of heavy equipment so that she could continue to perform contracting work. Superior Court Judge Harold Brown held a trial on disputed issues of custody and property division over the course of two days in January and April 2005. At the end of the trial Judge Brown directed Walter's attorney to submit proposed findings of fact and conclusions of law and stated that Amy would then be allowed to respond or object to Walter's proposals. Judge Brown then entered findings of fact and conclusions of law and issued a final divorce decree on October 14, 2005. The court awarded legal and physical custody of the children to Amy and allowed Walter to have visitation; it also divided the parties' marital property, for the most part preserving the property distribution established by the court's interim property orders. Walter appeals, challenging the property division, the custody award, and several post-trial orders relating to enforcement of the judgment.
2. Alleged Procedural Errors
Walter alleges that the superior court deprived him of various constitutionally guaranteed procedural protections. Noting that it took more than two years from the time he filed his complaint for the court to issue its final decision, Walter complains that the court denied him the right to a speedy trial. But the record reveals that much of the delay in this case resulted from various extensions of time requested by Walter's own counsel. The record thus fails to support Walter's claim.
Walter also suggests that the trial court denied him the right to call witnesses and present evidence on his own behalf. But Walter appears to base this claim on a single incident that occurred during an interim custody hearing in 2003. On that occasion, the court limited the testimony of Rose Beck, a therapist who had provided treatment for both Amy and Walter, in order to avoid hearsay and disclosure of privileged communications. The court expressly offered Walter a continuance so that he could produce additional evidence on the issue; Walter responded that this would be acceptable but did not follow up on the offer. We find no error.
In summary, we find no merit in Walter's claims of procedural error.
3. Property Division
In its findings of fact and conclusions of law, the superior court ordered that each party would be "entitled to the personal property including construction equipment currently in their possession." The court also provided for the division of a number of other marital assets and debts. Walter challenges the court's property division order, arguing that the court failed to make proper findings addressing the Merrill factors. Walter further contends that the property award was inequitable and that the court should have awarded him various specific assets.
See Merrill v. Merrill, 368 P.2d 546, 547-48 n. 4 (Alaska 1962); see also AS 25.24.160(a)(4) (listing Merrill factors and specifying that "the division of property must fairly allocate the economic effect of divorce by being based on consideration of" these factors).
a. Lack of findings
The proper method for dividing marital property in a divorce proceeding is well settled under Alaska law:
The division of property in a divorce action involves a three-step process — the trial court must (1) determine what property is available for distribution, (2) value the property, and (3) determine the most equitable allocation. The identification of the property available for distribution is reviewed under the "abuse of discretion standard, although it may involve legal determinations to which this court applies its independent judgment." The valuation of the marital property is a factual determination, and will be reversed only if clearly erroneous. We will reverse an allocation decision only for abuse of discretion and only if the allocation is clearly unjust.
Root v. Root, 851 P.2d 67, 68 (Alaska 1993) (citations omitted).
Our law further requires that, in dividing marital property under the third step of this approach, the court must base its allocation on a consideration of the Merrill factors.
Merrill, 368 P.2d at 547-48 n. 4; see also AS 25.24.160(a)(4).
The superior court did not follow this approach here. Instead, the court explained that Walter had prevented it from applying the conventional approach by consistently concealing and misrepresenting the marital estate's assets:
The parties were married in 1987 and separated approximately mid-2003. They owned a variety of personal and real property during the marriage, including a couple of business entities called Engulf DeVour Company and Brookwood Inc. The shares of the corporate entities were issued in the name of Defendant so as to shield Plaintiff from claims of creditors including child support claims from his prior marriage and because of his otherwise bad credit record. Plaintiff has filed for bankruptcy three or four times in the past.
The parties primarily lived a subsistence lifestyle outside of Homer, Alaska. They possessed many pieces of old, well-used construction and logging equipment and paraphernalia. They lived in a house that was described as being perpetually under construction. They owned horses and saddles and other equipment associated with raising and training horses. Both parties largely dispute the existence, physical condition or value of each and every item of personal property in the marital estate. Both parties accuse the other of concealing, selling or impairing the legal title to marital assets or otherwise doing everything within their power to frustrate the orders of the Court.
A review of the pleadings and testimony of the parties, leaves this Court with the enduring picture of a Plaintiff who has, in fact, ignored for the most part and tried to frustrate the enforcement of any order of this Court which deals with money and property. Plaintiff lacks credibility and is engaged in ta[c]tics and schemes to conceal marital assets from both his wife and lawful creditors. Defendant is much more credible and works hard to act in the best interest of the parties['] two children. She is unrepresented.
It is difficult, if not impossible, because of Plaintiff's obfuscation for this Court to establish the value of, or trace the ownership of marital assets or establish with any kind of precision the identity or extent of marital debts. The other part of the enduring picture is that the Defendant who is unskilled, although enthusiastic, and who has borne and will bear the major responsibility for caring for the children in the future should not be burdened with the responsibility for any of the debts incurred in the past or in the future on behalf of the marital unit and certainly by Plaintiff since their separation. Plaintiff, although morally obligated and required to do so under the law is unlikely to pay any child support if past history is a reliable indicator of what will take place in the future. Defendant should be responsible for her own debts incurred since separation[.] [T]he Plaintiff is ORDERED to hold Defendant harmless and indemnify her from any third party claims, including those related to Engulf and DeVour Company and Brookwood, Inc.
Each party is entitled to the personal property including construction equipment currently in their possession. They are responsible for any debts attributable to each such item of personal property except that Plaintiff shall be responsible for the debts to Cash Alaska. The easement purchased from CIRI shall be awarded to Plaintiff. The Defendant is entitled to her premarital tools and materials and personal property that she lists on paragraph B of her proposed Findings of Fact and Conclusions of Law filed with the Court on May 25, 2005.
In challenging the superior court's failure to address the Merrill factors, Walter advances conclusory assertions disputing the trial court's characterization of his conduct, but points to nothing in the record suggesting that the court's view of the case was unsupported by the evidence. Our own review of the record convinces us that the court had ample grounds to conclude that Walter had engaged in a deliberate course of obfuscation.
At various times throughout the course of the trial court proceedings, the superior court had issued orders seeking to establish and enforce a workable interim distribution of the parties' assets, almost all of which had been left in Walter's possession after separation. The court's interim orders seeking to transfer property to Amy and Amy's efforts to locate and take possession of the property described in the superior court's orders were frustrated by Walter's attempts to conceal marital assets from Amy and lawful creditors. Meanwhile the court's interim orders had established a seemingly viable status quo; and the record before the court promised little realistic hope of improving the situation.
In Root v. Root, we recognized that when faced with uncertainty as to the value of marital assets in a divorce dispute, "the best practice is for the trial court to direct the parties, or the delinquent party, or the party having the best access to the proof, to fill the evidentiary void." In the present case, Walter unquestionably was "the party having the best access to the proof." Yet the information he provided had consistently proven to be inaccurate. Even though evidence in the record suggests that Amy ultimately may have been left with property having less than fifty percent of the value of all of the marital property, Amy has not disputed the property division order. On this record, we are unable to conclude that "the allocation is clearly unjust" as to Walter. b. Specific items challenged by Walter
Root v. Root, 851 P.2d 67, 69 (Alaska 1993).
Id. at 68.
Walter separately complains that the property division order failed to give him various items of personal property. Walter suggests that the superior court improperly awarded these assets to Amy on the assumption that he would not pay future child support. He further asserts that the court ignored his failing health and mistakenly characterized Amy as "unskilled." Walter's arguments on this point are cursory and fail to explain why the additional award he seeks is necessary to ensure an equitable division of the marital property. In our view, Walter has failed to establish that the superior court abused its discretion in not awarding these items to him. 4. Paternity
Walter specifically seeks the following items: (1) Drott 50; (2) 36-inch log grapple; (3) log delimber; (4) hyster lowboy trailer; (5) sawmill; (6) cant hooks; (7) banding machine and tools; (8) sharpener; (9) tooth setter; (10) blades; (11) small tools of trade; (12) pressure washer; (13) 225 welder and leads; (14) 1,000 gal. fuel tank; (15) torches and gauges; (16) .41 caliber pistol; (17) Placerfield stallion. In addition to seeking these items, Walter questions the superior court's treatment of Amy's sale of a 1997 Ford pickup truck.
Cf. A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (rejecting arguments presented in a cursory manner without citation to pertinent legal authority).
In the interim between the completion of trial and issuance of the superior court's findings of fact and conclusions of law, Walter filed a motion to disestablish paternity as to Andrew and asked the superior court to order genetic testing for purposes of confirming that he was not Andrew's biological father. On appeal, Walter argues that the superior court improperly delayed resolution of his motion, suggesting that his paternity of Andrew should have been decided before the court issued its findings and conclusions requiring him to pay child support for Andrew. The record fails to support Walter's contention.
Although Walter moved to disestablish paternity before the superior court entered its findings of fact and conclusions of law, he did not withdraw or seek to amend the proposed findings and conclusions that he had submitted. While the proposed findings and conclusions noted that "DNA testing will be ordered" as to Andrew's paternity, they called for Walter to pay support for both children. The superior court's findings and conclusions did not mention Walter's paternity motion; instead, the court issued a separate order granting Walter's request for genetic testing, directing Alaska's Child Support Services Division to conduct the test, and requiring the division to file a sealed copy of the test results with the court after the test was completed. Walter includes an otherwise unexplained document in his excerpt that appears to be a DNA test result dated December 30, 2005 — a month after Walter filed his notice of appeal in this case. Although the copy in Walter's excerpt does not indicate whether the report was filed with the court, it seems reasonable to infer that filing has now occurred, as directed by the superior court's order. Because the issue of paternity was still open and separately pending before the superior court when Walter filed his appeal, it would be premature to consider the issue here. Nothing in the record suggests that Walter will be unable to pursue the issue to completion in the superior court.
5. Custody
At trial, a court-appointed custody investigator recommended that Amy be awarded physical and legal custody of Andrew and Christian. After trial, Walter's proposed findings of fact and conclusions of law adopted the findings of the child custody report. Soon after, however, Walter's attorney moved to withdraw from the case. About a week later, Walter filed a motion for change of custody, seeking to have the court award physical and legal custody of Christian to him. Walter's motion accused Amy of neglecting the children and claimed that Christian had been molested by Amy's boyfriend. Walter argues on appeal that the superior court erred in denying his motion and in awarding custody of Christian to Amy instead.
Amy categorically denies Walter's allegations of abuse and neglect. Her denial comports with the custody investigator's report, which found no credible evidence of abuse during the marriage. Our review of the record convinces us that the superior court was not clearly erroneous in rejecting Walter's claims of abuse and neglect.
6. Visitation
In the two months following the superior court's final decision awarding custody of both children to Amy, Walter filed three separate motions asking the court to hold Amy in contempt for interfering with his right to visitation. The main dispute revolved around Walter's insistence that he wanted to visit only with Christian and did not want to visit with Andrew. Amy, for her part, interpreted the custody order as precluding Walter from ignoring Andrew and visiting only with Christian; she thus consistently rebuffed Walter's efforts to visit with Christian and leave Andrew with her. In response to Walter's motions, then, Amy requested a hearing to clarify what the visitation order meant.
Given these circumstances, the superior court summarily denied Walter's first two motions to hold Amy in contempt and evidently planned to schedule a hearing on Amy's motion to clarify the terms of the visitation order. But after Walter learned that the court had denied his first two contempt motions, he filed a "Notice to This Court" declaring that, "[s]ince this court has no honor, and will not uphold the law," he would "no longer attempt any visitation that he was given under the divorce decree." In light of Walter's notice, the superior court then issued an order stating that the motion to hold "a hearing on visitation is hereby moot."
Walter now claims that the superior court erred in summarily denying his motions to hold Amy in contempt for interfering with his visitation. In response, Amy insists that she acted in good faith based on her understanding of the court's visitation order and her counselor's recommendations that the children should stay together during visitations.
In our view, the superior court did not err in summarily declining to hold Amy in contempt for failing to allow Walter to have visitation solely with Christian. The superior court's visitation order set out a detailed schedule that, on its face, appeared to contemplate simultaneous visitation with both children. The order made no provision for the possibility that Walter might refuse to accept visitation with Andrew. Under these circumstances, Amy's refusal to allow Walter to visit only with Christian would not support the imposition of punitive sanctions. Although the situation certainly would have warranted a hearing in order to clarify the terms of the visitation order, Walter's abrupt "notice" of his intent to abandon all further visitation bars him from claiming that the superior court erred in failing to clarify the meaning of its order.
Walter relies heavily on AS 25.20.140, which authorizes courts to award damages when a parent "wilfully and without just excuse" fails to permit visitation "in substantial conformance with" a visitation order that is specific as to when a custodian of a minor child must permit another person to have visitation. AS 25.20.140(a). Here, the visitation order's lack of specificity as to whether it will allow visitation with only one of the two children precludes the order from being construed as meeting section .140's requirement that the order allegedly violated be specific; this lack of specificity, in turn, precludes a finding that Amy acted "wilfully and without just excuse."
7. Bias
In November 2005 Walter filed a "Motion to Appoint New Judge," asking Judge Brown to recuse himself from the case on the ground of bias. Judge Brown denied Walter's motion. Walter claims that Judge Brown erred in failing to step down, claiming that the judge has demonstrated that he is biased because he has "virtually denied every motion that [Walter] has filed."
Alaska Statute 22.20.020(c) requires judges to disqualify themselves if they "feel that, for any reason, a fair and impartial decision cannot be given." Subsection .020(c) goes on to say that if the judge denies a request to withdraw from the case, the matter "shall be heard and determined by another judge assigned for the purpose by the presiding judge of the next higher level of courts." In Coffey v. State, we held that, to preserve the issue for appeal, a litigant who unsuccessfully requests a judicial officer's voluntary disqualification bears the burden of requesting review by another judge, as provided for under subsection .020(c). Here, Walter failed to seek appointment of another judge to review Judge Brown's refusal to withdraw from the case. Accordingly, the issue is not properly preserved in this appeal.
AS 22.20.020(a)(9).
AS 22.20.020(c).
Coffey v. State, 585 P.2d 514, 525 (Alaska 1978) (modified on other grounds, State v. Glass, 596 P.2d 10 (Alaska 1979)).
As a pro se litigant, Walter arguably should have been informed that he needed to request review by another judge in order to preserve the issue. The record does not disclose whether Judge Brown gave Walter this information. But the issue now appears to be moot. It appears that after Walter had already commenced this appeal, he filed another motion requesting Judge Brown to remove himself from the case. After Judge Brown denied Walter's second motion, the judge requested appointment of another judge to review the issue. The request was granted, and upon independently reviewing the issue, the judge affirmed Judge Brown's refusal to withdraw from the case. Walter petitioned this court for review of that decision; after considering Walter's petition, we denied review.
Because the issue was not properly preserved here and Walter has had the opportunity to raise it in a later petition, we decline to consider this point of error.
8. Conclusion
For these reasons, we AFFIRM the superior court's judgment.